Do You Have a Right to a Lawyer If You Are Testifying Before a Grand Jury?
No, you do not have a right to a lawyer if you are testifying before a federal grand jury in the United States.
The constitutional right to a lawyer comes from the Sixth Amendment, but it only guarantees a lawyer in criminal proceedings – usually after a defendant has been indicted or otherwise charged with a crime. Giving testimony before a grand jury – even if the witness is the target of the investigation – does not qualify as a criminal proceeding because, at that time, the witness has not been indicted or charged with a crime.
In fact, grand jury secrecy rules dating to the 1600s actually prohibit lawyers from entering the grand jury room during testimony. In federal court today, only the witness, the prosecutor, and a court reporter – and, of course, the grand jurors – are allowed to be present during grand jury testimony.
That does not mean that lawyers have no role in protecting a client’s interests when that client is subpoenaed to testify before a grand jury. To the contrary, a lawyer can play a critical role in helping a client prepare for grand jury testimony. For example, a lawyer might be able to learn from the prosecutor what topics the prosecutor expects to cover in the grand jury. Using that information (or even without it), a lawyer can help the client refresh his or her memory and practice the testimony.
Those efforts will help minimize the risk that the witness is later accused of perjury or obstruction of justice for giving false or misleading answers in the grand jury. Indeed, some of the most high profile prosecutions brought by the Department of Justice, such as the case against former vice presidential chief of staff Scooter Libby, have involved charges of lying before a grand jury.
A lawyer might also help a client avoid grand jury testimony altogether. Sometimes, prosecutors will agree to interview a witness informally and allow the witness to give a proffer instead of appearing before a grand jury. A lawyer can help negotiate that resolution. A lawyer might also be able to convince the government to excuse a witness’s appearance before the grand jury if the witness doesn’t intend to answer any questions and instead plans to invoke the Fifth Amendment right against self-incrimination.
Finally, although a witness’s lawyer is not permitted in the grand jury room, a witness can always ask for a break in the testimony and consult with his or her lawyer outside the grand jury room. For that reason, lawyers will often accompany their clients to the grand jury and wait outside while the client testifies.
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