The DOJ may utilize a grand jury subpoena ad testificandum to require testimony from any witness whose testimony is potentially relevant to the grand jury’s investigation.1 Where a grand jury witness may have exposure to criminal liability, (s)he may consider invoking his or her Fifth Amendment rights.2 Witnesses may also choose to make voluntary statements to the DOJ or to agents working in concert with the DOJ.
The SEC may seek information through a voluntary interview, voluntary “on-the-record” testimony under oath, or testimony pursuant to a subpoena. Voluntary on-the-record testimony from witnesses may be transcribed, but the witness may have counsel present and may decline to answer any question that is asked.3
In the UK, the SFO may issue a notice requiring an individual to attend an interview and answer questions, called a Section 2 Notice. In such circumstances, an individual does not have a right to remain silent, except under certain specific circumstances, such as where answers to questions are covered by legal privilege. Witness evidence obtained by the use of such compulsory powers cannot generally be used against the individual who has been interviewed. It is therefore common for the SFO to seek to interview suspects in a criminal case on a voluntary basis; the individuals may choose whether to answer questions, and they may provide a prepared statement.
Failure to attend an interview with the SFO following receipt of a Section 2 notice can result in imprisonment (up to a maximum of six months) or a fine, as does attending but refusing, without reasonable excuse, to answer the questions asked.4
The SFO can also conduct interviews with suspects under caution using its powers under the Police and Criminal Evidence Act 1984. In this type of interview, suspects may remain silent; however, suspects are reminded at the outset that should they fail to mention something which they later wish to rely upon, their defense may be impaired. Answers given by suspects in these types of interviews can be used as admissible evidence in court.
1 Sherwin v. United States, 297 F. 704, 707 (5th Cir. 1924) (defining subpoena ad testificandum); 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal § 104 (4th ed. 2008).
2 United States v. Monia, 317 U.S. 424, 429-30 (1943).
3 SEC Div. of Enf’t, Enforcement Manual, §§ 3.3.3-220.127.116.11 (2017).
4 Criminal Justice Act 1987, c. 38, § 2(13) (UK).