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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.

When can you refuse to answer?

What are valid reasons for refusing to answer questions put forth by a grand jury? I was under the impression that a person could not "take the fifth".

Response: One can refuse to answer questions posed by a grand jury only if the witness can claim a valid privilege as the basis for doing so. The Fifth Amendment privilege against self-incrimination is a constitutional privilege and, as such, can be invoked by a grand jury witness, as long as the requirements for invoking it (i.e., that answering the question would "incriminate" the person, in that the answer would provide the government with evidence it can use to prosecute that person for crimes). The government can deprive someone of their ability to take the 5th if the government gives the person immunity. The premise is that the 5th amendment privilege protects you from having to say things that can be used to convict you of a crime; if the government promises not to use what you say or anything derived from what you say against you (e.g., gives you immunity), then you can be forced to answer because forcing you to do so does not violate what the 5th amendment was intended to protect you from.

Outside the 5th amendment privilege, witnesses can invoke evidentiary privileges (attorney-client privilege, marital privilege, doctor-patient privilege, priest-penitent privilege, etc.) that are recognized in the jurisdiction where the grand jury sits.

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