Is probable cause of a crime necessary for a subpoena to be issued? In order to get a subpoena, wouldn't the prosecutor have to show probable cause that a crime was committed? According to news outlets (example), Mueller has subpoenaed a Trump organization. I did some research and the answer seemed to be 'yes', but I was talking it over with a friend of the family who took some law classes and the answer was 'not necessarily'. So is probable cause that a crime was committed necessary for a subpoena to be issued?
A grand jury subpoena needs to not be oppressive or unreasonable: see US v. R Enterprises, 498 US 292. The purpose of a grand jury is to determine if there is probably cause: "the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause, because the very purpose of requesting the information is to ascertain whether probable cause exists". The court held that The unique role of a grand jury makes its subpoenas much different from subpoenas issued in the context of a criminal trial. Thus, this Court has held that a grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and that its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials Also note that The grand jury's investigatory powers are nevertheless subject to the limit imposed by Rule 17(c), which provides that "the court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive" (emphasis added). Since a grand jury subpoena issued through normal channels is presumed to be reasonable, the burden of showing unreasonableness, as the above language indicates, must be on the recipient who seeks to avoid compliance So the bar is lower for a grand jury investigation, such as this one.
A subpoena is a kind of court order. Specifically it is an order to a particular person to appear and testify at a particular time and place. In many but not all cases, the order also requires that person to bring specified records or documents along. That is known as a subpoena duces tecum. In some cases this is used to, order the production of documents without any accompanying testimony. The word &quot;subpoena&quot; comes from Latin words meaning &quot;under penalty&quot; because the order requires the person to comply under penalty of being held in contempt of court and fined or imprisoned. Ther are many other court orders, such as an injunction which is generally an order not to do something. Different jurisdictions may use different terms for orders with similar effects. The exact name and exact effect of a given order will vary with the jurisdiction, which is not stated in the question at the moment. The needed process to obtain a court order will also vary. Without a jurisdiction, a more specific answer cannot be given. It is not unlikely that a subpoena of some sort will be the answer, but the details will depend on the jurisdiction, and on the reason why the information is being sought. It is likely that a lawyer will need to be consulted on the best way to obtain such an order. If the issue is the same one as in this question or this question it is very unlikely that any court order would be sought for the person's information. If one were sought the details would depend on the asker's jurisdiction, which is not stated there as far as I can see.
I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer&#39;s instructions?
The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it? The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena. You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!" The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise. The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory. Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering.
If the government withholds information that is pertinent to the credibility of a witness is that cause for a mistrial? Only if the error is not harmless under the standard applicable to evaluating harmless error in criminal cases (there is a voluminous case law on that point). Basically, it means that a new trial may be held and a conviction vacated on a charge against a particular defendant if there is a reasonable possibility that the withheld evidence, when considered in light of the total picture of evidence presented at trial, might have changed the outcome on guilt or innocence. Does whether the government knowingly or unknowingly withheld this information influence whether a mistrial will be granted? Not really. Knowledge is imputed. If someone in the prosecution team including the police knows, then it is known to the entire team for Brady purposes. If no one knew that it had the information (e.g. a key exculpatory document in possession of the prosecution was misfiled in one of dozens of bankers boxes of documents that it seized in a search and no one reviewed those particular boxes knowing to look for a document like that one or attuned to its potential significance, since it wasn't supposed to be in the place where it was filed), then it hasn't been withheld in the Brady sense unless someone specifically asked for the information in question with enough specificity that it could have been located if they looked at what they already had. The knowledge that must be disclosed is what the prosecutor's office or the police the prosecutor's office is working with knows. So, if a beat cop hides exculpatory evidence from the prosecutor's office, that is a Brady violation, but if the cops do a sloppy investigation that fails to reveal exculpatory evidence that is out there to be found, it isn't a Brady violation. Likewise, if a cop in another department halfway across the state knows something that impacts the credibility of a witness and the prosecutor is totally unaware of the existence of that information as are all the cops working on the case, then that isn't a Brady violation. What If It Isn't A Brady Violation? Exculpatory evidence discovered after the trial that isn't a Brady violation not to disclose may still be grounds for a new trial based upon newly discovered evidence in a motion for post-trial relief. But, the standard to get the court to grant a new trial based upon newly discovered evidence that was not withheld in a Brady violation is much more stringent than the mere harmless error standard. Instead: With a single exception, criminal defendants in the United States seeking a new trial based on newly discovered evidence are required to establish only that the new evidence makes it more likely than not that, in a new trial, they would be acquitted. Ohio requires clear and convincing evidence rather than a mere preponderance. There's a lot of case law on what constitutes newly discovered evidence which is &quot;new, material evidence that was unavailable at the time of the original trial[.]&quot; If evidence was available, but not used at trial, it can't be presented in a motion for new trial based upon newly discovered evidence. Often this means that it can't be considered even if the salience of the evidence previously available is only clear later in the light of other evidence that is genuinely newly discovered, or the defense attorney's failure to use that evidence in the first trial was negligent to a level constituting legal malpractice.
No Even if there were any evidence that any member of the US government were involved (there isn’t), that is a matter for the US justice system. The US is not a member of the International Criminal Court so no Supra-National body has jurisdiction.
This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal.
How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent.