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Grand Jury Subpoena Legal Defense Team

In order for someone to be indicted, the Fifth Amendment to the United States Constitution mandates the use of Grand Juries for all capital and infamous crimes. In practice, all federal felonies must be indicted by a Grand Jury unless a defendant waives the right to be indicted by a Grand Jury and instead pleads to a so-called “Information.” A Grand Jury consists of 16-23 individuals.  Grand Juries determine if probable cause exists to secure an indictment. Grand Juries do not decide if someone is actually guilty.  All people indicted by a Grand Jury are considered innocent until they either plead guilty to the offense or are proven guilty beyond a reasonable doubt at trial.

What is a Grand Jury?

Federal Grand Juries are comprised of citizens who are chosen by the courts. The process of choosing a Grand Jury is somewhat similar to the process of picking a petit or trial jury.  However, Grand Juries normally sit for an extended period of time and review numerous cases compared to a petit jury that sits for the duration of a single trial.  Grand Juries also have the power to issue subpoenas for documents and witness testimony that will help it evaluate the case.  These subpoenas are issued at the request of the government. The subpoenaed materials are then returned to the Grand Jury in order to further its investigation.

There are hundreds of Grand Juries throughout the United States.  Some federal districts have more than one Grand Jury sitting at one time while smaller districts will employ only one Grand Jury.  Grand Juries meet on a schedule that is determined by the district in which it sits.  Some may meet every two weeks or every month depending on the criminal case-load that exist in their particular district.  The Grand Jury can hear numerous cases in one day and at the end of the session will vote to either approve the indictment (True Bill) or disapprove of the indictment (No Bill).  If a True Bill is returned the Grand Jury has determined that probable cause exists to believe that the stated crime has been committed. At this point the individual(s) named in the indictment are officially charged with a crime.

What Is a Grand Jury Subpoena?

There are two kinds of Grand Jury subpoenas. The first category of subpoena requires someone to deliver tangible evidence such as documents, pictures, videos, tape recordings, test results, bank records, corporate documents, accounting statements etc. to the jurors. This subpoena type is often referred to as a subpoena duces tecum. The second category of subpoena instructs someone to actually testify before the Grand Jury.  This subpoena type is referred to as a subpoena ad testificandum.  Both types of subpoenas require the person who receives them to respond.

Do I Need to Comply with a Grand Jury Subpoena?

There are three ways to react to a subpoena: comply, challenge, or ignore.

Comply. Understanding that compliance with a Grand Jury subpoena is not a voluntary but a mandatory act, most people follow the advice of their lawyers and simply comply with the demands of the subpoena. Nonetheless, mechanical compliance with a Grand Jury subpoena may not always be the best or sole choice. Especially in situations in which a subpoena seeks incriminating or a massive amount of information or information not available to the subpoenaed individual, a (partial) challenge of the subpoena may be in order.

Challenge. Challenging a Grand Jury subpoena means that a lawyer needs to file a motion to quash with the court and convince the court that the subpoena does not comply with applicable rules and procedures. For example, it can be argued that the individual subpoenaed has nothing to do with the case, does not possess the information sought, would have to reveal information that is privileged and confidential, or that the subpoena infringes the individual’s constitutional rights by being overly broad, overly burdensome, or unreasonably intrusive and oppressive. In such a case, the court may limit and reduce the scope of the subpoena or declare the subpoena null and void making its compliance unnecessary.

Ignore. Ignoring a federal Grand Jury subpoena is a dangerous choice. The prosecutor acting on behalf of the Grand Jury can ask the court to hold an individual in civil contempt for refusing to comply with the subpoena. Unless extraordinary circumstances exist to justify the refusal, a court may order jail time until compliance with the subpoena is assured or the Grand Jury’s term ends, whichever comes first.

How Does a Grand Jury Gather Evidence?

The Grand Jury uses its subpoena powers to gather evidence.  Grand Jurors are lay-persons and not law enforcement officers.  Accordingly, the only way the Grand Jury knows what to investigate or what and who to subpoena is through the assistance and direction of federal agents and prosecutors who conduct the investigations on behalf of the Grand Jury.  In essence, the government is utilizing the Grand Jury and its powers to further criminal investigations.  Ultimately, it is the decision of the grand Jury to approve an indictment.  Normally, investigatory agencies will make presentations to the Grand Jury that highlight materials received pursuant to issued subpoenas as well as live witness testimony.  During this process, grand Jurors have the ability to ask questions to the government and also question witnesses.

Testifying Before a Grand Jury

Most people that testify in front of a Grand Jury do so after receiving a subpoena.  A subpoena essentially forces a person to testify.   Many people testify in Grand Jury without criminal exposure however, some individuals may be deemed to be a subject or a target of an investigation.  This presents unique problems that should be dealt with by an attorney.  That being said, the government will normally not force a target of an investigation to testify in front of the Grand Jury. However, targets of investigations sometimes request to testify at grand jury proceedings. Although the prosecutor has no obligation to allow such testimony, it is common practice and encouraged to permit such witnesses to testify. In such a case, the testifying targets waive their right against self-incrimination and they consent to a full examination under oath. Targets are informed that the Grand Jury is investigating whether or not a violation of federal law occurred, that they have a right to refuse to answer if answering the question truthfully may incriminate the target (“Advice of Rights”), that anything that will be said may be used in the Grand Jury and subsequent proceedings, and that a target has a right to consult with his or her attorney.

An attorney for a testifying witness may not attend the grand jury proceeding.  Normally, the attorney will wait outside the grand jury room.  The attorney will be allowed to speak with the witness should the witness request to consult with his attorney during questioning.  At this point the witness will step outside the grand jury room and consult with his attorney.  This consultation is permissible and doing so does not adversely affect the witness.

Use of Grand Jury Evidence in Trial

Grand Jury materials obtained through subpoena requests and testimony given under oath can be used at trial.  Frequently, bank information and large data requests made by the government through the Grand Jury process will be some of the most important evidence presented at trial.  Witness testimony will also be important due to the fact that statements given under oath at Grand Jury are admissible and are important tools used by the government in building its case at trial.

Oberheiden & McMurrey, LLP is a team of former federal prosecutors and experienced criminal defense counsel. If you are facing criminal charges, or if you are subpoenaed by a Grand Jury or asked to produce documents in a criminal case, you should give us a call immediately. We will assess your case for free. Find out what former federal prosecutors think about your case!



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