Sometimes, You CAN Always Get What You Want: Counseling Clients On Taking Breaks Before a Federal Grand Jury

Sooner or later, nearly every white collar defense attorney will represent a witness subpoenaed to testify before a federal grand jury.  It is well settled in most circuits that federal grand jury witnesses do not have a right to have defense counsel present during the grand jury proceedings – but how frequently may witnesses request a break in the grand jury proceedings to leave the room to consult with their lawyers about the questions being posed?

Quite frequently, it turns out.   Many federal courts allow non-immunized grand jury witnesses to consult with their lawyers after each question posedSee U.S. v. Soto, 574 F.Supp. 986, 990 (D. Conn. 1983).  Courts recognize that witnesses reasonably wish to consult with counsel to avoid, for example, providing testimony which may tend to incriminate them.  While some courts may limit the frequency of consultation to every two or three questions, particularly if the breaks become too lengthy or disruptive, courts will typically honor requests for regular consultation unless the request appears “frivolous” or “with intent to frustrate the proceedings.”  See In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972).

Additionally, courts will generally allow grand jury witnesses to take notes on the proceedings for the purposes of conferring with counsel.  Witnesses may, for example, write down the questions posed to them, so that they can consult with their lawyers before answering the questions.  A prosecutor might ask a court to intervene, though, if the witness’s note-taking begins to delay the proceedings.  See, e.g., Soto at 989 (finding that the witness’s “transcribing process” “impedes the investigation”).

The court is empowered to prevent a breakdown in the grand jury proceedings, but this power is balanced against the witness’s need to consult with counsel.  See Tierney at 810-811.  As long as grand jury witnesses’ requests are reasonable, courts will “customarily” allow witnesses an opportunity to consult with their counsel about the subject matter of their testimony.  Soto at 990.

By Kimberly Koziara and Karen Alexander