Grand Jury Investigations
A grand jury investigation can lead to serious federal criminal charges. If you have received a grand jury subpoena requiring you to testify before a grand jury or a letter stating you are the target of a grand jury investigation, it is important that you know your rights and consult with an attorney.
What is a grand jury?
Under federal law, a grand jury is a group of 16 to 23 members who meet with a federal prosecutor for the specific purposes of investigating alleged crimes and issuing criminal charges. For any felony charge, the prosecutor must present enough evidence to a grand jury to establish “probable cause” that a person committed a crime, and at least 12 of the grand jurors must vote to bring criminal charges.
There is no judge in a grand jury proceeding. It is generally just the prosecutor, a court reporter, and the grand jurors, and they are all sworn to secrecy while the grand jury investigation is pending. Because the grand jury hears only the prosecutor’s side of the case, most grand jury proceedings end with the grand jury voting to bring criminal charges.
Aside from the prosecutor, the court reporter, and the grand jurors, there are three general categories of people involved in a grand jury investigation:
- Witnesses – A grand jury witness is someone who has been summoned by the grand jury to come testify because they have information that is relevant to the grand jury’s investigation. Generally, witnesses are called because they saw a crime occur, heard about the crime, or have knowledge about people or places related to the crime.
- Subjects – A person who is a subject of a grand jury investigation is a person who the government believes may have committed a federal crime, or is at least connected to one, but isn’t sure yet. Since these categories are fluid, it is not uncommon for subjects to become targets or just witnesses.
- Targets – A target of a grand jury investigation is a person or organization that the grand jury is investigating for committing an alleged crime. If someone is labeled a target, it means the prosecutor believes they are guilty and wants the grand jury to charge them with a crime.
What is a grand jury subpoena?
During grand jury proceedings, a prosecutor has the power to issue a grand jury subpoena, which is essentially an order requiring a person to come testify before the grand jury or to produce records relevant to the grand jury’s investigation. If you receive a grand jury subpoena, you are required to respond. A failure to respond to a subpoena can result in criminal charges for contempt of court or, in cases where records are tampered with or destroyed, the government can charge you with obstruction of justice.
Generally, a person who receives a grand jury subpoena for their testimony is required to come and testify before the grand jury, with some exceptions. Once a person is testifying before the grand jury, the prosecutor can ask them about any information they want, and the witness is generally compelled to answer, with some exceptions. A prosecutor can also issue a subpoena for documents, known as a “subpoena duces tecum,” to email servers, cell phone providers, social media companies, and others for records that are relevant to the investigation.
While the grand jurors are sworn to secrecy, witnesses are not, and you generally have the right to tell people you have received a grand jury subpoena. However, you should be very careful discussing an ongoing grand jury investigation because the government may accuse you of obstructing the investigation.
Do I have to comply with a grand jury subpoena?
While receiving a grand jury subpoena usually means you have to testify or produce certain records, there are ways to challenge a subpoena. Rule 45 of the Federal Rules of Criminal Procedure lists some of the ways a person can contest a subpoena by filing a motion to “quash” or modify the subpoena. A person can challenge a subpoena if the subpoena:
- Fails to allow a reasonable time to comply
- Requires a person to comply beyond certain geographical limits
- Requires a person to disclose privileged or otherwise confidential matters or records, unless an exception applies
- Would require subjecting a person to “undue burden”
- Would require disclosing a trade secret or confidential commercial information
- Would require disclosing certain expert opinions or information that is not relevant to a dispute
A witness who receives a grand jury subpoena may also refuse to testify by invoking their Fifth Amendment right against self-incrimination. However, a witness generally has to have a basis for believing that their testimony would be self-incriminating. In these situations, you want an attorney who can speak on your behalf rather than trying to communicate with the prosecutor directly.
Other subpoenas, especially those requesting records, can be challenged as overbroad or creating an “undue burden,” such as those requesting documents of “all communications,” “all financial transactions,” or “all emails” related to a person. Others can be challenged as irrelevant or motivated by an intent to harass. These challenges can be difficult to win because you have to show that there is “no reasonable probability” that the records are relevant to the “general subject” of the grand jury’s proceedings.
Can I have a lawyer with me when I go to the grand jury?
You absolutely have the right to retain an attorney if you have received a grand jury subpoena for records or your testimony. But a lawyer cannot be in the room with you while you are testifying before the grand jury. However, your lawyer can be available right outside the grand jury room, and you can always stop the questioning and request to speak to your lawyer about any issues or concerns you are having. In some cases, the lawyer will advise the witness to invoke their right to remain silent and not answer certain questions unless they have immunity.
A lawyer can also help you in several ways before you have to testify. If you are worried about testifying about a particular subject or have concerns about your own exposure to criminal charges, your lawyer can negotiate with the prosecutor before your testimony and try to get you witness immunity or get the prosecutor to agree not to ask questions about certain topics.
While the law does not require prosecutors to tell people if they are a witness, subject, or target, Department of Justice policy does require prosecutors inform people of their rights if they are a “subject” or a “target” of the grand jury investigation and they receive a grand jury subpoena to come testify. In cases where you are a subject of a grand jury investigation and are asked to come in to testify, an experienced attorney can review your case and advise you if your testimony can be used against you or make you a target.
If you have received a grand jury subpoena for records, an experienced federal criminal defense attorney can help by ensuring you are complying with the subpoena or, if you want to challenge the subpoena, filing a motion to quash the subpoena with the district court. An attorney can also review the records the grand jury has requested, advise you on the potential risks involved in producing the records, and minimize those risks. In some cases, an attorney may be able to secure an agreement from the prosecutor not to use certain records if they are produced.
What happens when I testify at the grand jury?
The Government does not have to give a witness advance notice before issuing a subpoena requiring them to come testify on a certain date, and a witness is required to answer all of the prosecutor’s questions truthfully unless they invoke their right to remain silent. As mentioned above, a witness testifying before the grand jury can stop testifying at any point and consult with their attorney. If a witness testifies falsely, they can be charged with the federal crime of making false declarations to a grand jury and be sentenced up to five years in prison.
The law does not prohibit a witness from talking about their testimony or their involvement in a grand jury proceeding, even to individuals who are subjects or targets of the grand jury’s investigation. In most cases, however, telling others about the grand jury proceeding is risky because a prosecutor may accuse you of obstructing the investigation, especially if the target of the investigation is “tipped off” and becomes harder to apprehend or investigate.
What do I do if I receive a target letter in a grand jury investigation?
In the federal criminal system, a “target letter” is a letter sent from the U.S. Attorney’s Office stating that you are the target or subject of a federal grand jury investigation. Target letters sometimes include a request for the person to testify before the grand jury. More often, they are designed to scare people into pleading guilty before they’ve even been charged.
Prosecutors rarely call targets of a grand jury to come testify because they don’t want the target to know about the investigation, the target may obstruct the investigation, or the target may simply assert his Fifth Amendment rights against self-incrimination. In rare cases, however, the target of the investigation may be aware of the proceedings and request to testify in order to clear their name.
Whether to allow a target to testify before the grand jury is up to the prosecutor, but a target’s decision to testify should be made carefully and only after consulting an attorney. If you are a target of a grand jury investigation and decide to testify, you will face aggressive questioning by the prosecutor, potential questions from the grand jurors themselves, and your testimony can be used against you later or as the basis for criminal charges if the prosecutor believes you are lying.
On the other hand, if a target letter states that the government is planning to charge you with certain crimes and offers you an opportunity to negotiate with the government, an attorney can meet with you, go over the allegations and possible consequences, and prepare your response. While prosecutors like to send target letters to people hoping to scare them into a quick plea deal, an experienced federal defense attorney can push back forcefully. In some cases, an attorney can get some of the evidence early and can try to persuade the prosecutor to pursue a civil penalty instead, such as a fine, rather than criminal charges. Even if the prosecutor is determined to bring criminal charges, an attorney can help begin preparing a defense before the case is indicted by interviewing witnesses and conducting a counter investigation to challenge the prosecutor’s case.
While prosecutors are technically allowed to present evidence to a grand jury even if it was unlawfully obtained as a result of an unlawful search under the Fourth Amendment, for example, DOJ policy is for prosecutors not to present evidence to a grand jury “which the prosecutor personally knows was obtained as a result of the constitutional violation.” There is also a DOJ policy requiring prosecutors to disclose exculpatory evidence to the grand jury if it “directly negates the guilt of the subject of the investigation.” An experienced attorney can use a prosecutor’s violation of these policies to create leverage in pre-indictment negotiations.
Whether the target letter requests your testimony or offers you an opportunity to negotiate a deal with the government before indictment, you need to be very careful in how you conduct yourself and your business while the grand jury investigation is ongoing. In some cases, for example, the target of an investigation may have employees, friends, or even family members who are being called to testify as witnesses. Any attempt by the target to influence their testimony or stop them from testifying can be seen as witness tampering or obstruction of justice.
Our experience in grand jury investigations
Our firm has represented dozens of people in connection with grand jury investigations, including witnesses, subjects, and targets. Recently, we represented an Atlanta city official in the Atlanta City Hall Investigation. With our assistance, our client testified before the grand jury, and he was not charged with a crime.
We have also represented a large number of individuals and organizations that have received target letters from the government but ultimately were not charged with a crime. While each of these cases are different, we have been able to secure great outcomes and avoid criminal charges for our clients because our clients acted early and retained us before they were formally charged.
In one recent case, our client, who owned a company that sold used oil, received a “target letter” from the government notifying him that he was being investigated by the EPA and other federal agencies for violating federal environmental laws. After reviewing the evidence and pushing back on the prosecutors who were preparing to charge our client, the case was closed without our client being charged with a crime.
Recent news in grand jury investigations
In a recent Supreme Court decision, the Court rejected a request from former President Trump to block a grand jury subpoena for his tax records. The ruling means the grand jury and prosecutor will finally get a copy of these records, though grand jury secrecy laws mean they likely won’t become public for a while.
Page Pate from our firm discusses grand jury proceedings in connection with police brutality cases and explains why it grand juries rarely charge police officers with crimes.
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