Does the 5th Amendment not apply before a grand jury?

[m1911owner]

There are various stories are, such as here: http://www.foxnews.com/story/0,2933,396822,00.html, about Mary Kate Olsen refusing to talk to the feds about Heath Ledger's death.  The feds are apparently considering getting a grand jury subpoena to force her to testify.

I do not understand.  Does not the 5th Amendment still apply if you are before a grand jury?  If not, how did that happen???

[Leatherneck]

They can grant immunity and force the witness to testify or be held for contempt, I believe.

TC

[The Annoyed Man]

Dead on leaterneck.  You absolutely do have your full 5th Amendment rights if testifying before a Grand Jury.  However, the prosecutor can grant immunity for the testimony, which would force the witness to either testify or face contempt charges.  In my experiences, as a prosecutor, you only offer the immunity if (1) you know there's something usefull in the testimony and (2) you can't get the information any other way.

[m1911owner]

In this case, she's said she's willing to talk to the feds if they grant immunity, which they haven't done.  So it appears that the thought is that the grand jury can force her to testify without granting immunity, which would appear to me to violate the 5th Amendment.

[HankB]

If they serve her with a subpoena, they can force her to appear before a grand jury, but she certainly has the right to invoke her 5th Amendment rights immediately after being sworn in and stating her name. Then further testimony cannot be forced without a grant of immunity. (Have to be careful . . . I've heard that if a person says "a few" things and then decides to clam up, a judge can rule that the person "waived" their rights under the 5th . . . IANAL, so don't ask me how that works.)

Considering how people are being thrown in jail for lying even when they're not under oath, I don't see why anyone involved in a problematic death, even peripherally, would ever say ANYTHING to ANYONE without a grant of immunity.

A wealthy celebrity like Ms. Olson probably has the resources to make herself very hard for a process server to locate . . .

[ilbob]

In this case, she's said she's willing to talk to the feds if they grant immunity, which they haven't done.  So it appears that the thought is that the grand jury can force her to testify without granting immunity, which would appear to me to violate the 5th Amendment.

They cannot force her to testify against herself. they can force her to testify. If they subpoena her, she is either going to have to tell what she knows to the grand jury or invoke her right not to incriminate herself.

That leaves the state with the choice of giving her immunity or not.

[Balog]

Does the immunity only apply to the grand jury procedure? It seems that it might leave one open to civil prosecution even if "immunity" from .gov prosecution is present.

[seeker_two]

A wealthy celebrity like Ms. Olson probably has the resources to make herself very hard for a process server to locate . . .

Great....another "Mary Kate & Ashley In Paris" movie......

[Azrael256]

Does the immunity only apply to the grand jury procedure? It seems that it might leave one open to civil prosecution even if "immunity" from .gov prosecution is present.

It very well may.

There are several types of immunity that a prosecutor might grant.  He might grant a "blanket immunity," which is a very broad brush that can pretty much cover anything between parking tickets and genocide.  The prosecutor agrees not to go after the witness for anything they've done, regardless of its connection to the case at hand.  There's also a lighter-weight "transactional immunity," which would cover anything in connection with this case.  A grant of "use immunity" would cover Olsen's testimony and nothing else.  Any other incriminating evidence would still be fair game.  Any of these would forestall a 5th amendment argument, as they would prevent her testimony from being used against her in court.

Civil liability would still be there.  "Civil immunity" might be (and sometimes is) granted by a "castle doctrine" or a so-called "stand your ground" law.  It would protect a person from civil action in the event that he commits a legally justifiable homicide by shooting a burglar.  Such examples are rare, and there's a wide separation between judicial and civil actions.  Think of OJ Simpson: Acquitted of murder, he lost the civil case alleging that he caused the "wrongful death" of the victims.

But none of that seems terribly likely to me.  Immunity is generally used to catch a bigger fish.  Unless the authorities think that Olsen obtained the drugs from a medellin boss or a mafia don, they probably won't be willing to deal.

[m1911owner]

But none of that seems terribly likely to me.  Immunity is generally used to catch a bigger fish.  Unless the authorities think that Olsen obtained the drugs from a medellin boss or a mafia don, they probably won't be willing to deal.

So, if I understand correctly, what happens is that they subpoena her to appear before the grand jury, she shows up, she asserts her 5th Amendment rights, and the show pretty much ends right there?

[DJJ]

I suppose she could invoke the Carl Rove Rule, which states, "I'm not going to say anything anyway, so I'm not showing up at all".

[Azrael256]

she shows up, she asserts her 5th Amendment rights, and the show pretty much ends right there?

It certainly can.  There may be other evidence available that may lead to an indictment, or there may not be.  Olsen's testimony may be defaming but not incriminating, in which case she might be held in contempt for refusing to testify.

[ilbob]

But none of that seems terribly likely to me.  Immunity is generally used to catch a bigger fish.  Unless the authorities think that Olsen obtained the drugs from a medellin boss or a mafia don, they probably won't be willing to deal.

So, if I understand correctly, what happens is that they subpoena her to appear before the grand jury, she shows up, she asserts her 5th Amendment rights, and the show pretty much ends right there?

IANAL, but AFAIK its not quite that simple, but pretty close.

I have heard that in some cases they will still ask you hundreds of questions, forcing you to repeat the same thing over and over again, hoping you will get pissed and say something incriminating. And since they will bar your lawyer from the proceedings, you are alone.

[RevDisk]

I have heard that in some cases they will still ask you hundreds of questions, forcing you to repeat the same thing over and over again, hoping you will get pissed and say something incriminating. And since they will bar your lawyer from the proceedings, you are alone.

Perhaps I am missing something, but the one thing I've been told repeatedly was "If your lawyer is not sitting next to you, shut up.  In fact, shut up in general and let the lawyer do the talking under ALL circumstances except when he directly tells you to."  So...  how does it work when you're not allowed a lawyer?  Shut up and pray things work out with a contempt charge?

[The Annoyed Man]

Due to the secrecy of grand jury sessions, only the jurors, the prosecution, and the witness can be in the room.  You can have an attorney present in the waiting area, and you are able to consult with that attorney after every question.

In theory, the questioning could go on forever, in that the prosecutor can ask a thousand questions, despite knowing the witness is going to take 5A.  And, if the witnesse wants he (or she in this case) can stand up, walk out and discuss teh question with counsel, then come back and take 5A or answer.

It's only when immunity comes up that things get real interesting, because a grant of immunity in exchange for testimony takes 5A out of the picture, and a refusal to answer questions after a grant of immunity leads to contempt charges...

[RevDisk]

Thanks, Chris.  Thankfully, I don't have first hand knowledge of grand juries.  Hopefully that will continue.

[De Selby]

Thanks, Chris.  Thankfully, I don't have first hand knowledge of grand juries.  Hopefully that will continue.

Let's also hope the grand jury never has any knowledge of you.

[RevDisk]

Thanks, Chris.  Thankfully, I don't have first hand knowledge of grand juries.  Hopefully that will continue.

Let's also hope the grand jury never has any knowledge of you.

...   

Uh....   Uhm.   Nothing to see here, move along.   Move along, nothing to see. 

It's fistful's fault, I didn't do nothing and you can't prove a thing.