For the Defense - Vol. 3, Issue 2 - 2018 - 9
witnesses in grand jury proceedings automatically
be gagged. Instead, gagging lawyers should be
prohibited unless under the most compelling
circumstances, decided after notice to witnesses'
counsel and an opportunity to be heard and
proved by compelling evidence. A cynical view
might be that the Commonwealth gains a tactical
advantage by imposing gag orders on witnesses
and their counsel because these prohibitions
make it difficult for counsel to witnesses and
targets who share common interests to effectively
defend against anticipated charges because they
cannot talk to each other. The lack of clarity over
the scope of the gag compounds the difficulty.
Instead, when the grand jury witness is a target of
the investigation, her attorneys should be able to
conduct interviews of other grand jury witnesses
or at least be able to talk to their counsel free of
adversarial intrusion. It is thus conceivable that
these practices interfere with a target/defendant's
Sixth Amendment right to effective assistance of
counsel.
There is some reason for optimism. The
appeal of Judge Krumenacker's Order is currently
pending. In addition, in July of last year, the
Pennsylvania Supreme Court formed a task
force to perform a comprehensive review of
investigating grand juries. One of the many
topics to be assessed is the practice of swearing
attorneys to secrecy. Ideally, the outcome of the
appeal and the work of the task force will result
in giving practitioners clarity on the scope and
appropriateness of these practices.
PANTONE
2955C
7406C
CMYK
90/78/39/30
Notes
9/22/91/0
RGB
22/58/92
234/194/56
1. Based on information unrelated to matters occurring
in the grand jury or concerning any information
obtained in the course of a representation involving
grand jury testimony.
2. See 42 Pa. C.S. § 4549(d).
3. Id.
4. See Commonwealth v. Office of Open Records, 103
A.3d 1276, 1284-85 (Pa. 2014); 1 Pa.C.S. § 1922(1).
5. Our answer is informed by events that may or may
not have actually happened.
6. Opinion at 8, emphasis added.
7. An amicus brief was filed by the PACDL and is
docketed under seal.
HEXIDECIMAL
#153A5B
#EAC137
About the Author
Catherine Recker
has nearly thirty
years of experience
representing
individuals and
corporations in state
and federal criminal
investigations, trials,
appeals and in
other government
enforcement and regulatory matters. She
is a Fellow in the American College of Trial
Lawyers and in the International Academy
of Trial Lawyers.
Amy Carver is an
attorney at Welsh &
Recker, P.C. and has
dedicated her legal
career to the practice
of white-collar
criminal defense.
She represents a
broad range of
individual and
corporate clients in federal and state grand
jury investigations, internal investigations,
traditional criminal proceedings and related
civil or administrative enforcement. Her
experience includes defending against
allegations such as mail fraud, healthcare
fraud, public corruption, pharmaceutical
crimes, money laundering, tax fraud,
antitrust, and other business frauds.
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Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
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