Section 4.15 Grand Jury Subpoena Powers

• Library: Criminal Practice 2012 Supp

C. (§4.15) Grand Jury Subpoena Powers

The grand jury is entitled to issue service of process to compel witnesses and to produce documents. See §§ 540.160, 540.170, 540.180, and 540.200, RSMo 2000. The procedure for issuing grand jury subpoenas is set forth in § 540.170. It has long been set forth in both statute and common law that it is improper to issue grand jury subpoenas once an indictment is returned if the subpoena relates to that particular investigation. If a witness duly summoned fails to appear before the grand jury, the court can issue compulsory process to force the attendance.

The courts of Missouri have held that there is no immunity or ability to compel testimony before the grand jury. Brown v. City of North Kansas City, 779 S.W.2d 596 (Mo. App. W.D. 1989); §§ 540.180 and 540.200. There are certain situations, however, in which the courts have addressed whether the Fifth Amendment has been properly invoked. See In re Presta v. Owsley, 345 S.W.2d 649 (Mo. App. W.D. 1961); Mannon v. Frick, 295 S.W.2d 158 (Mo. 1956). Those cases provide that, if a court determines that a witness is inappropriately taking the Fifth Amendment privilege, that witness can face contempt. Similar to immunity proceedings in federal court, a witness who is cited for contempt can be punished until the expiration of the grand jury. Unlike federal court, however, there is no basis to compel testimony through the use of a properly claimed Fifth Amendment or other privilege. See 18 U.S.C. §§ 6001, et seq.

The Supreme Court commented on the breadth of federal grand jury subpoenas in United States v. Dionisio, 410 U.S. 1 (1973). Dionisio and other witnesses subpoenaed before the grand...