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Responding to Government Investigations

Policy

Approved by:               The President’s Cabinet

History:                        Implemented – October 21, 2008

Revised -

Related Policies:          Policy and Procedure for Receiving, Processing and Retaining

Legal Requests for Documents and Information

References:

Responsible Official:    University Counsel

 

  1.  Investigative Interrogations

 

Law enforcement officers have the same right as ordinary citizens to approach an individual, even a suspect, and ask questions.  Any responses to such questions will be treated as voluntary waivers of the Fifth Amendment right to remain silent.  Those statements are not only admissions that can be used against the individual, but may also be imputed to IWU.

 

Anytime a law enforcement officer asks to speak with an employee and that person does not know the subject of the conversation and has not first consulted with University Counsel, the individual should stop making any statements and simply ask to speak to the University Counsel.

                      

Policies

 

  1. An individual who has been contacted by law enforcement officers, even as a witness, should decline to

       speak to that officer without first consulting University Counsel and, if counsel requests, have counsel

       present.

  1. If an officer is persistent and refuses to accept a refusal to answer questions, the employee should specifically ask, “Am I free to leave?”  An employee should be polite, but walk away from such encounters (unless they were told not to leave) and carefully document any contact by law enforcement that prevents the employee from departing.
  2. Only if a person is in custody or under arrest must Miranda warnings be provided before any police interrogation.  Even after warnings are given, however, a person should not make statements to any person without the presence of counsel.  As the warning says, those statements can and will likely be used against the employee and IWU in a court of law.
  3. Once formal charges have been filed, the right to counsel attaches and defendants should demand that

       counsel be notified and present during any contact with government officials.

  1. An employee who has been the subject of a voluntary interrogation or investigative stop should document that encounter immediately following the incident, including details such as the name of the officer, the agency they represented, the length of the contact, the nature of the questions being asked, and any statements, even simple ones, that the person may have given and contact University Counsel.

 

  1.  Fact Witness Interviews    

 

There are circumstances when, in the course of a normal criminal investigation, an employee may simply be a fact witness.  That is to say that an individual offers valuable information that helps advance a government investigation and that individual or IWU have no exposure to criminal liability themselves.  It is nearly impossible for an employee on their own to distinguish between a fact witness interview and an investigative interview.  That is because requests for these types of benign factual interviews often occur exactly the same way investigative interrogations begin with a law enforcement officer or agent simply calling or approaching an individual and asking for an opportunity to talk.

 

Before agreeing to a purely factual interview with any representative of the government, an employee should first notify University Counsel of the request.  Only after counsel has spoken to the government official and verified that the individual is only a fact witness and the individual and the company have no criminal exposure, should the employee agree to participate.  Even then, the subject and topics of the interview should be outlined and agreed to in advance and it is advisable (and always an individual’s right) to have an attorney present throughout the interview.  Even if an attorney is unavailable, individuals should never participate in an interview with law enforcement without a way to record the interview or have someone present on the individual’s behalf to later verify what was actually said.

 

 

 

Policies

 

  1. When first contacted by a law enforcement officer, be polite, but insistent. Ask for the person’s name, the agency they represent, and a copy of their official identification.  Ask them to detail the nature of their investigation and what information they hope to obtain from you.
  2. Ask for an opportunity to talk with counsel and/or your employer first before scheduling a time to talk with the agent.  Carefully detail in writing all statements that you do make to the agent immediately after this initial encounter.
  3. During the interview, if counsel is unavailable, ask for the interview to be recorded or have someone available to  

       take notes.

  1. During the interview, do not speculate or give opinions.  Only offer facts that you are confident about.  If you are unsure, say so.  If you cannot recall, simply state that you do not recall.  If you need to refer to documents or notes to give an answer, ask for the opportunity to take a break to retrieve or review those materials.  You should be very careful to be accurate. 
  2. If an officer or agent starts asking questions that are accusatory or make you uncomfortable, ask to stop and reschedule the interview.  If the questions relate to your co-workers or to a superior or to work you performed on behalf of IWU, stop the interview and make University Counsel aware of the questions.
  3. After the interview in concluded, immediately make detailed notes of the questions asked and the answers

       given.  Also if counsel did not participate, brief counsel on the interview.

  1. The more you think about the interview, the answers you provided may be wrong or need to be supplemented. Make counsel aware, if possible, and call the officer to correct your answer making sure to record or carefully document your follow-up conversation.  Specifically ask that the officer’s interview memorandum be updated to identify this new or supplemental information.
  2. Ask the agent if he or she expects you to be a witness at a pre-trial, grand jury, or trial proceeding.  Ask what he or she will do to notify you and help you prepare for that appearance.  Ask to be apprised of all of the developments in the investigation and your role in that investigation.

 

  1.  Execution of Search Warrants

 

A warrant is a legal order issued by a court typically authorizing law enforcement officers or agents to conduct a search of a specific location.  Search warrants allow law enforcement officers or agents to seize physical items, including documents and computers, that are within the scope of the warrant, and other items that may be evidence of criminal acts.  Search warrants do not on their own authorize law enforcement to execute an arrest.  In no case, should counsel or an employee interfere with the execution of the search warrant, even if they believe it to be invalid.  In limited instances, searches can be conducted without a warrant.  Under no circumstances, however, should someone consent to a search in the absence of a written and verifiable warrant. 

 

Policies

 

  1. Upon receiving a call from a law enforcement officer, immediately ask what agency is conducting the search and what crime it claims to be investigating; do not consent to anything and make no statements to the agents until counsel is present.
  2. Immediately fax a copy of the search warrant to counsel (765-677-6576), together with all accompanying     

       documents, and ask that counsel speak to the agent in charge or lead investigator.

  1. Request that executing agents refrain from interviewing employees until University Counsel has been consulted by the agents and permission has been granted.
  2. Do not interfere with the search, but carefully detail and document any items that are being seized or areas that are searched which are not specifically stated on the warrant and discuss your concerns with counsel.

 

  1.  Testimonial Subpoenas

 

A testimonial subpoena is an order of a court to an individual or entity to appear in a trial or hearing to give oral testimony.  It may also require that person to bring with them tangible items or records.  The subpoena may be issued by an attorney for either side, but remains an order of the court. 

 

Policies

 

  1. A grand jury subpoena can only compel testimony before a grand jury.  It cannot compel an office interview or a pre-testimony meeting with the government.  Nevertheless, those types of voluntary meetings with the government may be beneficial for the employee and/or IWU.  Therefore, upon receipt of a subpoena or a request for an interview, immediately notify University Counsel.
  2. Employees of IWU should not attend a grand jury hearing without the support of counsel; while federal grand jury proceedings are secret and counsel are not allowed in those proceedings to advise a witness, the witness may break at anytime and consult with his or her attorney outside the presence of the prosecutor and the grand jury.
  3. A witness may appear at either a federal or state grand jury and decline, under the Fifth Amendment, to answer questions if the answers tend to incriminate; no witness should testify until the witness’s status in the investigation has been determined and a thorough investigation has been conducted into the advisability of asserting the Fifth Amendment and demanding immunity. An employee’s admissions in a grand jury hearing, without the presence of counsel, can be damaging to themselves and IWU, which is further reason to have counsel available to advise client throughout grand jury proceedings.
  4. A witness should be thoroughly prepared before entering the grand jury room and, if the witness plans to assert the Fifth Amendment, the language to use should be written out on a card for the witness to read.

 

  1.  Subpoenas Duces Tecum

 

A subpoena duces tecum is slightly different from a testimonial subpoena.  It is an order of the court requiring a witness to produce certain documents at a specified place and time.  It is an alternative investigative tool to a search warrant and is often used in combination with a testimonial subpoena, where both live testimony and the production of documents are ordered in the same subpoena.

 

Policies

 

  1. Obtain and review a copy of the subpoena; take note of the time period for which documents are being sought and the names of any employees identified in the subpoena.
  2. Promptly terminate any document retention procedures that might result in the destruction of documents,

       including the routine disposal by employees of appointment books at year end.

  1. In complying with the terms of the subpoena, do not confine a search to only those documents in IWU’s possession; documents related to IWU business on personal computers, PDAs, cell phones or employee’s personal calendars or appointment books are likely to be responsive to the subpoena and the failure to search for and produce those documents could raise allegations of obstruction.

Scope

This policy applies to all the employees of the University.

History

17-Mar-2015 - Date conversion to KB

Policy information

Employee Policy 300.02.19

Owner

Executive Director for Human Resources

Approved by

Vice President for Business Affairs/ CFO

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Last modified
14:08, 17 Mar 2015

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