My practice includes representing clients involved in field interviews, proffered statements and compliance with the grand jury subpoenas for testimony and for tangible items.
There is never a good time to have federal agents introduce themselves and seek your immediate interview. Contact by federal agents is neither a chance nor casual undertaking. It is the product of careful preparation. You require careful preparation, too. You must avoid a spontaneous interview. Your responses could be inaccurate, incomplete or untruthful. Any untruthful statements will create criminal exposure as a false statement when you may have had none before you decided to speak: for example, lying to conceal the criminal conduct of another.
What do you do? First, politely decline the interview. You will avoid making misstatements or incriminating admissions. Second, elect to fully discuss your circumstances with me or another experienced attorney. These discussions are your safe harbor. If, after discussing the matter, you decide to consent to a voluntary interview, I will represent you during the interview. Sometimes, if an interview is declined at your doorstep, you may be arrested, yet, frankly, that arrest would have occurred after you provided a ‘non-custodial interview’ during which you assisted your prosecution rather than your defense.
Who do you talk to? Your attorney, first and possibly federal agents, second, but only with your attorney present. If you are approached by federal agents, request their contact information, and the contact information for the prosecutor, yet politely decline the interview and avoid being provoked to speak --- even after you have been handcuffed. Be firm, clear and polite: explain that your attorney will contact either them or the prosecutor or, if placed under arrest, assert your right to counsel, never waive that right to counsel and remain silent until you confidentially discuss your circumstances with your attorney.
If you decline to be interviewed, that may not be the end of the matter. A witness, subject or target of a grand jury may be invited to proffer. A proffer is an interview with law enforcement agents and a prosecutor. A proffer is preceded by a signed proffer agreement. Proffers are significant events and carry potential benefits as well as serious criminal consequence that can be difficult to foresee. You may not be compelled to provide a proffer, however.
What are serious criminal consequences, you ask? Telling the complete truth in a proffer may not avoid your prosecution because of how your statement may be used to further the investigation. There’s an upside and a downside to a proffered statement. Upside: your truthful statement could not be used directly as evidence against you. Downside: this same truthful statement could be used to derive incriminating evidence that could be used against you. I offer an example. You truthfully state “I stole the money and I buried it in a steel box.” This quoted admission could not be used directly against you. However, if the steel box is located, and the money reveals your fingerprints and your DNA, this forensic evidence derived from your truthful statement, could be used against you.
You must proceed with absolute caution when you are designated a witness, subject or target of a federal investigation. Use the safe harbor of confidential communication with an experience attorney to accurately assess your circumstances, possible criminal exposure, and the upside and downside of making a proffered statement.
Grand Jury Subpoenas
Grands juries conducting investigations of possible violations of federal criminal law issue subpoenas for testimony, for the delivery of tangible items in your possession, custody and control. You can be served individually or as the agent of a corporation for testimony, production of tangible items or both. Poor, sloppy and incomplete compliance raises the inference of possible concealment or the prospect of the destruction of material evidence which itself is a crime, obstruction of justice. Coming within the focus of a federal investigation in any context can be unsettling and people acting without counsel often react poorly and against their own best interests.