Where no charges have been filed, a prosecutor may subpoena witnesses, including the target of investigations, pursuant to Ind. Code § 33-39-1-4. However, if those witnesses invoke their constitutional right against self-incrimination, the prosecutor cannot petition for use immunity and compel them to testify without first filing charges or convening a grand jury. See In re S.H., 984 N.E.2d 630 (Ind. 2013)(decided March 27, 2013.
In this case, soon after S.C. gave birth at home, the father (S.H.) took S.C. and the infant to the hospital because S.C. was bleeding and the infant had multiple puncture wounds. The prosecutor petitioned for subpoenas to compel the parents to testify about the circumstances of the infant's birth, but the trial court granted the parents' motion to quash the subpoenas on Fifth Amendment grounds. The trial court then erroneously granted the State's request to grant use immunity to the parents and ordered them to testify. The Indiana Supreme Court reversed the trial court’s ruling and remanded for further proceedings.
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