Being indicted for a white-collar crime can be financially and professionally devastating. Therefore, it is imperative to avoid any potential missteps once you discover you may be the target of a federal investigation. Responding to grand jury investigations can be particularly challenging which is why it is important to thoroughly understand grand jury immunity.When a witness is called to testify before a grand jury, he or she can refuse to testify on the ground that his testimony will incriminate him. Once a witness has invoked his Fifth Amendment right, the government attorney generally has three options: challenge the privilege and call the witness, waive his appearance, or consider a grant of immunity.
If the witness is considered key to the investigation, he or she may be offered grand jury immunity.
Immunity precludes the government from using, directly or indirectly, a witness’ compelled testimony in a prosecution of that witness in any criminal case, “except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”
Factors which constitute grand jury immunity
In order to grant grand jury immunity, two conditions must be satisfied. First, the testimony or information sought must be in the public interest; second, the potential witness must have refused or is likely to refuse to testify or provide information based on the privilege against self-incrimination.
In evaluating whether an immunity order would be in the public interest, government attorneys are instructed to consider the following factors:
The seriousness of the offense and the importance of the case in achieving effective enforcement of the criminal laws;
The value of the potential witness’ testimony or information relevant to the investigation or prosecution;
The likelihood of the witness promptly complying with the immunity order and providing useful testimony;
The person’s culpability relative to other possible defendants;
The possibility of successfully prosecuting the witness without immunizing him; and
The possibility of adverse harm to the witness if he testifies pursuant to a compulsion order.
If you believe you may be the target of a grand jury investigation, it is imperative to consult with a white-collar criminal defense attorney as soon as possible. Even though you may not have an attorney inside the grand jury room, counsel outside the door can advise you when you don’t know if you should answer a question.
Otherwise, if you are still unsure of how to navigate through the grand jury process or have any questions regarding the matter, contact me, Robert Levy, at 201-806-3364.
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