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I always thought a subpoena was an order to produce evidence or testimony, but I recently realized that you can just invoke the fifth amendment if you're served a subpoena.

Given the complicated nature of laws and that any evidence could be potentially incriminate you even if you're not originally involved in the case, what's the point of a subpoena? What does it accomplish?

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A subpoena is nothing more than court process compelling someone to testify as a witness or to produce documents in their possession, custody and control, or both, usually in connection with a court case.

Most people who are subject to a subpoena are not being asked to offer testimony that could implicate them in a crime. They simply have evidence relevant to a case.

For example, bank records are routinely subpoenaed to generate evidence that can be used in a civil or criminal case against someone, even though no one accuses the bank of doing anything improper.

Many witnesses are also just not bothered to testify or actively don't want to testify, even though the evidence would not personally reflect poorly on them in any way, if they are not compelled to do so.

For example, they may simply be very busy at profitable activities, or may fear retaliation from people involved in the case.

Also, subpoenas are not infrequently issued where the witness is personally happy to testify but needs court process to get permission to be away from work or other obligations.

A subpoena can also overcome legal obligations to not voluntarily provide information even when it is not legally privileged. For example, a lawyers ethical obligation not to voluntarily share information about a client (even information that isn't attorney-client privileged like the existence of an attorney-client relationship or the amount of money that the attorney holds in a trust account for the client's benefit) is broader than the attorney-client privilege and a lawyer can be compelled to provide such information by subpoena.

To invoke the 5th Amendment in a case where you are not a defendant, you must have some good faith belief that your testimony would expose you to criminal liability, something that the vast majority of witnesses under a subpoena do not.

You cannot invoke the 5th Amendment, for example, to protect yourself from having to testify regarding something that may be highly embarrassing and may even constitute a violation of the law, but is not a crime.

For example, you can't invoke the 5th Amendment to prevent yourself from having to admit under oath in court testimony that you cheated on your boyfriend with someone else, or that you forgot to lock up the office the night before it was burglarized, or that you lied about having won a military decoration that you publicly claimed to have won but really didn't, or that you are in default on your mortgage, or that you are out of legal immigration status.

The 5th Amendment can also not be invoked to prevent you have having to testify about violations of professional ethics that are not crimes. For example, an attorney could be compelled to testify that she failed to keep confidential information private by telling her bartender client secrets.

A subpoena is basically useless against a defendant in a criminal case, who has the right not to be compelled to testify in his or her own case.

But, in a civil case, you can subpoena someone to testify against themselves and they then have the choice of invoking the 5th Amendment and having an adverse inference entered against them (usually resulting in them losing the case if they are a party to it), or not invoking the 5th Amendment and testifying even though truthful testimony on the subject may be incriminating and may be used against you in a criminal prosecution.

Someone can also be compelled to testify regarding matters that could be self-incriminating in a civil or criminal case if someone with authority to do so (generally the relevant prosecuting attorney) grants the person compelled to testimony immunity from prosecution (usually all that must be granted is immunity from prosecution based upon the testimony offered, called "use immunity", which is still less than someone admitting to criminal conduct might need to feel comfortable if testifying voluntarily).

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First, subpoenas are great for civil cases which are beyond the reach of the 5th Amendment (that is, you can't be compelled to testify in a way that would tend to convict you of a crime, but you can be compelled to testify in a way that would leave you open to civil liability). Second, you can be compelled to testify against anyone else. Third, you can also be compelled to testify against yourself but that testimony cannot be used against you (i.e. you are given immunity). If you are a defendant, you do not have to take the stand at all, but if you do, that opens the door to being compelled to answer relevant questions on cross-examination (a non-defendant witness can also be compelled to testify against his interest on matters made relevant under direct examination). Next, the 5th pertains to testimony but not evidence in general (such as blood, books, fingerprints). Finally, you actually have to overtly invoke the 5th to be protected (this has to do with adoptive admissions, where your silence is used against you).

  • +1 awesome answer, thanks. Regarding your second point though: I don't know if this qualifies as a separate question, but in general even if you're not involved in a case (and nobody can imagine how what you say might be incriminating), it's still a fact that you might have done something wrong such that your testimony may reveal it and open you to prosecution. After all, that's why so many people say "don't talk to law enforcement if you don't have to" -- because even if it doesn't seem like you did anything wrong, it might come out otherwise. So why couldn't you invoke the 5th due to that? – Mehrdad Jul 22 '17 at 19:44
  • That's could be a limit on your duty to testify against others. If the answer is "Then we killed him", even if the testimony is "about" someone else and not about the murder, it would tend to incriminate you. If it's only about the other guy, or would not be usable against you, then you can be compelled to testify. – user6726 Jul 22 '17 at 19:52
  • Right, but (a) how can they expect you to prove to them that it might incriminate you without first telling them the answer? and (b) Again, same thing in my last comment: if you don't know whether something might incriminate you, are you saying you can't invoke the 5th "just in case"? e.g. if the answer is "I ran across the street to see what's going on" you might have no idea if there was a law against jaywalking, but then there's a chance there might've been, so why wouldn't you invoke the 5th just in case? – Mehrdad Jul 22 '17 at 20:03
  • I don't know these negotiations are carried out, but it could be simply the attorneys and the judge discussing the matter in chambers: that would not be testimony, but the prosecutor could certainly know the fact in question (he just couldn't use that knowledge). I really don't knw how a witness is supposed to protect themselves from accidental incrimination, unless they hire a lawyer to give hand signals. – user6726 Jul 22 '17 at 20:30
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    Witnesses can invoke the 5th in civil or criminal cases. Responses that could not reasonably lead to your criminal prosecution are not covered by the 5th - you must comply with such questioning. – A.fm. Jul 23 '17 at 5:36

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