Taking the Fifth Amendment as a Witness Before a Federal Grand Jury

If you are subpoenaed to testify before a federal grand jury, one important question is whether you can or should invoke your fifth amendment right against self incrimination.

The Fifth Amendment is one of the most famous provisions of the constitution.  It protects people from being forced to give testimony that could later be used to prosecute them.  But how does invoking the Fifth Amendment before a federal grand jury work?

To begin with, it’s important to remember that even if you are innocent of any wrongdoing, you may still have reason to invoke the fifth amendment.  If your testimony could be conceivably used to prosecute you, even if such prosecution would not be meritorious, you can invoke the fifth.

How do you know if your testimony is potentially incriminating?  The only way to figure this out is to discuss your potential testimony with a federal criminal defense attorney.  Your attorney can tell you whether all or part of your testimony might be incriminating.

Let’s say you decide to claim the fifth, what happens then?  In most cases, you will still have to offer at least some testimony to the grand jury, because the privilege will exist with respect to some areas of questioning but not others.

When you do testify, your attorney will not be present in the grand jury room.  Defense lawyers are not allowed, and the prosecutor will be running the show.  You should prepare with your attorney ahead of time to recognize the potentially incriminating questions when the prosecutor asks them.  If you are in doubt about whether to answer a question, ask to leave the jury room to consult with your attorney.

If have been subpoenaed to testify before a federal criminal grand jury, and would like to discuss these issues with an attorney, please contact us anytime.

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