[Merenguero]

(05-17-2015 12:55 PM)Katatonic Wrote:  

I have a question that hopefully can be answered by one of our esteemed practitioners of the legal arts. Can a witness being subpoenaed by the defense invoke their fifth amendment right against self-incrimination if their testimony would potentially provide evidence that they violated federal law, even though their actions were perfectly legal according to state law? The case is being tried at the state level in California. Thank you in advance.

Yes. I had this issue on Friday as a matter of fact. In many cases, it makes sense for a witness in such a situation to hire an attorney for the sole purpose of asserting the privilege. The prosecution in some cases, can and will give the witness immunity, meaning that he or she cannot be prosecuted as a result of anything he or she says while testifying.

[Katatonic]

(05-17-2015 01:21 PM)Merenguero Wrote:  

(05-17-2015 12:55 PM)Katatonic Wrote:  

I have a question that hopefully can be answered by one of our esteemed practitioners of the legal arts. Can a witness being subpoenaed by the defense invoke their fifth amendment right against self-incrimination if their testimony would potentially provide evidence that they violated federal law, even though their actions were perfectly legal according to state law? The case is being tried at the state level in California. Thank you in advance.

Yes. I had this issue on Friday as a matter of fact. In many cases, it makes sense for a witness in such a situation to hire an attorney for the sole purpose of asserting the privilege. The prosecution in some cases, can and will give the witness immunity, meaning that he or she cannot be prosecuted as a result of anything he or she says while testifying.

Thank you. This witness isn't keen on assisting the prosecutions case, and is hoping their willingness to exercise their fifth amendment right is enough to deter the defense from having the judge formally issue the subpoena(out of county and more than 150 miles away).

[Merenguero]

(05-17-2015 02:08 PM)Katatonic Wrote:  

(05-17-2015 01:21 PM)Merenguero Wrote:  

(05-17-2015 12:55 PM)Katatonic Wrote:  

I have a question that hopefully can be answered by one of our esteemed practitioners of the legal arts. Can a witness being subpoenaed by the defense invoke their fifth amendment right against self-incrimination if their testimony would potentially provide evidence that they violated federal law, even though their actions were perfectly legal according to state law? The case is being tried at the state level in California. Thank you in advance.

Yes. I had this issue on Friday as a matter of fact. In many cases, it makes sense for a witness in such a situation to hire an attorney for the sole purpose of asserting the privilege. The prosecution in some cases, can and will give the witness immunity, meaning that he or she cannot be prosecuted as a result of anything he or she says while testifying.

Thank you. This witness isn't keen on assisting the prosecutions case, and is hoping their willingness to exercise their fifth amendment right is enough to deter the defense from having the judge formally issue the subpoena(out of county and more than 150 miles away).

I would just leave it alone unless or until the person is served with a subpoena, then retain an attorney. Prosecutors don't always have the easiest time locating witness and serving them.