Why Your Lawyer Waits Outside the Grand Jury Room.

Generally, no. Federal Rule 6(d)(1) permits only attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or operator of a recording device to be present while the grand jury is in session; a witness's own attorney is not on that list. Although no federal rule provides for it, courts have long recognized that a witness may leave the grand jury room to confer with counsel as often as is reasonably necessary. In practice, lawyers often wait outside the grand jury room while their clients give testimony, stepping in as needed.

Who Is Allowed in the Grand Jury Room?

Federal Rule 6(d) allows prosecutors, testifying witnesses, court interpreters, court reporters, and other recording personnel into the grand jury room. No one else can enter unless a federal judge authorizes their presence.

When the grand jury is deliberating and voting, everyone must leave except the grand jurors themselves and any interpreter needed to assist a hearing-impaired or speech-impaired juror. During grand jury deliberations and voting, even the prosecutors must leave the room.

What Does the Grand Jury Process Look Like?

The grand jury process is handled differently than a trial. While the defense side generally cannot interfere, the prosecutors play a primary role. During a grand jury proceeding, a federal prosecutor presents evidence and questions witnesses. The grand jurors may also ask questions to help them reach a decision.

The defense lawyer’s role is limited. Defense attorneys may not interfere in grand jury testimony and they have no right to interfere in the process. Defense lawyers ordinarily cannot present evidence, and they are not permitted to cross-examine grand jury witnesses.

In these cases, it is up to the prosecutors to question the witnesses and present the evidence they deem relevant for indicting the witnesses.

Can I Pause Grand Jury Testimony to Consult My Lawyer?

Yes. When testifying before a grand jury, you have the right to seek legal advice from your attorney between individual grand jury questions. While federal law recognizes the right to consult with an attorney, it does not guarantee that a witness can consult with their attorney after every single question asked by the grand jury.

Judges and prosecutors may impose reasonable time limits on how long consultation breaks can last, and they may impose restrictions on the frequency of consultations.

Additionally, judges have the authority to impose restrictions on attorney consultations which are intended to disrupt the grand jury proceedings or otherwise delay justice. However, courts have noted that consultations can delay proceedings and the attorneys, prosecutors, and grand jurors cannot be presumed to have granted the necessary time for these breaks.

What Can I Do If I Am Denied the Right to Consult with My Lawyer?

If the judge or prosecutor denies your request to consult with your attorney during the grand jury proceedings, you can instruct the court reporter to note your request and the denial. This will create a formal record of your request and the denial, which can be helpful if you later need to challenge the denial.

If a witness can prove that the denial had an impact on the testimony or the grand jury process, they may be able to avoid charges or even have a grand jury subpoena thrown out entirely.

What Can I Do If I Think the Question is Privileged?

If a witness thinks that a question asked by a federal grand jury is privileged, the witness should make this assertion on the record prior to answering. This assertion will become part of the formal record and the supervising judge will be tasked with resolving the dispute.

If the grand jurors and federal prosecutors refuse to allow a witness to claim privilege, the witness can request that the presiding judge intervene and allow the assertion.

The witness’s attorney may also present the dispute to the supervising judge on their client’s behalf. The presiding judge will review the matter and make a determination as to how the witness should proceed.

What Happens After the Judge Makes a Decision?

Once the judge makes a determination and the witnesses have had the opportunity to consult with their attorney, the proceeding will resume. The witness will be then able to answer the question if it is determined that the information is not privileged. If the information is privileged, then the witness will be excused or the proceeding will be paused as needed.

Remember that grand jury proceedings are secret, though Rule 6(e)(2) imposes that obligation on the grand jurors, the prosecutors, and court personnel rather than on witnesses, who remain free to discuss their own testimony.

Does My Case Status Change My Right to Counsel?

Even if the federal prosecutors label you a target of the grand jury investigation, this does not create a federal right to courtroom counsel. Anyone who is being investigated by the grand jury will only enter the grand jury room if and when they are testifying as a witness. The attorneys who are representing these individuals will also be restricted by Rule 6(d) in this case. This rule requires attorneys to remain outside the room for the duration of their client’s testimony.

Does the Sixth Amendment Right to Counsel Apply?

Generally, the Sixth Amendment does not apply in these circumstances. The Sixth Amendment’s right to counsel attaches when formal criminal proceedings have begun. This generally occurs when the grand jury has issued an indictment or the government has filed formal criminal charges against the witness. While the Sixth Amendment does not apply in these cases, that does not mean an individual who is being investigated will not receive representation. As discussed, a witness may step outside the grand jury room to consult with an attorney between questions, a practice recognized by the courts rather than by Rule 6(d).

Does Rule 6(d) Apply to the Appointment of Counsel?

This is another key distinction between Rule 6(d) and other federal rules concerning grand jury matters. Rule 6(d) only pertains to the attendance of counsel in the grand jury room. Rule 6(d) does not require that the government pay for a witness’s attorney. Rule 6(d) does not require that the government appoint counsel for the witness. These issues are determined by the circumstances at hand. They are governed by various other legal principles.

If you are receiving a subpoena to testify before a grand jury, this is the time to speak with an experienced federal criminal defense attorney. If you are the target of a grand jury investigation, an attorney can help protect you in the grand jury room and beyond.

What Is a “Target” in the Grand Jury Process?

The Justice Manual section 9-11.151 provides guidance on how federal prosecutors label witnesses for purposes of their investigations. The manual defines a target as “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.”

While this definition sounds alarming, the labels “grand jury witness,” “subject,” and “target” are merely labels used to characterize an individual’s role in the grand jury proceedings. This labeling does not necessarily imply a certain criminal history or even that an individual has committed a crime.

What Happens if I Am Already an Indicted Defendant?

Even if you are an indicted defendant, you will still be subject to Rule 6(d) if you are called to testify before the grand jury in relation to a matter other than the charges you are already facing. If you have pending criminal charges and have counsel, Rule 6(d) mandates that your counsel remain outside the grand jury room during your testimony.

What Can My Lawyer Do Before I Testify?

If a witness has an experienced defense attorney, their attorney can help them by going over various subjects that are likely to come up during their testimony. At the same time, the attorney can help their client identify questions that may be self-incriminating, as well this help them refresh their memory and potentially reduce any inconsistent answers they may give to the grand jury.

Defense attorneys can also contact prosecutors to ask what subjects they expect to cover in their grand jury testimony. In many cases, defense attorneys can also negotiate an informal interview or a proffer meeting in exchange for not testifying before the grand jury.

Defense attorneys should not and can not teach grand jury witnesses how to give false answers, nor should they encourage their clients to give inaccurate answers. Knowingly false testimony to a grand jury can be used as evidence in support of federal perjury charges.

What If My Lawyer Is Not Familiar with the Information at Hand?

If you think that your lawyer is not familiar with the information at hand, a good way to familiarize them is to discuss what you think will be of interest to the federal prosecutors. Once your lawyer is familiar with the information at hand, they can help you prepare by asking you questions that may come up, and they can also contact the federal prosecutor to see what questions they may ask you.

As noted before, everything discussed between a witness and their attorney is privileged. The only exception is when the attorney is used for the purpose of furthering a crime or fraud. While you can tell your attorney anything that may be of interest to the grand jury, just remember that this is not a “safe harbor” for committing any additional criminal acts or for assisting in any grand jury obstruction.

Can I Simply Refuse to Testify?

As long as there is no clear constitutional basis for challenging the subpoena on your behalf, then it is not advisable to refuse to testify. If a witness refuses to testify before the grand jury, then they will be found in contempt of court. Contempt of court can carry various fines and even prison time.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can I Invoke the Fifth Amendment if Prosecutors Offer Me Immunity?

When testifying before a grand jury, a witness must invoke the Fifth Amendment on a question-by-question basis. The only exception to this is if a witness can successfully argue that a blanket invocation is warranted. However, it takes much more than just being aware that their testimony will be used to prosecute them to warrant a blanket invocation of the Fifth Amendment.

In determining if a witness’s Fifth Amendment invocation is justified, the court will assess whether the witness is facing a real risk of incrimination. This assessment will be made on a case-by-case basis, and it will be given careful consideration. It will also involve determining if the witness’s proposed answer is likely to disclose evidence that the witnesses think could put them in the line of fire.

Can I Use the Fifth Amendment to Avoid Facing Federal Grand Jury Charges?

Broadly, no. However, you can use the Fifth Amendment to protect yourself from being exposed to any further criminal liability. If you have the right to assert your Fifth Amendment privileges and you do so, the information that you give to the grand jury will be excluded. But this only applies to the specific questions you assert your Fifth Amendment privileges to. The information you give to the grand jury on questions to which you do not assert your Fifth Amendment privileges is subject to prosecution.

The use of the Fifth Amendment depends heavily on whether a witness is facing any chance of criminal charges. Witnesses should discuss how to properly assert their Fifth Amendment rights with their attorneys.

How Do I Invoke My Fifth Amendment Privilege Against Use of Subpoena?

If the subpoena issued to you is from a grand jury, then simply appearing does not grant immunity. This is only the case if the United States district court, on the request of the United States Attorney, has issued an order under 18 U.S.C. § 6003 compelling you to testify. If you are receiving an immunity order, it may be under the following statute:

According to 18 U.S.C. § 6002, “When use or derivative use immunity is granted pursuant to this section, it shall mean immunity from prosecution for any offense in respect of which the witness’s testimony, or any other information in the possession of the witness, which the witness refuses to disclose, is relevant, and it shall not be deemed to extend to any other offense.”

In the federal grand jury system, use-and-derivative-use immunity protects you. This differs from transactional immunity in that use-and-derivative-use immunity still allows the witness to be prosecuted for the offense, so long as the government proves its case with evidence obtained independently of the compelled testimony. The difference between the two is that a witness with use-and-derivative-use immunity cannot be prosecuted with his or her own testimony or anything derived from it, while a witness with transactional immunity cannot be prosecuted at all for the offenses about which he or she testified.

If you have an offer from a prosecutor for the benefits of testifying, you may not need to seek legal advice about whether the offer is sufficient. But if you think that the prosecutor may be making an offer without statutory immunity or without a formal arrangement, then you should contact an experienced federal criminal defense attorney.

If you receive a subpoena to testify before a grand jury, it could have several implications. You might have certain protections against criminal liability, or you could be facing the risk of criminal charges. An experienced federal defense attorney will be able to advise you on the implications of receiving a grand jury subpoena.

The prosecutors can also make offers of transactional immunity. While less common, they are available to federal witnesses as well.

What If My Subpoena Requests My Company’s Records and My Testimony?

Depending on the subpoena issued, witnesses can be required to present objects and records in addition to providing testimony. The subpoena can be very broad in scope and will be limited by the scope of a witness’s records and object possession.

It is extremely important not to ignore grand jury subpoenas. Grand jury witnesses and corporate entities can challenge their grand jury subpoena. In many cases, challenging the grand jury subpoena with the help of an experienced federal defense attorney will reduce or eliminate the risks associated with testifying and providing records to the grand jury.

Can I Refuse to Produce Records because of the Fifth Amendment?

If you have been subpoenaed to produce corporate records, and you think that the production of these records would expose you to liability for a crime, you should seek legal advice. Even though the act of producing a record should generally be admissible for various purposes, the Fifth Amendment may apply in these circumstances.

In the case of United States v. Hubbell, 500 U.S. 289 (2001), the Supreme Court of the United States decided that the Fifth Amendment may apply to the “act or contents of producing a certain record or providing information.”

If the act or contents of producing a record can expose you to criminal liability, then this is a reason for raising an objection. Even though there is an exception for corporate entity subpoenas, that only means that a corporate entity does not have Fifth Amendment privileges. However, a witness who produces records from a corporate entity, or otherwise works for the corporate entity may still have constitutional protections.

Can I Refuse to Produce Records because of the Collective-Entity Doctrine?

The collective-entity doctrine limits a witness’s use of the Fifth Amendment when producing a certain company’s records. However, this doesn’t necessarily apply in each case. While a corporate entity is not entitled to the protection of the Fifth Amendment, as an employee, you can maintain your right to avoid exposure to criminal liability. This means that if the production of your records to the grand jury is likely to expose you to liability for a crime, then you should talk with your attorney immediately. If the grand jury subpoenas you to produce records that are from a company you work for, then your attorney should determine if this falls under the collective-entity doctrine or not.

What If the Prosecution Seeks to Offer Me Immunity and My Lawyer is a Company Lawyer?

If your subpoena requests that you produce records and give testimony, and your company is offering you immunity, the first thing you need to do is discuss your rights and the immunity offered with an experienced federal defense attorney. If your lawyer is a company lawyer, the lawyer’s duty may be to the company, and not to you. This means that your lawyer may have to turn over information about you if the company so decides.

Additionally, even if your lawyer is not a company lawyer, they might also be representing the company, or other officers and employees at the company. This could create a conflict of interest. The attorneys’ ethical obligations to their other clients could conflict with their obligations to you. An experienced federal defense attorney will advise you about these conflict of interests, and will seek to ensure that the attorneys representing the company are not the same as those who are representing you.

Can My Lawyer Enter a State Grand Jury Room?

Yes, in some cases. Some state grand jury systems permit lawyers inside the grand jury room. However, this varies from one state to another, and depends on the individual state’s constitutions, statutes, local rules, and other authoritative sources. State grand jury proceedings may differ from federal grand jury proceedings in several ways. Some of the key differences include:

• In a state grand jury proceeding, attorneys can potentially attend during their client’s testimony.
• The local state rules, statutes, or constitution will dictate the procedure of a state grand jury hearing.
• Federal Rule 6(d) has no control over state grand jury proceedings.

Can the Grand Jury Vote for the Defense Attorney to Enter the Room?

No. Even if a grand jury votes for the defense attorney to enter the room, Rule 6(d) does not permit this. The grand jurors cannot expand the list of people who are permitted in the grand jury room during the grand jury’s session.

How Many People Are on a Federal Grand Jury?

A federal grand jury consists of between 16 and 23 people. This number is required to ensure the grand jury doesn’t unfairly favor any particular side. A grand jury needs at least 16 grand jurors to act as the quorum. In the U.S. federal justice system, at least 12 grand jurors must vote in favor of an indictment before the grand jury can move forward with federal charges against the witness.

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.