NCJ Number
75994
Journal
Criminal Law Bulletin Volume: 17 Issue: 1 Dated: (January/February 1981) Pages: 5-44
Date Published
1981
Length
40 pages
Annotation
Since grand jury witnesses have a sixth amendment right to counsel of their own choosing, multiple representation must be allowed whenever a constitutionally valid waiver of conflict-free representation is made.
Abstract
Statutes that make certain corporate behavior criminal usually provide liability for both the corporate entity and certain classes of responsible individuals. Thus, a prosecutor wishing to bring criminal charges against a corporation and its officers must identify potential entity and individual defendants and gather sufficient information to initiate charges. The government's primary instrument for accomplishing this is the grand jury. From the point of view of the corporate witness, multiple representation during grand jury hearings can be highly beneficial. It provides a single attorney familiar with all aspects of the case, allows potential defendants to present a united front and consistent theories of defense in the hope of avoiding indictment, and saves on legal expenses. However, the Government may assert that multiple representation coerces less culpable witnesses into giving up their right to independent counsel and is a facade that allows the guilty to coordinate their fifth Amendment assertions (refusal to testify) so that a grand jury can be 'stonewalled' into abandoning the investigation. Many objections have also come from the defense attorneys who may be placed in the ethical dilemma of representing individuals whose interests are potentially in conflict. For example, one attorney may represent two defendants asserting mutually exclusive defenses. Even where co-defendants adopt consistent theories of defense, it is often to the advantage of one of them to set forth facts that will, either directly or by implication, reflect poorly on the other codefendant. Evidence may also be favorable to one client but unfavorable to another. However, witnesses have a right to waive their right to conflict-free counsel in order to exercise their right to choose their own attorneys. Furthermore, not all cases involving multiple representation must give rise to an automatic conflict of interest. Hence, it is necessary to look at the individual facts on a case-by-case basis, and the court and counsel have an obligation to inform the defendant of possible conflict of interest. However the benefit of the sixth amendment runs to the defendant alone, and not to the prosecutor. Discussion of relevant case law, of the distinction between trial and grand jury practice, and footnotes containing references are included.