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. Where a grand jury witness may have exposure to criminal liability, (s)he may consider invoking his or her Fifth Amendment rights. Witnesses and targets of investigations may also choose to make voluntary statements to the DOJ or to agents working in concert with the DOJ. Such statements may be made pursuant to a proffer agreement between the government and witness pursuant to which the statements may be used by the DOJ for only limited purposes, not as evidence against the individual.
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.
In the UK, the FCA may question suspects or possible suspects on either a voluntary basis, possibly under caution (where there is a suspicion that a criminal offense has taken place), or a mandatory basis, where a person may be required to attend an interview by the use of statutory powers.The FCA will make clear whether it requires a person and/or firm to produce information or answer questions on a purely voluntary basis. Authorized firms and most of their staff are required to be open and cooperative with the FCA under Principle 11 of the FCA’s Principles for Businesses. The FCA will not bring disciplinary proceedings for a failure to be open and cooperative in a purely voluntary interview. However an adverse inference may be drawn from a failure to cooperate.