Declining to Testify Before a Federal Grand Jury.

The Fifth Amendment to the U.S. Constitution is only one possible avenue of refusing to answer a grand jury question. In fact, “it is a basic principle of the law of evidence that the privilege of not testifying against oneself applies only to incriminating questions, and not to compelled appearance.A witness subpoenaed to testify in front of a grand jury cannot refuse to answer based on the privilege against self-incrimination until after he or she is sworn in and begins to be questioned.

What if I Claim Another Constitutional Privilege?

Witnesses who have privileges other than those provided by the Fifth Amendment generally must be prepared to establish them before a federal grand jury if asked to testify. For example, attorney-client privilege may be claimed for certain communications or documents during the witness’s testimony. Similarly, under 18 U.S.C. § 2261, the United States will not prosecute in federal court an individual for a crime committed “solely by reason of being a federal witness.”

What if I Destroy the Records that are in My Possession?

While destroying records of any kind can have various criminal consequences, 18 U.S.C. § 1519 expressly prohibits “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case.” This federal criminal statute prohibits destroying records when you know you will need them for a federal grand jury proceeding in order to defend yourself.

What Should I Do After Receiving a Grand Jury Subpoena?

After receiving a grand jury subpoena, the first step is to calendar the appearance or production deadline, or both, that are stated in the subpoena. The next step is to preserve any materials in your possession that may be responsive to the subpoena. As with any litigation, your obligation to preserve potentially responsive records and other materials begins when you receive, or should reasonably anticipate receiving, a subpoena.

The third step is to identify what is being demanded. Subpoenas may demand testimony, production of records or other materials, or both. You need to be able to answer these questions in order to develop a grand jury response strategy.

The fourth step is to get in touch with an experienced federal grand jury defense lawyer at Spodek Law Group

If you are subpoenaed by a federal grand jury, you need to know your rights and obligations. From making informed decisions about whether to assert Fifth Amendment privilege or another constitutional privilege, to making informed decisions about whether to contact the prosecutors handling the grand jury investigation, from the potential consequences of violating your subpoena to the potential consequences of violating 18 U.S.C. § 1512, you need to understand how the law applies to your situation in order to make the right decisions.

While you may wish to contact prosecutors and attempt to negotiate terms of your grand jury involvement, remember that discussions with prosecutors do not automatically extend the court-ordered deadlines set in your subpoena. Extensions may be granted, but extensions must typically be obtained before your subpoena compliance deadline expires.

Grand jury subpoenas are unique because of the various consequences of noncompliance. Along with the other consequences of obstructing a federal criminal investigation, 18 U.S.C. § 1512(b) makes it a federal offense to:

“(1) knowingly use intimidation, threats, or corruptly persuade another person, or engage in misleading conduct toward another person, with intent to:

(A) influence, delay, or prevent the testimony of any person in an official proceeding;

(B) cause or induce any person to withhold testimony, or withhold a record, document, or other object, or avoid legal process, or avoid making a required or lawfully requested disclosure to an official proceeding;” or

Separately, 18 U.S.C. § 1512(c)(2) makes it a federal offense to corruptly obstruct, influence, or impede any official proceeding, or attempt to do so.

How Do I Invoke the Fifth Amendment Before the Grand Jury?

Generally speaking, a subpoenaed grand jury witness cannot invoke the Fifth Amendment to excuse himself or herself from appearing before the grand jury or testifying entirely. The Fifth Amendment only protects against having to testify in your own case or testifying about incriminating matters.

The Fifth Amendment must be asserted before answering the question to which it applies. If a question carries the risk of self-incrimination, a witness must refuse to answer based on the Fifth Amendment before answering that question, or any question that may be related to that question.

If necessary, federal prosecutors can request that the supervising grand jury judge reject a witness’s assertion of the Fifth Amendment privilege. In this situation, the grand jury judge will typically evaluate the witness’s assertion of the Fifth Amendment privilege in camera, without disclosing the witness’s statement to the grand jury.

In situations where it appears that nearly every question asked of a witness will carry the risk of self-incrimination, the judge may accept the witness’s blanket invocation of the Fifth Amendment privilege, and the witness will be allowed to leave. Otherwise, the judge will determine whether a specific question (or a specific series of questions) carries the risk of self-incrimination.

If the judge rejects a witness’s assertion of the Fifth Amendment privilege, the judge may then order the witness to answer the specific question(s) that the judge rejected. If the witness refuses to answer after the judge’s order, the witness may be found in contempt of court and could be jailed until he or she agrees to answer the question(s).

The Fifth Amendment is intended to protect natural persons against compulsory testimonial self-incrimination. In other words, the Fifth Amendment only applies to testimony that may be used against the testifying party at trial or during the prosecution’s case-in-chief.

As a result, the Fifth Amendment does not protect a witness when testifying about a certain matter does not carry the risk of self-incrimination. This includes situations when testifying does not expose the witness to potential criminal charges, even if testifying about the matter may expose someone else to potential criminal charges.

Does the Fifth Amendment Protect Documents and Business Records?

Generally speaking, the Fifth Amendment does not protect the contents of voluntarily prepared documents, but rather testimonial communication. In other words, while you can invoke the Fifth Amendment to refuse to answer certain questions when testifying, you generally cannot use the Fifth Amendment to refuse to produce a document or other tangible records when you receive a grand jury subpoena.

The Supreme Court of the United States has recognized, however, that producing records can also carry testimonial risks. In United States v. Doe, 465 U.S. 605 (1984), the Court noted that:

“The act of producing the records of a client’s business constitutes an implicit admission of their existence and an implicit assertion of their authenticity. There are the implications of possessor’s control over the material requested. These are important testimonial matters that may create, and in some circumstances will create, liability. But the privilege protects the information in these documents only if the information is obtained without coercion or compulsion. To what extent, if any, should the Fifth Amendment apply to documents produced voluntarily? If not, why should it protect testifying against forced production of records, whether the records be business records or not? For the reason I stated above, this answer must be no.”

As a result, individuals who are subpoenaed by a grand jury for documents and/or testimony can sometimes assert the Fifth Amendment to avoid producing documents.

Do Business Entities Have Fifth Amendment Privileges?

While the Fifth Amendment privilege protects individuals, it does not protect business entities. The Fifth Amendment only protects against testimony that may expose the witness to criminal prosecution. As a result, individuals who own, control, or work for business entities generally cannot use the Fifth Amendment to refuse to produce business records.

What Is the Required-Records Doctrine?

There are also two other legal doctrines that grand jury prosecutors often use in order to defeat Fifth Amendment objections to produce requested records. The required-records doctrine applies when federal laws require a party to maintain a particular record. For example, federal records retention requirements for banks, credit unions, brokerage firms, other regulated financial entities, and various other parties often trigger the required-records doctrine. In those cases, taxpayers or other regulated parties cannot refuse to produce a specific document because the Fifth Amendment does not protect documents that the government requires parties to create.

Another legal doctrine is the foregone-conclusion doctrine. This doctrine provides that the Fifth Amendment act-of-production privilege does not apply where the prosecution can show that the act of producing records provides information about facts that the prosecution already possesses and that is not a secret.

What Is the Collective-Entity Rule?

Another legal rule that limits a witness’s ability to invoke the Fifth Amendment privilege regarding documents is the collective-entity rule. Custodians or agents of corporate entities or organizations generally cannot refuse to produce documents that are in the entity’s possession and control. While an individual’s act of producing documents and records that she personally created and possesses may be protected under the Fifth Amendment, the same person’s act of producing documents and records for her corporate entity is generally not protected. This rule applies to company representatives like the CEO, CFO, a financial controller, or a company’s accountant.

What If I Am Subpoenaed to Produce Electronic Data?

The subpoena’s request for “documents,” “business records,” or other tangible materials can include any tangible materials that are in a witness’s possession, including electronic data. As discussed above, when you receive a grand jury subpoena, you need to preserve all documents, records, and other materials, including electronic data, that may be responsive to the subpoena.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Can a Judge Quash or Narrow a Federal Grand Jury Subpoena?

Federal Rule 17(c)(2) provides the legal standard for quashing or modifying a subpoena that is “unreasonable or oppressive.” If you have been served with a grand jury subpoena, a motion to quash should be filed before your compliance deadline. However, grand jury subpoenas carry a strong presumption of validity, and they generally cannot be quashed unless a party can clearly establish that the subpoena is “unreasonable or oppressive.”

Rule 17(c)(2) specifically applies to “subpoenas that demand the production of documents, electronically stored information, tangible objects, or other material.” If you receive a grand jury subpoena that only requires your appearance and testimony, Rule 17(c)(2) alone does not provide a means to quash it or make other objections.

Filing a motion to quash a grand jury subpoena does not automatically stay compliance. This means that, while pending, your motion to quash does not necessarily suspend your obligations under the subpoena. If necessary, the court will stay compliance until the court rules on your motion.

To decide whether a grand jury subpoena should be quashed or narrowed, courts generally look at five key issues:

• Relevance: Is the subpoenaed information relevant to the grand jury investigation?
• Particularity: Is the subpoena reasonably specific, or does it constitute an unwarranted “fishing expedition”?
• Burden: Does the cost of compliance constitute an undue burden?
• Privilege: Is some or all of the requested testimony or documents protected under a federal or state privilege?
• Constitutional Objections: Does compliance with the subpoena create a risk of self-incrimination under the Fifth Amendment?

As grand jury defense lawyers at Spodek Law Group, we can help you make informed decisions regarding your grand jury subpoena compliance, and we can help you establish a defense strategy based on your unique circumstances.

Can I Demand Immunity Before Answering Grand Jury Questions?

The short answer is no. Only the United States Attorney, with the approval of the Attorney General, can ask the federal district court to grant immunity under 18 U.S.C. § 6003. You cannot force prosecutors to seek statutory immunity on your behalf.

Federal immunity requests are discretionary. Prosecutors can decide to ask for immunity in any investigation if they think that is appropriate. They can also seek statutory immunity in one case but not seek immunity in another. The privilege to seek immunity rests with the prosecutors, and there is no obligation, statutory or constitutional, to request the privilege for any party.

What is Use Immunity?

Statutory immunity granted under 18 U.S.C. § 6003 takes the form of “use immunity,” as opposed to total or “transactional immunity.” Under use immunity, government prosecutors are barred from using the witness’s compelled testimony (and any evidence derived from compelled testimony) against the witness in a subsequent criminal proceeding.

Use immunity also allows the government to pursue criminal prosecution of witnesses using independent evidence. When the prosecution pursues a case relying on independent evidence, the government bears the burden of proof. This was established in Kastigar v. United States, 379 U.S. 107, 128, 131-132 (1965). Prosecutors must prove to the court that their evidence came from a source other than the compelled testimony of the witness.

Under Section 6003, witnesses who receive the benefit of use immunity must testify truthfully and comply with the grand jury subpoena without regard to the potential for incriminating themselves. As noted above, while Section 6003 creates immunity for use of certain evidence in a subsequent case, it does not protect witnesses against perjury charges, prosecution for making false statements to federal investigators, or charges for refusal to comply with grand jury subpoenas.

Similarly, Section 6002 does not protect witnesses from prosecution for perjury, making false statements to federal law enforcement officials, or refusing to comply with a grand jury subpoena.

As the experienced grand jury defense team at Spodek Law Group, we represent witnesses with no hesitation.

What Happens if I Refuse to Testify After the Judge Orders Testimony Following Immunity?

If you refuse to testify even after you have been granted statutory immunity, the federal prosecutor will typically invoke contempt authority to pursue compliance. This begins a “recalcitrant-witness process” in which prosecutors ask the supervising judge to hold the witness in civil contempt. Under 28 U.S.C. Section 1826, this process grants the court authority to “[c]onfine a recalcitrant witness until he or she has complied with the court’s order to testify, or until the grand jury investigation expires, without which time the grand jury’s term will end, whichever is earlier.” Section 1826 limits confinement for civil contempt in grand jury proceedings to a period of 18 months.

Civil contempt is meant to be coercive rather than to punish the recalcitrant witness for past conduct. As with other civil contempt proceedings, confinement under Section 1826 is permissible only so long as it remains likely to achieve compliance. This includes cases in which the witness refuses to testify even when, in light of their grant of immunity, testifying cannot result in self-incrimination. When confinement does not serve a realistic coercive effect, it must end as well.

Unlike civil contempt, criminal contempt is meant to punish a completed unlawful act. In civil contempt proceedings, witnesses are deemed the masters of their own fate, and they themselves have the power to stop any further consequences. In contrast, criminal contempt cases involve disobedience, and the subsequent punishment serves as a deterrent to others, even though the target cannot undo the past harm. 18 U.S.C. Section 401 authorizes criminal contempt prosecution for those who willfully disobey or fail to obey a court or judge’s lawful order or judgment.

Recalcitrant witnesses who are confined for civil contempt may challenge confinement under Section 1826(b) by appealing the district court’s decision to the relevant U.S. Court of Appeals. A witness must file their appeal within 30 days from the date of their sentencing.

Can My Lawyer Help with a Federal Grand Jury Subpoena?

There are several key differences between testifying before a grand jury and testifying in a court proceeding. While you can’t bring your lawyer inside the grand jury room, Rule 6(d) to the Federal Rules of Criminal Procedure does not strictly bar a lawyer from helping clients that are required to testify before a grand jury.

As provided in Rule 6(d), the Federal Rules of Criminal Procedure: “A witness may consult with counsel outside the grand jury room.”

In practice, when witnesses are compelled to testify in federal grand jury proceedings, witnesses’ lawyers often wait nearby during the witness’s grand jury testimony. In cases where witnesses get a break, witnesses often consult with their grand jury lawyers before proceeding to testify. As a result, federal prosecutors don’t need to read grand jury witnesses their Miranda rights.

While the Sixth Amendment to the U.S. Constitution places counsel inside the court room, the Sixth Amendment does not place counsel inside the grand jury room. As it is not the government’s intention to assist lawyers in their role as grand jury witnesses’ defense lawyers, Rule 6(d) does not provide them the same protections as the Sixth Amendment allows.

The rule that prohibits defense counsel from grand jury rooms is strictly interpreted in most cases. However, the court has the authority to regulate consultation breaks as if they are unnecessary or disruptive. “A court may not improperly interfere with the relationship between the witness and counsel. The jury room privilege belongs to the grand jury. There is no other single privilege, or at least no privilege that would justify breaking grand jury continuity. The district court should not permit a witness to break continuity without a good reason.”

In other cases, the court has limited the scope of consultation breaks. For example, it’s prohibited to provide your lawyer time outside of a grand jury room to coach your testimony during your breaks. Again, the law protects witnesses, not their lawyers.

Does the Attorney-Client Privilege Apply to Grand Jury Investigations?

Again, as discussed above, grand jury investigations differ from ordinary investigations in many ways. Most notably, the attorney-client privilege still applies during grand jury proceedings. As a result, while clients cannot refuse to testify because of the attorney-client privilege, they can refuse to answer particular questions or produce particular documents protected under the attorney-client privilege. If the witness is the lawyers’ client in the matter at hand, they are the sole party that can claim attorney-client privilege. Otherwise, the client whose records are sought can grant or deny the lawyer’s ability to rely on the attorney-client privilege in the grand jury proceedings.

At Spodek Law Group, we represent federal grand jury witnesses who are subject to grand jury subpoenas throughout the country.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.