A witness may assert the privilege against answering a question that could incriminate them, but the assertion alone does not grant immunity or excuse ignoring a subpoena. In a felony case, Penal Code section 1324 allows the prosecuting agency to ask the court in writing for an order compelling testimony or evidence. The court holds a hearing and decides whether the statutory conditions are met. If a privileged witness testifies in compliance with the order, the compelled testimony and information derived from it generally cannot be used against that witness in a criminal case; the exact order and statutory exceptions matter. (Evidence Code § 940; Penal Code § 1324)
A privilege claim and an immunity order are different steps
Evidence Code section 940 recognizes a witness’s privilege to refuse disclosure that may incriminate them. Section 1324 then provides a court process in felony matters: the prosecuting agency may submit a written request, the court sets a show-cause hearing, and the judge considers whether compelling the testimony is clearly contrary to the public interest or could expose the witness to prosecution in another jurisdiction. A subpoenaed witness should get legal advice before responding and should not assume the prosecutor’s request has already been granted. (Evidence Code § 940; Penal Code § 1324)
If the court orders testimony and the witness complies, section 1324 protects against use of the compelled testimony and evidence derived directly or indirectly from it in a criminal case, where the testimony was privileged. That is use-and-derivative-use protection, not a blanket promise that no prosecution can ever be filed. Section 1324 also permits a prosecutor to request transactional immunity; whether that broader protection applies depends on the request and the signed order. (Penal Code § 1324; Kastigar v. United States)
The statute preserves prosecution for perjury, false swearing, or contempt tied to the witness’s response. It also raises jurisdiction-specific issues: a California order does not automatically resolve whether another jurisdiction may prosecute. The actual questions, privilege, written request, hearing record, and order should be reviewed with counsel before testimony is given. (Penal Code § 1324)
Keep the subpoena, prosecutor’s written request, hearing notice, any court order, and a record of the topics or documents at issue. Do not ignore the subpoena, provide testimony based on an assumed immunity, or destroy or alter material.
The Law Offices of David S. Chesley represents people facing California criminal charges. If you received a subpoena in a felony proceeding, call (800) 755-5174 to discuss the court process.