EFFECT OF GUILTY PLEA ON ABILITY TO INVOKE FIFTH AMENDMENT PRIVILEGE
Those who Plead Guilty or Those Convicted:
The Supreme Court has held that “[c]itizens generally are not constitutionally immune from grand jury subpoenas”. Branzburg v. Hayes, 408 U.S. 665, 682, 33 L.Ed.2d 626 (1972). And at least one district court has held that “. . . everyone, including those who have plead guilty, must testify when subpoenaed to do so before a grand jury unless privileged otherwise”. In re Grand Jury Investigation, 681 F. Supp. 1113 (E.D. N.C. 1988) (holding that a defendant’s guilty plea did not give him ability to avoid grand jury subpoena; no government agreement to such).
However, in absence of immunity, a guilty plea does not necessarily waive a later assertion of the Fifth Amendment.
U.S. v. Lyons, 731 F.2d 243 (5th Cir. 1983) (stating a guilty plea to state charges did not waive Fifth Amendment in Federal Court):
“Ms. Cook’s plea waived only the privilege with respect to state charges to which she pleaded guilty. So long as Ms. Cook could be charged with other crimes because of her
participation in the events in question, she could still assert her privilege against self-incrimination.” U.S. v. Lyons, 731 F.2d at 243 n. 2.
U.S. v. Kahn, 728 F.2d 676, 680 (5th Cir. 1984);
U.S. v. Gloria, 494 F.2d 477, 480 (5th Cir.), cert. denied, 419 U.S. 995 (1974);
U.S. v. Barham, 625 F.2d 1221, 1225 (5th Cir.), cert. denied, 450 U.S. 1002 (1980);
In re Bryan, 645 F.2d 331, 333 (5th Cir. 1981).
“[Ilf the witness is still subject to other crimes which he[r] testimony might tend to reveal, the privilege remains.”
