The Federal Criminal Lawyers of Norman Spencer Law Group defend clients in all federal criminal cases nationwide. If you are summoned to testify as a Grand Jury witness, call us first to make sure your Fifth Amendment rights are protected.
What Exactly Does the Fifth Amendment Mean?
The Fifth Amendment everyone heard of actually protects against self-incrimination. It states that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause applies to all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states.
Grand Jury Witness and Self-Incrimination
Since the Clause mentions “witness against himself,” the question is what constitutes self-incrimination. Also, because the Clause mentions being “compelled,” another question is what constitutes compulsion. Finally, since the text refers to a “judicial case,” the question is what proceedings count for purposes of invoking the Fifth Amendment protection arises.
In short, the witness’ testimony is incriminating if it provides information needed to prosecute the witness for a crime. The witness’ testimony is compelled if the witness is forced to testify (as if pursuant to a subpoena). For the purposes of the 5th Amendment, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.
What Constitutes Incriminating Evidence?
Testimony is incriminating if it provides a link in the chain of evidence used to convict the witness for a crime or to increase the severity of criminal punishment. The connection must be to a criminal penalty; penalties at work, as well as civil penalties such as deportation, do not count.
The 5th Amendment only applies to domestic prosecutions but not to foreign prosecution. So, a witness can not claim the Fifth Amendment right against self-incrimination if he suspects that the evidence will be used against him in a potential criminal prosecution by a foreign government, even if the witness will be deported and prosecuted in another country.
What is Grand Jury Witness Testimony Compulsion?
Grand jury testimony is considered coerced if the witness is served with a subpoena, or if the witness is threatened with the loss of anything so valuable that the threat is considered coercion. Being threatened with termination of employment, loss of a professional license, ineligibility to obtain government contracts, and loss of the right to engage in political associations and hold public office are all considered compulsion by the United States Supreme Court.
When Can a Grand Jury Witness Invoke Privilege?
The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” This includes not only existing and pending cases, but also potential criminal cases. So, a witness can invoke the privilege not only in a current criminal case against him but also in any proceeding in which the answers may incriminate him in a future criminal case.
The grand jury, as well as non-criminal proceedings such as civil forfeiture and deportation, and informal proceedings such as an interview with a probation officer, are examples of where a witness can invoke the privilege. However, the witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.
The way the Fifth Amendment operates in the case of witnesses testifying in a Grand Jury is a little different. We suggest that you speak with a federal criminal attorney before appearing to testify. You will not be able to refuse to testify if you are subpoenaed. As a witness, you will have no choice but to take the stand. You will have to listen to every question the prosecutor asks and then decide when to plead the Fifth. Of course, you can only refuse to answer the questions that could open you to criminal exposure.
Federal prosecutors may sometimes offer a witness immunity in exchange for the testimony. The scope of that immunity is limited to what they testify to at the hearing. Alternatively, they can offer them general immunity from the crimes they are accused to have committed.
It is important to note that the government may also negotiate a plea bargain with a witness if the witness agrees to testify in another case. In that deal is reached, the government could agree to seek leniency for the witness at sentencing.
Convicted Witness’s Privilege Statement
The Fifth Amendment can also be used by a convicted witness. If the testimony would lead to additional criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.
What if a witness has been convicted but has not yet been sentenced (or if his appeal is still pending)? Can such a witness claim the Fifth Amendment right if he is called to testify before a grand jury investigating the conviction? When a witness appears and is interrogated, he has the right to claim the privilege in response to specific questions.
In the case of the convicted witness, the right to ask about the evidence that led to the conviction depends on the status of the conviction or the likelihood of future punishment based on those facts. A witness can legitimately invoke the Fifth Amendment right in response to questions about a crime for which he has been convicted, as long as the conviction is not final.
Federal Criminal Lawyers with Norman Spencer will talk to you about your criminal matter or investigations at any time – no matter where you are. Call us today for a consultation.
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