The prosecutor can force me to testify against my dealer?

"The Detective served me with a Grand Jury subpoena and they told me they are going to force me to testify against my drug dealer? What about the 5th Amendment?"

Every person has a Constitutional right to avoid self-incrimination, which essentially means that you cannot be forced to testify against yourself. This protection is both extremely wide and extremely narrow at the same time. For instance, being compelled by the police to surrender a breath sample or to be fingerprinted is not a violation of the 5th Amendment protections, because these things are not 'testimony.' They are usually expected by the police to be incriminating -- which is why the police want the breath sample or the fingerprints in the first place -- but these things are not testimonial in nature, so they are not covered by the 5th Amendment.

The protections of the 5th Amendment only apply to compulsion or forced testimony. If you voluntarily appear in Court and agree to testify, there is no compulsion and no violation of the 5th Amendment protection. If you confess to a crime in a Discord chatroom; or you pose for photographs with drugs and guns on a Facebook livestream; or post pictures of yourself on Instagram showing your participation in criminal activity, there is no compulsion and no violation of the 5th Amendment protection. That is considered to be volunteering to have your testimony and statements used against you.

Normally, if a person is compelled by a subpoena to appear in Court or testify before a Grand Jury and is directed by the presiding officer to testify about drug activity, that is a pretty clear case of forced production of evidence which is testimonial in nature. However, in a relatively sweeping fashion, the General Assembly has enacted a statute which allows for this very procedure. A witness can be compelled to testify about drug activity, because the statute provides transactional immunity from prosecution. This immunity prohibits the use of the testimony itself and further prohibits prosecution regarding the offense about which the witness is forced to testify. If you have immunity, there is no fear of incrimination, so there is no 5th Amendment protection.

If you are facing a criminal or traffic charge and would like to speak with an attorney, please feel free to contact my office to arrange for a free consultation.

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"This page is not an advertisement; it is a blog. The views and opinions expressed on this blog are solely those of attorney Robert Lorey. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case. The outcome of any case depends on a myriad of factors which are well outside this blog post."

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