How Grand Juries Operate

Many find grand juries mysterious.

Recently there has been an ever increasing use of this investigative tool.

As the number of grand jury proceedings increases, criminal defense lawyers are under pressure to develop a special expertise in how grand juries work.

This web page explores the major phases of a grand jury investigation and how defense attorneys prepare for the grand jury “ordeal.”

Grand jurors are selected from the same pool as regular jurors.

A Federal grand jury consists of 16 to 23 members. These jurors “sit” for 18 months, but only for a few days each month These jurors hear evidence in a large and varied number of investigations that underway at the same time.

Unlike the requirements of arrest and search warrants, neither probable cause nor reasonable suspicion is required to initiate a grand jury investigation.

The Grand Jury is free to investigate the flimsiest of rumors and suspicions.

These “Grand” juries operate in two different ways, depending on the jurisdiction and type of case. Where the defendant already has been arrested on a preliminary charging document such as a complaint, and the time is short before the defendant must have a preliminary hearing or be released, the grand jury does little investigation. It merely listens to some brief testimony, usually hearsay from the arresting officer if the jurisdiction permits grand juries to rely on hearsay, as most do; rubber-stamps the prosecutor’s charging decision; and thus deprives your client of his or her statutory right to a preliminary hearing. With such charging grand juries, there is little that can be done unless the “target” of the Grand Jury wants to take the risk of testifying.

Investigating grand juries — those that handle more complex matters — follow a much broader course. An investigation usually starts with subpoenas for documents. Over the next several months, the prosecutor first will call witnesses, or present their testimony through agents; proceed to immunized witnesses and cooperators; and then circle back to determine if previously uncooperative witnesses are willing to testify truthfully now;

These Jury’s then will finish with an agent who summarizes the investigation and covers details that had been missed. In a complex case, this process can take months or even years and the expiration of the grand jury’s term does not end the investigation.

Prosecutors can either extend the grand jury’s term for several months or summarize the testimony for a new grand jury.

When it is time to make a charging decision, the prosecutor will summarize the testimony the grand jury heard and the gist of the important documents. Before the grand jury votes, the prosecutor briefly describes the legal elements of the charges and how the evidence satisfies each element. Then the prosecutor will ask the grand jury members if they have any questions and leave for them an indictment he or she has drafted. The grand jury has no role in drafting the indictment; it merely votes up or down on the version presented by the prosecutor. A majority of those present suffices to return an indictment, and the defense never learns what the vote was.

Determining The Target or Witness’s Status

The first task when there is a grand jury investigation in an individual may be called – that is – has been or may be subpoenaed – is to ascertain the person’s status.

In federal practice, the United States Attorneys’ Manual (“USAM”) establishes three categories:

1. Target,
2. Subject
3. or Witness

A target is someone against whom the prosecutor intends to seek an indictment, i.e., a “putative defendant.”

Witnesses generally are those who have no culpability and face little risk of indictment.

And Subjects fall in between. They are “persons whose conduct is within the scope of the grand jury’s investigation,” meaning that the investigation may or may not disclose wrongdoing on their part, and the prosecutor has not decided whether to seek charges against them.

Local prosecutors may not use the USAM definitions, but they categorize people in the same way: those they seek to indict, those who are innocent witnesses, and those about whom they have not decided and who could end up as defendants or as witnesses.

The category within which individuals might fall depends not only on the depth of their involvement, the extent of their profit and the deliberateness of their actions, but on whether and to what degree they cooperate with the investigation of the more culpable targets.

There is only one way to ascertain the witnesses’ status — ask the prosecutor.

The prosecutor’s name is on the bottom of the grand jury subpoena, or, if the agents left a business card, they will provide the prosecutor’s name.

The criminal defense lawyer will seek as much information as the prosecutor is willing to disclose about the offenses and transactions under investigation. He or she will make inquiries regarding where the witness ‘ fits in,’ what the prosecutor thinks the witness can tell him or her, who the targets are, and how long before an indictment will be sought.

Next, the criminal defense lawyer should contact other attorneys they know who represent witnesses or subjects and see what these other lawyers may be willing to tell the criminal defense lawyer about the investigation, what these other witnesses are saying, and what the prosecutor and agents have been saying and asking about the named client.

Here the criminal defense lawyer should proceed cautiously … in certain investigations – organized crime, – drug trafficking, or violent crime investigations… revealing that the prosecution seeks your witnesses’ testimony may put that witness at risk of harm.

The Target Letter

The Department of Justice policy discourages subpoenaing grand jury targets to testify. When such subpoenas are issued, the prosecutor must accompany the subpoena with a “target letter” informing the witness that he or she is a target of the investigation and of the rights he or she has if testimony is given.

The criminal defense lawyer should not overestimate the importance of a target letter. The witness may be a clear target and never receive one. Some prosecutors send them to all witnesses they subpoena. Other prosecutors never send target letters because they never subpoena anyone they would consider a target. Prosecutors use them mainly to encourage unrepresented targets to retain counsel and begin plea or cooperation discussions. For the most part, prosecutors do not expect targets to testify even if subpoenaed.

Likewise, receiving a subpoena without a target letter does not mean that the witness is not or will not become a target. Things change, and prosecutors make “mistakes.”

The failure to send a target letter or to advise a witness of his or her status and rights in the grand jury — to invoke the privilege and to consult with counsel — does not prevent either an indictment or the use of the testimony against the witness-defendant at trial.

Occasionally, targets or arrestees choose to testify in the grand jury, and some succeed in convincing a grand jury not to return a true bill ( an indictment ).

The factors listed below must be considered in deciding whether the witness should testify.

1. The type of crime. If the offense is simple and comes down to a single issue that the witness can address, such as state of mind, the witnesses’s testimony might be dispositive.
2. The evidence contradicting your witnesses’s story. The prosecutor will not tell you what other evidence is out there, so you must investigate as much as you can.
3. Whether anyone else can tell the witnesses’s story. The best cases for the witness is to testify are those situations in which he or she can agree with nearly all the prosecution’s significant evidence, but can offer insight that no one else can into a single issue — usually his or her own actions or state of mind.
4. Whether the criminal defense lawyer can be present. The criminal defense lawyer should hesitate to permit you’re the witness to testify in those jurisdictions where the lawyer cannot be present in the grand jury room. A lawyer’s presence, where allowed, can prevent the prosecutor from bullying the witness, and the criminal lawyer can consult with his – her client before answering to avoid misunderstandings.
   
   Remember, however, that if the witness chooses to testify, he or she is trying to persuade the members of the grand jury, and their inherent skepticism will double if they see the witness confer with the criminal lawyer frequently.
5. The extent to which prosecutors prepare for grand jury proceedings.
6. The law and custom on resubmitting cases to the grand jury. The double jeopardy clause does not forbid a prosecutor from resubmitting a case to the grand jury and seeking an indictment even if the grand jury returns no true bill.
   
   Some offices and jurisdictions require supervisory approval or leave of court to seek an indictment after dismissal. Even where such leave is not required, the custom may be not to submit the case a second time. Prosecutors are more likely to try again if the charge is very serious. Further, if they discover strong evidence contradicting your client, they probably will return to the grand jury with a vengeance.
7. The urgency with which your client must avoid an indictment. Being indicted serves no witness well. Some witnesses more than others, however, cannot afford to postpone the fight until trial.

A witness is a good candidate for testifying if he or she:

1. will not be able to make bail if indicted and will lose a job during incarceration, or
2. is awaiting sentencing for another offense.

However it must be noted that even under these circumstances targets rarely testify in federal grand juries because the crimes are complex, the prosecutors are prepared, and the witness testifies without counsel in the room.

Remember, this testimony can and will be used against in any – and every -way possible.

Examples of subjects who may be called to testify before a grand jury include billing clerks in a doctor’s office in a billing fraud investigation; the siblings, parents, children, or significant others of bank robbers or drug traffickers who received and spent some of the ill-gotten gains.

Representing a subject pre-indictment carries great responsibility for the criminal defense lawyer because it is during this phase that the witness’s fate may be decided. At the end of this stage, he or she will either be a defendant (facing loss of liberty, reputation, and much of his or her assets) or a bystander to someone else’s misery.

The argument is made to the prosecutor, not to the grand jury. The grand jury is NOT a trial jury; and the lawyer cannot expect to appeal to the grand jury as an independent decision maker that might disagree with the prosecutor.

Grand juries are instructed to indict whenever there is probable cause to believe the defendant committed a crime.

This is a very low standard of proof. These juries tend to err on the side of indicting, believing that the trial jury will catch any unfounded prosecutions and acquit under the reasonable doubt standard.

Prosecutors, in contrast, are held to a higher standard in making a charging decision: They should not seek charges unless they believe that the defendant’s guilt can be proven beyond a reasonable doubt by admissible evidence.

The main task for a criminal defense lawyer is to convince the prosecutor that his or her client should not be charged.

There are four principal strategies.

1. Sit tight and wait. Frustrating as it may be, sometimes the best approach is to hunker down and silence the witness so that he or she does not add to the evidence against herself or himself. This is advisable when the attorney’s investigation and discussions with the prosecutor convince the lawyer that the prosecutor is just a bit short of the evidence needed to indict the client. The lawyer does not want to be the one to carry the client across the line to indictment.
2. Present evidence other than the client’s statements. The lawyer’s investigation may uncover evidence that exonerates his or her client. This should be shared with the prosecutor only if the lawyer trusts in the evidence and the prosecutor to the degree that the evidence will stand up and the prosecutor will listen to it.
3. Argue that the law and policy do not support an indictment. The criminal defense lawyer should argue the law only if the prosecutor cannot find evidence that will correct the legal insufficiency. The argument should be a combination of law, policy, and sympathy: “This is a close case under the law, and with the sympathy-eliciting problems that the jury will hear, this is not a case to hazard a stretch in the law.”

The witness’s willingness to cooperate in the investigation.

The client’s willingness to waive to some extent the Fifth Amendment privilege and to submit to an interview in which the client describes his or her own actions truthfully and provides substantial evidence against more culpable targets and subjects weighs heavily in a prosecutor’s decision to forego indictment. The prosecutor eventually may immunize the client before grand jury or trial testimony, but will not do so until hearing and checking the client’s story.

Usually, the prosecutor will offer the client some limited immunity under what is called a proffer or “queen for a day” agreement, but this immunity is of very limited value. Some lawyers advise that a client should never speak to a prosecutor without full immunity, but such advice may deprive the client of the one chance to head off an indictment.

The criminal defense lawyer should hazard an interview under limited immunity only:

1. after thoroughly testing your client’s story through investigation and office cross-examination, and
2. if the prosecutor is one who can be trusted to follow through on a promise that full immunity or a lenient plea are possible with truthful cooperation.

Witnesses are people who have evidence but no exposure to prosecution. An easy example is the teller who was held up in a bank robbery. The goal here in representing a witness is to make sure he or she remains a witness and nothing more. Usually, this means ensuring that the client tells the truth, but this task may have its complications.

The client may have sympathies or a relationship with the target and might try to color the testimony to help the target. The witness might have a scandal that he or she wants to hide, but the information might become relevant to the grand jury’s investigation, i.e., drug addiction or an adulterous affair with an associate of the target.

Another challenge in representing the witness is the issue of whether to demand immunity. If the prosecutor has told you that the person is purely a witness with no criminal exposure, a demand for immunity might pique the prosecutor’s curiosity and cause the investigation to swing to the client’s activities. This might result in a denial of immunity and elevate the client’s status to that of a target.

Further, immunity does not come without its costs. Only those who can reasonably fear that the answer to a question might incriminate them can stand on the privilege and receive a grant of immunity. While even the innocent may be entitled to claim the privilege in some circumstances, invoking the privilege and receiving immunity signals that your client did something wrong.

Despite a grand jury’s shroud of secrecy, the public often learns who testified and who was immunized, especially if charges and a trial ensue. Being immunized might bring some infamy that your client needs to avoid, depending on the client’s profession and standing in the community.

There is no prohibition against representing multiple witnesses as long as none of them are targets of the investigation, one does not incriminate another, and no fatal inconsistencies (as opposed to explicable discrepancies and differences of memory) appear in their testimony. Such multiple representation saves money if a third party, such as an employer, is paying for the representation, and it aids each witness by having his or her testimony prepared and groomed by an attorney who knows what the other witnesses are saying.

The reactions of prosecutors will vary. They too may benefit from having a single lawyer hear and reconcile the stories of the witnesses before the versions reach the ears of the government and grand jury. Should the government hear the discrepancies before they are reconciled, the prosecutor will have to disclose the inconsistencies as Brady (exculpatory – proving innocence) material; the criminal defense lawyer does not have the same obligation.

On the other hand, prosecutors sometimes fear that a single attorney may rally the witnesses to a single version of events that eliminates incriminating discrepancies, particularly where the witnesses sympathize with the target.

The lawyer must be careful to question his or her clients on what they may have told investigators before representation began. A sudden consistency among what the investigators knew to be previously conflicting accounts may focus suspicion on the lawyer as well as on the clients.

Not infrequently, especially in the case of subjects, prosecutors are uncertain about how to deal with an individual. They do not want to grant immunity because subsequent investigation may indicate that the person had significant culpability. Prosecutors consider the grant of immunity a serious decision since, as a practical matter, it may bar prosecution. To reach a decision, they may invite the individual to be interviewed.

Some lawyers advise clients to never submit to an interview without either a formal grant of immunity or “letter” immunity that is nearly as comprehensive. Safe as this strategy may seem, it holds its own risk — the prosecutor may put the client aside for now and start asking other witnesses about him or her.

Those witnesses may see their salvation in implicating the lawyer’s client. Further, the client may lose the one chance he or she has to secure status as a witness. As the investigation matures, the prosecutor may develop other evidence and may not need the client’s help, but might have enough evidence to prosecute the client without the countervailing suasion that he or she should give your client a break for coming forward early with the truth.

The following arrangements to provide some limited protection are the most common.

1. The proffer or “queen for a day” agreement. Named after a long forgotten television show in which a member of the audience would be crowned queen and showered with gifts and service, this agreement provides very limited protection. It limits the government only to foregoing use of the defendant’s statements in its direct case at trial. The government can use the statements, however, to point it toward independent evidence of the defendant’s wrongdoing, for cross-examination, and, most disturbingly, to rebut any inconsistent position the defendant takes at trial.
2. Plea negotiation immunity. Rule 410 of the Federal Rules of Evidence and its state law equivalents forbid use against the defendant of statements made during the course of plea negotiations. It applies only to statements to an attorney for the government, and not to statements to agents and officers without any prosecutor being present. This protection goes further than a queen for a day agreement in that it protects the defendant against use of the statements on cross-examination or rebuttal. However, the government can make derivative use of the statements, meaning that it can investigative leads obtained from the defendant and use the evidence discovered in that investigation against him or her.
   
   Relying on Rule 410 to shield a subject’s statements during a proffer does carry a substantial risk, however. The rule applies only where the interviewee has a subjective intent to engage in plea negotiations, and the belief that the discussion was part of plea negotiations is reasonable under the circumstances.
   
   Some courts have held that a plea must be explicitly discussed for the discussion to fall within the rule. Where the client is a subject, not a target, and the objective is to avoid any charges, rather than to negotiate a plea to lesser charge, the rule may not apply.

The lawyer can attempt to obtain immunity by giving an attorney proffer rather than one from the client. Many prosecutors will insist that a proffer from the lawyer be in writing before they decide on a grant of immunity.

The lawyer must realize that as the client’s agent, your statements may be attributable to the client, and making such a proffer could the lawyer in the miserable position of being a prosecution witness at trial.

Therefore, it is imperative that the statement be protected by Rule 410 or that the statement is hypothetical, and, if the lawyer can, obtain the prosecutor’s agreement that the statement cannot be used against your client.

The government can make the client talk by giving immunity coextensive with the Fifth Amendment privilege. Immunity against use of the client’s statements (“use immunity”) suffices; though some jurisdictions require so-called transactional immunity, which prohibits prosecution of the witness for any transaction about which he or she testifies.

Use immunity prohibits use of the testimony to derive investigative leads against the client or for cross-examination in any prosecution but for a perjury trial. A refusal to testify after being immunized would warrant prosecution and incarceration for both civil and criminal contempt.

“Letter” or informal immunity falls short of the constitutional requirement because it does not protect the client against use of statements by other jurisdictions. Where that is not a concern, letter immunity may be sufficient.

No form of immunity protects the client against prosecution for perjury where the grand jury testimony given proves intentionally false, and in that prosecution the client’s testimony is admissible.

The application of the Fifth Amendment to document subpoenas can be complex, but a few basic rules have emerged. Individuals and sole proprietorships have a Fifth Amendment privilege; organizations, such as corporations (even closely held corporations with but a single shareholder), unincorporated associations, partnerships and labor unions, do not.

Therefore, when presented with a document subpoena, an entity, even if it has but a single shareholder and employee who is the target of the investigation, must designate someone to produce the documents. The record custodian’s act of producing responsive documents cannot be used against him or her.

The privilege does not shield the contents of voluntarily created business records and most personal records. The act of selecting and producing documents does have testimonial aspects, however. It communicates that the recipient possesses or has control of the documents, that the documents are authentic, and that the documents produced meet the subpoena’s descriptions.

Therefore, an individual has a right to claim the Fifth Amendment privilege and refuse to produce documents unless he or she receives “act of production” immunity. This is a court ordered or letter immunity that is limited to immunizing the production and authentication of the documents by the witness.

Thus, if the client receives a document subpoena in his or her individual capacity, the client can assert the Fifth Amendment privilege. To overcome it, the government must grant the client act of production immunity. If the client must testify to authenticate the documents (which usually is not the case), the lawyer can obtain act of production immunity (unless he or she is a pure witness with no risk of a self-incrimination) and insist that he or she come out of the grand jury room and consult with you after each question so that the prosecutor does not go any farther than questions to authenticate the documents.

The criminal lawyer should instruct the client to assert the Fifth Amendment privilege to any questions beyond the authenticating ones covered by the act of production immunity.

If the client’s company receives a document subpoena, the criminal lawyer must instruct the client that he or she cannot be involved in searching for and selecting the documents to respond to the subpoena. If the entity has no other employees, you and your client must designate some outside person to be the document custodian and to search for the documents. The prosecutor can demand that the custodian testify not only to authenticate the documents, but to describe the efforts to find and select documents. The lawyer does not want that testimony to describe conversations with his or her client.

Since the custodian is a witness, the criminal defense lawyer does not want to be the custodian or to select the documents. The lawyer should review them, but do not participate in the initial search and selection.

If a lawyer knows that a subpoena is coming, he should contact the prosecutor and accept service on behalf of the client.

The lawyer should take the following steps after receipt of the subpoena.

1. The lawyer should instruct the client not to destroy any of the documents that may be subpoenaed. It cannot be overemphasized that a grand jury subpoena should not be treated like a civil discovery request. Destruction of documents in anticipation of a subpoena constitutes criminal obstruction of justice. Of course, the commencement of a grand jury proceeding is not the time to revive an otherwise dormant document destruction policy.
2. The lawyer may need to negotiate the scope of the response. The subpoena will be broadly worded, but the prosecutor probably does not want every possible responsive document.
3. The lawyer should try to negotiate a “rolling” or staged production.
4. The lawyer may need to ask for more time to respond.
5. The lawyer will want to discuss with the client who will search for the documents and authenticate them upon production.
6. The lawyer should keep good records to track the documents you produce. Bates-stamp the documents and index them. If your budget permits, keep a copy of every document.

The law in 20 states entitles lawyers to accompany their clients during grand jury testimony. Nonetheless, nearly all those states prohibit counsel from objecting, arguing, questioning witnesses, or in anyway participating except to advise their clients. In these states, if there is an objection to be made or a need to ask that a question be clarified, the lawyer must whisper the instructions the client and have the client make the objection or request the clarification.

Some courts even attempt to restrict counsel’s advice to whether the client should invoke the privilege, but that limitation will be difficult to enforce. After all, the lawyer’s discussions with his or her client are confidential. In any jurisdiction, the lawyer should not hesitate to interrupt if the prosecutor becomes abusive.

Those jurisdictions that consign counsel to a post outside the grand jury still permit the witness, by rule or custom, to leave after a question and consult with counsel before answering.

Nonetheless, some courts have upheld restrictions on how often and to what extent a witness may consult the lawyer on the grounds that consulting too frequently can delay and disrupt the grand jury’s proceedings.

The client’s preparation to testify must include a description of the grand jury process and what happens inside the grand jury room, especially in a jurisdiction that forbids an attorney’s attendance.

The lawyer should emphasize to the client that grand juries are not impartial bodies. They hear only the evidence the prosecutor chooses to present; they receive their instructions in the law from the prosecutor; and they spend their recesses bantering with agents, prosecutors, and their staff.

Prosecutors often remind the grand jury that it is not to determine guilt or innocence, only whether there is probable cause to vote an indictment. Grand jurors learn that their days will go quickly and easily if they ask few probing questions and vote to indict whenever requested to do so. It is not uncommon to see grand jurors dozing or reading during testimony.

Everyone in the grand jury room, except the witness, is legally bound to keep its proceedings secret. Still, leaks occur. Further, in many courthouses, the grand jury room is situated so that the media and representatives of the investigation’s targets can stake out the grand jury room, observe who enters, and try to question those who appear to be witnesses outside the grand jury room.

The prosecutor will retrieve the witness from an anteroom right outside the grand jury room. The witness walks to the front of a room and sits at a table or stands in front of the jurors. A court reporter sits nearby.

After the witness is sworn, the prosecutor advises the witness that the testimony is under oath, and if the witness lies he or she faces criminal penalties for perjury or false statements. The prosecutor will tell the witness that he or she can refuse to answer a question if the answer would tend to incriminate him or her and that he or she will be permitted a “reasonable opportunity” to leave and to consult with counsel during the questioning.

The questioning will resemble trial or deposition questioning, but without objections. Unless the prosecutor views your client as a hostile witness or unless the prosecutor is setting a “perjury trap,” however, the questioning will not be as searching and lengthy as trial or deposition testimony. The prosecutor wants to elicit enough to make a prima facie case against the target and to commit your client to a favorable version of events on the key points, without eliciting details that the defense later can prove to be inaccurate.

When the prosecutor finishes, the grand jurors themselves can ask questions. Some prosecutors will excuse the witness momentarily while they gather and screen the questions; others will permit the jurors to ask questions as the witness sits there. These questions can be especially dangerous because they often take the form of accusations: “Didn’t you, or shouldn’t you have known it was wrong?”

Tempted as the client may be to try to help the jurors, he or she should pause, think, and exercise great caution in answering their questions. Faced with a question like the one just described, the client should ask for a chance to consult the lawyer (especially if the lawyer has not prepared the client with an answer beforehand), and the lawyer should either tell him or her to invoke the privilege or answer along the following lines, assuming the answer is true: “I did not think it was wrong at the time.” As an alternative, the witness might say: “I don’t remember what I thought about it at the time. Now, after the prosecutor told me it was wrong, I guess it was.”

If the client intends to invoke his Fifth Amendment privilege against self-incrimination, and the prosecutor will not excuse his or her appearance, the criminal lawyer may not trust the client with when and how to invoke the privilege. If the lawyer cannot accompany the client into the grand jury room, the lawyer must instruct your client to consult with the lawyer after every question other than his or her name.

The client should have a card or sheet of paper with the words with which to invoke the privilege: “Based upon the advice of my attorney, I invoke my rights under the Fifth Amendment and must refuse to answer the question.”

Once the client finishes, the lawyer has the right and obligation to debrief the client immediately and thoroughly before his or her memory fades because rarely will the lawyer be given a transcript of the testimony.

The client should be asked to describe everything the prosecutor asked.

The focus should be on the following issues:

1. About whom did the prosecutor ask?
2. About whom did he or she fail to ask (likely targets ignored by the prosecutor are probably cooperators)?
3. Which events were discussed?
4. Did the prosecutor ask questions that showed he or she had spoken with other witnesses or had knowledge of events that must have come from sources other than the client?
5. Did the prosecutor show your client any documents?
6. Did the grand jury ask any questions?
7. What was the prosecutor’s tone throughout the testimony? Did the prosecutor seem to believe your client? Did the tone change and become challenging in response to any particular answers?

The witness does not receive transcripts of any testimony until and unless there is an indictment, when the defendant may obtain the transcript of his or her own testimony in discovery, and the testimony of a witness only after the witness testifies at trial. The defense will never see the transcripts of the document returns, prosecutor’s legal instructions, descriptions of the evidence, or colloquies with the grand jurors.

If a lawyer represents a subject or target, the lawyer will want to find out as much as possible about the grand jury investigation for several reasons.

First,if the lawyer is to have any chance of convincing the prosecutor not to indict, the lawyer needs to know the strength of the evidence.

Second, the time for investigation after the indictment is returned will be short, so th lawyer should begin as soon as possible.

Third, early interviews of witnesses may make the prosecutor less successful in poisoning their minds against your client and shaping their stories in a manner favorable to the government.

Depending on how aggressively the lawyer investigates, the lawyer should be prepared for a hostile reaction from the prosecutor. Some prosecutors confuse interviewing witnesses with tampering with them. Therefore, the lawyer must be scrupulous in emphasizing to all witnesses that the lawyer only wants only the truth. The lawyer should not discuss the benefits to be gained or harms to be avoided by cooperating with your investigation.

The initiation of a grand jury investigation does enable the determination of whether there has been any wiretapping of your client or a witness. A witness may refuse to answer questions or produce documents in response to a grand jury subpoena that derives from illegal electronic surveillance. Upon the request of a grand jury witness, the government must disclose the existence of any electronic surveillance, even if legal, and identify the law enforcement agencies contacted to help furnish the response.

Prosecutors and agents sometimes tell witnesses that they cannot disclose the fact that they have received a subpoena nor can they tell anyone what they produced or what they said in response to a grand jury subpoena. Sometimes, agents and prosecutors include a legend on the subpoena that, while precatory, sounds forbidding. These restrictions generally are improper. Witnesses also have a First Amendment right to speak.

If a lawyer learns that a witnesses is hesitating to talk to the lawyer because of a prosecutor’s admonitions, the lawyer should first request that the prosecutor authorize the lawyer to send a letter to the witness explaining that he or she is free to speak to the defense.

The letter should come from the lawyer – not the prosecutor Why? If prosecutors or their agents speak to the witness, they will explain the right to speak briefly and then explain to the witness at great length that he or she also can choose not to speak to you. If the prosecutor refuses, file a motion requesting that the court order the prosecutor to send the letter.

If the investigation ends without the client being charged, the prosecutor should be asked to send a “declination” letter. While the usual practice is not to provide one, both to preserve grand jury secrecy and because nothing prevents the investigation from being revived, Department of Justice policy leaves the matter entirely to the local U.S. attorney’s discretion.

This article was summarized and adapted from an article appearing in The Champion Magazine

National Association of Criminal Defense Lawyers (NACDL)

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