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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

I just got a subpoena (#1): Do I have to testify?

If a person is served with a subpoena which has a box checked off requesting documents or objects to be provided to a special federal grand jury but the box compelling the person to appear as a witness has not been checked off does that mean the person is not required to appear before the special grand jury? If so, then can the person appear anyway? If not, how can they provide testimony if they desire to do so?

Thanks,

P.S. Time is of the essence. Person involved must comply properly in less than a week. Thanks again.

Response: (1) First of all, you should get a lawyer to advise you about all this. I can give you some general information, but I do not know everything that is involved here, and so cannot act as your legal adviser.

(2) Generally, if the box for testifying is not marked, it usually means they only want the documents to be produced now. That does not mean you cannot be re-subpoenaed to testify at a later date. However, rather than simply operating on that assumption, you should get a lawyer and the lawyer should call the prosecutor to find out exactly what the grand jury wants from you. It’s much better to do this than to have a misunderstanding with the grand jury.

(3) As to testifying, your lawyer can speak to the prosecutor and inquire as to whether or not you or someone else who has not been subpoenaed can testify. If the prosecutor declines to let you testify, there is nothing that requires the prosecutor to let you do so, so you can't go into court to enforce your right to appear. You can ask to be allowed to appear; discuss this with your lawyer. In many districts, your lawyer can contact the court that supervises the grand jury and rely your request to appear through the court. Do not contact the grand jury directly; a federal statute makes it a crime to communicate with a grand jury (in writing) with the intent to influence their activities. Prosecutions under the statute are rare, but not unheard of.

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