Testifying Before a Grand Jury

You received a subpoena to testify before a grand jury—now what? Can you ignore it or refuse to show up and testify? That's not a good idea. It's an idea that can land you in jail. Learn about your options and the limited rights and protections grand jury witnesses have.

What Is a Grand Jury Subpoena?

The role of a grand jury is to investigate evidence to determine if it supports criminal charges against someone. As part of the investigation process, the grand jury or prosecutor can subpoena witness testimony, documents, and other evidence.

Prosecutors typically subpoena witnesses to appear before a grand jury because either:

• a prosecutor believes that a witness has information about a crime committed by a third party and wants to elicit that information to secure an indictment against the third party, or
• a prosecutor regards a witness as a target (a person suspected of a crime) and wants to develop evidence against the witness.

In many states, the prosecutor doesn't have to tell you if you're a witness or the target.

Can I Refuse to Testify Before a Grand Jury?

A subpoena is a court order and refusal to show up and testify can lead to contempt charges. You need to respond to the subpoena, typically, either by challenging it through a court motion or complying with it.

Comply. Complying with a subpoena doesn't necessarily mean you must testify. Based on the questions being asked, you may assert your Fifth Amendment privilege against self-incrimination or assert another privilege. (More on Fifth Amendment rights below.)

Challenge. Your lawyer might file a motion to quash (dismiss) the subpoena by arguing it's invalid, overly burdensome, or vague. But this motion needs to be filed quickly and before you're due to testify. If you simply ignore the subpoena and don't show up, the court could order your arrest and compel your appearance.

Do Grand Jury Witnesses Have the Right to a Lawyer?

Grand jury proceedings are closed, and witnesses are not entitled to be represented by counsel during the proceedings. A witness may have a lawyer, but the lawyer is not permitted to accompany a client into the grand jury room.

Lawyers may, however, remain in a nearby hallway, and witnesses may leave the room to consult with their lawyers as needed. Lawyers sometimes advise their clients to exercise this right before answering every question. For example, a witness might repeatedly say, "I respectfully request permission to leave the room to consult with my lawyer before I answer that question."

Do Grand Jury Witnesses Have Fifth Amendment Rights?

Grand jury witnesses can invoke their Fifth Amendment privilege against self-incrimination. But the request must be legitimate. The judge will ultimately decide whether the witness is invoking their Fifth Amendment privilege in good faith.

However, prosecutors don't need to give witnesses any Miranda-type warnings. Unless a prosecutor specifically gives the witness immunity (that is, promised that they won't be charged based on their testimony), any testimony witnesses provide to a grand jury may be used against them in a later prosecution.

Can You Find Out If You're a Grand Jury Target or Witness?

In some cases, the prosecutor will notify the person that they are the target of a grand jury investigation by sending them a "target letter." But that's not always, or even usually, the case. If you already have a lawyer, your defense lawyer may confer with the prosecutor to find out whether you are the target of the grand jury investigation. If so, the defense lawyer may try to work out a deal in which you agree to testify before the grand jury in exchange for immunity from prosecution.

Witness Immunity from Prosecution

The prosecution can give a witness "immunity" in response to a legitimate refusal to testify based on the Fifth Amendment, or in response to a deal worked out with the defense attorney. Prosecutors often give immunity to compel small fish to testify against big fish. For example, a prosecutor may give a small-time drug dealer immunity in exchange for the dealer's testimony against the drug lord from whom the dealer purchased the drugs.

Understanding Immunity

The prosecutor can offer one of two forms of immunity, depending on factors such as the seriousness of the immunized witness's own criminal conduct:

• Transactional immunity means that the person given immunity cannot be prosecuted for any crimes related to the subject matter of the testimony.
• Use immunity means that the witness given immunity may in the future be prosecuted for a crime related to the topic discussed in this witness's testimony, but the immunized testimony itself cannot be used in the future prosecution.

A witness who refuses to testify after being given immunity, however, can be held in contempt of court by a judge and jailed.

How Lawyers Help Grand Jury Witnesses

If you've received a grand jury subpoena, you may very well want to consult an attorney. This is especially true if you think you're the target of the investigation or your testimony may incriminate you. A lawyer can review the subpoena and determine if grounds exist to challenge the subpoena. At the same time, the lawyer can help prepare you for the grand jury proceedings and advise you on how to handle questions and assert your rights.