Preparing a Witness to Testify in the Grand JuryBy Stephen D. Brown and Christine C. Levin
Preparing a witness to testify in front of a federal grand jury presents unique challenges, certain to induce sweaty palms and a racing heartbeat in even the most experienced lawyer. If counsel does not anticipate and address those challenges with the witness, there may be dramatic consequences, including criminal charges.
From the witness and her counsel’s perspective, there are at least four differences between grand jury testimony and deposition or trial testimony in a civil case.
First, in civil proceedings, if a witness doesn’t get things 100 percent right in her deposition, counsel can rehabilitate her. Counsel for the grand jury witness, on the other hand, are not permitted in the grand jury room. No one can be in the room to protect the witness from being badgered, to clarify questions, to advise on privilege, or to keep track of inconsistencies. All of this leads to the possibility of a mistake by the witness that is misinterpreted and stands uncorrected.
Second, at trial, a judge is present and can stop bullying or mischaracterizations. During a grand jury proceeding, there is no judge or anyone else to control the prosecutor, to ensure only pertinent questions are asked, or to object to improper or misleading questions. Present in the grand jury room with the witness are the prosecutors (and those assisting them), a court reporter, and the grand jurors; no one else.
Third, in a deposition, not only is the witness’s attorney present, but also the witness has 30 days after receiving the transcript to make “changes in form or substance. . . .” Fed. R. Civ. P. 30(e). When a witness testifies in front of a grand jury, she does not even have a right to see a transcript of her testimony—unless she is indicted.
Fourth, and most important, how many witnesses do you know who have been indicted for perjury during a deposition? None. It’s a different answer for witnesses testifying before a grand jury. An example is the Barry Bonds trial in April 2011. While a mistake in testimony in a civil case may be ascribed to a mis-recollection or faulty hearing on the part of the witness, the government may not be so understanding in the context of a criminal case. Government attorneys have brought numerous prosecutions for perjury under the federal criminal law that prohibits lying to a grand jury. Under 18 U.S.C. § 1623, it is a crime to “knowingly make any false material declaration” before the grand jury. “False,” for these purposes, merely means incorrect. In contrast, the statute governing perjury in proceedings other than a grand jury requires that the false statement be made willfully—a higher standard. See 18 U.S.C. § 1621. Thus, the likelihood of perjury charges stemming from grand jury testimony is greater than from a trial or other proceeding.
How can counsel protect a grand jury witness from the very real threat of a perjury charge?
First, learn about the investigation. While this may sound obvious, it is frequently difficult in the context of a grand jury proceeding. There is no complaint setting forth the allegations, and there are no discovery requests, but there are places you can look for information. The grand jury subpoena, if it includes a document request, may provide some insight. If the client’s employer has referred her to you, or if others have testified, you may be able to carefully access information or documents from other lawyers through a joint defense agreement. Try traditional sources, such as documents from your client or Google searches, for publicly available information about the investigation. There is no harm in asking the prosecutor why the government is interested in your client, what the prosecutor expects your witness to testify about, and what documents or emails the government is really interested in. Be mindful, though, that the prosecutor may not give you the full story.
Next, decide whether the witness will testify or assert her Fifth Amendment privilege against self-incrimination. Without any grand jury testimony, there obviously cannot be any perjury. However, the decision to invoke the Fifth should not be made lightly because it can involve collateral consequences—such as creating an adverse inference in civil proceedings—or because it may have professional and business consequences.
If a witness chooses to take the Fifth, the prosecutor may force her to testify by granting immunity, although a grant of immunity does not provide protection against perjury; in fact, prosecutors frequently have a higher standard of candor for witnesses who have received immunity.
Consider trying to persuade the prosecutor to meet with you and your client for an interview as an alternative to testimony. The interview witness is still subject to prosecution for “knowingly” false statements under 18 U.S.C. § 1001, but at least you would be there to help her.
If you decide that your client will (or must) testify before the grand jury, the next challenge is preparing her. The initial stages of this preparation are much like the preparation of a witness for a civil deposition or a trial: thoroughly review the documents; communicate to the client a clear understanding of the witness’s role in the case; and give the standard instructions to listen, answer the question, tell the truth, and not speculate. Emphasize that the client has a right to counsel at all times during her testimony before the grand jury even though you will not be in the room with her. The client can and should come out to consult with you at any time during the testimony that she feels the need.
Some witnesses may not have the will to ask to speak with counsel and then leave the room. Others may think it’s a sign of personal weakness. Remind the witness that no adverse inference will be drawn from the fact that she chose to consult with you. How much you need to emphasize this depends on the personality of your witness. One technique is to tell the witness to take periodic breaks—every hour or so—to clear her head. At the breaks, you can debrief her on the subjects explored while they are fresh in her mind, and can also provide reminders about the basic rules of testifying.
When your witness appears for a break, ask her whether she has any questions and answer them. Move on to the general topics that were covered in the testimony and then focus on the documents she was shown. Finally, reinforce any particular themes or instructions that you believe will be necessary in the remainder of her testimony, and send her back in.
In particular, be sure to instruct the client to come out and see you before testifying about communications with lawyers. Consulting with you does not mean that the witness will not answer the questions—it just means that the witness will have the benefit of your guidance before answering a question that may reveal privileged information.
Even if your client is not the target of the investigation, the possibility of charges for perjury is still in play. The witness should never lie during the grand jury investigation. When asked a comfortable question, she should answer honestly, and when asked an uncomfortable one, she should consult you. In what is known as the “perjury trap,” a prosecutor deliberately “calls a witness before a grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury,” United States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991), based on the witness’s own conflicting statements. Because of its secrecy and special perjury rules, the grand jury is a uniquely powerful tool for pursuing not only the substantive target of the investigation but also witnesses who contradict themselves.
In certain limited circumstances, courts may consider evidence of a perjury trap as a form of entrapment defense that excuses charges of perjury, though this defense is limited to extreme cases of prosecutorial abuse. A savvy witness may be able to pick up on cues when a prosecutor is veering off the investigatory path and laying a perjury trap, but she should still come out and confer. Perjury-trap situations call for treading lightly, consulting the lawyer often, and making absolutely sure the answer is accurate.
After the session is over, debrief your client. You will not receive a transcript of the witness’s testimony, so this is critical. Ask the witness to tell you everything she recalls, including what questions were asked, her answers, and any documents she was shown. Resist the temptation to interrupt the witness as she goes through the first mental download of her testimony. Let the witness keep talking as long as possible; you can go back and get the details later. After you have thoroughly debriefed the witness, instruct her to make a note of any additional details of her grand jury appearance (testimony, questions, or documents) that she recalls over the next day or two. Then, prepare a thorough memo covering everything the witness told you. Grand jury investigations frequently take months or even years. You will need to know what your witness told you when you try to persuade the government lawyer not to indict your client or when preparing the witness to testify again if she is called back. If you are representing the company as well as the individual, your debrief memo will be a valuable tool to help prepare future witnesses because you will have a better idea of the questions asked and the government’s theories.
The final step is deciding whether to ask the prosecutor how your witness did. There is very little downside in this question. If the prosecutor tells you your witness did fine, then you have that reassurance. If the prosecutor believes that the witness made an error in her testimony, the prosecutor may tell you and give you an opportunity to clear it up. The prosecutor likely has your witness in front of the grand jury because he is interested in prosecuting someone else, not your witness. This contact with the prosecutor allows you either to correct the testimony or to persuade the prosecutor that what your witness said was in fact correct.
In sum, the key is to prevent unintentional mistakes on the part of your client that could be misinterpreted by aggressive government prosecutors as intentional misstatements. None of us has a crystal-clear recollection of every event, and witnesses struggle to testify 100 percent accurately in the pressure-packed setting of the grand jury. Following the steps outlined here, though, will lead to a more ordered and thoughtful grand jury session that will minimize the stress and apprehension for you and your client.
Keywords: grand jury, witness preparation, deposition, civil proceeding
Stephen D. Brown focuses his practice on internal investigations and complex criminal and civil cases relating to fraud, RICO, antitrust, and legal malpractice issues. Christine C. Levin concentrates her practice on complex civil litigation and white-collar criminal investigations. Both are with Dechert LLP.
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