A federal grand jury has enormous power. Composed of 23 people, a federal grand jury usually sits for a term of 18 months and meets regularly to review evidence presented by a federal prosecutor. Ultimately, a grand jury will determine whether there is probable cause to charge a person with a crime.
Although a federal grand jury is impaneled by a judge, the judge has very little oversight over what the grand jury does. Instead, it is the federal prosecutor, an Assistant United States Attorney (AUSA), who presents evidence to the grand jury. The jury then reviews evidence to determine whether someone should be charged with a crime.
A federal grand jury proceeding is one-sided and is directed entirely by the prosecuting attorney. The subject or target of the grand jury’s investigation does not have the opportunity to present any evidence, at all. A federal grand jury almost always returns with an indictment when presented with evidence from the prosecutor. In reality, the grand jury provides the “rubber stamp” on the indictment.
It is a routine part of the grand jury process that a grand jury issues subpoenas, and the subpoena is presumed to be reasonable unless the recipient of the subpoena can demonstrate that the subpoena was unreasonable or that a privilege applies.
Testifying before or providing documents to a grand jury carries significant risks, and you should not testify or provide documents to a grand jury without first speaking to an experienced federal criminal defense lawyer.
The grand jury is made up of members of the community that reside in the geographical area which the federal district court serves. Being called to serve on a federal grand jury is similar to being called to serve on a trial jury (or petit jury), and names are randomly selected from voter registration and driver’s license information.
The grand jury meets regularly to hear evidence from the prosecutor and deliberate on whether to issue an indictment. The grand jury can ask the AUSA questions, make suggestions as to how the prosecutor will charge a defendant, and will ultimately vote to determine whether probable cause exists to believe that a defendant committed a crime.
The deliberations of the grand jury remains relatively unknown because of strict rules of secrecy that apply to almost everyone involved in the process.
Members of the grand jury, prosecutors, court reporters, and staff are prohibited from disclosing matters that were before the jury. However, witnesses are not subject to grand jury secrecy rules. Nevertheless, in their letters to grand jury witnesses, prosecutors often warn witnesses that revealing the contents or existence of a grand jury subpoena might impede a criminal investigation and ask the witnesses not to disclose the existence of the subpoena.
If you are called to testify, it is essential that you consult with an attorney. You have a fifth amendment right to remain silent and the United States Supreme Court has held that that right applies equally to innocent people as it does to those that are guilty. The determination of whether to testify before a grand jury is an extremely important one, one that may have serious criminal repercussions for you. Therefore, it is critical that you discuss your situation with an experienced attorney prior to making this decision.
Unlike a criminal trial, the grand jury process is not “adversarial.” This means that in the grand jury process, it is the prosecutor, and only the prosecutor, who leads the process, asks questions, and presents evidence. The subject or target of a grand jury investigation is not present when the grand jury deliberates and makes the decision as to whether to indict. While a witness testifies before the grand jury, the witness’ attorney is not permitted to be present in the room in federal proceedings. However, a federal grand jury witness can have a lawyer accompany him/her to the hearing and sit outside the door of the jury room. The witness can confer with her attorney as much as he/she wants, even after every question, and can take as much time as needed as long as the witness does not disrupt the grand jury process. In state court proceedings, the attorney may be present, but cannot speak to his/her client during his/her testimony.
Grand jury testimony is not challenged by a defense attorney and is not subject to the same level of proof that is required at a trial. A grand jury determines whether there is probable cause to believe a crime occurred. The jury makes this decision without any opportunity for the defense to present any evidence favorable to the accused.
To conduct an investigation, a grand jury has the power to issue subpoenas. A federal grand jury subpoena can request testimony (ad testificandum), documents (duces tecum), or both. If you receive a subpoena, you may be called to testify as an individual, or as a representative of a business entity.
If you are subpoenaed to testify, it is essential that you consult an experienced attorney to evaluate whether or not you should testify. You have the right to assert your fifth amendment rights. The privilege against self-incrimination is set forth in the Constitution and is broader than many people realize. If a truthful answer to a question would tend to incriminate you, you can refuse to answer. Likewise, even if you are completely innocent of a crime you may also refuse to testify. These issues must be thoroughly discussed with your attorney.
If you know you will be served with a grand jury subpoena, make arrangements to have your attorney accept service. If you are personally served, you should politely accept service, tell the agents that you have an attorney, refuse to answer any other questions, and refer them to your lawyer.
You are under no obligation to do anything other than accept service. And remember that anything you say could be used against you at a later time. For example, even saying something as innocuous as “You’ll get the documents” can later be used as an admission to prove: (1) that you possess documents that the government is looking for; and (2) a connection between you and a piece of information that is a part of a federal criminal investigation.
If you are served with a grand jury subpoena, it is best to simply say “I have a lawyer and she will contact you.”
If you are the target of a grand jury investigation, it means law enforcement agents believe you have committed a crime and that you may be indicted. If you are a subject of a grand jury investigation, it means that the government believes that you have relevant information regarding a crime and could become a target when additional information is obtained. If you are either a subject or target of a grand jury investigation, it is critical that you seek the advise of an experienced attorney.
You must also beware of the pre-grand jury interview. An AUSA may subpoena you and ask that you arrive a few hours early to discuss your testimony. During the meeting, the AUSA will ask you questions and will write down your responses. If you give responses and/or testimony that is u, you could be charged with lying to a grand jury, lying to a federal agent, or both. Those charges of false statements to agents and/or the grand jury are in addition to the charges which are the subject of the grand jury investigation.
You have no obligation to speak to a government agent. If you do speak to a prosecutor or law enforcement agent before your testimony, you should be represented by counsel to avoid inadvertently admitting something that could lead to your being charged with a crime, or being charged with lying to a government agent.
If you have been subpoenaed to provide documents or testify before a grand jury, or if you believe you are the subject or target of a grand jury investigation, you should get a lawyer on your side as soon as possible.
A criminal defense attorney can give you advice about your testimony so you do not incriminate yourself, act as a buffer between you and the prosecutor, and help you respond to requests for testimony, documents, and interviews. If you are indicted, a criminal defense attorney can represent you during pretrial negotiations, through trial, and on appeal.
Philadelphia federal criminal defense attorney Hope Lefeber has extensive experience advising people who are under investigation or have been charged with a crime in federal court. She is meticulously prepared and has earned a reputation as an aggressive litigator whose clients are her first priority. She is highly respected by her colleagues in the federal bar, federal court judges, and her clients.
If you received a grand jury subpoena or believe you are under investigation for a federal crime, Ms. Lefeber should be your first call. Learn more about Philadelphia federal criminal defense attorney Hope Lefeber and the cases she handles, then contact Ms. Lefeber today to schedule a confidential consultation to discuss your situation.
This article can also be found on our New York City Federal Defense website