Your client is a medical device sales representative who had an FBI agent knock on her front door requesting to ask some questions about her former employer. Your client is an accountant who received a subpoena to testify before the grand jury regarding how a client of theirs categorized certain expenses for tax purposes. Your client is a human resources manager who prosecutors want to interview about certain visa applications she signed on behalf of her employer that does defense contracting.
Any time that a prosecutor or investigator asks to speak with an individual who typically works in a corporate setting and has limited (if any) contact with law enforcement, by far the most common reaction is fear. Fear that they did something wrong even if they didn’t mean to. Fear that their day of reckoning is finally coming for that time when they were eight years old and snuck an extra cookie from the jar. Fear that speaking up about someone who they work with could cause backlash and an awkward situation. But helping your client understand the broader context and how their testimony will be used can usually dispel what otherwise appears to be a daunting situation. Of all the questions that clients ask in these circumstances, four seem to come up most often.
- “Am I in trouble?” The first step to properly advise your client is to understand where she fits within the overall investigation. The labels “target,” “subject,” and “witness” are considered terms of art in federal criminal investigations and in most states. Asking the prosecutor or investigator what category your client fits into is a critical gating issue that will inform whether to advise your client to speak with law enforcement at all, or whether asserting her Fifth Amendment right is the best course.
- “Do I have to tell them about X point?” Assuming that you and your client decide she should go in for the interview or grand jury testimony, rule number one in preparing your client is she should tell the truth. While this seems like it should be obvious, it can be surprising how many questions clients have about this. “Wouldn’t it make me look bad if I say that about my boss?” “Wouldn’t they question my character if I admit that I kept working with him even though I knew about his drinking problem?” When clients ask these types of questions, typically the best response is to explain that being untruthful can only make the situation worse. What has happened in the past can’t change now, so it is paramount to make sure the client is not compounding any past problems and controlling what they can control in this moment.
- “Are you going to be there with me?” Clients are looking for reassurance in this stressful situation. While counsel is not allowed in the grand jury room during testimony, a witness is allowed to leave the grand jury to consult with her lawyer as needed. Telling your client that you will be outside the grand jury in a nearby hallway and that she can step out to speak with you at any time can provide the reassurance that she needs. By contrast, counsel is generally allowed to accompany the client in an interview with a prosecutor or investigator. But while interviews may be less formal in this manner, it’s important to advise your client that she needs to give each question the same level of thought and consideration before answering. Having counsel sitting in the next chair does not mean that your client can take the questions any less seriously.
- “Is anyone else going to find out what I said?” Secrecy is one of the hallmarks of grand jury proceedings. Grand jurors themselves, prosecutors, court reporters, and others present during the proceedings generally have a strict obligation to maintain their secrecy and cannot disclose to anyone outside what transpired in the grand jury. However, witnesses are not subject to the same restrictions. As a general rule, witnesses may reveal the contents of their grand jury testimony to anyone they would like. Having said that, most often it is unadvisable for a witness to disclose the content of their grand jury testimony, especially to someone who is a target or subject of an investigation, or else she risks exposure on other charges such as interference with a criminal investigation and/or witness tampering.