Paul Kish is a criminal defense lawyer in Atlanta who has represented many people who are merely “witnesses”, and who are not targeted by investigators or prosecutors. Many readers will wonder why a person or company needs an attorney if that individual or entity is not the subject of a criminal case. The criminal justice system can be a daunting and scary place for those not accustomed to how it works. As a result, there are many reasons and situations which call for an experienced criminal defense lawyer even when someone is not being charged with a crime.
One of the initial situations for a witness to hire an attorney is when investigators or federal agents are engaged in the early phases of a criminal investigation. During these early phases, agents and investigators will sometimes call a person or company to see if the person or entity will voluntarily provide information. The agent will often not tell why he or she is asking questions. The questioner might want the person or company to voluntarily provide information. Occasionally, agents use a technique called a “knock and talk.” They will show up at someone’s front door, often early in the morning when a family is getting ready for the day ahead. Agents do this because it is a psychological ploy. They know that most adults will try to protect their family, and people will talk more freely if they believe that answering questions will get the agents away from the home. Even if a person who is being questioned is not a suspect, the process can be scary. Also, making a false statement or a material omission to a federal agent can be a separate crime. As a result, many people in this situation have the presence of mind to stop the questioning and contact an experienced criminal defense lawyer.
The agents will sometimes use a related tactic. They will say something like, “Why do you want to talk with a lawyer if you did not do anything wrong.” These agents obviously do not respect that in our country every person and entity is entitled to legal representation. Most ethical and well-respected agents actually prefer that these witnesses hire an attorney, for a lawyer makes the process go more smoothly. The lawyer helps the client focus on the relevant areas and is prepared to protect the client from making false statements or omissions. Also, some witnesses possess protected and confidential information which cannot be released, and the lawyer can guide the client through this tricky area.
In other situations, one side or the other in a criminal case will get a subpoena for a person who is merely a witness. A deputy U.S. Marshal delivers the subpoena, which is an order from a court to appear and provide testimony at the day and time set out on the document. Just as with the “knock and talk”, people and companies are intimidated when a federal official delivers one of these imposing court documents. An experienced criminal defense lawyer can assist to make the situation less troubling. The lawyer will generally contact the attorney for the party that issued the subpoena. The witness’s attorney can then begin a dialogue with the lawyer that issued the subpoena, and can assist the witness in preparing to testify, if that is called for. Some subpoenas call for the witness to provide documents when they come to court. The lawyer’s job it to help the witness in fully responding to the subpoena, but not provide anything beyond that which the witness was ordered to produce.
Other situations involve a witness who needs to consult with an experienced criminal defense lawyer about the Fifth Amendment’s protection against self-incrimination. Most people know about the basic rule, a person cannot be compelled to provide evidence “against himself.” Sometimes, a witness has a real fear that a truthful answer to a question could be the nail in his or her own coffin, so to speak. The United States Supreme Court has said that this protection applies to all people who have such a rational fear, both those who are potentially guilty and those who are as clean as the driven snow. An experienced criminal defense lawyer’s advice is crucial for witnesses who have a reasonable fear that a truthful answer could be harmful to the witness down the road.
When one party serves a subpoena on a company or other entity, the matter is even more complex. As a general rule, corporations are “people” under our Constitution. However, several Supreme Court rulings say that corporations or companies have fewer protections. Corporations find it more difficult to push back against a subpoena, unless the subpoena is one of those rare documents that asks for privileged material. This is an area of the law that is especially tricky and requires the assistance from an attorney who regularly practices criminal defense.
On occasion, one side or the other might want to interview the witness after the subpoena has been delivered but prior to the trial or hearing itself. This is perfectly appropriate. However, the person or company who received the subpoena also need to understand that they are not obligated to agree to such an interview. Many subpoenas are delivered by a federal agent who then tells the recipient that the prosecutor needs the witness to come to the U.S. Attorney’s office for “witness prep” prior to trial. The subpoena merely orders the witness to come to court to testify, it does not obligate the person to also help the prosecutor prepare for trial. On occasion, it is easier for the witness to agree to such pretrial “preparation” but they also need to understand they have no duty to go through this process.
Paul has represented many witnesses. If you would like his help in dealing with this process, give him a call.