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If you are charged with a crime, you do not have to testify.
The freedom not to testify is part of your PRIVILEGE
AGAINST SELF-INCRIMINATION. The privilege means that you
may testify if you want to, but you may not be called as a witness
against your will by the prosecution at your own trial. The privilege
also means that if you do not testify, the jury will not be able
to hold that against you. Juries are not allowed to suppose that
because a defendant does not testify, he or she is probably guilty.
If you are a witness to a crime, or if you are called as a witness
by either side during a trial, you do not have to appear to testify
unless you have been subpoenaed. A SUBPOENA
(pronounced sub-pee-nuh) is a court order commanding you to appear
in court. You must obey it. It will tell you the date on which
you must appear in court. If the court did not issue a subpoena
for your testimony, you may refuse to appear. Appearing at a GRAND
JURY PROCEEDING is the same as appearing in court; if there
was a subpoena, you must obey it; if there was no subpoena, you
may refuse to appear if you want to.
Just because you may have to appear in response to a subpoena
does not mean that you have to answer questions or testify. You
always, in any proceeding (whether it involves a crime or not),
have the right to refuse to answer questions where the answer
might incriminate you -- make you seem guilty of a crime. If you
are afraid that by testifying you will be admitting to a crime,
you should tell the judge and/or the prosecutor. You must tell
the judge or prosecutor at the beginning of the incriminating
questioning. Once you have begun to testify in an incriminating
manner without claiming the Fifth Amendment privilege against
self-incrimination, you may lose the privilege and the right to
refuse to answer.
If you are called as a witness in front of the Grand Jury, you
will not be able to have a lawyer present with you. However, you
may have a lawyer immediately outside the Grand Jury room and
you may consult with him or her at any time you want. Some people
who testify at the Grand Jury consult with a lawyer every time
a question is asked: before answering any question, these witnesses
go outside to tell their lawyers the question and receive advice
on how to answer it. This is perfectly proper and is sometimes
a wise thing to do. It may make you feel foolish to run outside
each time a question is asked, and the prosecutor may get angry
at you, but it is a smart thing to do if there is a serious possibility
that you will give incriminating testimony. You should not care
whether the prosecutor gets mad at you if you have a legitimate
reason for wanting your lawyer’s advice. Do not be intimidated
into answering questions when you are unsure whether your answer
will incriminate you.
If you are subpoenaed to appear before a Grand Jury and you
think your testimony may incriminate you, call the Public Defender
Office if you are indigent. The Public Defender Office may assign
a lawyer to give advice to persons subpoenaed to appear before
the Grand Jury.
If you are not formally subpoenaed, you need not give any information
about a crime to the police, the prosecution, or to a defense
lawyer. You do not even have to give any information as a witness
to the court unless you came voluntarily or were subpoenaed. It
is a crime to give false information under some circumstances,
but it is not a crime to give no information unless you were subpoenaed
to testify.
If you believe you have committed a crime, never volunteer to
testify anywhere--in court or at the Grand Jury--without consulting
with a lawyer.
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