Kane said:
That's not correct. The Fifth Amendment applies whenever someone is compelled to testify, including before a Grand Jury.
They'd need to give him immunity, if they wanted to compel self-incriminating testimony.
And, as always, Kane's classroom answer is not necessarily correct.
Subpoenaed witness may move to quash under Rule 17(c) of the Fed.R.Crim.Proc. Also, a court may quash the subpoena "
if compliance would be unreasonable or oppressive."
Some limited protection also available under Fourth Amendment, though a grand jury subpoena is not a search or seizure within the meaning of the Fourth Amendment.
U. S. v. Calandra, 414 U. S. 338 (1974).
In the "Real world" however, courts rarely quash grand jury subpoenas. For example, in
U.S. v. R. Enterprises, 498 U.S. 292 (1991), the Supreme Court strictly limited challenges based on the relevance of documents sought.
Of course, there are some limitations on Grand Jury Subpoenas.
A Grand jury subpoena cannot compel a witness to meet with the prosecutor in advance.
Durbin v. U.S., 221 F.2d 520 (D.C. Cir. 1954). It may or may not be in client's best interests to do so however.
A Grand jury can't be used to gather evidence against a defendant who has already been indicted (i.e., it is impermissible to use grand jury for pretrial discovery).
U.S. v. Star, 470 F.2d 1214 (9th Cir. 1972).
Also, a very tenuous ground to walk with a Grand Jury is to refuse to testify on the subject matter then reveal the same to another third-party, thereby effectively waiving your rights asserted under the spectre of the Grand Jury.
Courts have all but eliminated "selective waivers," i.e., generally can't disclose to government, then refuse to provide the same information to other litigants.
And to property advise you on any Fifth Amendment rights your attorney would have to know the COMPLETE situation, such as would fall within the following:
If you are subpoenaed as a corporation collective entities, such as corporations, partnership and not-for-profits have no such privilege.
Hale v. Henkel, 201 U.S. 43 (1906).
Fifth Amendment privilege is generally a testimonial privilege, doesn't protect non-verbal, non-communicative acts, no matter how incriminating they may be (e.g., fingerprints, voice and handwriting exemplars).
Gilbert v. California, 388 U.S. 263 (1967).
Compelled production of documents is a murkier issue.
Fisher v. United States, 425 U.S. 391 (1976), established the "act of production" doctrine (i.e., that in certain circumstances, by producing incriminating records witness implicitly acknowledges their existence and authenticity, and admits his/her custody or control). Issue often arises with sole proprietorships or closely held corporations.
And finally, Spousal privilege applies to private marital communications, but privilege belongs to the witness and does not apply where both spouses are party to a crime.
And finally, although you have the right NOT to testify if you do not meet the above criteria, the Grand Jury also has the power to find you in contempt until such time as you DO testify or the current session is out.
Therefore, before you do anything, take the subpoena to your attorney and get a thorough review.
