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The U.S. government has become more active in cracking down on healthcare in recent years, and dental practice fraud is no exception. Dental spending is expected to reach over $203 billion, and fraud will likely cost the industry $6 billion. With the threat of federal and state action looming over the dental industry, it is essential to be aware of fraud and what could trigger an investigation.

Familiarizing yourself with the different types of dental fraud and knowing how to defend against allegations is crucial in this new regulatory landscape. Often, an attorney that has experience with dental fraud investigations is handy when creating a defense for your practice. Norman Spencer Law Group has precisely the sort of experience you can count on in these matters.

Common Types of Dental Practice Fraud Cases

The American Dental Association defines dental fraud as any crime where someone gets insurance money for false claims, inflating the costs of services, or charging for services not provided. There are many types of fraud, but they involve intention, deceit, and unlawful gain.

A few of the most likely types of fraud are:

• Upcoding or inflating prices on services
• Medicaid and Medicare fraud 
• Kickbacks for patient referrals 
• Intentionally or accidentally keeping government payments
• Pressing for excessive or unneeded dental procedures   
• Misrepresenting non-covered procedures
• Unlicensed individuals performing dental procedures
• Misrepresenting the provider of a dental service

Patients, as well as providers, can commit dental fraud such as:

• Using a fake ID, another person’s ID, or multiple IDs to get benefits
• Requesting that a dentist misreport dates to alter calendar year maximums or limits
• Misrepresenting available dental coverage or asking a dentist to do so

While most fraud cases require intent, a few accidental cases can lead to investigations as well. For example, accidentally coding wrong, listing a different dentist than the one who performed a procedure, or misrepresenting a date for service can lead to a fraud investigation.

Many of the cases listed above can lead to either a federal or third-party audit into your practice, which can bring criminal and civil charges. The penalties can range from jail time, hefty civil fines, loss of your dental license, and exclusion from federal healthcare programs. There is also reputational damage to consider as well. 

Ways to Fight Fraud

Luckily, you can do a few things to reduce dental fraud and help insulate yourself from an investigation. Here are a few ways to guard your practice against fraud allegations:

• Make sure to layout payment details for services before rendering them. Go over fees for covered and non-covered options so that patients know what their options are and how much they owe
• Try to create distance from patients that do not pay on time or do not make any effort to pay for services rendered 
• Make sure that you have a detailed fraud policy in place, and have all of your employees read it
• Split up tasks related to processing payments among multiple employees 
• Review all claims your practice submits as you are responsible for any claim that comes out of your practice
• Check profit and loss records for your dental practice regularly to make sure everything adds up

There are also outside organizations that can make defending against fraud easier. You can hire an auditing agency to go through your financials to ensure there are no questionable billing practices. Internal audits are also an excellent in-house option to check up on the health of your practice.

Why Choose a Dental Practice Fraud Attorney

One of the best things you can do as a dentist or dental healthcare worker is get in touch with a qualified attorney. No matter what kind of situation you may be facing, a lawyer is indispensable. If you need help fraud-proofing your practice, a lawyer can help set up your third-party audits through lawyer-client confidentiality. A lawyer can also help you create a comprehensive anti-fraud policy for your practice.

If you are facing allegations of fraud or even a legal investigation, getting in contact with a lawyer is essential. A professional healthcare fraud attorney can help you understand the allegations you are facing. They will help you gather the documents to defend your practice, prepare you and your employees for any meetings with investigators, and help you build a case for court if needed.

At Norman Spencer Law Group, we pride ourselves on our team of healthcare defense lawyers. Our attorneys have experience with various healthcare-related cases, including dental fraud defense. If you are facing allegations against your practice, are under investigation, or just need help to draft a fraud policy, call us now. We can set up a free consultation over the phone, through email, via ZOOM, or even in person.

The federal government has several tools to root out fraud in the healthcare industry, and a big one is the ability to audit a healthcare provider. This happens through federal contractors, state agencies, or even private auditors, and Medicaid is one of the most significant areas that the government focuses on. Finding yourself on the other end of a Medicaid audit can be intimidating, but it is not the end. Several procedures can let you get through such an audit with minimal damage, and having a lawyer who is well-versed in these matters can make it even easier. If you are dealing with a Medicaid audit, the Norman Spencer Law Group has you covered.

Steps in the Appeal Process

While there are many different types of audits that you might face, there are five steps to the appeals process.

Redetermination: This is the first step of appealing a Medicaid audit. Requesting a redetermination must be done within 120 days of receiving the initial determination from the Centers for Medicare and Medicaid Services. Remember that the auditor can start recouping alleged overpayments while an appeal is in the process unless the request is filed within 30 days of the initial determination. Filing a redetermination early is always preferable. 

Reconsideration: This is the second step of an appeal and is handled by a Qualified Independent Contractor (QIC). A request for reconsideration is filed within 180 days of receiving the CMS redetermination decision, and contractors can begin recoupments within 60 days of the notice. All evidence of an appeal is submitted at this stage since no new evidence will be allowed in the later stages of the appeal.

Administrative Law Judge: A hearing before an Administrative Law Judge is the third step in the appeals process. The request for a hearing must be filed within 60 days of receiving the reconsideration decision. Unlike the first two steps, a hearing request must also meet a certain amount of controversy, which changes annually. Multiple claims can be grouped to meet this amount. 

Medicare Appeals Council: A Medicare Appeals Council review is the fourth step to appealing an audit. A request for this review must be filed with the court within 60 days of receiving the Administrative Law Judge hearing receipt. It must also meet controversial requirements that change annually. The provider has to explain why it disagrees with the Administrative Law Judge. This step does not involve a hearing, though you can request an oral argument.

Federal District Court: The final step of the appeals process is a review in a Federal District Court. Much like the previous step, this request has to be filed within 60 days of receiving the Medicare Appeals Council decision. This request also requires a certain amount of controversy, which changes annually.

These steps are the general structure that a Medicaid appeals process follows, but every state has its regulations and administrative procedures. In many states, there is the option of opting for an informal resolution or a settlement. 

Attorneys and Medicaid Audit Appeals  

Appealing a Medicaid audit can be lengthy, with numerous federal and state regulations. Having an experienced attorney from the moment an audit notice is received can make a difference. A Medicaid appeals attorney can help gather all the documents needed for all five steps of the appeals process. They can help you stay on top of the deadlines for all of the different steps when requesting further appeals. Also, they can prepare you for a hearing, plan your defense, and even help you reach an informal settlement if the appeal gets that far. If the case continues, they can defend you in Federal District Court.

At Norman Spencer Law Group, we have a team of attorneys that is very familiar with Medicaid audits and appeals. We know how demanding a Medicaid audit can be. If you have received an audit notice, do not wait to contact us. We can set up a free consultation via phone, ZOOM, email, or in person.

Medicaid fraud and abuse are some of the most severe allegations a business can face, and the federal government has taken a firm stance on fighting such cases. More than ever, proofing your business against potential fraud and abuse allegations is a good idea. If you are worried about your company’s ability to defend a fraud allegation or just want to cover your bases, Norman Spencer Law Group can help. Our team of attorneys has handled a wide range of healthcare cases, including Medicaid fraud defense and consultation. 

What is Medicaid Fraud and Abuse?

Before going into how to safeguard your business from Medicaid fraud, it is important to know what kind of actions constitute fraud and abuse. Fraud is any intentional deception intended to cause unauthorized benefit, and abuse is any practice inconsistent with proper fiscal and medical business practices. 

These practices result in unnecessary costs for the Medicaid program, cause reimbursements for unneeded medical services, or fail to meet recognized healthcare standards. Several groups can commit fraud and abuse, including: 

• Managed Care Organizations 
• Contractors and Subcontractors
• Healthcare Providers
• State Employees
• Medicaid Beneficiaries and Managed Care Enrollee   

There are also many ways that Medicaid fraud and abuse can be committed. These include:

• Billing for unprovided services
• Misusing medical codes 
• Billing for unneeded services
• Charging for exessive or unneeded medical supplies 
• Billing for appointments that patients fail to keep

Medicaid Fraud Defense – Laws to Know

On top of the types of fraud and abuse your organization could face, there are many laws that must be followed. Federal and state laws cover Medicaid fraud, but the most important federal laws include:

The False Claims Act (FCA): The FCA is a federal law that protects the government from being overcharged or charged for inferior goods and services. No actual intent to defraud the government is required to trigger an FCA claim. Acting in a way that proves knowledge of a false claim or working with deliberate ignorance is enough.

Anti-Kickback Statute: This federal law makes it a crime to knowingly and willfully pay or receive remuneration – directly or indirectly – to cause or benefit from patient referrals. This also applies to any business involving items and services that federal healthcare programs can reimburse.

Stark Laws: Stark laws, also known as physician self-referral laws, are federal laws that forbid a physician from referring a patient to Medicare or Medicaid reimbursable services via a group through which the physician or the physician’s immediate family members are associated.

Criminal Healthcare Fraud Statute: A federal law forbids going through with or attempting a scheme to interfere with the delivery or payment of healthcare benefits and services. This includes attempts to defraud a healthcare benefit program or deceitfully obtain money owned by any healthcare benefit program.

Exclusion Statute: This federal law allows the Office of Inspector General (OIG) to exclude any healthcare provider from healthcare benefit programs for committing Medicaid fraud, abusing or neglecting patients, or felony convictions surrounding healthcare laws. This statute can also be triggered by any of the above regulations, misdemeanor charges, license suspensions, or revocation. 

Civil Monetary Penalties Law (CMPL): This federal law allows the OIG to charge damages and sometimes exclude a provider from a national healthcare benefits program. Different penalties can be imposed based on the types of violations, up to a maximum of three times the amount claimed for a service. Much like the Exclusion Statute, the above laws can trigger this penalty. 

Steps to Properly Defend Your Business

The first step to protecting your business from Medicaid fraud allegations is to ensure you and your employees are aware of all the types of fraud that apply. Knowing what groups can be involved and how they might commit fraud or abuse is essential. Another crucial step is to be aware of the major federal laws that deal with Medicaid fraud and abuse. Updating your business on federal and state legislation can make a difference in borderline cases. 

Finally, knowing a healthcare attorney with Medicaid fraud defense experience goes a long way. Building this relationship is vital since a lawyer can help prevent you from being caught in the middle of a fraud case in the first place. A Medicaid fraud attorney can also help look at your business’s financials, claims, and employee records to ensure nothing is amiss. Your lawyer will be ready to defend you if something does come up.

Norman Spencer Law Group has a dedicated team of healthcare fraud and abuse lawyers with the expertise you can count on. If you have questions about protecting your business, want to consult with an expert, or find yourself in the middle of a Medicaid fraud allegation, call us. We can set up a free consultation over the phone, via ZOOM, email, or in person.

Losing your medical license is distressing for anyone in the healthcare industry. A state medical board can suspend or revoke a physician’s license after wrongdoing or negligence. It’s possible to reinstate your medical license with time and hard work, and at Norman Spencer Law Group, we have a skilled team of licensed attorneys that can help you through the process. We can walk you through every step you need to complete so you can return to practicing medicine in due time.

Reinstating a Suspended License

Reinstating a medical license depends upon the severity of your case and the state where you acquired it. It also depends on whether or not the license in question was suspended or revoked since both cases have differing procedures surrounding reinstatement. A license reactivation form must be submitted in medical license suspension cases. Completing this form also requires filing other forms, such as proof of ongoing medical requirements, drug abuse reporting requirements, child abuse reporting protocols, etc. You will also need to fill out a National Practitioner Data Bank (NPDB) query and provide a curriculum vitae spanning the previous ten years of employment. You must also apply for professional liability insurance, which includes state-mandated minimum coverage amounts.

Depending on the state, there will be specifications about how to submit the form. Some states allow electronic submission, while others only accept it through mail or direct delivery. The state medical board also usually requires clinical skill evaluations and mandatory training programs, especially if a long time has passed after a license suspension. On top of these requirements, the board can also apply tailor-made requirements based on your case, which must follow the letter. The board can delay the form or reactivation until your suspension ends or all of your retraining is completed. Reactivation fees vary by state, and the process takes six months to a few years.

Reinstating a Revoked License

If you need to reinstate your medical license because it was revoked, things become a little more complicated with severe penalties to overcome. It is still possible, however. Before you can apply to reinstate a revoked license, there is a mandatory three-year waiting period. After the three-year mark, you must file for a Petition of Reinstatement. To file the petition properly, you must include at least two letters of support from licensed physicians who support your reinstatement and a written narrative explaining that you have been rehabilitated and why you deserve a second chance. 

After filing the petition, you will have a hearing before an Administrative Law Judge (ALJ). The state medical board attorney will file a Statement of Issues that opposes your reinstatement. The ALJ will hear evidence during the hearing and send a proposed decision to the state medical board. The board has 100 days to accept, change, or deny the decision, though you can appeal.

Showing the board that you have been rehabilitated, retrained, or have learned from your previous mistakes is paramount when filing a Petition of Reinstatement. Any proof of this can make a difference, and letters from supervisors, other physicians, former patients, family members, and friends all count. Also include documents showing that court mandates have been met, mental health provider testimony, certificates of education or rehabilitation, or proof of community service. Much like a suspended license, there are fees involved with reinstating a revoked license, which differ by state. These tend to be more expensive, as a revoked license takes more time to deal with, and the entire ordeal can last several years beyond the mandatory three-year waiting period.

How Our Attorneys Can Help Reinstate Your Medical License

Regardless of whether your license was suspended or revoked, your first order of business before starting reinstatement should be to contact an attorney. This one act can make all of the proceeding steps that much easier. An attorney can help gather all the required documentation for a reactivation application of a Petition of Reinstatement. An attorney can also help you keep track of the critical dates, witnesses, and supplementary documentation and walk you through any board requirements.

A lawyer becomes even more critical if you get a hearing before the state medical board or an ALJ. The hearing is the most crucial step of reinstatement, and having a qualified professional at your side to represent you is vital. Our professional license defense attorneys at Norman Spencer Law Group are very familiar with the particulars of license reinstatement. Do not wait to contact us if you are trying to reinstate your license. We can discuss your case with a free consultation over the phone, via Zoom, email, or even in person.

Tax fraud investigations and prosecutions can have a devastating effect on your life. Defending against these allegations takes strategy and skills not too many lawyers have. You can rely on the tax fraud defense attorneys with Norman Spencer Law Group for the most effective defense strategy if you face the IRS and the Department of Justice.

Nationwide Tax Fraud Investigations Attorneys

When representing a client in a tax investigation, it is the absolute must that that lawyer has a firm grip on the nature of the prosecution case and the relevant facts. Because federal tax prosecutions involve a very complex multi-level bureaucratic review process, the lawyer should be familiar with it and know how to use it to the client’s advantage.

Our team includes federal criminal attorneys, former IRS agents, forensic accountants, and certified fraud investigators. At Norman Spencer Law Group we are knowledgeable about the IRS and the DOJ process and we can help you right now.

We share this shortlist of the best practices we follow and the advice we give when representing clients in criminal tax investigations.

Our Best Advice to Clients and Employees

The best advice we can give to any client, whether corporate or individual, as well as the client’s employee is this. Never disclose information to government investigators before you speak with us.

Anything ever disclosed to the investigators must be reviewed and approved by an attorney beforehand. You should never give any information until you show it to the attorney who understands the facts of your case.

In real life, of course, clients do disclose information to investigators before speaking to a lawyer. This happens for many reasons. It is actually normal for an average person to try to exonerate himself or herself when first contacted by the investigators. It can be extremely damaging to them, but there is nothing we could do about that after the fact. The cake cannot be un-backed. However, we must examine anything you disclosed, so making and keeping copies of all the documents is extremely important.

Being Proactive Is Important

Not everyone plans on being investigated by the IRS. However, if the IRS contacts you, it is time to get ready and be prepared and proactive. We advise clients to call our firm as soon as the IRS agents first contact you. The early gathering of the facts in a tax fraud investigation is essential.

We will immediately conduct our own defense investigation before anything else. Our law firm is using various experts, including forensic accountants and tax specialists.

Kovel Agreement

The way to hire these specialists is directly through our office. We prepare what is known as the Kovel agreement, which sets up the relationship of the accountant to our firm. Any work the accountant will do on your case in preparation for the defense will be done under the umbrella of our firm, and we will own all the materials the accountant generates. This gives you the protection you would have by dealing with a lawyer but not by dealing with the accountant directly.

Maintaining Tax Records And Protecting Your Rights

The government’s ability to investigate and ultimately prosecute you for tax fraud and evasion depends on whether they have access to your records and other documents.

As you know, the records and documents you give your lawyer are protected by the attorney-client privilege and the attorney work-product doctrine. However, the records you give your accountant who was not hired by an attorney to help defend you, are not protected by anything. There is no Fourth or Fifth Amendments protection, no attorney-client privilege, or attorney work-product protection.

Here is the solution that solves the problem. If you transfer the records to your lawyer, you could raise a Fifth Amendment privilege to the production of these records and the attorney could interpose an objection under the attorney-client privilege.

How We Defend Taxpayers Against Tax Fraud Investigations

If we take your case, one of the first important issues we need to decide is whether and to what extent we should cooperate with the IRS. This requires serious consideration. At times, the IRS agents view failure to cooperate as an indication of possible fraud. They may get even more suspicious as they continue their investigation. They may also expand the scope of the investigation, the exact opposite of what we want.

On the other hand, cooperation with the agents is a perilous proposition in itself. Any admissions you or your lawyer make are generally admissible at trial. Agents are trained to solicit voluntary admissions from their targets. Being cooperative never means that you will not be prosecuted. This applies to dealing with the IRS Special Agents at the beginning of the investigation as well as dealing with the IRS after the case became criminal.

Keeping the dialogue open allows us to disclose a defense, which might cause the government to decide to terminate the investigation. Furthermore, the dialogue provides us the opportunity to listen to any information the government is willing to disclose. At the same time, the last thing we want is to do the prosecutors’ work for them and help them make their case. What we say and submit to the government must be thought through and measured.

To balance these considerations we exercise the cautious approach. We know how to walk a thin line between avoiding stirring the agent’s suspicion and avoiding saying too much. Once we review the case and have a full grasp of the facts, we determine the best tactics.

Your Best Choice For Tax Fraud Investigations

There are plenty of defense attorneys offering their services. Most of them are good at what they do. When you deal with the IRS criminal investigation, you need to make sure your attorney has experience with the IRS criminal investigations, not any criminal case that comes through the door. You need to make sure that they have successfully handled such cases before.

Information is the key. We invite you to call us for a consultation to see what we can do for you. Our federal criminal lawyers have handled numerous criminal tax matters at all stages. Our team has former IRS agents, forensic accountants, and tax specialists. We have the knowledge and the resources to take your case to the optimal conclusion. Call us today to learn how we can help.

The Fifth Amendment protects against self-incrimination by stating that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause covers all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states regarding the right to refuse to testify. The clause’s text raises at least three questions. First, since the Clause mentions “witness against himself,” the question of what constitutes self-incrimination arises. Second, because the Clause mentions being “compelled,” the question of what constitutes compulsion arises. Finally, since the text refers to a “judicial case,” the question of what proceedings count as part of the case for purposes of invoking the Fifth Amendment protection arises.

What Does the Fifth Amendment Cover?

In short, these issues apply to a grand jury witness in the following ways: first, the witness’ testimony is incriminating if it provides a link in a chain of evidence needed to prosecute the witness for a crime; second, the witness’ testimony is compelled if the witness appears pursuant to a subpoena; and third, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.

What Constitutes Incriminating Evidence and Your Right to Refuse to Testify?

To begin with, testimony is incriminating as it provides a link in the chain of evidence used to convict the witness for a crime or to increase the severity of a criminal punishment. The connection must be to a criminal penalty; penalties at work, as well as civil penalties such as deportation, do not count.

A domestic prosecution must also be linked; a foreign prosecution does not count. As a consequence, a witness can not claim the Fifth Amendment right against self-incrimination if he or she suspects that the evidence will be used against him or her in a potential criminal prosecution by a foreign government.

The right could not be invoked by the witness even if a foreign government with which the US has an agreement requiring the US to provide the witness’ testimony; the witness has a legitimate fear of deportation from the United States; and the government admits that the witness’ fear of being prosecuted in a foreign country is true and serious.

The case of Hoffman v. United States is the most well-known example of what constitutes a necessary relation. In Hoffman, a witness before a federal grand jury used the Fifth Amendment right by refusing to answer questions about his occupation and interactions with a wanted witness, and was found in contempt for his refusal. The United States Supreme Court, in overturning the contempt conviction, held that a witness may invoke the privilege if he or she has fair grounds to assume that the answers will provide a link in the chain of evidence required to prosecute the witness for a crime. The Court said that the district court should have recognized that, since the grand jury was looking into racketeering, answers about occupation would include answers about violations of gambling laws. The district court should have known that answers about the fugitive could link the witness to actions related to hiding the witness, according to the Court. For grand jury witnesses seeking to qualify their evidence as self-incriminating, Hoffman sets a low bar.

What is Testimony Compulsion?

Grand jury testimony is considered coerced if the witness is served with a subpoena, or if the witness is threatened with the loss of anything so valuable that the threat is considered coercion. Not all forms of pressure or punishment are compulsion. For example, termination of employment, loss of a professional license, ineligibility to obtain government contracts, and loss of the right to engage in political associations and hold public office are all considered compulsion by the United States Supreme Court.

However, a threat to move the person to a maximum security facility, on the other hand, would not count as compulsion.

The fines that the Court determined to be coercive should not be applied to grand jury witnesses. As a result, the United States Supreme ruled that a New York law violating the Fifth Amendment by requiring people who refuse to forfeit their immunity before a grand jury investigating public contracts to be ineligible for government contracts for five years.

When Can a Witness Invoke Privilege and Refuse to Testify in a Court Case?

The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” The courts have interpreted “any criminal case” to include not only existing and pending cases, but also potential criminal cases. As a result, a witness can invoke the privilege not only in a current criminal case against him or her, but also in any proceeding in which the answers may incriminate the witness in a future criminal case.

The grand jury, as well as non-criminal proceedings such as civil forfeiture and deportation, and informal proceedings such as an interview with a probation officer, are examples of where a witness can invoke the privilege. The witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.

The Court Decides If Privilege Is Involved

A court must decide if the Fifth Amendment right extends after a witness invokes it. The fact that the witness “says so” does not prove that a statement will be incriminating. It is up to the court to determine if the witness’ silence is justified, and to order the witness to respond if the court believes the witness is mistaken. The United States Supreme Court held in Hoffman v. the United States that a trial court can uphold the right if it is clear from the implications of the issue that a responsive response to the question or clarification of why it cannot be answered will be risky due to the risk of injurious exposure. Otherwise, the witness asserting the right must back up his or her argument. If the witness is asked to support the claim of privilege, counsel should step in to provide the reasons instead of the client. If the witness provides the reasons without the assistance of counsel, the witness’ responses can be harmful.

Convicted Witness’s Privilege Statement

The Fifth Amendment right against self-incrimination can also be used by a convicted witness. If the testimony would expose the accused witness to further criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.

The Sixth Circuit has ruled that a witness who had already pleaded guilty to one count of an indictment did not lose his Fifth Amendment right to withhold incriminating evidence because he was facing charges in another state. A guilty plea only waives the right in relation to the crime confessed to; it does not constitute a blanket waiver of the privilege in relation to any offenses that might be the subject of future charges.

To what degree can a witness who has been convicted of such crimes but has not yet been sentenced (or whose direct appeal is still pending) effectively claim the Fifth Amendment right against self-incrimination when called to testify before a grand jury investigating the conviction? The convicted witness, like any other witness summoned to testify before the grand jury, must comply with the subpoena to the point of making an appearance before the grand jury. On the grounds of Fifth Amendment immunity, the witness cannot seek to quash the subpoena. When a witness appears and is interrogated, he or she has the right to claim the privilege in response to specific questions. Whether or not a claim of privilege is true in a particular case can be determined by the clear questions posed to the witness.

Determining Your Right to Refuse to Testify

In the case of the convicted witness, the right to inquire about the evidence that led to the conviction would be determined by one of two factors: (1) the status of the conviction, or (2) the likelihood of future punishment based on those facts. A witness can legitimately invoke the Fifth Amendment right in response to questions about a crime for which he or she has been convicted (either by trial or by a plea of guilty), as long as the conviction is not final.

As an example, as long as the witness is not convicted, the courts have recognized that a witness found guilty of a crime will legitimately claim the right in relation to questions about the crime.

The same is valid if the witness is prosecuting an appeal of a conviction when he or she is called before a grand jury. One court has also upheld the use of the right while the accused witness was facing a motion to overturn his conviction at the time of questioning.

Where a conviction is based on a guilty plea, however, some courts have ruled that the accused witness does not reasonably claim the right as to the offense for which the plea was entered because the penalty has not yet been enforced.

The fact that both the indictment and the sentence are final by the moment the witness is questioned about the evidence that led to the conviction does not preclude the witness from asserting Fifth Amendment privilege over those facts. While a conviction establishes a clear assumption that answers to concerns about the evidence surrounding the conviction would not further incriminate the witness, the mentioned cases do consider the privilege’s continued viability where it is shown that there is a risk of further federal, state, or international prosecution arising from the same facts.

Should a witness want to invoke the right under these cases, the witness must be able to justify precisely which offences may indeed be brought against him or her. As a result, prior to the grand jury appearance, our federal defense lawyers carefully consider all potential federal, state, or international charges based on the same evidence as the existing conviction and inform the witness of these possibilities.

For example, the witness can inform the lawyer that testifying truthfully before the grand jury will be inconsistent with prior trial testimony; the lawyer will then advise the witness that the threat of a perjury prosecution stemming from the earlier testimony may now be used to invoke the Fifth Amendment privilege when questioned before the grand jury.

We Help Protect Your Rights

Any of the prosecutor’s questions before the grand jury which seek information that goes beyond the reach of the prior conviction’s evidence. The witness who has been accused of a crime is in the same place as any other witness before the grand jury in such cases. To put it another way, the witness will use the Fifth Amendment right to refuse to testify or answer any questions that may lead to new criminal charges.

Federal Criminal Lawyers with Norman Spencer will talk to you about your criminal matter or investigations at any time – no matter where you are. Call us today for a consultation.