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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.

Can you be subpoenaed and forced to testify against yourself if you’re being investigated?

Can a person who has been arrested and booked by the police for a possible criminal act be subpoenaed by a grand jury, and thus be forced to give evidence and testimony against himself to the grand jury"? In essence can a grand jury subpoena a suspect in a crime who is held in police custody or who has been released either on their own recognizance or on bail at the time of the grand jury hearing and compel testimony under a threat of contempt?"
 

Response: I do not give legal advice, so do not construe this as advice governing any particular situation . . . especially since I do not know the details of whatever case you are asking about.

However, the Fifth Amendment privilege against self-incrimination, which protects anyone from being compelled to give testimony that incriminates them, does apply to grand jury proceedings. The subpoena and the threat of criminal contempt establish compulsion for the purposes of invoking the privilege, so the witness can invoke the privilege and refuse to answer questions posed by the grand jury and/or the prosecutor working with the grand jury IF the answers to those questions would be incriminating. (The Fifth Amendment does not create a right to remain silent, e.g., a right to refuse to answer any questions; it only protects someone from having to answer incriminating questions.) To be incriminating, the questions must require the person to give answers which provide evidence that could be used to convict the witness of a crime. Answers can do this either by providing direct evidence of a crime (e.g., "I killed John Doe") or by providing information that becomes a link in the chain of evidence that can be used to convict someone (e.g., the witness mentions the name of someone and they are later used to testify against the witness in a criminal proceeding).

But, even if someone can invoke their Fifth Amendment privilege and refuse to answer questions that might incriminate them, the prosecutor can override the privilege by giving the witness immunity. An immunized witness cannot claim the privilege as to any questions that fall under the scope of the immunity.

Hope this helps.

SWB

2002

  

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