October 2007 / MWIH

Criminal Law

By Chris Gair and Andrew Weissmann

Federal prosecutors continue to interfere improperly with defense access to witnesses and documents.

This article addresses the prosecutorial practices of seeking to limit defense access to grand jury and trial witnesses, and requesting corporations to withhold documents from defense counsel representing corporate executives. These practices are legally and ethically wrong.

Misuse of grand jury secrecy

The grand jury secrecy rule bars only certain specified participants in grand jury proceedings from disclosing matters occurring before the grand jury - namely, grand jurors, prosecutors, interpreters and stenographers.

Grand jury witnesses are not bound by this rule, nor are their counsel. Indeed, the rule specifically precludes any attempt to impose secrecy on anyone else: "No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B)." See Adv. Comm. Note to Rule 6(e) (1944) ("The rule does not impose any obligation of secrecy on witnesses."); Butterworth v. Smith, 494 U.S. 624, 635 (1990) (Florida statute barring grand jury witness from revealing his testimony unconstitutional).

Despite the straightforward rule against imposing obligations of secrecy, federal prosecutors have routinely invoked the aura of grand jury secrecy to prevent legitimate disclosures in a variety of contexts, including efforts to keep grand jury witnesses from reviewing their own transcripts, to coerce witnesses not to disclose what they know to others, and to bar witnesses from sharing preexisting documents with other potential witnesses.

The D.C. Circuit's recent decision in In Re Grand Jury, 2007 U.S. App. LEXIS 14809 (D.C. Cir. June 22, 2007), strikes an important blow against governmental restrictions on access to grand jury information.

Two corporate employees who testified before the grand jury sought access to their own transcripts before responding to a demand for an encore appearance. They argued they needed to see their own transcripts in order to minimize the possibility of inconsistent statements occasioned by the passage of time since the underlying events and their prior appearances, and in order to allow them to take advantage of the recantation provision of the federal perjury statute. 18 U.S.C. Sect. 1623(d).

The government contended that not allowing witnesses to obtain their own transcripts was necessary to maintain secrecy. The government sought to prevent disclosure out of a concern that the witness would obstruct the grand jury process by disclosing the transcripts to potential witnesses. It also claimed that access could also lead to witness intimidation. For example, a witness could be coerced into obtaining his transcript by a third party, which could deter the witness from testifying candidly.

The court, however, said it was "illogical to cite grand jury secrecy as the basis for denying a witness' access to the transcript of his prior grand jury testimony." The court recognized that grand jury secrecy is designed to encourage witnesses to testify honestly.

However, the secrecy does not extend to witnesses themselves. The court found that witnesses had an obvious interest in ensuring the accuracy of their testimony. Such concern is heightened when a witness appears before the grand jury, without counsel, and is subjected to rapid-fire questions by prosecutors.

A witness who has made a mistake in these circumstances has a powerful interest in correcting any mistake, an interest that is reinforced by the recantation provision in Section 1623. The court noted that the government's concerns could be addresses by allowing a witness to review her transcript without retaining a copy.

"We are only asking."

Prosecutors also use a carefully-worded admonition to circumvent the ban on imposing secrecy on grand jury witnesses.

A form letter widely used in the Northern District of Illinois, for example, "requests" the witness not to disclose the fact that the subpoena has been served, and follows with a thinly-veiled threat: "Any such disclosure could impede the investigation and thereby interfere with the enforcement of the law."

A grand jury witness may well take this more than a mere "request." The recipient of the letter is told, in effect, that failing to respect the request risks prosecution for obstruction of justice. Such "requests" thwart exercising First Amendment rights, as well as the right to defend oneself vigorously.

The 1st Circuit faced a similar issue in In re Grand Jury Proceedings (Diamante), 814 F.2d 61 (1st Cir. 1987). The prosecutor sent a grand jury witness a letter stating, "You are not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days. Any such disclosure could seriously impede the investigation being conducted and, thereby interfere with the enforcement of the federal criminal law." Id. at 64.

The court held that the letter unlawfully imposed secrecy on grand jury witnesses, stating: "We fail to see how a reasonable, law-abiding person who received such a letter would think anything other than that he was being told that he was legally obligated not to engage in that course of action." See also United States v. Kilpatrick, 575 F. Supp. 325, 331-32 (D. Colo. 1983); In re Grand Jury Subpoena Duces Tecum dated January 15, 1986, 797 F.2d 676 (8th Cir. 1986).

Department of Justice letters to grand jury witnesses have changed only subtly since the First Circuit's decision.

Now, instead of commanding compliance, they merely use the term "request." But any prudent recipient would understand this as a direction by the government not to disclose anything. The letter now in use by the DOJ continues unlawfully to impose an obligation of secrecy on witnesses.

Improper limits on corporate counsel

Prosecutorial efforts to limit access to witnesses and documents also violate ethical rules. Prosecutors commonly request witnesses not to reveal their testimony in the grand jury, and they also instruct corporations not to give access to documents to potential witnesses.

In a typical corporate criminal investigation, prosecutors instruct company counsel not to share documents with defense counsel for corporate employees. The government justifies this by claiming such disclosure would make it easier for employees to tailor their testimony to the documents and obstruct justice.

Ethical rules, however, prohibit government lawyers from deterring a witness from speaking with or providing other evidence to opposing counsel. If a witness obstructs justice, the government has ample power to investigate and prosecute, and at trial can freely cross-examine the witness on that subject.

What the government cannot do is unilaterally cut off access to the defense. As the 2nd Circuit has held, the quest for truth is more successful "if both sides have an equal opportunity to interview the persons who have information from which the truth may be determined." IBM v. Edelstein, 526 F.2d 37, 44 (2d Cir. 1975).

This tenet is consonant with ethical rules that preclude prosecutors from hindering the dissemination of information to the defense.

For example, the ABA's Criminal Justice Standards No. 11-6.3 provides: "Neither the counsel for the parties nor other prosecution or defense personnel should advise persons (other than the defendant) who have relevant material or information to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor should they otherwise impede opposing counsel's investigation of the case." (emphasis added).

Rule 3.4 of the ABA's Model Rules of Professional Conduct dictates that a lawyer "shall not unlawfully obstruct another party's access to evidence," or "conceal a document or other material having potential evidentiary value," or "counsel or assist another person to do any such act."

The same provision further demands that a lawyer shall not "request a person other than a client to refrain from voluntarily giving relevant information to another party" except in circumstances not applicable to the discussion in this article.

Courts have cited these ethical rules to support decisions upholding a defendant's due process right to interview witnesses without interference by the government. See, e.g., Coppolino, 266 F. Supp. at 935 (Canon 39); Gregory, 369 F.2d at 188 (Canon 39 and Canon 10 of Code of Trial Conduct of the American College of Trial Lawyers); Johnston, 356 F. Supp. at 910 (Canon 39).

At bottom, prosecutorial efforts to impose obligations of secrecy on witnesses are anathema to our system of justice. If witnesses seek to obstruct justice, the prosecution has adequate tools to respond.

In many cases, though, the prosecutor's real concern is not obstruction but gaining a tactical advantage. Imposing the restraints discussed in this article, which keep from the defense evidence and witnesses to which they are entitled, is inconsistent with our adversarial system. When it comes to the facts, DOJ should let the chips fall where they may.

Chris Gair and Andrew Weissmann, former federal prosecutors, are partners in the white-collar defense practice at Jenner & Block, LLP. They can be reached at cgair@jenner.com and aweissmann@jenner.com.

Reprinted with permission from Midwest In-House, a quarterly publication of Lawyers Weekly, Inc.

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