Witnesses Be Warned
Have you been served with a subpoena to appear for a deposition or to appear in any court proceeding? Have you been served with a subpoena to produce documents? Be warned—without proper action—you may unknowingly waive your constitutional privilege against self-incrimination.
Several years ago you were involved in a transaction. Then, unexpectedly, you are served with a subpoena. You are likely thinking to yourself—“What do they want from me? This was years ago?” Think carefully. The answer may impact your freedom. With the recent explosion of broad and vague criminal laws, we are now more susceptible than ever to be entangled in a criminal prosecution. Law Enforcement Officers often prefer the element of surprise and may elect to leave us in the dark regarding the existence of a criminal investigation. Thus, while seemingly innocuous, appearing or producing documents in response to a subpoena in a civil proceeding may indeed trigger the Fifth Amendment privilege against self-incrimination. When served with a subpoena, it is critical to consult with an experienced criminal lawyer if there is even the slightest chance of self-incrimination. Many witnesses are wholly oblivious to the fact that they are self-incriminating until it is too late.
The constitutional privilege against self-incrimination is found in both the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution. The privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, whether it arises through oral or written testimony or the production of documents.
The privilege, however, has limitations. One may not assert the privilege unless the testimony sought to be compelled is realistically self-incriminating, meaning that there must be reasonable cause to apprehend danger and to believe that the testimony would furnish a link in the chain of evidence needed to prove a crime. The belief must be substantial and real—not merely trifling or imaginary. Strikingly, a witness must raise a specific objection to a particular question or document contemporaneously or it is deemed waived. A blanket assertion of the privilege against self-incrimination is insufficient.
If you have been served with a subpoena to appear for a deposition or any court proceeding or a subpoena to produce documents or if you have other criminal law related issues, contact our office to schedule a meeting with Colby S. Hearn, an attorney with years of experience in criminal law.