Davis County Utah

Can I be forced to testify in a criminal case?

Will the prosecutor give me immunity if I testify?

The Utah State Constitution as well as the Fifth Amendment to the United States Constitution guarantee the privilege against self-incrimination. Generally, this means that you cannot be forced to testify in a case where your testimony could ultimately be used against you in a criminal prosecution.

There are exceptions to this rule that should be clearly understood before you decide what course of action to take. Consultation with an experienced defense attorney is critical.

What does it mean if I am given immunity?

There are two types of immunity that are generally recognized in Utah’s criminal justice system. The broadest type is sometimes called “general” immunity or “transactional” immunity. A more limited type of immunity is often referred to as “use” immunity.

Transactional or general immunity means that the government prosecutor has agreed to not file charges or prosecute the witness for certain conduct or “transactions” even if there is good evidence to support a charge.

“Use” immunity means only that the prosecutor has agreed that the witness’ testimony will not be “used” against the witness when that witness is subsequently prosecuted.

Can a judge order me to testify without immunity?

In rare circumstances, a judge may order a witness to take the stand and testify — even if the witness is claiming Fifth Amendment privilege. If a prosecutor subsequently tried to use the witnesses testimony against the witness (as a defendant at another trial), good arguments can be made that the testimony constitutes compelled speech and should therefore be inadmissible in the new case.

What if I flat-out refuse to testify, even if the judge orders me to?

The court cannot physically compel you to testify. But a judge may hold you in contempt and put you in jail. The issues are complex, and the assistance of a good attorney is critical.

If you have been subpoenaed to testify and are facing potential criminal prosecution relating to your testimony, it is important to speak to a criminal defense attorney before speaking with police or with a prosecuting attorney.

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