- 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 defence 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 defence 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 defence attorney in Washington, DC who specialises 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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