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 decline to answer any question that is asked.3 In an interview or testimony, an individual may choose to have counsel present.
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.
In France, under AFA investigations, AFA officers may conduct interviews with any person whose assistance they consider necessary to carry out their inspection, including management and employees. They may also interview any person in connection with the entities such as supervisory authorities, general inspectorates, shareholders, suppliers, service providers, etc.
Obstructing these interviews is punishable by a fine of up to EUR 30,000.
Under criminal investigations, suspects can be summoned by the Public Prosecutor or the Investigating Magistrate for questioning under a custody procedure (garde à vue).
Suspects can also be questioned under a non-custodial regime (audition libre) to which they must give their consent.5
Witnesses may be summoned to be interviewed or interviewed under a non-custodial regime, but only for up to four hours, with no right to representation by counsel.6
Noncompliance with investigative demands may result in immediate arrest.
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, §§ 3.3.3-184.108.40.206 (2017).
4 Criminal Justice Act 1987, c. 38, § 2(13) (UK).
5 Article 61-1 of the Criminal Procedure Code.
6 Article 62 of the Criminal Procedure Code.