Responding to a Grand Jury Subpoena for Testimony
Most criminal defense counsel believe, as a general rule, that a target should never appear before the grand jury and that a subject should seldom appear. Similarly, as a general rule, targets will not be subpoenaed to testify before a grand jury. The government may, however, invite the target to appear voluntarily. DOJ Manual, § 9-11.151. While a target, subject or witness has no legal right to testify before the grand jury, a prosecutor will usually grant a request to testify. It is the policy of the Department of Justice to notify a target before seeking an indictment in order to allow the target the opportunity to testify before the grand jury. DOJ Manual, § 9-11.153. It is also the practice of the Department of Justice to excuse a witness from testifying before the grand jury if the witness advises the prosecutor in advance that he intends to invoke his Fifth Amendment right. DOJ Manual, § 9-11.154. The sanction for refusal to testify without immunity is civil contempt. If the notice will not adversely affect the investigation, the prosecutor will generally advise a target when the individual is no longer considered a target. The notification is without prejudice; that is, the prosecutor can redesignate the individual as a target. DOJ Manual, § 9-11.159. A prosecutor is not under any obligation to present exculpatory evidence to the grand jury. United States v. Williams, 112 S. Ct. 1735 (1992).
Counsel does have a role while the witness is testifying before the grand jury. Counsel is not allowed to sit in on the grand jury proceeding; however, counsel may be present outside of the grand jury chambers allowing the witness to confer if necessary. Counsel must debrief witnesses after the testimony is given.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
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