Preparing to Testify Before a Federal Grand Jury.

1. Acknowledge That Every Answer Can Shift Your Status from “Witness” to “Target”

2. Understand That A Grand Jury Decides Probable Cause Rather Than Guilt

3. Understand That Probable Cause Is a Substantially Lower Standard of Proof Than Guilt

4. Understand That Your Grand Jury Testimony Can Directly Impact a Future Prosecution

5. Understand That Your Grand Jury Testimony Can Indirectly Impact a Future Prosecution

6. Understand That Your Grand Jury Testimony Can Directly Impact a Future Investigation

7. Understand That Your Grand Jury Testimony Can Indirectly Impact a Future Investigation

8. Understand That Your Grand Jury Testimony Can Lead to Your Own Criminal Prosecution

9. Understand That Federal Grand Juries Investigate Federal Criminal Law Violations

10. Understand That Federal Grand Juries Investigate Many Different Types of Crimes

11. Understand That Federal Grand Juries Investigate Many Different Types of Offenses

12. Understand the Role of a Grand Jury Indictment in Federal Criminal Cases

What Should I Do Immediately After Receiving a Subpoena?

1. Have Your Lawyer Reach Out to the Prosecution Team

Once you engage legal representation, the first thing your lawyers will do is contact the federal prosecution team in charge of the grand jury investigation. From there, your lawyers will:

• Find out whether you are a subject or target of the grand jury’s investigation;
• Find out the scope of the grand jury’s investigation;
• Find out what topics the grand jury is likely to ask you about;
• Find out what witnesses and exhibits the grand jury is using to build its case; and,
• Try to negotiate an alternative to testifying before the grand jury.

2. Do Not Assume You Are the Subject of the Investigation

Unless the prosecutors are willing to be upfront about it, it is important to remember that receiving a federal grand jury subpoena does not necessarily mean you are the subject of a federal investigation. There are many reasons why a federal grand jury may want you to testify about your knowledge of someone else’s crimes, and for the most part, those reasons should not result in you being investigated.

But you have to be able to convince prosecutors not to investigate you as a result of your testimony. This requires having seasoned legal counsel who knows what they are doing.

3. Do Not Ignore Your Subpoena

Ignoring a valid federal grand jury subpoena without adequate legal excuse can (and often does) result in contempt sanctions against you. Rule 17(g) of the Federal Rules of Criminal Procedure provides that the court may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district. With nothing and no one beyond the grand jury’s reach, there is nothing and no one that is “unjustified” in the face of a subpoena.

4. Try to Negate the Need to Testify in Person

Prosecutors may be unwilling to answer your lawyers’ questions about whether you are a subject or target of the investigation, the scope of the grand jury’s investigation, and the questions you will be asked. Many prosecutors prefer to keep their investigation’s details a secret to avoid receiving rehearsed testimony from federal grand jury witnesses.

Before resigning yourself to testifying before the grand jury, consider whether an informal interview is an option. If prosecutors are willing to do so, an informal interview will allow your lawyers to sit beside you and offer guidance throughout the process. Informal interviews may also convince prosecutors to leave you alone in the future.

How Does Counsel Determine Whether I Am a Witness, Subject, or Target?

1. What Are the Definitions of Witness, Subject, and Target?

When a federal grand jury is called to a federal district court, it conducts investigations in secret. When you have counsel who can reach out to the prosecutors, they will be able to determine whether they consider you a “witness,” a “subject,” or a “target,” and your classification is determined according to these DOJ definitions:

A “witness” is a “person who has information relevant to the grand jury’s investigation, but in respect to whom the prosecutor has not uncovered evidence tending to show that the person’s conduct is within the scope of the investigation.”

A “subject” is a “person whose conduct is within the scope of the grand jury’s investigation.”

A “target” is a “person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

2. How Does My Classification Help with My Preparation?

If you are a “witness” and you are not suspected of criminal conduct (or at least the prosecutor is not willing to admit that you are), then your lawyers will use that classification to guide your grand jury testimony preparation. Similarly, if you are a “subject” or “target,” then your lawyers will use that classification to craft a defense and prepare for the possibility of facing criminal charges if necessary.

3. Can My Classification Shift During the Investigation?

Because federal grand juries often explore whether you are a witness, subject, or target by asking questions about your past conduct, the answer to this question is: Yes. Witnesses can become subjects and targets, and subjects can become targets. In fact, prosecutors often use grand juries as a way to gather evidence about suspected crimes without disclosing who they believe may have been involved.

4. Can I Hold the Government to the Classification it Sets?

It doesn’t matter what the prosecutors call you. Prosecutors will only set your classification as a witness, subject, or target unless they believe that it is essential to do so. Just because you are called a witness or a subject doesn’t necessarily mean you will remain in that classification for the duration of the grand jury investigation, and your classification today means nothing regarding whether the government can charge you with a federal offense today or in the future.

5. Can You Coach Me to Say Certain Things (or Not Say Certain Things) to the Grand Jury?

Our lawyers can prepare you to testify in federal grand jury proceedings, but we cannot coach you to commit perjury. U.S.C. § 1512(b) explicitly prohibits attempting to influence testimony for a federal grand jury or otherwise “corruptly persuade” another witness, especially if that involves the attempt to persuade the witness to “withhold, destroy, alter, or conceal” documents.

6. Will You Find Out Who the Subject of the Grand Jury Investigation Is?

In many cases, the subject of the investigation will be one of the witnesses who is called to testify, often the primary suspect. However, it is not uncommon for federal grand juries to investigate suspected criminal activity without identifying the subject of the investigation. Grand juries can uncover evidence about several possible suspects, and it can take time for federal prosecutors to determine which of those suspects to target if they have not done so already.

How Should I Answer Questions in the Grand Jury Room?

1. Can My Lawyer Be Inside the Room?

Rule 6(e) of the Federal Rules of Criminal Procedure provides an exception to the grand jury’s secrecy requirement for “prosecutors, interpreters, court reporters, or other persons whose presence is necessary to conduct the proceeding.” Grand jury witnesses’ lawyers are not included in this exception, and they are not permitted to be in the room when their clients are testifying. However, witnesses can generally leave the room to consult with their lawyers during the course of the proceedings.

2. Can I Just Say I Don’t Remember Anything?

You will be required to swear an oath before testifying before the grand jury. If you knowingly provide false testimony in grand jury proceedings, you may be charged with the federal offense of perjury under U.S.C. § 1623. Federal prosecutors have pointed to “I don’t know” or “I don’t remember” as a false statement when testifying in cases where witnesses claimed memory loss that prosecutors alleged was “manifestly implausible.” It is important to tell your lawyers about everything that you remember so your lawyers can assist you when you need to testify in grand jury proceedings.

3. Can I Say “I Don’t Know” and “I Don’t Remember” if I Truly Don’t Know?

If you are asked a question and you truly don’t have an answer, then “I don’t know” or “I don’t remember” is an answer. With that said, these answers can be red flags for prosecutors, especially when you have a legal representation, so you need to discuss these answers with your lawyer prior to your testimony. It is also important to never speculate when testifying in federal grand jury proceedings, as you can expose yourself to criminal charges without gaining anything from your guesswork.

4. Can I Challenge Other Witnesses’ Testimony in a Federal Grand Jury Proceeding?

You can object to a witness’s testimony if you have evidence of a conflict with that testimony, but your objections can go no further than that. As targets of grand jury investigations, you do not have the right to cross-examine other witnesses, and your lawyer cannot cross-examine other witnesses in your absence. As a result, your lawyer will need to work with federal prosecutors to attempt to expose these inconsistencies.

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

When Should I Invoke the Fifth Amendment or Seek Immunity?

1. Do I Have to Show Up Before I Can Assert the Fifth Amendment Privilege Against Self-Incrimination?

Assuming that the grand jury subpoena that you received is otherwise valid, you will have to show up before you can assert the Fifth Amendment privilege against self-incrimination. The Fifth Amendment privilege is a protection against being compelled to give testimony, and grand jury witnesses can be compelled to testify. As a result, the assertion of the Fifth Amendment privilege does not excuse the failure to respond to a valid subpoena, and it is generally necessary to appear before asserting the privilege.

2. When Does the Fifth Amendment Privilege Apply?

The Fifth Amendment privilege is a protection against giving testimony that could be used to “incriminate” the witness. For grand jury testimony, this means that the privilege generally applies separately to each potentially incriminating question. If your lawyer determines that answering a specific question is likely to create a reasonable risk of criminal exposure for you, your lawyer will advise you to invoke the privilege.

3. When Does a Section 6002 Immunity Agreement Apply?

A Section 6002 immunity agreement applies to compelled grand jury testimony, and the immunity also covers any information directly or indirectly derived from that compelled testimony or other information. However, a Section 6002 immunity agreement will not protect you if the government is able to prosecute you based on “genuinely independent evidence that is not derived from” the immunized testimony. When prosecutors tell you that you have immunity, they are only telling you that the testimony they compel from you in a federal grand jury proceeding cannot be used to prosecute you.

4. Is Immunized Testimony Protected in All Future Prosecutions?

Immunized testimony can be used by federal prosecutors in prosecutions for perjury, making a false statement, or disobeying a court’s immunity order. In these cases, prosecutors can use immunized testimony without facing the consequences of a Section 6002 immunity agreement.

5. When Can a Section 6003 Order Be Used?

A Section 6003 order is a court order that compels a witness to testify, even if he has a valid claim to the Fifth Amendment privilege against self-incrimination. A Section 6003 order is the mechanism by which a federal district court, on the request of the United States Attorney and with the approval of the Attorney General or a designee, compels testimony in a court or grand jury proceeding, and the use and derivative use immunity that attaches to that compelled testimony is supplied by Section 6002.

6. When Does an Informal Immunity Agreement Apply?

An informal immunity agreement is a negotiated agreement with the prosecutors about what information you will provide and what protections you will receive from prosecution. Because these agreements are informal, they only protect you if they state a specific protection that you are entitled to. The protection is limited to the protections that are expressly guaranteed under the terms of the agreement, and it is generally not applicable in any other contexts.

What if the Subpoena Asks for Documents, Company Records, or Other Evidence?

1. What Evidence Can a Federal Grand Jury Subpoena Demand?

According to Rule 17(c) of the Federal Rules of Criminal Procedure, a federal grand jury subpoena may order a witness to produce any books, papers, documents, data, or other objects the subpoena designates. This is a broad power. The only restrictions are that the subpoena must be “reasonable” in scope and not “unduly burdensome.” Under Rule 17(c)(2), a party may move to quash or modify a subpoena, and the court may do so if compliance would be unreasonable or oppressive.

2. Is a Prior Showing of Probable Cause Required for a Grand Jury Subpoena?

Grand juries do not require a prior showing of probable cause to issue subpoenas. As noted above, they serve as investigative tools for suspected violations of federal criminal law, and the grand jury’s purpose is to determine whether there is probable cause for a criminal charge. This means that if a grand jury has evidence that you may possess potentially relevant information, then it has the power to issue a subpoena for your testimony, documents, or other evidence.

3. Can a Fifth Amendment Invocation Prevent the Production of Records?

A Fifth Amendment invocation might prevent you from producing a record in order to make a voluntary production, but in all other cases, producing a record is generally not a “testimonial” act. Documents can become testimony when they are produced because the act of producing them may indicate their existence, the fact that you possess them, the fact that you know of them, their authenticity, or that they contain information related to the investigation. Federal courts have held that these five statements are enough to make a production “testimonial.”

As a result, if you assert the Fifth Amendment and fail to produce documents that you are required to produce, prosecutors can then obtain those documents through compelling a production from you using a court order.

4. Is the Information in Documents Protected from Use by the Fifth Amendment?

Generally, information that you voluntarily created before you asserted the Fifth Amendment privilege against self-incrimination cannot be protected under the privilege. The Fifth Amendment protects you from being forced to “give testimony” and does not protect you from the use of the contents of documents that were prepared prior to the grand jury’s investigation. However, the Fifth Amendment generally does not apply to corporate records, as the corporate record custodian cannot withhold records that are owned by a corporation.

5. Do I Have the Right to Assert Privilege with Respect to Certain Documents?

As before, lawyers have a wide range of tools at their disposal to prevent the unnecessary use of documents. In addition to the Fifth Amendment, there are several different types of legal and common-law privileges, including the attorney-client privilege and the lawyer-work-product privilege. However, under a broad body of case law, these privileges generally only protect confidential communications. The actual facts that your lawyers learned in response to your request for legal advice do not typically qualify for protection.

6. Is This True Even When I Get in Legal Trouble?

If you are in legal trouble, the Fifth Amendment privilege may be the only way to avoid testifying in a grand jury proceeding. If you invoke the Fifth Amendment, your lawyer can work with the prosecutors to obtain immunity for your testimony. If your lawyer obtains a valid immunity agreement, then your Fifth Amendment privilege will no longer apply, and you can then use your lawyer’s advice and information to fight criminal charges.

In some cases, prosecutors may use the “crime-fraud exception” to a legal privilege. This exception may allow prosecutors to obtain information about the facts behind the subject of a communication if that information is relevant to a fraud or other crime.

If you possess potentially incriminating information, you must use it with caution. U.S.C. § 1519 prohibits anyone from destroying or altering “any record, document, or other object” with intent to “impede, obstruct, or influence” the “proper administration” of a federal grand jury investigation or a criminal prosecution.

Can I Discuss My Grand Jury Testimony or Correct Mistakes After a Federal Grand Jury Proceeding?

1. Can I Discuss My Testimony with Others?

Rule 6(e) of the Federal Rules of Criminal Procedure says that a grand jury proceeding shall remain secret, and, it also requires grand jurors, prosecutors, interpreters, and court personnel to keep all grand jury matters confidential unless an exception permits disclosure. However, Rule 6(e) ordinarily does not impose grand jury secrecy on witnesses, meaning that you can generally discuss the testimony you provided with others.

2. Can I Get a Copy of My Testimony?

As grand jury witnesses, you do not have an automatic right to get copies of the transcript of your testimony from your appearance before the grand jury. You may need to file a motion to get access to your testimony and that process can take significant time and effort. Even if you gain access, reading your testimony without the benefit of its surrounding context or the questions of the grand jury can create confusion and lead to overthinking or false concerns.

3. Can I Recant or Correct My Testimony?

Section 1623 of Title 18 of the U.S.C. provides a limited safe harbor for recanting material false statements made under oath in grand jury proceedings: Recanting is permissible only when the witness corrects his testimony in the course of a “continuous proceeding,” and the recantation is presented “before any government attorney, judge, or grand jury” learns of the original false statement. These limitations mean that, in many cases, correcting grand jury testimony will come too late to protect the witness.

4. Will Recanted Testimony Be Taken into Account by Grand Jurors and Trial Judges?

Whether grand jurors and trial judges will take a recantation into account is a matter for the court to determine on a case-by-case basis. In any case, if you recant a relevant statement, this could be considered substantive evidence. Under Rule 801 of the Federal Rules of Evidence, “Prior-Inconsistent Statements” are exceptions to the hearsay rule, and this means that even though they may not be offered as substantive evidence if the statements were made truthfully, if the statement was made under oath and contradicted later in the same or another proceeding, this contradicts the credibility of the witness and can be considered substantive evidence.

5. Can I Recant and Avoid Criminal Exposure?

Recanting testimony in grand jury proceedings can expose witnesses to criminal prosecution. Section 1512 of Title 18 of the U.S.C. has a broad definition of engaging in conduct to influence testimony that can apply even before the relevant official proceeding begins. If you recant a false statement and offer a truthful one, prosecutors may view the act of recanting as an attempt to obstruct justice, especially when recantations occur when prosecution is imminent.

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.