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When you’re facing an investigation into or charges of healthcare fraud headed up by the Office of Inspector General, to say that you can feel overwhelmed is an understatement. Along with the stigma that comes along with charges like these, and the court of popular opinion that you’ll have to contend with as a result, there’s also the fact that you could be looking at years or even decades of prison should you be successfully convicted. It goes without saying that anyone facing prospects like these is going to want to get someone in their corner who can effectively defend their case, ideally getting charges reduced or even dropped altogether before you’d ever need to go to court. But who should you turn to for help?

Not all legal firms are equal, and not every defense attorney or firm will have the experience, resources, and skill necessary to ensure the best possible outcome for you. You need a place that will fight hard for you and get you the results that you need and deserve. You need the Norman Spencer Law Group.

Contents

• What can the Office of Inspector General do?
• What should I do if I end up under investigation by the OIG?
• Who can I trust?
• The Norman Spencer Law Group can help you out.

What Can the Office of Inspector General Do?

As you might imagine, the Office of Inspector General has a very narrow and specific purview. While their methods might be extensive, their jurisdiction is quite specific. The Office of Inspector General, or OIG, gets involved in situations such as Medicare or Medicaid-related cases, routine audits of healthcare records, offenses related to healthcare insurance, and grant or contract fraud, especially as it relates to the healthcare system.

It’s important to note that the penalties here can be both civil and criminal in nature, and an investigation can shift at any time based on the investigator involved and any evidence that might come up in the course of said investigation. For instance, an investigation can start out as a civil one and then become criminal later, with the eventual penalties being civil sanctions, criminal penalties, or even both, all depending on the situation.

What to Do When Under Investigation by the OIG?

There are a few things that you should keep in mind should you find yourself under investigation by the OIG. While these are more general guidelines that could apply to a wide variety of charges or legal issues you might find yourself in, they still bear repeating.

To start with, you should keep the conversation with the investigator to a minimum. One of the biggest mistakes you could make is to assume that you have nothing to hide and that you should talk openly with investigators. The reality is that the scope of the investigation will almost always be wider than you think it’ll be, and a savvy investigator will be able to trip you up and get you to incriminate yourself. While you have an affirmative duty to cooperate with the investigator, you should only do this while under the advisement of a competent defense attorney.

Another thing to keep in mind is that you should under no circumstances represent yourself in court or assume that you can handle an OIG investigation on your own. An OIG investigator’s sole job is to find violations and pursue prosecutions. They will use everything at their disposal to do just that. They are not your friends, your defense attorneys are.

The last thing you should keep in mind is that not all legal firms are identical. While there are plenty of firms out there, not all of them will have the proper level of experience and skill that you need to win your case. Considering that the right defense attorney can literally be the difference between you spending the rest of your life in prison and having all charges against you dropped entirely, this is a very important decision for you to make.

Who to Trust with Office of Inspector General Issues

Trying to decide on the right legal firm can be overwhelming, to say the least. There are plenty of firms out there with slick marketing campaigns and funny catchphrases, but not all of them will have the know-how to actually win in court. A catchy jingle means very little if you end up in federal prison, so you need to be sure that the people you’ve chosen to represent you can actually cut it.

With that said, what are some of the things that you should be on the lookout for? Well, you’ll want a firm that has years of experience. A firm that has handled all types of cases, both big and small, simple and complex. A firm that has represented people from all walks of life, at both the state and the federal level.

The Norman Spencer Law Group Can Help

With a combined 70+ years of experience representing cases (many of which look just like yours), the Norman Spencer Law Group is the right firm for anyone who’s facing down an investigation from the Office of Inspector General.

Our top priority is our clients, and that begins with our focus on 1:1 service. We have a host of accessibility options, starting with remote legal consultations that we are able to host through Zoom, Skype, and Google Duo. Then, if you need someone to come to you, we can get someone from our team to do just that, no matter where you might be in the country. So if you’re facing any sort of legal trouble, don’t leave your fate up to chance. Get in touch with us today, and someone from our team will get back to you as soon as possible so we can get started on getting you the help that you need and deserve.

The Federal Criminal Lawyers of Norman Spencer Law Group defend clients in all federal criminal cases nationwide. If you are summoned to testify as a Grand Jury witness, call us first to make sure your Fifth Amendment rights are protected.

What Exactly Does the Fifth Amendment Mean?

The Fifth Amendment everyone heard of actually protects against self-incrimination. It states that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause applies to all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states.

Grand Jury Witness and Self-Incrimination

Since the Clause mentions “witness against himself,” the question is what constitutes self-incrimination. Also, because the Clause mentions being “compelled,” another question is what constitutes compulsion.  Finally, since the text refers to a “judicial case,” the question is what proceedings count for purposes of invoking the Fifth Amendment protection arises.

In short, the witness’ testimony is incriminating if it provides information needed to prosecute the witness for a crime. The witness’ testimony is compelled if the witness is forced to testify (as if pursuant to a subpoena). For the purposes of the 5th Amendment, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.

What Constitutes Incriminating Evidence?

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

The 5th Amendment only applies to domestic prosecutions but not to foreign prosecution. So, a witness can not claim the Fifth Amendment right against self-incrimination if he suspects that the evidence will be used against him in a potential criminal prosecution by a foreign government, even if the witness will be deported and prosecuted in another country.

What is Grand Jury Witness 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.  Being threatened with 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.

When Can a Grand Jury Witness Invoke Privilege?

The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” This includes not only existing and pending cases, but also potential criminal cases. So, a witness can invoke the privilege not only in a current criminal case against him but also in any proceeding in which the answers may incriminate him 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. However, the witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.

The way the Fifth Amendment operates in the case of witnesses testifying in a Grand Jury is a little different. We suggest that you speak with a federal criminal attorney before appearing to testify. You will not be able to refuse to testify if you are subpoenaed. As a witness, you will have no choice but to take the stand. You will have to listen to every question the prosecutor asks and then decide when to plead the Fifth. Of course, you can only refuse to answer the questions that could open you to criminal exposure.

Federal prosecutors may sometimes offer a witness immunity in exchange for the testimony. The scope of that immunity is limited to what they testify to at the hearing. Alternatively, they can offer them general immunity from the crimes they are accused to have committed.

It is important to note that the government may also negotiate a plea bargain with a witness if the witness agrees to testify in another case. In that deal is reached, the government could agree to seek leniency for the witness at sentencing.

Convicted Witness’s Privilege Statement

The Fifth Amendment can also be used by a convicted witness. If the testimony would lead to additional criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.

What if a witness has been convicted but has not yet been sentenced (or if his appeal is still pending)? Can such a witness claim the Fifth Amendment right if he is called to testify before a grand jury investigating the conviction? When a witness appears and is interrogated, he has the right to claim the privilege in response to specific questions.

In the case of the convicted witness, the right to ask about the evidence that led to the conviction depends on the status of the conviction or 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 has been convicted, as long as the conviction is not final.

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.

In the United States of America, tax evasion is illegal as it is in all countries. Norman Spencer PC is by your side whether you are being investigated by the IRS or are facing criminal tax charges. We will protect you anywhere in the United States or around the world because we have years of experience in tax evasion cases and defending criminal tax matters and the strongest support team of forensic accountants and former IRS officers.

Background on Tax Evasion Cases Enforcement in the United States

The US government is devoting significant resources to vigorously and uniformly implementing internal revenue laws. Individuals and companies who breach tax laws face criminal penalties, which the government hopes will discourage others.

The Tax Division of the United States Department of Justice has the power to administer all federal criminal tax enforcement and to allow or refuse tax investigations and prosecutions.

Administrative Investigations of Tax Evasion Cases by the IRS

IRS Special Agents with the Criminal Investigation Division (CI) investigate complaints of criminal violations and related provisions of Title 18, United States Code.

CI normally launches an investigation in response to one of the following:

• Fraud referrals from other IRS divisions;
• Information from other government entities;
• Information from private parties; or/and matters or projects created by CI.

CI approves investigations into matters that it suspects have the potential for criminal fraud prosecution or warrant further investigation. Special agents may investigate certain crimes to the degree that resources allow. Special agents also perform joint investigations with IRS operating division members. Special agents and revenue agents typically work together to investigate situations where taxpayers file false returns or willfully refuse to file tax returns.

A joint inquiry with revenue officers normally follows a deliberate failure to pay tax. Following the completion of an administrative investigation, the special agent prepares a special agent’s report (SAR), which contains exhibits, recommending that the case be prosecuted by the government.

The SAR, which includes a written account of the investigation and the special agent’s recommendations, is reviewed by both the special agent’s superiors and the Chief Counsel, Criminal Tax Division (CT Counsel). CT Counsel then drafts a Criminal Enforcement Memorandum (CEM) that includes information about the essence of the crime(s) for which the special agent recommends prosecution, the facts used to prove the crime(s), technological or legal challenges, anticipated prosecutorial problems, and the special agent’s particular recommendation.

If the CI Special Agent-in-Charge (SAC) decides that the government should prosecute the case, the case is referred to the Tax Division or, in some cases, the United States Attorney’s Office. A copy of the transmittal letter is submitted to the Tax Division when the IRS refers a case directly to the US Attorney’s Office. If the case involves only legal-source income (i.e., no drugs or organized crime) and the taxpayer’s attorney tell the IRS that the taxpayer wants to enter a guilty plea during an administrative investigation of a criminal tax case, the IRS may refer the case to both the United States Attorney’s Office and the Tax Division for an expedited guilty plea.

The IRS can send tax returns or tax return details with the Department of Justice when it refers a criminal case to them. If the IRS makes the criminal referral, the IRS, including CI, won’t continue or initiate an administrative investigation with respect to the taxpayer for the same tax and taxable period. However, if the Tax Division decides not to prosecute a case submitted to it by the IRS, the IRS can take any disciplinary action it sees fit in the circumstances, including referring the case to CI for further investigation. If CI wishes to investigate the case further, it will issue IRS summonses and the case will continue. The IRS always has the option of referring the case back to the Tax Division.

Inquiries by Grand Jury in Criminal Tax Evasion Cases

Although a federal grand jury investigates both tax and non-tax violations, the Tax Division must first approve and allow the use of a grand jury to investigate criminal tax violations. If CI can’t complete its investigation or decides that the administrative process would not be enough to collect sufficient evidence, it will request that the Tax Division permit a grand jury investigation.

Once a criminal referral has been rendered, the IRS, including CI, does not issue or begin an administrative summons with respect to the taxpayer for the same tax and taxable period. The US Attorneys’ Offices have the authority to perform grand jury inquiries into matters occurring under the Internal Revenue Code to the degree required to 1) perfect tax charges for which the Tax Division has approved an investigation or 2) decide whether the Tax Division can authorize prosecution.

Can a Non-Tax Grand Jury Look Into Possible Federal Tax Evasion Cases?

The short answer is yes. The Assistant Attorney General for the Tax Division has given US Attorneys’ Offices limited authority to extend non-tax investigations in order to prosecute potential federal criminal tax violations, designate targets (subjects), assess the extent of the expanded investigation, and end such proceedings. Before a United States Attorney’s Office may file information or request the return of an indictment in an extended investigation concerning criminal tax matters, the Tax Division must first sanction the relevant tax charges.

In limited cases, the IRS is allowed to refer criminal tax matters to the United States Attorney’s Office for prosecution. As a result, the IRS has given the US Attorney’s Office permission to conduct grand jury inquiries into these matters to the degree possible to perfect the charges to which the IRS has referred directly.

Without the Tax Division’s approval, the US Attorney’s Office does not extend grand jury inquiries into matters occurring under the Internal Revenue Code to include targets that the Tax Division has not previously approved. The US Attorney’s Office and the IRS must send a written request to the Tax Division for approval. The request must provide the necessary foundation for the Tax Division to approve the investigation’s extension.

When a grand jury investigation is completed and the US Attorney’s Office decides that there is sufficient evidence to prosecute, the US Attorney’s Office will ask the special agent assigned to the case to prepare a SAR. When that is done, the special agent will request that CT Counsel review it and prepare a CEM. The SAC must then send the SAR to the Tax Division for review and approval, along with copies of all relevant documents and the CEM. During this time, the US Attorney’s Office or the SAC must give the Tax Division a written recommendation from the US Attorney’s Office about the prosecution of a target for tax violations. Within thirty days, the Tax Division will review the prosecution recommendation. A grand jury investigation’s recommendation against indictment must also be submitted to the Tax Division for review. Alternatively, the IRS would inform the Tax Division that they have no recommendations for action. The Tax Division will complete its analysis within thirty days of obtaining the recommendation and either approve or decline prosecution.

What Can Be Disclose to the IRS in Tax Evasion Cases for Civil Purposes?

The United States Attorney’s Office is not allowed to share “matters occurring before the grand jury” to the IRS for use in a civil tax audit or administrative collection proceedings. There are some exceptions. For example, the court could allow the Government’s motion for grand jury matters to be disclosed for use in certain civil proceedings if the US Attorney’s Office meets the exception requirements set forth in Rule 6(e)(3)(C)(i)(I), which require federal prosecutors to show that it will make the disclosure “preliminarily to or in connection with a judicial proceeding…” and that it has a legitimate reason for doing so. Information that is not considered “matters occurring before the grand jury” may be released.

Grand jury material remains under the jurisdiction of the United States Attorney’s Office or the Tax Division and so the grand jury material may be disclosed only to IRS personnel assisting the government attorney in the criminal investigation and only for the purpose of enforcing federal law; and all grand jury material, including any copies made, must be returned to the United States Attorney’s Office or the Tax Division.

Norman Spencer PC criminal federal attorneys represent clients in federal criminal cases nationwide. Call us today for a consultation!

The confidentiality of grand jury proceedings is a long-standing and well-protected policy. There are several reasons for this that have been established by the courts:

By having no advance notice of the investigation, confidentiality helps in the prevention of potential indictees escaping.

It protects grand jurors from outside pressures and threats of retaliation, allowing the investigation to continue without interruption.

Maintaining confidentiality helps to avoid perjury and witness tampering by investigation goals.

It encourages witnesses to testify freely and openly without fear of retribution.

Finally, it protects innocent citizens who are under investigation from having their reputations harmed by the public publication of false allegations.

This veil of secrecy, however, is not impenetrable. “In certain cases, justice may require that discrete parts of transcripts be made available for use in subsequent proceedings,” the United States Supreme Court said. There are numerous scenarios in which grand jury documents may be disclosed.

For starters, information that does not come into the category of “a matter before the grand jury” is not subject to the confidentiality requirement. Second, witnesses are not required to keep their evidence confidential. Finally, if the grand jury testimony applies to the alleged crime, a criminal defendant is entitled to transcripts of his or her own grand jury testimony. Fourth, a convicted defendant is entitled to copies of transcripts of witnesses who testify against him at trial under the Jencks Act. Finally, a court may order disclosure if a defendant demonstrates that there is a basis “to dismiss the indictment because of a matter that occurred before the grand jury.” Sixth, without court approval, disclosure can be made to a government attorney for use in performing that attorney’s duties, as well as to other government personnel if a government attorney believes it is appropriate to support him or her in performing his or her duty to enforce federal criminal law. Personnel employed by the government include those employed by a state, a state subdivision, or an Indian tribe. Seventh, prosecuting attorneys have the authority to reveal grand jury information to another grand jury. Finally, upon a showing of need, a court may order disclosure “preliminarily to or in connection with a judicial proceeding”. Officials from a state, a state subdivision, an Indian tribe, or a military official can obtain federal grand jury material with court approval for use in prosecuting violations of their own criminal law. Tenth, a government attorney can reveal foreign intelligence details to another federal official without court approval in order to assist that official in performing his or her duties.

A grand juror’s breach of the trials’ confidentiality is not the sort of structural flaw that requires the indictment to be dismissed.

Who is Bound by the Confidentiality Requirement

Unless the laws provide otherwise, the following are prohibited from reporting grand jury matters under Rule 6 of the Federal Rules of Criminal Procedure: Grand jurors, interpreters, court reporters, owners of recording equipment, people who transcribe evidence, and government lawyers and their assistants are among those who are bound by secrecy.

Grand jury witnesses are not included. Since Rule 6(e)(2) expressly states that “no duty of secrecy may be placed on any individual except in accordance with Rule 6(e)(2),” a witness has the right to reveal the subject matter of his or her own grand jury testimony at any time.

The Eighth Circuit, on the other hand, has ruled that courts maintain the power to impose a witness confidentiality requirement in specific cases. As a result, even the investigation’s subject is not entitled to a transcript until he or she is charged. In a similar vein, a witness cannot refuse to testify because he or she would not be provided with a copy of his or her testimony.

What Matters Are Subject to Grand Jury Confidentiality?

Only “a matter arising before the grand jury” is subject to the confidentiality requirement imposed by Rule 6. This standard is broadly described as something that reveals what happened in front of the grand jury. Transcripts of witness testimony, of course, fall firmly within this definition. Memoranda detailing possible witness testimony, memoranda summarizing testimony given, and remarks by a witness to be read to the grand jury are all things that come before the grand jury.

Some courts have broadened the confidentiality requirement to include any information that reveals what is expected to happen in the future as well as what has already happened. However, there is a subset of things in the possession of the grand jury that, if released, does not tend to disclose what happened before the grand jury. For instance, company documents that have been subpoenaed and government audit files that have been turned over to the grand jury are examples of these things. Since these documents existed before the grand jury investigation, access can not be denied simply because the grand jury already has them. When testimony or data is obtained for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, as the Second Circuit noted in United States v. Interstate Dress Carriers, Inc.

When testimony or data is sought for its own sake—for its intrinsic value in furtherance of a lawful investigation—rather than to learn what happened before the grand jury, it is not a legitimate defense to disclosure that the same records.

Some courts have clearly determined that it is not a grand jury matter and have allowed disclosure without requiring a specific need to be shown. Others have ruled that these are matters before the grand jury and that a show of specific need is needed, but with a much lower standard of evidence.

The wording of the request for disclosure is particularly important. Even if the material covered by both requests is coincidentally the same, there is a clear distinction between a request for a list of itemized records and a request for “all documents subpoenaed by the grand jury.” The latter, more general, request has been viewed by courts as an effort to learn what happened before the grand jury, and courts have declined to apply the Interstate Dress Carriers approach to those requests.

If you have been investigated by a federal grand jury, call the federal criminal attorneys with Norman Spencer PC to discuss your matter!

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.