Will I Have to Testify in Court If I Cooperate??

If you cooperate, it does not necessarily mean you will have to testify in court. Often, you can provide information that allows the government to conclude a case, or build its case against someone else, without your involvement in a trial. For example, if the defendant pleads guilty, or if other witnesses and evidence are sufficient to prove the case, you may not be needed in court.

However, testifying in court can be a condition of cooperation. Most cooperation agreements include provisions requiring truthful and complete testimony whenever prosecutors or Assistant United States Attorneys (AUSAs) deem your testimony necessary to pursue a conviction. Even without a formal cooperation agreement, the government can use its subpoena power to compel your attendance and testimony in open court.

Under the United States Sentencing Guidelines (U.S.S.G. § 5K1.1), prosecutors have the ability to seek a “departure” for individuals who provide “substantial assistance” in the investigation or prosecution of others. To do so, the government must file a substantial-assistance motion with the court. According to § 5K1.1, factors used to determine if information constitutes “substantial assistance” include: (1) usefulness, (2) truthfulness and completeness, (3) extent of assistance, (4) danger involved in providing the information, and (5) timeliness.

A § 5K1.1 motion is one of several potential paths to reducing a sentence. However, unlike other means, a § 5K1.1 motion alone is insufficient for authorizing a sentence below the statutory minimum. Sentences below the statutory minimum are authorized under U.S.C. § 3553(e) after the government files a motion on the defendant's behalf. Federal safety valve relief is also available in some cases under 18 U.S.C. § 3553(f) (as opposed to § 3553(e)), although it requires satisfying specific legal requirements.

Can I refuse an interview or a federal subpoena?

If you are under a federal cooperation agreement or a plea agreement, refusing to testify in a federal proceeding can constitute a breach of contract. For an individual facing federal charges, a breach of a cooperation agreement is generally deemed to be a breach of the plea agreement as well, meaning he or she will likely not receive the benefits of his or her plea agreement (i.e., a favorable outcome) or may even have his or her charges reinstated.

Without regard to any legal process, no one is generally required to give testimony in a witness interview unless he or she has a contractual duty to do so, or is under a federal subpoena. If you or a family member is acting as a voluntary witness, then the government cannot generally force you or a family member to answer their questions. However, voluntary witnesses must still comply with legal process issued by a federal court of competent jurisdiction.

When you are served with a valid federal subpoena, appearance is generally required, regardless of whether you or a family member may have testimonial privileges (like the spousal privilege) to withhold testimony. Although, in some cases, it will be possible to successfully challenge the subpoena in court. However, this requires timely and strategic legal action before the government initiates contempt proceedings.

Federal Rule of Criminal Procedure 17(g) authorizes the district court to hold any person in contempt for whom the court has issued a subpoena, and which they willfully disobeyed and for which they have no adequate excuse. Contempt proceedings can lead to criminal fines or incarceration if the person is not held in civil confinement, and this is even if the person cannot successfully challenge the subpoena and thus cannot avoid having to testify.

Civil confinement under 28 U.S.C. § 1826 is another means of enforcing a federal subpoena issued under Federal Rule of Criminal Procedure 17. While this type of confinement is limited to 18 months, it can also be enforced to compel testimony from a witness if they have been given a sufficient explanation as to why it is necessary for them to testify.

Also under 28 U.S.C. § 1826, coercive civil confinement is one method of enforcing subpoena obedience. Once this civil confinement process begins, federal witnesses will be given an opportunity to express their just cause for refusal of the subpoena in a court of law, or have their just cause for refusal of testimony under a valid federal subpoena examined before the judge presiding over the proceedings. If no just cause is found, the person will remain incarcerated until they agree to cooperate and the civil confinement process will end, provided that the confinement doesn't outlast the specific proceeding or grand-jury term triggering the refusal.

Ultimately, federal witnesses have no general right to refuse all testimony in federal proceedings, though there are, of course, various substantive protections and privileges available in specific circumstances. Depending on your situation, taking advantage of these protections may help you avoid unnecessary or harmful consequences.

When does the Fifth Amendment let me refuse answers?

The Fifth Amendment privilege is a question-by-question determination. While not a blanket refusal, which some believe to be the case, it is a privilege against testifying on a specific point that could incriminate you. As the Supreme Court puts it in Hoffman v. United States, “It is a privilege not to testify on any point that could incriminate you. Not a privilege to refuse to testify altogether.” Federal courts have made the same point: the Fifth Amendment privilege applies to each question individually rather than as a blanket privilege to refuse to answer any questions at all. When using the Fifth Amendment, witnesses should be mindful of when a blanket refusal may not be available.

When witnesses are compelled to testify over their Fifth Amendment objections in federal proceedings, a witness must show that he or she has “reasonable cause to fear that an answer would contain information that would tend to incriminate” himself or herself, which is the standard that was established by the Supreme Court in Hoffman. This is the justification required to seek the protections of the Fifth Amendment.

While a witness who has already pleaded guilty to the crime that is the subject of the investigation cannot ordinarily invoke the Fifth Amendment privilege, this is not true in all situations. A witness who has pleaded guilty may still have Fifth Amendment exposure if they are exposed to a prosecution for another crime based upon their testimony in federal proceedings. As long as the witness’s testimony presents additional Fifth Amendment exposure to the witness, a valid invocation may still be possible.

Ultimately, the trial judge must decide whether the asserted Fifth Amendment privilege is valid. If a witness invokes the Fifth Amendment without a valid reason, the judge can compel the witness to provide answers to the question(s) at issue.

While federal prosecutors have the authority to grant immunity to federal witnesses in order to avoid having to deal with the witness’s Fifth Amendment invocation, federal law (18 U.S.C. § 6002) specifies that this is “use or derivative-use immunity.” This immunity differs from transactional immunity, meaning that while this immunity prevents the prosecution from using the testimony to secure a conviction against the witness, it does not prohibit the use of the testimony to prosecute another person or prosecute the witness based upon an independent source of evidence.

When a witness’s Fifth Amendment basis to refuse answering is removed due to adequate immunity, the witness can no longer lawfully refuse to answer.

As a federal witness, you are not likely to face obstruction charges for invoking the Fifth Amendment privilege in federal proceedings. Nonetheless, this privilege is not a blanket refusal to testify and invokes the Fifth Amendment privilege or refuses to testify on other grounds, the witness may be asked to identify their just cause for refusal. If a witness is in breach of his or her agreement due to refusal of testimony, this may change the circumstances, and it will depend on the specifics of the case at hand.

Last, the Fifth Amendment privilege cannot be used to shield a witness’s testimony merely because it may be embarrassing or humiliating, but it cannot protect the witness’s testimony because it might incriminate the witness.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

Can family or attorney-client privilege prevent my testimony?

For federal witness-spouses, Trammel v. United States provides them with control over whether their spouse may testify adversely to them. That is, if their spouse intends to testify against them, the witness-spouse may either consent to this testimony or invoke a privilege that prevents his or her spouse’s testimony. While this is generally true for current marriages, after divorce, the adverse spousal-testimony privilege ends for former spouses.

The marital-communications privilege is a separate privilege, but it may still protect confidential communications between spouses made during the marriage. As a result, while the adverse spousal-testimony privilege ends when a marriage ends, the testimonial privilege based on the marital-communications privilege may end up in effect even after a divorce.

The federal government recognizes no general parent-child testimonial privilege. Unlike the spousal privilege, parents, children, siblings, and grandparents can generally be compelled to testify against their family members.

For an attorney-client relationship, the attorney-client privilege protects all “qualifying confidential communications” made between the two, subject to the criminal-fraud exception. This differs from the adverse-spouse testimonial privilege in that, not every fact a lawyer knows about his or her client is protected under the attorney-client privilege. For instance, if your lawyer knows about the specifics of a crime you committed, such as where you hid the stolen vehicle you stole (or you hid a stolen car), then the lawyer will have no attorney-client privilege to withhold that information.

What is the crime-fraud exception?

The crime-fraud exception allows for the disclosure of otherwise confidential communications and work product that were used to facilitate a crime or fraud that is either currently being committed or is expected to happen in the future. For example, if you called your lawyer to ask how to best cover up evidence of a past crime, this conversation is not covered under attorney-client privilege. When dealing with the crime-fraud exception, however, when it applies remains a subject of debate.

Are there exceptions for other family members?

Absent legal process, or contractual obligation, generally anyone has the right to refuse to do witness interviews with the government. When a federal subpoena is involved, exceptions for refusing to answer questions (including the asserted privileges) are limited. Unless you are facing a federal inquiry that allows you to successfully invoke a recognized privilege or privilege-like protection, then generally no family relationship can protect you from being compelled to testify.

Do these privilege-like protections prevent all testimony?

Generally, when the relationship privileges apply, then the privilege protects information that was disclosed in confidence, rather than all of the testimony against the other individual. The exception to this rule is the adverse spousal-testimony privilege, which generally permits a spouse to prevent his or her spouse from testifying at all in federal proceedings.

Where might I testify during a federal cooperation?

If you or a family member are designated as a witness in a federal investigation, you or a family member may have to testify in a variety of circumstances, including:

• Grand jury
• Criminal trial
• Suppression hearing
• Evidentiary hearing
• Sentencing hearing

Can I have my lawyer in the grand jury room with me?

The federal Rule 6(d) of the Federal Rules of Criminal Procedure expressly prohibits lawyers of grand jury witnesses from entering the grand jury room while testimony is being delivered. Grand jury witnesses, however, can have counsel waiting outside, and as necessary, request to step outside to consult with counsel. While grand jury witnesses can request to consult with counsel, there is no federal rule that guarantees that grand jury witnesses get to have consultations between every single question.

What is a federal proffer?

A federal proffer is fundamentally an interview with the government, rather than being a formal sworn statement made in court. A proffer is conducted at the U.S. Attorney’s Office or another designated location and is intended to gather information before charges are filed.

What is the difference between a grand jury and a federal criminal trial?

While grand juries assess probable cause in order to determine if charges should be filed against the defendant, federal criminal trials assess guilt beyond a reasonable doubt.

Do grand jury witnesses have to follow grand jury secrecy rules?

Federal Rule 6(e), which is the secrecy rule for grand juries, generally does not impose secrecy obligations upon grand jury witnesses.

What is an evidentiary hearing in a federal criminal case?

In order to resolve discrete issues before a criminal trial begins, evidentiary hearings are common. These hearings may deal with issues such as suppression of evidence, admissibility, determining what facts are at issue for sentencing, among others.

How do I avoid lies and inconsistent statements?

The U.S. Criminal Code, in 18 U.S.C. § 1621, makes perjury a federal crime punishable by up to five years in federal prison.If you are uncertain about an answer, you can truthfully state:

• I do not know
• I do not remember
• I’m not sure

While, with that said, you should only say this if it is true. Guessing can lead to inaccurate testimony and potentially lead to accusations of perjury later on. In fact, guessing about a detail which you subsequently state that you remember is a common scenario where witnesses find themselves in hot water.

Another common scenario that federal witnesses find themselves in is making a statement to the federal government and then later testifying inconsistently with the statement. If you give a proffer, the signed proffer agreement should govern how prosecutors can use that statement. Generally, the government can use statements made during proffers only when they are made in a signed proffer agreement, and as with other statements that can become sources of impeachment when they are inconsistent with testimony. If you do get charged with obstruction and are accused of making contradictory statements in federal proceedings, your defense attorney will likely scrutinize a Form 302.

What is an FBI Form 302?

An FBI Form 302 is more of an agent’s summary from notes taken during a witness interview rather than a verbatim transcript. In fact, federal agents don’t often record witness interviews. As a result, if an FBI agent’s Form 302 is used for impeachment, a witness may be able to prove that the summary was inaccurate or incomplete.

Can you use the content of my proffer against me?

Common grounds that can be prohibited under proffer agreements also include the ability of prosecutors to use, or derive, investigative leads from the witness’s statement. With that said, proffer agreements may still contain exceptions allowing this use except against the cooperating party. This is generally permitted by law.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.