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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The federal grand jury

Most people have a general familiarity with the function of federal grand juries, but how exactly do they work?  If you or someone you know is involved in a federal criminal investigation, the details of grand juries can be very important.

The basic function of the federal grand jury is to bring federal criminal charges.  The grand jury consists of at least 16 people to examine evidence in support of a potential charge.  To return an indictment, at least 12 of the jurors must vote in favor.

In order to obtain the evidence it needs, the grand jury has the power to subpoena evidence and compel testimony from witnesses.  This is why the term “grand jury investigation” is often used to refer to the work that grand juries do.

An important fact about grand juries is that the defendant, or the defendant’s attorney, is not allowed to present evidence or argument to the jurors.  The entire process is controlled by the United States Attorney (i.e. federal prosecutor) who is in charge of the investigation.  What is the result of this imbalance?  Unsurprisingly, federal grand juries almost always return indictments (i.e. federal criminal charges) when requested to do so by the prosecutor in charge.

The foregoing is only the briefest of overviews of federal grand jury investigations.  If you have other questions on this topic, please contact us.