Criminal Investigations, Grand Jury

Seattle, Washington Criminal Investigations and Grand Jury Defense Attorney

In my experience, the best time to influence the outcome of a case often is before it is filed. Generally, except in minor cases in which the alleged criminal conduct occurred directly in front of a law enforcement agent, there is a period of time during which the government conducts investigation and/or analyzes the facts before a decision is made to charge a person with a crime. This time period, which can be long or short depending upon all of the circumstances, presents an opportunity for an experienced criminal defense attorney to make a difference in whether, and if so, what charges are filed.

In federal court, the Constitution requires that felony crimes must be charged by a grand jury unless the defendant waives the right. The grand jury consists of 16-23 citizens, who must decide if there is probable cause to charge a suspect with a crime. In addition to serving this charging function, the grand jury also plays an investigative function. Defense attorneys and suspects are not permitted to attend grand jury proceedings and the record of the proceedings is secret.

The Constitution does not require that state criminal charges be screened and charged by a grand jury. In Washington, most crimes are charged directly by prosecutors filing either a complaint or a charging document called an information. A special inquiry proceeding is an investigative hearing in state court under Revised Code of Washington chapter 10.27. These hearings allow the prosecutor to subpoena witnesses or evidence to investigate suspected “crime or corruption.” The procedure may not be used to investigate crimes already charged. Special inquiry proceedings are secret unless a court allows the record to be disclosed.

A target letter or a subject letter is a letter from a federal prosecutor to an individual advising that person that he or she is the target or a subject of a federal investigation. Usually the letter will advise the individual of the nature of the charges under investigation. As stated in the United States Attorneys Criminal Resource Manual:

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a “target” or “subject” of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter.

A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.

A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.

Witnesses who are subpoenaed to testify at a federal grand jury hearing may retain counsel to represent them for the hearing, but counsel will not be permitted to enter the grand jury room during the testimony. The witness may ask to be excused from the hearing to confer with counsel about the subject matter of the questions as well as about asserting any rights or privileges. Grand jury proceedings are secret. Typically, targets are not subpoenaed to appear before a grand jury.

Witnesses who are subpoenaed to state special inquiry proceedings may have counsel present with them in court during their testimony. Counsel is present only to advise the witness of rights or privileges he may wish to assert in response to questions from the prosecutor. Counsel may not discuss with the client the subject matter of the questions asked. The proceedings are secret and neither the witness nor the attorney may discuss the proceedings with third parties.

Witnesses who have concerns about incriminating themselves during testimony may refuse to answer questions by asserting the constitutional privilege against self-incrimination.

Mr. Iaria has experience leading clients though grand jury investigations of which they are targets or subjects. He also has experience guiding non-target and non-subject witnesses through grand jury investigations and corporate employees and executives through internal audits and investigations. Even in cases in which a grand jury or a special inquiry proceeding has not been convened, he has substantial experience in conducting pre-filing investigation and presenting the results of such investigations to prosecutors in an effort to influence their filing decisions.