Justice Matters with Bryan Porter: A new investigative tool

Justice Matters with Bryan Porter: A new investigative tool
Bryan Porter in his office at the Alexandria Courthouse. (Photo Credit: Missy Schrott)

Like many jurisdictions, Alexandria has recently experienced a statistically meaningful rise in criminal offenses. As part of the strategy to address this increase, my office has partnered with other city agencies, to include the City Manager’s Office, the Police Department, the Sheriff’s Office and the Court Services Unit. One outgrowth of this collaboration is the recent impaneling of a Multi-Jurisdictional Investigative Grand Jury. 

I note the multi-jurisdictional nature of the grand jury. Arlington County is a partner in the MJGJ and we hope to soon bring additional jurisdictions into the compact. The obvious questions are: 

1. What is a MJGJ? and 

2. What benefits does a MJGJ bring? 

Consider a scenario in which a witness observes a murder take place. For purposes of this example, let us assume the witness personally knows the perpetrator, to include his name, address and telephone number. When a detective approaches the witness and asks for the suspect’s information, the witness replies: “I’m sorry, detective, I don’t wish to get involved.” Has the witness committed a crime? 

Perhaps counterintuitively to a lay person, it is never a crime for a citizen to simply refuse to answer questions put to them by a law enforcement officer. 

In the scenario above, the witness is well within his rights to decline to answer the detective’s question. Of course, while a simple refusal to answer questions is never a crime, a person who elects instead to lie to law enforcement may be committing an offense. Under Virginia law, if a person makes a materially false statement about an offense they did not commit, they are guilty of obstruction of justice, a misdemeanor punishable by up to 12 months in jail. 

Law enforcement does have a mechanism by which it can attempt to pierce a person’s refusal to answer questions: the investigative grand jury. 

In an investigative grand jury proceeding, a potential witness is served with a subpoena and required to appear in court. It is worth mentioning that a subpoena is not a request to appear, it is an order to do so. Willful failure to appear pursuant to a lawfully served subpoena may result in the witness’ arrest. 

Inside the grand jury room, in certain circumstances, the witness may have the right to “take the Fifth Amendment” and refuse to answer questions. The phrase “taking the Fifth” is a reference to the Fifth Amendment’s protection against a citizen being required to incriminate themselves. 

However, Fifth Amendment protection only applies to statements that tend to incriminate the witness. If the witness only has information about the criminal actions of another person, they cannot avail themselves of “the Fifth” and the presiding judge will require them to answer questions purported to them. 

Even if the witness has lawfully invoked the Fifth Amendment, the prosecutor may elect to provide immunity to the witness. After a grant of immunity, the witness would be required to answer relevant questions, but their answers could not be used as evidence against the witness in a criminal trial. Finally, grand jury proceedings are conducted under oath, so any materially false statement constitutes perjury and can be prosecuted as such. 

A witness’ refusal to answer questions put to them in a grand jury proceeding constitutes contempt of court and will result in the witness being taken into custody. In this circumstance, the witness truly possesses the keys to his own jail cell; the moment the witness agrees to answer questions in the grand jury room, he is no longer in contempt and will be released. 

It should also be noted that an investigative grand jury also carries the power to subpoena records, documents and other tangible objects that constitute evidence relevant to a matter under investigation. 

For various reasons, witnesses may be reluctant to cooperate with a police investigation of a violent crime. They may have an affinity for the culprit or a deep-seated antagonism toward law enforcement. In some cases, the witness may simply be afraid of the suspect and concerned about placing their own safety in jeopardy. 

The MJGJ provides two immense benefits: 

1. Reluctant witnesses can be required, under penalty of arrest, to appear in court; and 

2. The presence of a court reporter means their testimony will be recorded for future use in the investigation. 

While these benefits may seem arcane, they constitute a significant new tool in the investigative playbook. 


The writer is commonwealth’s attorney for Alexandria.