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If you have been subpoenad for a court case usually it is becuase you are a witness that either the proseucution or the defense believes is necessary to there case.   You should contact an Attorney regarding your legal rights if you have been subpoenad for a case. 

I am an Attorney that has represented more than 100 witnesses in court cases throughout the state of California.  As  a Former Probation, Officer Deputy District Attorney and Attorney with more than 13 years of experience I can help you get through what could be a very confusing time.

 

DO I HAVE TO SHOW UP IF I HAVE BEEN SUBPOENAD

Yes you must show up for court.  If you do not show up for court after a lawful subpoena then you could be subject an arrest or body attachment wich is the order to bring you into court.    You should even if you are just a witness to a crime consult an Attorney.  The court system is complex and for many lay people incomprehensible, do not go in alone.

 

DO I HAVE TO TESTIFY

This is where things can get difficult.  If you are asked to testify again, you should seek legal counsel because as explained below your testimony could result in your arrest or being charged with a crime.

WHAT IS A FIFTH AMENDMENT RIGHT

All citzens have a constitutional right not to incriminate themselves this is whether you are an accused or a witness whether a court trial or even testifying before a Grand Jury.

If you are asked to testify before a Grand Jury you should immediately phone an Attorney.  This Attorney can find out if you have a Fifth Amendment right that should be asserted.   Not contacting an Attorney before tesfying especially in front of a Grand Jury is a very bad idea that could result in you being prosecuted. 

 

WHAT WILL MY ATTORNEY DO IF I MY TESTIMONY MAY INCRIMINATE ME

If your Attorney feels your testimony might implicate you in a criminal act then he will most likely tell you to exercise your rights under the Fifth Amendment.  This is usually done out of the Juries presence.  The Judge will hold a hearing to determine if you have a Fifth Amendment right.  If the Judge feels your testimony could cause you to incriminate yourself.  He will rule that you have a right to claim the Fifth Amendment privilege.

 

WHAT HAPPENS IF I EXERCISE MY RIGHTS UNDER THE FIFTH AMENDMENT

If you exercise your fifth amendment right then you will not be prosecuted for exercising this constitutional right.  However, the story does not end there. 

 

WHAT IS IMMUNITY

If the prosecution wants you to testify after you have claimed your constitutional rights then he must give you what is called immunity.

There are two basic types of immunity.

Use Immunity which is the more broad type of immunity and Transactional Immunity.  Depending on the circumstances you should try to get the most expansive immunity possible.  Just relying on the word of the prosecutor that he will not prosecute you is not enough.  If you are given immunity then you can testify without risk of your testimony being used against you. 

However, where things could become very confusing and even more difficult is the probleme where you get on the stand under a grant of immunity and then begin to admit under oath to crimes which could be prosecuted under a Federal Statute. 

If you were to do this the immunity grant that you signed with the local prosecutor is worthless as the US Attorney in your district is not obligated to follow that immunity agreement and you could be subject to proseuction under a Federal Statute. 

Therefore, if your case involves possible Federal charges you should involve the US Attorney in the immunity negotiations. 

 

HOW IS THIS APPLICABLE TO GRAND JURY TESTIMONY

Many people are under the mistaken impression that because Attorneys are not allowed in a Grand Jury Proceeding they cannot take the Fifth or seek counsel of an Attorney.  This is completely wrong.  You always have a Fifth Amendment right.  And before you into any Grand Jury proceeding speak with an experienced Criminal Defense Attorney not a civil Attorney that has no experience in these types of matters. 

 

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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