In the District of Columbia, prosecutors must secure an indictment to charge someone with a felony. To secure an indictment, prosecutors must convene a grand jury and present evidence to the grand jury. A grand jury is made up of members of the community just a like a regular jury in court. However, grand jury proceedings are secret, and the defendant or “target” of the investigation has no right to put on a defense.
The decision to indict is up to the grand jury if they determine that “probable cause” exists to believe that the target committed the alleged offense. Evidence the grand jury may consider typically involves witness testimony. To get witnesses before the grand jury, prosecutors will normally subpoena the witness. This article will go over what your legal rights are if you receive a grand jury subpoena and outlines what legal obligations you have. First, its important to note that a grand jury witness has several important legal rights. First, you have the right to an attorney. Anyone subpoenaed to the grand jury has a right to a lawyer and in DC if you cannot afford a lawyer the Court will appoint one for you. Second, you have a right to know what the grand jury is investigating. Finally, you have a right against self-incrimination, which means you do not have to answer questions that may incriminate you.
The first thing you should do if you receive a grand jury subpoena is immediately contact a criminal defense lawyer who has experience representing material witnesses. Its important to note that the prosecutor who subpoenaed you does not represent you or your interest. The prosecutor’s job is to secure the indictment—not make sure that your interests are taken care of. This process does not occur in misdemeanor cases like DUI and simple assault.
Its also important to note that you have several obligations once subpoenaed. If you fail to show up for the date on the subpoena, the government can request the court issue a warrant and you could be arrested. In addition, you should not speak to anyone about the incident you get subpoenaed to testify for. A prosecutor will likely ask you under oath who all you communicated with about the subpoena and could subpoena those people to corroborate what you claim to have said. By communicating with anyone other than your lawyer, you are potentially creating more witnesses.
Your biggest obligation under a grand jury subpoena is to tell the truth. If you ultimately testify in front of the grand jury, you will be placed under oath. Lying under oath or perjury is a felony offense itself. You also have an obligation not to obstruct justice, which could result in a felony charge as well. Obstruction could include any act where you try to persuade or dissuade another witness from testifying by force, threat of force, or corruption. Getting caught up in a charge for perjury or obstruction of justice would greatly worsen the situation.
Its important to note that you do not have to answer questions that could incriminate you. However, its always important to consult with an attorney who can help you determine if you should claim the Fifth Amendment and refuse to answer questions. Courts usually take a broad view of what can constitute potential incrimination when determining if someone can plead the Fifth. Often times, prosecutors will try to give the witness assurances that they are not interested in the witness’s information that could potentially incriminate themselves with. However, that does not make the witness’s Fifth go away.
Regardless of assurances from prosecutors, a witness may seek to legally refuse to answer questions by pleading the Fifth Amendment. The legal test is not whether the prosecutor will or is even likely to charge the witness. Its if any testimony could “furnish a chain” in the link of prosecution.
Once a material witness asserts the Fifth, through their attorney, the prosecutors can either file a motion with the D.C. Superior Court Chief Judge to compel the testimony or immunize the witness. If the witness receives immunity, its likely the witness can no longer plead the Fifth. However, its crucial to have an experience criminal lawyer negotiate any potential immunity deal.
If you or someone you know has been subpoenaed to the grand jury, contact Scrofano Law PC for a full case evaluation.