As a general matter, there’s no love lost between prosecutors and defense lawyers. But in one very important way, defense lawyers place an incredible amount of trust in prosecutors.
When I say there’s no love lost, I don’t mean on a personal level; I’m friends with plenty of DOJ lawyers and have liked most of my adversaries. (There is a range on this point. I know some defense lawyers who simply cannot abide prosecutors, even on a personal level, and view it as a badge of honor to hate prosecutors. That’s just not me.)
I mean that there is no love lost on a professional level. Our job as defense lawyers is to fight and fight and then fight some more. We are professional obligated—and perhaps, quite enjoy—battling prosecutors. We question their decisions to indict, we push back on the discovery we receive, we question the accuracy of their interview memos, we doubt their interpretation of the law.
There is one point in the process, however, when white collar defense lawyers trust prosecutors (almost) entirely: when the prosecutor represents to us that our client is a witness, a subject, or a target of a grand jury investigation. When a client is a target, that notification comes in writing, through a target letter. but the representation that a client is a subject or witness is generally during a conversation between a prosecutor and the defense lawyer. (I’ll usually ask for confirmation of witness status in an email exchange.)
Whether a person is a target, subject, or witness is a key decision for the government. Many of a defense lawyer’s strategic decisions flow from it. In my experience, prosecutors take this decision seriously and are careful about what they say. It’s not an off-the-cuff statement, because it’s not easy to change.
Here’s why it’s an important representation by the prosecutor:
If the prosecutor tells me that my client is a witness, and asks for an interview, then it is much more likely that I’ll advise my client to agree to the voluntary interview. There are exceptions, of course, but the prosecutor’s assurance to me on this point is a crucial part of the calculation.
If the prosecutor tells me that my client is a subject, then it’s much less likely that I’ll advise my client to agree to an interview. There’s a possibility that my client will make incriminating statements during the interview that could lead to criminal charges. Interviews are risky when my client is a subject.
If the prosecutor tells me that my client is a target, then all bets are off. No interview. No grand jury testimony.
Why Trust a Prosecutor?
Why, then, would defense lawyers rely so much on the representation of a prosecutor? There are a couple of reasons.
First, any prosecutor who lied about an individual’s grand jury status would be reported to his supervisor. It would go up the chain, so to speak. It’s possible that an intentional lie could be reported to the licensing authorities. This is serious stuff. For example, the Rule 8.4 of the D.C. Rules of Professional Conduct states that
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to…
(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(d) Engage in conduct that seriously interferes with the administration of justice.
Second, although there are a lot of white collar defense lawyers, it’s a fairly close-knit group. If one of us hears that a specific prosecutor lies about someone’s status, you can bet that word will get around. No other defense lawyer will trust that prosecutor in the future. And if defense lawyers cannot trust a prosecutor’s representation about witness/subject/target status, then that prosecutor will not get the voluntary cooperation of represented witnesses in the future. This turn of events would make the prosecutor’s job much more difficult because it’s much easier to conduct a voluntary interview than take grand jury testimony.
What about the Fifth Amendment?
You may be wondering about the Fifth Amendment and whether the Bill Cosby case is relevant. In that case, the prosecutor agreed not to prosecute Cosby. Relying on that agreement, Cosby testified in civil depositions about his conduct. Then, the government used his admissions against him in a later criminal case. He’s now free from prison because the Pennsylvania Supreme Court said that there was a Fifth Amendment violation. As the state court explained:
[W]hen a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.
The situation I’m describing is different from the Cosby case in two ways.
One, the prosecutor has not promised forego charging my client with a crime through a non-prosecution agreement or formal immunity. Rather, the prosecutor has identified my client’s grand jury status, and I’m helping my client make strategic decisions based on it.
Two, most voluntary interviews are conducted under a written proffer agreement. The prosecutor agrees in writing not to use any statements by the witness in a prosecution against her in a criminal prosecution. So, we’re hedging a little bit against the risk that the interview will cause harm.
(There are some important limitations of proffer agreements and some complex strategy decisions surrounding a decision to agree to a voluntary interview, but that’s a topic for another post.)
My clients often ask if we can rely on what a prosecutor tells us or if we need to worry that the prosecutor is lying. My answer is usually yes. When it comes to identifying an individual or entity’s grand jury status, I trust prosecutors unless I’ve heard something to make me distrust this particular one.
It’s bizarre to say that I “trust” prosecutors, but it’s true.