TRIAL PRACTICE
Advising the Grand Jury Witness

By Jon May

Providing representation to an individual who has received a federal grand jury subpoena can be one of the most treacherous responsibilities facing counsel. The wrong advice can result in a witness becoming a target, or it can leave a person who otherwise had no criminal exposure facing indictment for perjury.

A typical scenario. One night, you receive a phone call from Carroll Lewis, the president of Wrongway Construction, the largest building contractor in Sea Breeze, Arizona. He has just received a subpoena commanding his appearance before a federal grand jury in less than a week. You meet him at your office. He has no idea why he received the subpoena. What’s more, he is supposed to travel to his son’s college graduation, and he wasn’t planning to be in town on the day he is scheduled to appear. You tell him that you probably won’t have a problem getting his appearance postponed and that you will speak to the prosecutor and find out what this is about.

When you speak to the prosecutor, you learn that the government has information that various members of the county commission received bribes to award contracts for the construction of the county commission building. Although she has no specific information that Lewis paid any bribes, Wrongway is one of the prime contractors on the project. If Lewis has something to say, now is the time for him to say it.

A common problem. Advising a client who has been invited to speak to a prosecutor requires defense counsel to make critical decisions at a time when the least is known about the government’s case and the tools available to uncover the needed information are limited. Ironically, the person who may have the most knowledge is often the least helpful. The client may be unwilling or unable to tell you everything that he or she knows. Yet, counsel must conduct as complete a debriefing of the client as possible.

In our example, you should meet with your client once you have convinced the prosecutor to postpone the appearance. Explain that he should gather any documents generated in the course of bidding on the county building. Tell him you need to know about his relationships with the various county commissioners, and ask him to locate any correspondence or other documents that may reflect meetings or communications with county commissioners or others working on their behalf. Finally, get the documents before your meetings with the client so that you can be prepared to ask specific questions and to use the materials to refresh your client’s recollection.

Even if your client has been very helpful, it is never too early to begin your own investigation of the government’s allegations. Check the newspapers and the local TV stations for any reports on the county commission. Bribery allegations may have surfaced first in an investigation of an unrelated project. Call some of your colleagues in the defense bar. See who represents the county commissioners, call them, and ask if they would be willing to share with you what they know about the grand jury investigation. Have your investigator go to the building and code department and obtain a list of all the contractors on the project. When you meet with Lewis, have him tell you what he knows about each contractor. If he has knowledge of anyone else paying bribes to the commissioners, you need to know about it.

The story continues. You ask whether Lewis bribed any of the commissioners to get the contract for the county commission building. He adamantly denies that he did. When you ask if there is any reason why someone would accuse him of making such a bribe, he tells you that several years ago he bid on a contract to build a high school. He got the contract after agreeing to hire the granddaughter of the chair of the school board. Flash forward several years and Lewis is at a fund-raiser for a county commissioner who mentions that his nephew is job hunting and might be stopping by Wrongway. Two weeks before the contract for the county commission building is awarded, your client meets with the nephew, who is working toward a degree in construction management from one of the top programs in the country. Lewis tells him to stop by after he graduates. Two weeks later Lewis gets the contract.

Determining a client’s exposure. After reviewing the Hobbes Act, you are pretty sure that a crime was committed when Wrongway received the school board contract, but that there is insufficient evidence of any wrongdoing in regard to the county commission project. Fortunately, the statute of limitations has expired on the school board contract. Nevertheless, you are a cautious lawyer and you don’t want Lewis to admit to anything without a grant of immunity. But even after you have explained the elements of the offense and the possible sentence, Lewis insists on speaking to the prosecutor without a grant of immunity.

At this point there are two things you must do. First, explain what will happen when he meets with the prosecutor and later goes before the grand jury. Second, dictate a memo for your file, memorializing the fact that your client has decided to speak to the prosecutor without any immunity and that this decision was against your advice.

Getting your client’s testimony. When he emerges from the grand jury room, Lewis is visibly shaken. Despite your best efforts, you cannot squeeze any details from him. You must find out what he said, but you can’t rely on your client or the prosecutor for the information. In In Re Grand Jury, the Circuit Court for the District of Columbia held that witnesses were entitled to review the transcript of their grand jury testimony. In that case, the government issued multiple grand jury subpoenas for two employees. One employee wanted to review his prior testimony before his fourth appearance and the other before his second appearance. When the government refused to disclose it, defense counsel moved to compel production. The district court denied the motion. The court of appeals reversed. The district court denied their requests, finding that they had failed to demonstrate a particularized and compelling need that outweighed the interests in maintaining grand jury secrecy. The court of appeals held that no such test applies to witnesses who seek only to review their own testimony. The court noted that grand jury secrecy is intended to protect the witness. Consequently, it was the witness’s privilege whether to reveal what he said. Reasons to prevent third parties from learning what a witness said simply do not make sense in the context of witnesses who want to review their own testimony. Moreover, the witness has a significant interest in ensuring that the testimony he or she gave was accurate and completely truthful.

Although other courts have denied witnesses access to their testimony absent a showing of particularized need, most of these decisions are 30 years old, and the presence of conflicts among the circuits makes this issue worthy of rehearing or petition for certiorari. The first step is for lawyers to seek disclosure of their client’s testimony in every instance.

In the example of Mr. Lewis, the transcript reveals he was asked about every state and municipal contract Wrongway bid on over the previous ten years—and in every instance Lewis answered “I don’t recall.” Is he facing perjury charges for evading the questions? Should you ask to go back before the grand jury to clarify his answers? Will that make things even worse? These questions are beyond the scope of this article—but at least you know what you’re up against. We cannot always save our clients from their own folly, but we have an obligation to do everything we can to prevent them from putting themselves in greater jeopardy. 

For More Information About the Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 16 of Criminal Justice, Spring 2008 (23:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust.

- Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, three times per year (electronic).

- Books and Other Recent Publications: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

Jon May is a lawyer in Miami, Florida, where he practices white-collar criminal defense. He may be reached at .

Copyright 2008

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