Daniel I. Small, The Daily Record Newswire
We've explored different witness environments in prior columns, but the challenges of being - or preparing - a grand jury witness can be far more complex, and far more frightening,than most other witness situations.
The power of the grand jury, its secrecy, the varying roles of counsel and other factors all contribute to a dangerous environment. Worse yet, the rules and procedures surrounding the grand jury may vary significantly from one jurisdiction to another. It is a very specialized type of proceeding.
In the federal system, there are 23 members of a grand jury and they sit for 18 months, but the frequency can vary widely - weekly, monthly, etc.
In theory, the grand jury has two general purposes: investigation and screening. Both are worth addressing briefly.
Investigation
The grand jury has broad powers to subpoena people and documents that may be relevant to possible crimes. As the criminal laws have expanded over the years, so has the grand jury's jurisdiction.
Once subpoenaed, a witness can be asked a wide range of questions. Although this all happens under the grand jury's authority, the prosecutor is largely in control. In the overwhelming majority of cases, the prosecutor decides who, what and when to subpoena.
The issuance of the subpoena is an easy mechanical task; agents of whatever investigative agency is working on the case serve it, and the prosecutor decides what questions to ask and does the asking.
Grand jurors may also ask questions, but many prosecutors will have them wait until the end.
Screening
The original idea of a grand jury included protecting citizens from abusive prosecution.
The U.S. Constitution requires that felony criminal charges must be brought by a grand jury (unless a defendant waives that right). The grand jury must vote whether there is "probable cause" that the defendant(s) committed crime(s) in order to "return" an indictment.
In theory, it is an important protection for citizens and a prevention of prosecutorial abuse. In reality, if any screening occurs, it usually happens outside the grand jury; prosecutors are not required to present indictments on all cases, so if they don't think they have enough evidence, they can just drop or defer it.
If prosecutors do decide to go forward, though, the "screening process" doesn't screen out much, for a number of reasons:
- the prosecutor generally decides what evidence the grand jury will hear;
- the prosecutor is not required to present all the evidence, including exculpatory evidence;
- the Rules of Evidence do not apply, so hearsay is allowed, and the prosecutor can have a law enforcement agent or other witness just provide a summary;
- the prosecutor may have developed a good relationship with the grand jurors, who have come to rely on the prosecutor;
- the "probable cause" standard is far lower than the trial standard of "beyond a reasonable doubt," and the prosecutor may have a good sense of how to meet it.
As a practical matter, a grand jury will almost always return an indictment presented to it by a prosecutor. That is the basis for former New York Judge Saul Wachler's famous saying that a prosecutor can get a grand jury to "indict a ham sandwich."
Fifth Amendment
Witnesses before the grand jury have a right to refuse to testify if their testimony might be used to incriminate them. Obviously, that is a critical issue for client and counsel to discuss, but the discussion ends there; the right is broad and well-accepted, and witnesses generally do not have to explain or justify it to the grand jury. It is meant to protect the innocent as well as the guilty.
If the decision is made to take the Fifth, counsel may want to alert the prosecutor in advance. In many jurisdictions, the government will not require the witness to come in to plead the Fifth in front of the grand jury if counsel represents that is what will happen.
If the witness does go into the grand jury, it's a good idea for counsel to give the witness a card to read, clearly exercising this right, to avoid any confusion or misstatements.
Immunity
Where prosecutors want to use a witness's testimony against others, the concept of testimonial immunity has evolved: The testimony may be compelled, but it cannot be used against the witness. The witness has been "immunized," not against any prosecution, but against his own testimony. That can happen in one of two ways and has become almost routine in some types of cases.
If the witness and counsel agree, it can be done by letter from the government. In some cases, there are advantages to such cooperation and relative informality, and it allows for interviews outside of the grand jury.
If the witness does not agree to letter immunity, in the federal system, the government must apply to the court for an immunity order under 18 U.S.C. 6003. In some cases, there are advantages to that kind of compulsion. A formal order only covers the grand jury (or other named proceeding), and not interviews or meetings outside the grand jury room.
The room
When a witness walks into a grand jury room, there are no spectators or extras. Generally, the only people allowed in the room are:
- the 23 members of the grand jury (actually, only 16 are needed for a quorum);
- the grand jury foreperson and clerk (both members of the grand jury), who are the leaders;
- the court reporter (grand jury proceedings are required to be recorded); and
- the prosecutor(s).
After the witness is shown to her chair and sworn in, the questioning begins.
Counsel
In a federal grand jury, the witness's counsel is not allowed in the room. He may wait outside, and the witness may leave the room to consult with him. In the words of a well-known ad campaign: "Just Do It." Go outside. It is an important legal proceeding, and the witness should not hesitate or feel embarrassed or reluctant to seek legal help if confused or concerned.
Counsel should also use such opportunities to keep track of the Q&A and review the "10 Rules" from my previous columns.
In Massachusetts and other states' courts, counsel is allowed in the room, so the witness can consult, but is not supposed to speak up or object. There are still good reasons to step outside, however, if only for a simple consult.
Secrecy
A grand jury proceeding is secret. That means that no one can talk about it to friends, neighbors, employers, the media or anyone else outside of a narrow legal circle.
The big exception is the witness: Since a primary purpose of the rule is to protect the witness's privacy, the witness can choose differently. The government may try to encourage the witness to be secret, but a grand jury witness can go out on the courthouse steps and shout to the world what just happened (though that's rarely a good idea).
"Target"
Counsel and witness sometimes put emphasis on the witness's status. For example, feeling relieved that the prosecution says the witness is not a "target" of the grand jury. However, this is, as the poet said, "Much Ado About Nothing."
The government often uses three status levels in ascending order of danger: witness, subject and target. However, the federal government defines "target" much more strictly than most people assume: someone literally on the verge of being indicted. Moreover, a witness's status can change at any moment. So hope for the best, but prepare for the worst.
Testimony
When a witness does go in front of a grand jury to testify, it's important to remember three important factors about the environment:
1) The grand jury's main purpose is to bring criminal charges.
2) Every word is being carefully transcribed and will be picked apart.
3) Perjury before a grand jury is a specific and serious crime.
Even a grant of immunity does not protect the witness from perjury in his "immunized" testimony. Many witnesses have fallen for the false hope that they can bluff or bluster their way through a grand jury appearance. Prosecutors sometimes even hope for that: a witness who can be "trapped" into possible perjury, putting even more pressure on himself or others. Don't let it happen.
Knowledge is power
Unlike a civil deposition - in which there has likely been extensive discovery and exchange of allegations, documents and information - before the witness is asked the first question, the grand jury is secret.
As a result, one of the most important foundations of effective preparation is trying to find out what happened, what the witness knows, what other witnesses know, and, most important, what the prosecutor knows - and suspects.
That can sometimes be accomplished by asking the prosecutor, asking counsel for other witnesses, researching on the Internet or elsewhere, finding alternative sources for documents, or, of course, pressing the client. The more counsel knows, the more he can help the witness.
Preparation
Beyond the need to discuss the specifics of the grand jury environment mentioned above, what does all this mean for preparation? It means that the 10 Rules become even more important and even more absolute.
Guessing, misunderstanding or just trying too hard can become evidence of serious crimes. Slow the train down, whether it's comfortable or not. Take your time. Listen as you have never done before. And practice - a mock grand jury, for example, can be an important tool.
A grand jury is a strange and particularly treacherous environment for a witness. Preparing for it and navigating it successfully require an extraordinary level of work, experience and preparation, for both lawyer and client.
As the saying goes, "It's a jungle out there." Tread carefully.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association's "Preparing Witnesses" (4th Edition, 2014). He can be contacted at dan.small@hklaw.com.
Published: Thu, Apr 02, 2015
