McCordsville, IN asked in Criminal Law for Indiana

Q: Can the prosecutor force a whitness testify? When key witness is a minor and family member of the person on trial.

And what is the protocall for the prosicutor going to the home of the key witness and threating them that if they dont testify that they will be arested.

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2 Lawyer Answers

Michael E. Polen Jr.

  • Criminal Law Lawyer
  • Dyer, IN
  • Licensed in Indiana

A: A prosecutor may issue a subpoena requiring a person to give testimony. If the person ignores the subpoena, the prosecutor may bring the matter before the court and ask that the witness be held in contempt. Rather than just ignoring a subpoena, the best practice is to try to have an attorney file a motion to quash the subpoena if there are grounds for doing so.

Gojko Kasich

  • Hebron, IN
  • Licensed in Indiana

A: 1. If you are served with a subpoena, you must appear in Court. Be aware, however, that the Lake County Prosecutor sends out something that looks almost identical to a COURT subpoena, but it's simply a notice that they want you to come to their office and talk to them. You do NOT have to do that. You might want to check with a lawyer to make sure that it's a COURT subpoena rather than a "prosecutor's" subpoena.

2. If your testimony in open court may possibly result in a perjury charge, or a false informing charge, you have the right to claim a 5th amendment privilege. The 5th says you can not be compelled to provide information that may help convict YOU of a crime. I'd suggest you talk to an attorney before you do that. You can hire your own or, if you are indigent, request that the Court appoint a public defender to represent you. At the beginning of your testimony, advise the Court that you might need to take the 5th, and that you'd like to have a lawyer appointed for you [again, if you are indigent].

3. In MY opinion, a prosecutor threatening arrest should be turned into the Indiana Disciplinary Commission. The prosecutor has NO authority to have you arrested; only the JUDGE can do that. And again, there is NO REQUIREMENT that you talk to a prosecutor before your testimony. Prosecutors tend to get arrogant after they've been prosecutors for more than 6 months or so and they think they have the right to bully witnesses. They don't.

4. With regard to Mr. Polen's idea about having a subpoena quashed, good luck with that. Unless you're an expert who wants to be paid for expert testimony, or a newspaper reporter, I can't think of many other situations where subpoenas have been quashed in criminal cases.

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