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Grand jury testimony: Witnesses can’t have lawyers with them

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robert mueller
Special counsel Robert
Mueller.

Yuri Gripas /
Reuters


  • Several former associates of
    President Donald Trump and the political operative Roger Stone
    have been served with subpoenas to testify before the Washington,
    DC, grand jury in special counsel Robert Mueller’s probe.
  • An unusual feature of grand jury
    proceedings is unlike typical trials.
  • Grand juries are secret, meaning
    witnesses compelled to testify are not allowed to have attorneys
    present with them in the room. 
  • Witnesses testifying before a grand
    jury can, however, brief and consult with their attorneys outside
    the jury room. 

Several former associates of President Donald Trump and the
political operative Roger Stone have been served with subpoenas to
testify
before the Washington, DC, grand jury convened as
part of special counsel Robert Mueller’s probe into Russian
interference.

As opposed to a normal jury tasked with hearing arguments and
handing down a verdict in a criminal or civil trial, a grand jury
is usually convened for months at a time to hear testimony and review
evidence in criminal cases
to determine whether or not to
indict one more defendants. 

All a grand jury needs is the relatively low standard of probable
cause to hand down an indictment, leading former New York Judge
Sol Watchler to conclude that a grand jury would “indict a ham sandwich.”

In a typical criminal or civil trial, a witness can have a lawyer
with them to essentially act as a “buffer”
and answer questions on their behalf from the prosecuting and
defense attorneys in the case. But a grand jury witness does not
have the option to have an attorney in the room with
them.  

This is because unlike regular trials, grand jury proceedings
must maintain secrecy to ensure the integrity of the process.
This means that only the jurors themselves, the prosecutors, the
witnesses, and court officers and stenographers are the only ones
present — not even a judge can be in the room during the
proceedings. 

In 1979, the US Supreme Court unanimously upheld the
necessity of grand jury secrecy
. Former Justice Lewis Powell
wrote that “witnesses who appeared before the grand jury
would be less likely to testify fully and frankly.”

“There also would be the risk that those about to be
indicted would flee, or would try to influence individual grand
jurors,” he wrote.

Even though a witness in a grand jury can’t have attorneys with
them on the stand, criminal defense lawyers still
recommend that people subpoenaed to appear before a grand jury
hire an experienced attorney
to help guide them through the
process, since failing to answer a subpoena can result in a
witness being held in contempt of court. 

If a potential witness is concerned their testimony may
incriminate them, a lawyer can help them file a request with the presiding
judge
to invoke their Fifth Amendment privilege against
self-incrimination. A prosecutor may also request immunity for a
witness whose testimony they see to be crucial to the case. 

Solomon Wisenberg, a criminal defense attorney in Washington, DC
who specializes in white-collar criminal cases, also notes on his
website that a witness’ attorney is still allowed to stay outside the
courtroom
to be briefed on the questions and consulted by
their client before and after every question, as long as it does
not impede the proceedings.

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