Testifying Before a Grand Jury

Have you been called to testify before a grand jury? Do you have questions about whether you are required to testify or maybe you have concerns that you will say something that is incriminating? Once you receive a summons or subpoena to testify before a grand jury, the most important thing to do is contact an attorney to discuss your specific case and obtain legal advice which could save you from having to testify or from the possibility of facing criminal charges.

Grand jury proceedings are often depicted in the movies and television shows such as Law & Order but in real life, grand juries operate differently.

In Massachusetts, a grand jury is made up of 23 people from the community and a new grand jury is empaneled every three months by a Superior Court judge. During those three months, the grand jurors may meet every day, a couple days a week, or one day a week. Grand jury proceedings are held in secret and are not open to the public. Anyone who testifies before a grand jury is not permitted to discuss their testimony with anyone. This can be particularly difficult when a witness is called to testify in a case involving their sibling, friend, or other relative. The grand jurors will listen to information and view evidence presented by a prosecutor known as an Assistant District Attorney or Assistant Attorney General. If twelve or more grand jurors find there is probable cause to believe an individual has committed a crime, then they will vote to indict that person. An indictment is a criminal charge brought in Superior Court. Most cases in Superior Court are for serious felonies including Murder, Rape, Home Invasion, and Child Abuse.

If you have received a subpoena or summons to testify before a grand jury, the first question you should ask yourself is do I need an attorney? If you hesitate for one second when answering that question, you should contact us immediately because the best time to consult an attorney is prior to testifying before the grand jury.

Witnesses often think that they can outsmart the prosecutor but in those kinds of cases, a witness may find themselves facing criminal charges for perjury. Perjury is punishable by imprisonment in state prison for life or any term of years if the statement is made in a capital crime case such as Murder. If perjury is committed in any other type of case, then it is punishable by not more than twenty years in state prison or 2.5 years in the house of correction. It is also a crime to suborn perjury. Subornation of Perjury occurs when someone tries to get another person to commit perjury. It is punished by the same amount of prison time as perjury itself.

In some instances, a witness may admit to committing a crime and find themselves being indicted by the very grand jury that they testified before. For example, Jake Jones kills Stacy Bell. Jones’ friend Aaron helps him dispose of her body. If Aaron testifies that he helped Jones dispose of Stacy’s body, then he can be charged as an Accessory to the murder.

There are also some cases where the prosecutor does not know the extent of a witness’s involvement in a case. In those instances, the prosecutor may offera “Proffer” to the witness. The proffer protects the witness from any possible criminal charges as long as the witness fully discloses all the information they know. If the prosecutor finds the information helpful, then they can give immunity to the witness so that anything the witness testifies to cannot be used against them and they cannot be charged with a crime. If the prosecutor decides not to give the person immunity, the witness can still invoke their Fifth Amendment Privilege against testifying. Often times, it can be a win-win situation but having an attorney that can work out the details of a proffer which adequately safeguards the witness from criminal prosecution is paramount whenever a witness is providing self-incriminating information to the prosecutor.

An attorney can also discuss with you your involvement in the case and determine whether you have a valid privilege to refuse to testify before the grand jury. For example, if you have a Fifth Amendment Privilege Against Self-Incrimination or Spousal Privilege then you cannot be forced to testify before the grand jury. If you have a Fifth Amendment Privilege, it means you could incriminate yourself by testifying. On the other hand, the Spousal Privilege allows the witness-spouse to claim a privilege to not testify against their spouse. One exclusion to the privilege occurs when the spouse is accused of child abuse. In those cases, the witness-spouse does not have a privilege and can be forced to testify at the grand jury. If your attorney feels you have a valid privilege, the attorney will appear with you before a Superior Court judge who will determine if there is in fact a privilege. The judge almost always relies on the word of the attorney when it comes to a Fifth Amendment Privilege; this avoids the witness or attorney having to reveal why they feel there is a valid Fifth.

If you do not have a privilege to invoke, then you are entitled to have an attorney present when you testify before the grand jury. The attorney can stand next to you while you testify and you are able to consult the attorney about any questions you are asked. There are some instances where a person may have a valid Fifth but still wants to testify any way. Being able to consult with your attorney before answering any questions, will help you avoid incriminating yourself. For example, John Doe sells heroin to Jane Smith. Jane shoots John and steals the heroin. John has a Fifth Amendment privilege not to testify because he was dealing heroin but he may still want to testify because he was shot by Jane and wants her to face criminal charges. If John hired an attorney, the attorney would stand next to him when John testified at the grand jury and could tell him which questions to invoke his Fifth Amendment privilege to and which questions he could answer. Often people are unwillingly involved in criminal matters, like delivering an envelope full of money from one person to a close friend, and you should have an attorney present before testifying at the Grand Jury.

There are many scenarios and situations that an experienced criminal defense attorney can help you with if you have been called to testify before a grand jury. Every case is different and we can give you case specific advice. If you have received a summons or subpoena to testify before a grand jury contact us at Sweeney & Associates today for a free consultation. Contact us at (617) 328-6900 or

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