What If I'm Afraid to Testify Against Co-Defendants??

A federal defendant has the right to decline to testify at his or her criminal trial, whether in support of his or her defense or in contravention of the government’s case. But an ordinary witness has no right to refuse testimony merely because co-defendants or other witnesses are frightening.

A subpoenaed federal witness generally must appear in court before he or she can assert any witness privilege, such as the privilege against self-incrimination. If a witness who is subpoenaed to testify is being threatened with physical violence or another harm, he or she should prompt notify his or her counsel, the prosecuting assistant United States attorney, and federal law enforcement authorities.

Similarly, nervousness or embarrassment alone should not excuse a subpoenaed witness’s compliance with his or her federal subpoena. 28 U.S.C. §

When Does the Fifth Amendment Let Me Stay Silent?

Q: When Can I Refuse to Testify Because the Fifth Amendment Privilege Applies?

The Fifth Amendment privilege ordinarily does not allow a witness to decline to testify categorically, and it only applies on a question-by-question basis. This means a witness generally must assess his or her privilege before answering each question. Of course, this is a very important issue, and an appropriately experienced defense attorney should be able to give you a definitive answer after reviewing the relevant circumstances.

Q: How Do I Know if I Can Invoke the Fifth Amendment Privilege During My Criminal Trial?

The trial judge alone determines whether the risk of self-incrimination is legitimate and whether the witness has the legal right to remain silent. As noted above, once again, your defense attorney will need to assess the relevant circumstances in order to advise you on when the Fifth Amendment privilege may apply and when you have to testify.

Q: What Is the Legal Standard for the Fifth Amendment Privilege?

The Fifth Amendment privilege allows witnesses to remain silent in response to questions that could potentially provide “a link in a chain” toward possible criminal prosecution. Remote, speculative, or imaginary risks of prosecution are insufficient to support a witness’s invocation of the Fifth Amendment privilege.

Q: Does the Fifth Amendment Privilege Apply in a Sentencing Hearing?

Yes, the Fifth Amendment privilege continues to apply to defendants who have entered a guilty plea through their sentencing hearings in most circumstances. In Hoffman v. United States, 341 U.S. 479 (1951), 341 U.S. 479 (1951), the U.S. Supreme Court has held that courts must assess privilege claims in the context of each individual question and its implications, and that the privilege can, and should, be maintained through a sentencing hearing.

Q: Do Witnesses Waive Their Privilege to Stay Silent in Response to Prosecutors’ Questions When They Enter a Guilty Plea?

No, answering a prosecutor’s question and entering a guilty plea does not necessarily mean the witness has waived his or her Fifth Amendment privilege to stay silent in response to other questions. However, the privilege still only applies to questions relating to offenses for which the witness has not yet been convicted or does not face criminal exposure.

Q: Can Jurors Infer a Defendant’s Guilt from a Defendant’s Decision Not to Testify in Federal Court?

No, the jury cannot infer guilt from the defendant’s decision not to testify at his or her criminal trial. This is a foundational principle of criminal law, and the trial judge should make this point clear to the jurors before deliberations start.

What Happens if Immunity Removes My Right to Refuse?

Q: What Happens if I Receive Immunity in a Federal Case?

If a witness in a federal case receives immunity under 18 U.S.C. § 6002, “no testimony compelled from such witness shall be used against him in any criminal proceeding, . .. and no evidence derived from such testimony shall be used against him in any criminal proceeding.” A witness can still refuse to testify unless, as specified under 18 U.S.C. § 6003, “the United States Attorney has requested and the court has ordered, “that the witness testify notwithstanding the witness’s possible use of his or her Fifth Amendment privilege.” If this order is granted, the witness must testify regardless of his or her Fifth Amendment privilege. If a witness receives immunity under 18 U.S.C. § 6002, this does not mean that the witness will be insulated from federal criminal prosecution. It only means that the immunized testimony itself (and any evidence derived therefrom) cannot be used against him or her. However, as noted above, if a witness does not comply with an order under 18 U.S.C. § 6003, this can lead to confinement under 28 U.S.C. § 1826.

Q: Can I Still Be Prosecuted if I Receive Immunity for Testifying?

Yes, immunity under 18 U.S.C. § 6002 allows the government to prosecute you if the prosecution does not rely on, nor is it motivated by, the testimony you gave; that is, the government must prove that the prosecution is based on evidence that the government obtained wholly independently.

Q: Does Immunity Protect Me if I Commit Perjury?

No, immunity does not protect witnesses who commit perjury (i.e. who lie under oath), nor does it excuse the witness’s failure to testify when required to do so. As discussed above, immunity may be revoked in some circumstances, which can have severe consequences for the witness.

Q: What Happens if I Refuse to Testify After Receiving Immunity?

If a witness is ordered to testify under 18 U.S.C. § 6003 but continues to refuse to testify after receiving immunity under 18 U.S.C. § 6002, then 28 U.S.C. § 1826 provides for confinement “at a suitable place until such time as the witness is willing to give such testimony . .. but in no event shall such confinement exceed eighteen months” in certain circumstances. Because witnesses can still refuse to testify after they are granted immunity in some cases, the law provides that if a witness refuses without just cause shown to comply with a court order to testify, “the court may order the witness to be confined . .. until the witness testifies, or until the conclusion of the proceeding for which the witness’s testimony was sought.”

Q: How Long Can a Recalcitrant Witness Be Confined?

In federal grand jury proceedings, recalcitrant witnesses can only be confined for up to eighteen months, or until the grand jury term concludes; whichever comes first.

Q: What Happens if I Refuse to Testify Without Immunity?

If you are subpoenaed to testify in federal court but you do not have immunity, you may still find yourself facing the risk of criminal contempt or civil contempt under Rule 17(g) of the Federal Rules of Criminal Procedure. The ultimate outcome of a contempt charge depends on whether the disobedience is “excused” or “unexcused.” However, as a general rule, recalcitrant witnesses will face the penalties of the contempt charge unless they are able to convince the court that the Fifth Amendment privilege applies to the question at hand.

What Protection Can I Get from Threatened Co-Defendants?

Q: What Can Witnesses Do About Threats from Defendants?

There are two statutes, 18 U.S.C. § 1512 and 18 U.S.C. § 1513, which make it a federal criminal offense to intimidate and to retaliate against witnesses. While these statutes may afford some protection to witnesses, the primary focus of these laws is, of course, to provide legal recourse for criminal prosecution.

As discussed in more detail in this article, there are other protective measures available to witnesses as well. With that said, witnesses who are being threatened with physical violence or another harm should promptly notify their counsel, the prosecuting assistant United States attorney, and federal law enforcement authorities.

Q: How Can Witness Protection be Obtained under 18 U.S.C. § 1514?

Under 18 U.S.C. § 1514, federal courts may issue protective orders in order to prevent the harassment of witnesses. To get such a protective order under 18 U.S.C. § 1514, a witness must request the United States Attorney to apply for such an order. If granted, these orders can protect witnesses’ safety, reputations, and even livelihoods, and the U.S. Attorney’s Office can pursue criminal charges against witnesses who violate protective orders. We can help you with your request for a protective order as well, as we often collaborate with prosecutors’ offices. We will also advise you regarding any alternatives that you may want to discuss with the United States Attorney.

Q: What is the Scope of the Federal Witness Protection Program?

In most federal criminal cases, the government’s witness-protection program (as authorized under 18 U.S.C. § 3521) is not available for everyone. However, if the United States Attorney believes that you are entitled to such protection, it may be able to obtain it from the Attorney General.

Q: Who is Eligible to Be Part of the Federal Witness Protection Program?

Eligibility for such protection requires that the witness is at risk of likely violent danger due to their involvement in an official proceeding. With that said, witness protection is discretionary, and it does not entitle every frightened witness to witness protection services; so, the Attorney General may decline to provide such services in many cases.

Q: What are the Criminal Consequences for Interfering with Witnesses and Whistleblowers?

The federal government has the ability to criminally prosecute any defendants that interfere with witnesses or whistleblowers. In addition to the risk of criminal prosecution, a defendant who attempts to interfere with a witness may see their right to release (bail) revoked as well. As 18 U.S.C. § 3142(c) provides, a court can impose conditions limiting a defendant’s liberty before trial, including prohibiting the defendant from contacting prospective witnesses.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What if My Cooperation Agreement Requires Testimony?

Q: Can I Get in Trouble if I Make a Mistake While Testifying?

Generally, an honest mistake or memory lapse while testifying does not constitute perjury. To be guilty of perjury under 18 U.S.C. § 1621, a witness must knowingly make a material false statement under oath. However, guessing about an event or detail, even if, in your opinion, is more likely to be correct than not, is not the same as being certain about it. As the saying goes, “a false impression is not a false statement.” However, this is a very complex area of the law, and a defendant should have an experienced defense attorney who is familiar with federal law. With that in mind, a few general tips for witnesses that can avoid the risk of perjury include:

• Be honest. Lying about the circumstances involved in a federal criminal case is only going to make things harder for you.
• Do not guess.
• Do not tailor your testimony to fit the narrative of any defendant or to help any defendant, if that involves misrepresenting the truth.
• If you don’t know something, simply state that you don’t know it. Don’t guess, and don’t try to make things up. Even if your attorney has told you that you are not legally obligated to testify, this does not give you license to lie or engage in perjury.

Q: What Should I Do if I Have a Cooperation Agreement?

If you have a cooperation agreement, that agreement may require truthful testimony. In that case, a material breach of your cooperation agreement can trigger additional charges against you. To answer your questions, we will first review the terms of your cooperation agreement and then determine if your cooperation agreement requires you to testify.

Q: What if I’m Really Nervous?

Being nervous can create a negative impression in the mind of some jurors. However, a witness’s nervousness, even if this has the effect of making the witness’s testimony seem unreliable, is not enough to establish that he or she is knowingly making a false statement. However, this is something that your defense attorney will need to help you with.

Q: What is the Lawyer Who is Helping Me on the Government’s Side for the Prosecution?

The prosecutor’s job is to represent the United States government. This means that he or she may, at times, have your government’s interests and your interests in mind, which do not necessarily align with one another. Because a prosecutor’s interests do not align with your interests, you should make sure that you have your own counsel.

Can I Avoid Testifying by Separating the Trials?

Q: Can Defendants Be Compelled to Testify Against One Another in a Joint Federal Criminal Trial?

No, because federal defendants cannot be compelled to testify against themselves. But, with that said, a defendant may choose to take the stand, and, once on the stand, he or she is subject to proper cross-examination regarding his or her relevant testimony.

Q: How Can Defendants Avoid Being Tried Jointly?

Under Federal Rule of Criminal Procedure 14, “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” The decision to sever the trials is generally discretionary, and the standard for severance is whether “joinder of defendants would be prejudicial.”

Q: Do Mutually Antagonistic Defenses Mandate Severance?

As stated above, an order to sever trials is a matter of judicial discretion under Federal Rule of Criminal Procedure 14. In Zafiro v. United States, the U.S. Supreme Court has stated that “Defendants’ claims that their defenses are mutually antagonistic are not the sole grounds for ordering separate trials. .. [but] severance will be required when joinder threatens a specific trial right to which the defendants are entitled.” Zafiro also states that “Limiting instructions may be sufficient to ensure that the jury will not improperly consider evidence that would be inadmissible against one defendant but admissible against another, and, where appropriate, limiting instructions may, therefore, be sufficient to resolve prejudice caused by joinder.”

Q: Is the Witness’s Prior Testimony Admissible if the Witness Does Not Testify?

If a witness is unavailable, the witness’s prior testimony may be admissible if “the adverse party had an opportunity to affect or to examine the witness’s testimony by cross-examination.” Federal Rule of Evidence 804(b)(1). However, testimonial hearsay is generally inadmissible. The witness who has the opportunity to provide testimony should know that testifying is often required. If the witness decides to not testify, then he or she cannot ensure that his or her testimony is not read out to the jury if he or she is unavailable to testify. If the witness is not unavailable, the hearsay rule prohibits thePrior Testimony Statement (PTS) from being used. However, the judge has the authority to decide that the prior testimony can still be used if he or she determines the witness’s testimony is not testimonial. Crawford v. Washington holds that “criminal defendants’ right to confrontation . .. requires that a criminal defendant be able to face and cross-examine his accusers in an actual trial.”

What is the Strongest Evidence Against a Defendant?

Q: Does Federal Law Prioritize Direct Evidence Over Circumstantial Evidence?

No, as federal law does not explicitly prioritize direct evidence over circumstantial evidence.

Q: Can Circumstantial Evidence Alone Support a Conviction for a Federal Crime?

Yes, provided that the circumstantial evidence establishes the defendant’s guilt beyond a reasonable doubt.

Q: Can a Criminal Conviction Rest Entirely on an Uncorroborated Confession?

Generally, no. In federal criminal cases, a conviction cannot rest entirely on an uncorroborated confession.

Q: How Do Federal Jurors Determine the Weight of Evidence and the Credibility of a Witness?

After the trial judge’s instructions, the jury is responsible for determining the weight of the evidence and the credibility of each witness.

Q: Does a Witness’s Fear of Co-Defendants Make the Witness’s Testimony Legally Stronger?

No, as witness fear is not a reliable indicator of credibility or the strength of the witness’s testimony. A witness’s fear of co-defendants does not make the witness’s testimony legally stronger than physical evidence.

Q: What Happens if a Witness Testifies in a Way That Is Inconsistent with Prior Statements?

Federal Rule of Evidence 801(d)(1)(A) allows for the admission of statements that are inconsistent with a witness’s prior sworn statements.

Q: Can Witnesses Be Separated to Make Sure Their Testimony Is Not Tailored to Fit?

Yes. Federal Rule of Evidence 615 allows for witnesses to be separated to prevent the risk of tailored testimony.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.