When Law Enforcement Comes Knocking–What Are Your Options?
The Scheduled Interview or Testimony (part 4 of 5)
Surprise interviews are certainly not the only way the government gets information from witnesses. Another method to obtain information is the scheduled interview where the witness usually has his attorney present, and where the agents are often joined by prosecutors. But like surprise interviews, there are many pitfalls associated with scheduled interviews and it is critical that the witness be properly prepared, as I will discuss in this fourth part of my series on government interviews.
Preparation is the Key
So how should you get ready for a scheduled interview?
- Retain an experienced white collar defense attorney.
- Carefully review the facts of the case.
- Carefully review any relevant documents that you have access to.
- Then decide whether to even participate in the interview.
– Interviews with prosecutors are voluntary.
– In certain instances, however, agencies such as the SEC can mandate sworn, on-the-record testimony.
Seek a Proffer Agreement (If Immunity Is Unavailable)
Of course, the first thing an attorney should seek for his or her client if the client has criminal exposure is immunity from prosecution before an interview takes place. If immunity is not an option, and it often isn’t, then a proffer agreement should be obtained.
A “proffer agreement” provides limited legal protection to an individual:
- If the government later prosecutes you, they can’t offer into evidence during their case-in-chief any statements you made during the interview.
But the legal protections are very limited:
- The government can use any information obtained from you to pursue leads to other evidence, and can use such evidence in any prosecution of you.
- If the government prosecutes you and you testify, the government can use any statements made by you during the interview to cross-examine you.
Grand Jury Subpoenas
You can be compelled to appear before a grand jury by subpoena:
- If you are granted immunity, you will be required to testify concerning the facts you are questioned about.
- If you are compelled to appear but not given immunity, and you have criminal exposure, you can invoke your 5th Amendment rights and refuse to answer the questions asked.
What to Do (and Not Do) During the Interview or Testimony
- Tell the truth
- Tell only what you remember − it’s okay to say “I don’t recall”
- Ask for clarification if needed
- Talk to your attorney alone if you need to
- Have your attorney cut off the interview if you become uncomfortable
- Overstate or Exaggerate
- Keep silent if it may mislead
- Conceal or Cover-up
Perhaps the best known case of an individual who was prosecuted for statements made during a scheduled interview is the Martha Stewart case, which is summarized below.
The Charges (6/4/03)
- False Statements, §1001 (2 counts)
- Obstruction of Justice
- Criminal Conspiracy
The Trial and Conviction
- 5-week jury trial
- Conviction on 3/10/04 on all 4 counts
- CNN legal analyst Jeffrey Toobin:
“This was a total rout. The story she told investigators after she made the stock trade simply didn’t add up.”
- Stewart was sentenced in July 2004 to 5 months in federal prison and 2 years supervised release, including 5 months of home confinement with electronic monitoring. She served her sentence at the federal prison in Alderson, West Virginia.
What Stewart Should Have Done
- Refused to talk to the government and kept quiet, as she was the target of an insider trading investigation.
- Taken the 5th if compelled to testify by subpoena.
- If determined to talk to the government (perhaps to try to protect her image), she had to tell the truth.
- If you agree to a scheduled interview with the government you must be well prepared for that interview and, perhaps most importantly, you must be completely truthful at the interview. And don’t go to the interview alone. Retain an experienced white collar defense lawyer to go with you.
Contact Me Now If You Have Questions – Even if you are outside New York and New Jersey, I work with experienced white collar defense attorneys across the country. After we speak, I can make an introduction.
This blog is the fourth of five that I’ll be posting on the issue of government interviews. If you’d like to learn more, please feel free to reach out to me at (212) 592-1513. I practice white collar criminal defense and securities and bank regulatory defense in New York, New Jersey and elsewhere, and my contact information is included in the link below.
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