What to do if you receive a witness subpoena in a criminal case

loud knock on doorYou hear a loud knock on your front door.  Moments later, you’re served with a subpoena to appear to testify at a grand jury, a hearing, or a trial.  The subpoena may be in a federal or state case, and it may be issued by the prosecution or by the accused in a criminal case.  What should you do?

You should certainly not ignore the subpoena and hope that it simply goes away.  A witness subpoena is a court order requiring you to appear at the stated place and time, even if you do not see a judge’s signature on the document.  That means failure to comply with the subpoena could subject you to a show cause hearing - where you will be summoned before the judge to explain your failure to appear - or even to punishment for contempt of court.  Thus, ignoring the subpoena is not an option.

The first step upon receiving a witness subpoena is to figure out what the subpoena is for and why you are being summoned as a witness.  Is this a traffic case for which you are being subpoenaed as an eyewitness to a traffic accident?  Is it a federal investigative grand jury?   Is it a state grand jury or multijurisdictional grand jury?  Who is the defendant in the case?  What is your involvement or role in the case that led to the issuance of the subpoena?  These questions will help determine whether you may need to seek the assistance of an attorney before responding to the subpoena. 

In most cases, a subpoenaed witness will likely not need the assistance of an attorney.  However, in certain cases the witness may be subjecting himself to criminal liability by appearing and testifying under oath.  For example, a witness who was involved in a criminal enterprise but has not been charged may be subpoenaed to testify against another defendant.  He may incriminate himself while testifying, which could later be used to bring charges against him.  Other times, a witness may have previously provided inaccurate, incomplete, or misleading information to law enforcement. In this case, testifying truthfully under oath may subject him to charges of obstruction of justice, while lying under oath to avoid charges of obstruction of justice may subject him to a felony perjury charge.  In these circumstances, the subpoenaed witness likely has a right under the Fifth Amendment not to testify in order to avoid self-incrimination. 

What can an attorney do for you if you have possible concerns about incriminating yourself? 

First, in appropriate cases, an experienced attorney may be able to negotiate an immunity agreement with the prosecutors in exchange for your testimony.  Such an agreement would protect you from the direct use of your testimony or pre-testimony statements being used against you in the future, subject to limited exceptions that would be clearly stated in the immunity agreement.  Second, even if no immunity agreement is reached with the prosecutors, or if the subpoena is issued by a defendant in a criminal case, an attorney can appear in court with you and assert your Fifth Amendment privilege against self-incrimination on your behalf.  If done properly, this will ensure that you are not compelled to answer questions that could incriminate you. 

In short, if you receive a witness subpoena in a criminal case and you have any concerns about the possible repercussions of testifying, you should immediately consult an experienced criminal defense attorney to evaluate the circumstances and advise you on how to proceed.  It is also advisable not to speak with investigators, prosecutors, or attorneys for other parties before consulting your own attorney.

If you have been issued a witness subpoena and have questions about potential consequences of your testimony, contact an experienced attorney at Greenspun Shapiro PC by calling (703) 352-0100 today.

Muhammad Elsayed
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Criminal, Traffic, and Injury Law Attorney Fluent in English and Arabic
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