According to the Bureau of Justice Statistics, between October 2009 and September 2010 U.S. Attorneys prosecuted 162,000 federal cases. Grand juries declined to return an indictment in 11 of them. Given these numbers, would it ever make sense to advise a client who is a target or subject of a federal investigation that it is a good idea to testify before a grand jury?
A “target” is typically considered to be a person or entity as to which the prosecutor has substantial evidence linking that person or entity to the commission of a crime. A “subject” is much more slippery to define. A subject is generally described as a person or entity whose conduct is within the scope of a federal investigation.
During a grand jury proceeding, counsel is not allowed to be present in the grand jury room while the client is testifying. That means there is no one there on behalf of the client to object to improper, confusing or misleading questions or to provide context or clarification regarding the subject matter of the investigation. Prosecutors control the grand jury proceeding and decide what evidence to present to a grand jury.
Even clients who have nothing to hide could innocently misremember certain facts or details, thus creating the potential for a later allegation of perjury and obstruction of justice. At minimum, innocent mistakes in recollection of facts before a grand jury will be used against the client during a subsequent trial.
Given the statistics as well as the circumstances of a grand jury proceeding, a client who is a target or subject of a federal investigation would be wise to claim his or her Fifth Amendment privilege against compulsory self-incrimination whenever possible. Unless there is a grant of immunity offered by the prosecutor, clients who are targets or subjects should avoid the potential pitfalls of testifying before a grand jury.