Turning Probabilities Into Realities

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Grand Jury Investigation And Testimony

To those owners, officers, employees and managers of corporations, partnerships or limited liability companies who have been served with a grand jury subpoena, the situation can become overwhelming. Experienced legal assistance is vital to formulate a comprehensive plan of representation, to review what has been subpoenaed and to determine the purpose and extent of the investigation. Without this experience to focus the client on the comprehensive plan of defense, there can be a hidden cost.

Even when companies are not identified as targets of grand jury investigations, unwary companies often discover too late that they have waived attorney-client and work-product privileges in prior document production and testimony, and have unnecessarily entangled their companies and executives in ongoing investigations. This could be the beginning of the end for the company and it can entangle all involved in an expensive morass.

Companies may call on Spencer Law Firm for any of the following:

  • Representation throughout grand jury investigations and before appearances before grand jury by owners, officers, directors, and employees (whether as “targets,” “subjects” or “witnesses”);
  • Negotiation with U.S. Attorneys, Department of Justice officials, Postal Inspector, IRS and other officials regarding global settlements;
  • Negotiation of immunity agreements; and
  • Representation of companies with internal investigations and developing overarching plan for individuals and entity responses and testimony and/or production of documents.

Although the American grand jury originally was conceived as a protector of ordinary citizens by other ordinary citizens, the fairness of its criminal operations has been questioned by various commentators and judges. The grand jury operates without providing many fundamental rights common in court hearings and trials. For example, the defendant has neither the right to present evidence to the grand jury or cross-examine the witnesses against him or her.

Only the prosecutor may present evidence, and the defendant has no right to counsel, even if required to testify. Even judges generally are excluded, leaving the grand jurors to rely on the prosecutor for all information. This leads to many indictments, raising questions about the value of this incredible weapon to sort out a well rounded and fair picture of the issues under examination.

If you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. The right to invoke this privilege is much broader than most witnesses and even attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer. Even innocuous questions can result in answers which link you to a “chain” of events that can convict you. Should you invoke this privilege? That is why you retain Spencer Law Firm; i.e., to answer these hard questions and to keep from being ensnared in a prosecution by mistake.

Corporations and other business entities cannot invoke the privilege against self-incrimination and it must designate a custodian of records when subpoenaed by the federal grand jury. But the Supreme Court has ruled that the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were gathered. This narrow category is your lawyer’s first defense for you; don’t allow yourself to be prodded into answering questions that are not in the prosecutor’s purview.

In some cases, the decision was made to assist the prosecutor in return for a lighter charge or eradication of any liability, depending upon the seriousness of the facts and the illegal conduct. We have had some clients who became the star witness and indispensable to the prosecution because this person was able to link up heretofore undiscovered documents, emails, and meetings.

These decisions are extremely difficult to make and most often, a client’s thinking is clouded with depression and anxiety. Spencer Law Firm understands that these might be the darkest days and hours of a client’s life and are sensitive to how this event affects your entire life and future.

If you are involved in a potential or ongoing issue related to this topic, do not hesitate to contact us today at 713-568-9008.