We have received a number of questions from people who have been “subpoenaed” to either testify before a Grand Jury or produce records to the Grand Jury as a Grand Jury witness. The Grand Jury investigations are conducted by the District Attorneys in each of the counties, the Attorney General’s Office , or United States Attorney’s Office and can involve a number of serious and complex crimes. The individual grand juries have the authority to subpoena witnesses to give testimony and also produce documents and records. The grand jurors are citizens selected from the community to sit and hear evidence about a wide variety of cases over a long period of time.
Do I have to Testify?
We are often asked by people receiving a Grand Jury subpoena – “do I have to testify?” While every person has a duty to respond to a Grand Jury subpoena and to answer all questions relevant to the investigation of a crime, witnesses can refuse to testify before a Grand Jury if they can invoke a valid constitutional, statutory, or common law privilege.
Rights Are Limited
Grand Jury proceedings are secret and non-adversarial, so they are not a “critical stage” of the criminal process. Therefore, if you are a suspect being investigated by a Grand Jury you have no constitutional right to counsel, to call witnesses, to confront witnesses or, to be present.
Also, while Grand Jury witnesses have no constitutional right to counsel, they do have a statutory right to counsel. Grand Jury witnesses have the right to consult with counsel and to have counsel present during questioning before the Grand Jury. The law explicitly allows counsel to accompany a witness to advise the client.
Grand Jury witnesses do have limited Fourth Amendment rights regarding subpoenaed documents. One of our roles in representing Grand Jury witnesses has been to determine whether the materials requested are relevant to the investigation, whether the subpoenas specify the materials to be produced with reasonable particularity, and whether the subpoena commands production of materials covering only a reasonable period of time. Where the subpoena appears excessively broad or unreasonable, we seek to “quash,” or invalidate the subpoena. In the alternative, we will attempt to narrow the scope of the subpoena.
Many of our witnesses have privileges which they may choose to exercise to protect themselves. For example, the privilege against self-incrimination is very broad, protecting a witness from furnishing any testimony that might be a link in a chain of evidence leading to conviction. In some circumstances, a witness who voluntarily testifies to incriminating facts waives the privilege against self-incrimination as to subsequent questions seeking related information in the same case. This is known as “waiver by testimony.”
There are a variety of other privileges that apply to the Grand Jury as well. Most privileges apply to Grand Jury proceedings to the same extent that they apply to trials. For example, the social worker-client; child-parent ; priest-penitent; psychotherapist-patient; and the sexual or domestic abuse counselor-victim privileges and disqualifications.
All Grand Jury witness issues require a fact-specific discussion with an attorney to determine what your exposure might be and how to best protect yourself.