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Do I have to testify against friends after being Subpeona'd?

San Jose, CA |

A couple friends of mine stole some wheels from somebody I know, when they were stealing it I knew about it and was sitting in the car. Afterwards I recommended they put them back, which they did. The police originally threatened to charge me as an accessory however the charge was dropped. My friends are both facing felony larceny charges and I was subpoena'd to appear in court.

I would prefer not to testify against my friends in court, is this possible, or legal to do? The DA I talked to also told me that if I admitted to anything illegal on the stand he would charge me for the crime. I am worried that I cannot answer any questions about the case without admitting guilt myself, however it may be vague enough that using the 5th amendment may look strange. What should I do here?

Attorney Answers 5

Posted

Based upon your description, it would be wise for you to assert your fifth amendment right. You must still appear in court if subpoenaed, but you should let the D.A. know you will refuse to answer any questions. The D.A., however, can offer you use "immunity" - in writing - which means you can be compelled to testify - assuming it's a felony matter - but anything you say on the witness stand will not be used against you. Of course, they could still charge you with a crime for anything you said already and/or any other evidence they might have of criminal conduct on your part, if any.

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Asker

Posted

Where is the line for using the 5th amendment? I guess anything I say about the situation, even if I don't admit to being there, basically means I was there since there would be no other way for me to know the information. Thank you for your advice!

Posted

There is always a chance that you could still be charged in this instance. This is specially true considering the DA comments. You have to appear to testify if you were properly served with the subpoena but I agree with the other attorney, I would plead the 5th in all aspects and not even answer questions about your presence. If you need to be there I would go with counsel.

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Posted

As you have figured out, you made several mistakes here: You got involved in the wheel theft, even if not directly. You talked to the DA and apparently 'ratted out' both your friends and yourself. You talked to the DA apparently without having your own attorney present, and told the DA everything you knew about anything. And, now you think that protecting yourself by taking the Fifth Amendment looks 'strange'? No, get an attorney (hired or Public Defender or other appointed attorney since it is likely one or more of your friends already has the Public Defender representing them, and practice saying 'On the advice of my attorney, I claim the privileges of the Fifth Amendment.' Or, perhaps your attorney can get you immunity from prosecution if you agree to testify. Hope this helps.

Although I am an experienced CA criminal defense and appeals attorney, I can not 'guarantee' that my answer is entirely accurate, since I have not reviewed all of the factual circumstances of the case, nor have I discussed those circumstances fully with the questioner. The fact that I have answered this question does not establish an attorney client relationship between the questioner and my self or my office.

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2 comments

Asker

Posted

Hi James, I should clarify, I have not told the DA anything about the case up to this point. Another person who we knew told the DA everybody's names and his version of what happened (which was quite different from what actually happened based on what the DA told me). The police originally contacted me after they found out and I told them that I knew something happened but didn't want to talk about it. Once I got the Subpeona, I called the DA who's number was listed on the paperwork and talked to him about it and he had told me that they decided not to charge me with anything, but if I admitted to anything on the stand I could be charged. I mainly don't really want to testify to anything because I know that there is no evidence against my friend's except me. Everything they have already is basically hearsay. I know it was stupid to have anything to do with it, and so do my friends, everyone is ready to move on from the situation, including the person who's wheels were stolen. Thank you for your advice!

James H. Dippery Jr

James H. Dippery Jr

Posted

You are welcome, certainly.  Perhaps I read too much into your original question, but the fact is that you have been subpenaed, and you have two choices:  Testify truthfully (it's always bad to lie) against your friends and likely incriminate yourself in the process, or Take the Fifth Amendment on the advice of your counsel.  Again, I hope this helps. > > >

Posted

You are not required to show up unless you are subpoenaed. Next I agree with the others that invoking your 5th amendment may be a good idea. HOWEVER, that may not let you off the hook, because the DA could offer immunity. Regardless, you should tell the judge that you would like to speak to an attorney because you do not want to incriminate yourself. If you are offered immunity you can be forced to testify, unless you want to go to jail instead.

You need a lawyer, the court will appoint one if you cannot afford one.

The above information does not establish an attorney client relationship nor is it meant to provide legal advice.

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Asker

Posted

Should I bring this up with the court before the trial or at the trial? If before the trial, who should I ask to talk to?

Tai Christopher Bogan

Tai Christopher Bogan

Posted

It doesn't matter when you bring it up. I've seen it brought up at the trial usually. Remember unless you are served with the subpoena or the court personally orders you present, you have not obligation to show up.

Asker

Posted

Thank you Tai, I was served with a Subpoena by a Sheriff a couple weeks ago, the trial is set for this week. I guess I will give the DA a call and inform him that I will likely refuse to answer questions under the 5th amendment.

Tai Christopher Bogan

Tai Christopher Bogan

Posted

You can tell the defense attorneys you are invoking. You can tell the DA. You can tell whomever you'd like. The only person that matters is the judge.

Posted

If you are legally subpoenaed you must appear in court. However, you may have a privilege not to testify if anything you say can form a link in the chain of your guilt. It is not clear if you could be charged under an aided and abeter theory. In other words, if a person knows someone else is about to commit a crime they do not have an obligation to stop them ( there are a few exceptions) but if the person helps aids, encourages, assists,helps them get away etc then you could also be prosecuted just like the thief. From what you have described you may have some liability since ther is apparently enough for the DA to threaten you with prosecution. Nor way of dealing with this situation is for your lawyer to first determine if you have liability and second to negotiate an immunity agreement. If the DA grants you immunity you know longer have a Fifth Ammendment privilege to this activity.SJP

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