Asserting the Fifth Amendment Privilege before a Grand Jury

It is not uncommon for witnesses in both state and federal grand jury proceedings to consider asserting the Fifth Amendment privilege. If the witnesses do decide to take the Fifth, must they do so in front of the grand jury? The short answer is: it is a matter of prosecutorial discretion.

Though both California and federal law express a preference that the privilege be asserted outside the presence of trial juries through a pre-testimonial hearing, there is no case law extending such preference to grand juries. Efforts may be made to avoid asserting the Fifth Amendment privilege through prior discussions with prosecutors, but whether witnesses need to assert the privilege in front of the grand jury is ultimately within the prosecutor’s discretion, unless the witness is called solely for the purpose of displaying the claim of privilege to the grand jury. U.S. v. Benjamin (E.D. Cal., May 1, 1986, CR-F-86-1 REC) 1986 WL 15567, at *15; People v. Rabb (Cal. Ct. App., Feb. 10, 2010, B206611) 2010 WL 447744, at *11 (holding that even before trial jury, pretestimonial hearing is only recommended – not required).

Notwithstanding what is obviously a highly prejudicial proceeding, the United States Attorneys have a manual that provides that a standard policy in federal grand jury proceeding is for the witness’s counsel to send a letter signed by the witness and counsel stating that the witness will refuse to testify on Fifth Amendment grounds. This nonbinding policy is to allow the witness to “be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance.” See Department of Justice, United States Attorneys Manual § 9-11.154. If the prosecution and the grand jury insist on the appearance, the Fifth Amendment privilege must be asserted on a question-by-question basis. See Matter of Grand Jury Subpoena (8th Cir. 1984) 739 F.2d 1354, 1359. People v. Lopez (1999) 71 Cal.App.4th 1550, 1555 (citations omitted); U.S. v. Celaya (9th Cir. 1988) 855 F.2d 863. “[B]efore a claim of privilege can be sustained, the witness should be put under oath and the party calling him be permitted to begin his interrogation. Then, the witness may invoke his privilege with regard to the specific question and the court is in a position to make the decision as to whether the answer might tend to incriminate the witness.” People v. Harris (1979) 93 Cal.App.3d 103, 117; see Celaya, 855 F.2d at 863.

By Susan Yu