What's the point of a subpoena if you can just invoke the fifth amendment?

Question

I always thought a subpoena was an order to produce evidence or testimony, but I recently realized that you can just invoke the fifth amendment if you're served a subpoena.Given the complicated nature of laws and that any evidence could be potentially incriminate you even if you're not originally involved in the case, what's the point of a subpoena? What does it accomplish?

Answer 1

A subpoena may be issued for various reasons. Generally a subpoena compels testimony and you are correct that the Fifth Amendment privilege against self incrimination may be used to refuse to testify, but the witness must still appear at the proceeding to invoke the Fifth Amendment right. Usually, prosecutors will not issue a subpoena knowing that the witness will probably be a target of the investigation or a defendant. On the other hand, the government may expect the witness invoke the Fifth Amendment to lock-in their testimony (or lack of it). In other cases, the prosecutor may expect the witness to invoke the Fifth Amendment, but the witness, although having criminal involvement, is not the target of the investigation. In that situation, the government may provide transactional immunity or qualified immunity from prosecution for self-incriminating testimony and the witness must testify or be held in contempt (in custody).

The government may serve a subpoena duces tecum (Latin for "you shall bring with you" or "you shall produce") that compels production of documents or other non-testimonial evidence. The Fifth Amendment protects testimonial self-incrimination, but there is no privilege for documentary evidence - it must be turned over in response to the subpoena. In some situations, documents may be privileged such as attorney/client, patient/physician, and other specific privileges that my exist under a states laws.

Although the notion of a subpoena seems simple, like many circumstances in the law it may be complex with many issues and a body of case law on the issue of subpoenas and privilege.