When you are a target in an investigation

A target letter

Department of Justice policy discourages subpoenaing grand jury targets to testify. When a federal prosecutor does subpoena a target, the prosecutor must accompany the subpoena with a “target letter” informing you that you are a target of the investigation and of the rights you have if you testify. A target letter is important. However, you may be a clear target and never receive one. Some prosecutors send them to all witnesses they subpoena. Others never send one because they never subpoena anyone they would consider a target. Prosecutors use target letters mainly to encourage unrepresented targets to retain counsel and begin plea or cooperation discussions. For the most part, prosecutors do not expect targets to testify even if subpoenaed. A lawyer’s representation that the target will invoke the privilege against self-incrimination usually is enough to earn discharge from a subpoena’s obligations. Likewise, receiving a subpoena without a target letter does not mean that you are not or will not become a target. Things change, and prosecutors err. The failure to send a target letter or to advise a witness of his status and rights in the grand jury does not prevent either an indictment or the use of the testimony against the witness-defendant at trial.

The goals of a target

If you are a target, normally you should not testify before the grand jury without a grant of immunity. The rare exception is when you believe that your testimony can convince the grand jury not to indict. Your goals before indictment (as assisted by your criminal attorney) are to:

• Convince the prosecutor that he/she does not have a winning case and should not seek an indictment.
• Offer your cooperation and possible testimony against a more culpable individual in return for immunity or a plea to a less serious charge or a reduced sentence.
• Negotiate a plea to a less serious charge.
• Watch the investigation to discover as much as you can about it and to prepare for defense of the eventual indictment.

Your testimony in the grand jury

In most jurisdictions, a target has no right to testify. However, some jurisdictions grant a defendant a statutory right to testify in the grand jury if he serves notice that he intends to do so at the time of his initial appearance on a felony complaint. Occasionally, targets or arrestees choose to testify, and some succeed in convincing a grand jury not to return a true bill.

Deciding whether to testify

Generally, a target should not testify. No targets testify in federal grand juries because the crimes are complex, the prosecutors prepared, and the witness is without counsel in the room. This testimony can and will be used against you in any way possible. In deciding whether you should testify, you and your attorney should consider the following factors:

• The type of crime. Testifying works best in simple cases, such as street crimes, that come down to a single issue you can address. For example, you might testify about your knowledge or intent in a possession case, or who struck the first blow in an assault or homicide case.
• The evidence contradicting your story. The prosecutor will not tell you what other evidence exists, so your attorney must investigate as much as possible by speaking to the witnesses and the police. You should testify only if your attorney can reconcile your story with independent, unimpeachable evidence, such as the testimony of uninvolved bystanders and business records.
• Whether anyone else can tell your story. Testifying makes sense if you can agree with nearly all the prosecution’s significant evidence and can offer insight that no one else has into a single issue. This usually means your own actions or state of mind. For example, if you are arrested entering a courthouse or airport with a gun in your briefcase, you might be able to explain when you put it there (hopefully, long ago) and how you forgot it was there.
• Whether your attorney can be present. You should hesitate to testify in jurisdictions where your attorney cannot be present in the grand jury room.
• The extent to which prosecutors prepare for grand jury proceedings. In many jurisdictions, prosecutors have little time to prepare cases before presenting them to the grand jury and less to conduct follow-up investigations. These are the best jurisdictions for a defendant to testify.
• The law and custom on re-submitting cases to the grand jury. The double jeopardy clause does not forbid a prosecutor from re-submitting a case to the grand jury and seeking an indictment even if the grand jury returns no true bill. Some offices and jurisdictions require supervisory approval or leave of court to seek an indictment after dismissal. Even where such leave is not required, the custom may be not to submit the case a second time. After all, if the prosecutor could not convince a grand jury to indict, his chances of success with the trial jury are slim. Prosecutors are more likely to try again if the charge is very serious (e.g., murders, rapes, and serious assaults). Also, if they discover strong evidence contradicting you, they probably will return to the grand jury with a vengeance.
• The urgency with which you must avoid an indictment. Being indicted serves no defendant well. However, some more than others can ill afford to postpone the fight until trial. It may be more worthwhile for you to testify if you will not be able to make bail should you be indicted and would lose a job during your incarceration, or if you are awaiting sentencing for another offense.