This practice note explains the principal tools the U.S. Department of Justice (DOJ), U.S. Attorney's Offices, and federal investigative agencies use to obtain information in federal criminal investigations. It discusses grand jury subpoenas, administrative subpoenas, search warrants, physical surveillance, pole cameras, voluntary interviews, attorney proffers, confidential informants, undercover operations, pen registers and trap-and-trace devices, Title III electronic surveillance, and immunity orders. It also addresses key statutory authorities, constitutional limitations, DOJ approval requirements, confidentiality and non-disclosure issues, and practical considerations for counsel representing individuals or entities that receive process, provide information, or otherwise become involved in a federal investigation.
Overview
The DOJ and the Offices of the U.S. Attorney possess a formidable arsenal of legal tools for gathering evidence in federal criminal investigations. From grand jury subpoenas to electronic surveillance, these mechanisms are governed by an intricate web of federal statutes, the Federal Rules of Criminal Procedure, internal DOJ policies, and the U.S. Constitution that collectively define the scope and limits of prosecutorial power. Understanding how the government obtains information is critical for any practitioner navigating the federal criminal justice system.
Counsel should identify not only the investigative tool the government is using, but also the obligations, risks, and strategic considerations that accompany it. Depending on the circumstances, counsel may need to assess the client's status in the investigation, preserve potentially responsive information, evaluate privilege and other protections, determine whether disclosure of government process is restricted, decide whether and how to engage with prosecutors or agents, and consider what the government's choice of investigative tool may reveal about the scope and direction of the investigation. These considerations should be reassessed as the investigation develops.
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