The United States Attorney’s Office for the District of Columbia has the power to subpoena individuals to testify before the Grand Jury when investigating felony crimes. The Grand Jury is made up of DC residents who listen to evidence to determine whether they believe probable cause exists to indict someone for a felony crime. In DC criminal law, the government must indict all felonies. To secure an indictment, the government must get the Grand Jury to unanimously find that probable cause exists that the person under investigation committed the offense. At the outset, its important to note that subpoenas have the force of a court order.
Do I have to comply with the subpoena?
Absolutely, yes, you must comply with a properly executed and served subpoena. If someone witnesses a crime or the government thinks that someone witnessed a crime, the government may subpoena that person to the Grand Jury. You absolutely must comply with a validly issued and served subpoena. Failure to comply with the subpoena could result in the government requesting and the court issuing a warrant for your arrest. In addition, trying to duck service or encouraging another to duck service could constitute “obstruction of justice,” which is a felony offense in DC. If someone is subpoenaed to the Grand Jury, DC criminal law considers them a “material witness.”
What are my rights as a material witness?
As a material witness, the person has certain rights. These rights include the right to know the nature and target of the investigation, the Fifth Amendment right against self-incrimination, and the right to have an attorney. That means you are entitled to a lawyer. You do not have to answer any questions that could incriminate you and the prosecutor must tell you what the case is about. Often times, however, the prosecutor will subpoena someone to the grand jury and then as to meet with the witness first when they show up. Conveniently, for the government, the grand jury facilities in DC are located inside the U.S. Attorney’s office at 555 Fourth Street NW.
Do I have to be interviewed first by the prosecutor?
The process usually works where the prosecutor interviews the witness in his or her office. However, the prosecutor will not typically tell the witness that the witness can refuse that interview. The subpoena only commands the witness to appear in front of the Grand Jury and testify. The prosecutor cannot legally compel the witness to sit for an interview in the prosecutor’s office. However, people often do not know their rights and believe that they are legally required to sit for the interview. Therefore, its important to consult a DC criminal defense attorney who can advise you of your rights as a material witness.
Can I plead the Fifth Amendment?
If something about testifying could incriminate the witness, then the witness has a Fifth Amendment right against self-incrimination. That means the witness does not have to admit, under oath, certain facts that could potentially lead to an investigation or prosecution of that person. That is why if you think its possible something you would say to truthfully answer a prosecutor’s question could incriminate you in a crime whether its related to the investigation or not, you should consult a DC criminal defense lawyer.
A prosecutor will not typically watch out for potential Fifth Amendment issues. The prosecutor’s job is to secure an indictment and punish who they believe committed the offense. Their job is not to protect the constitutional rights of individuals. A DC criminal defense lawyer with experience in material witness representation can effectively advise you and ensure that your rights are protected.
What happens if I plead the Fifth?
If answering questions under oath could incriminate you, you have a right to plead the Fifth Amendment. However, that does not fully resolve the issue. If the government thinks you have information that could help their case, they could provide you with some type of immunity to force your testimony. Immunity for an offense can extinguish a Fifth Amendment right against self-incrimination because if you cannot be prosecuted for the offense, you cannot incriminate yourself.
The normal process involves the material witness lawyer asserting the Fifth on behalf of the client. The government can then compel the testimony by filing a motion before the Chief Judge of DC Superior Court. A hearing is usually held where the defense lawyer must proffer to the Chief Judge how the witness could incriminate herself. The Chief Judge will then decide whether the government must immunize and whether the witness may be compelled to testify in front of the grand jury.
If you or someone you know has been subpoenaed to testify before the grand jury or another proceeding, contact Scrofano Law PC today for a consultation. We have advised witnesses in various scenarios and protected their constitutional rights.