Your actions could have a serious effect on your future. They can fight for your rights and make sure you have the opportunity to explore all of your legal options. Call today. Receiving a grand jury subpoena puts you in a very delicate position. You, your associates or your company may be the target of a criminal investigation, and evidence gathered during grand jury proceedings may motivate prosecutors to widen an investigation or name more targets.
If you wish to avoid testifying in a grand jury investigation, we can help you understand your rights and protect you against contempt charges. We are experienced in seeking interlocutory relief from the courts. If you are willing to testify, we will represent you before the grand jury and protect your rights, including your rights against self-incrimination.
In many federal cases , particularly for economic and white collar crimes , federal agents often will seek to obtain documents from targets of the investigations and innocent third parties. The federal agents can seek to obtain those documents through a search warrant or a subpoena issued by a grand jury. In addition to the documents or physical evidence the grand jury can consider, the grand jury also can issue a witness subpoena to hear testimony.
For instance, in drug trafficking cases, witnesses could include DEA agents involved in the investigation. Witnesses have the right to refuse to answer questions pursuant to the Fifth Amendment , so as to not incriminate themselves, but they cannot have a lawyer with them during the proceedings. They could, however, ask to consult with their lawyer before answering a possibly self-incriminating question.
If the grand jury concludes that probable cause exists based on the prosecutor's evidence, it issues an indictment—a formal accusation of criminal charges against the accused. If the grand jury doesn't indict, no charges are filed at that time. In such a case, a prosecutor can come back with more evidence and try to convince the same grand jury to indict. Or the prosecutor could choose to present the same evidence to a different grand jury in hopes of getting an indictment.
Part of the grand jury's duty is to act as a check on the prosecution and protect individuals from malicious or unfounded prosecutions. Grand jurors have the right to question witnesses and investigate the allegations. But, in practice, the influence of the prosecutor usually dominates the proceedings, and grand juries frequently indict based on the prosecution's evidence.
Sometimes prosecutors choose to pursue an indictment from a grand jury rather than filing a criminal complaint because, unlike other criminal proceedings, grand jury proceedings are secret and one-sided.
When a prosecutor files a criminal complaint rather than going through the grand jury process , the prosecutor must convince a judge in a public, preliminary hearing that they have enough evidence to convict. During this preliminary hearing, the defense can cross-examine the witnesses and see what evidence the prosecution has.
This proceeding gives the defense a chance to preview the prosecution's case and better prepare a strong defense for trial. Whereas the secrecy of the grand jury proceedings gives prosecutors an advantage at trial by allowing the prosecutor a chance to test their witnesses and evidence before a jury without needing to reveal their arguments or evidence to the defense.
If you've been subpoenaed by a grand jury to testify as a witness, it's worth speaking to a criminal defense lawyer to make sure you are not putting yourself at risk. If you face charges based on a grand jury indictment, you'll want to find a criminal defense attorney to represent you right away. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.
A question frequently faced by Federal prosecutors is how to respond to an assertion by a prospective grand jury witness that if called to testify the witness will refuse to testify on Fifth Amendment grounds.
If a "target" of the investigation and his or her attorney state in a writing, signed by both, that the "target" will refuse to testify on Fifth Amendment grounds, the witness ordinarily should be excused from testifying unless the grand jury and the United States Attorney agree to insist on the appearance.
In determining the desirability of insisting on the appearance of such a person, consideration should be given to the factors which justified the subpoena in the first place, i. Some argue that unless the prosecutor is prepared to seek an order pursuant to 18 U. However, such a broad rule would be improper and make it too convenient for witnesses to avoid testifying truthfully to their knowledge of relevant facts.
Moreover, once compelled to appear, the witness may be willing and able to answer some or all of the grand jury's questions without incriminating himself or herself. The United States Attorney has the discretion to notify an individual, who has been the target of a grand jury investigation, that the individual is no longer considered to be a target by the United States Attorney's Office. Such a notification should be provided only by the United States Attorney having cognizance over the grand jury investigation.
The United States Attorney may decline to issue such notification if the notification would adversely affect the integrity of the investigation or the grand jury process, or for other appropriate reasons. No explanation need be provided for declining such a request. If the United States Attorney concludes that the notification is appropriate, the language of the notification may be tailored to the particular case.
In a particular case, for example, the language of the notification may be drafted to preclude the target from using the notification as a "clean bill of health" or testimonial.
The delivering of such a notification to a target or the attorney for the target shall not preclude the United States Attorney's Office or the grand jury having cognizance over the investigation or any other grand jury from reinstituting such an investigation without notification to the target, or the attorney for the target, if, in the opinion of that or any other grand jury, or any United States Attorney's Office, circumstances warrant such a reinstitution. Witnesses who refuse to answer questions properly put to them by the grand jury may be held in contempt and either fined or imprisoned until they comply with the directions of the grand jury.
The contempt may extend for the life of the grand jury. While the Supreme Court in Shillitani v. Resubpoenaing a contumacious witness may be justified in certain circumstances, however, such as when the questions to be asked the witness relate to matters not covered in the previous proceedings or when there is an indication from the witness or the witness's counsel that the witness will testify if called before the new grand jury. If the prosecutor believes that the witness possesses information essential to the investigation, resubpoenaing the witness may also be justified when the witness himself or herself is involved to a significant degree in the criminality about which the witness can testify.
Prior authorization must be obtained from the Assistant Attorney General, Criminal Division, to resubpoena a witness before the successive grand jury as well as to seek civil contempt sanctions should the witness persist in his or her refusal to testify. To obtain approval, the prosecutor must show either: a that the witness is prepared to testify; or b that the appearance of the witness is justified since the witness possesses information essential to the investigation.
If the grand jury's term is about to expire, the Department recommends that a subpoena ordinarily should not be issued to a witness who has advised the prosecutor that he or she will refuse to testify before such grand jury. The coercive effect of a civil contempt adjudication is substantially diluted if a grand jury is approaching its expiration date.
This is a matter within the discretion of the United States Attorney and there may well be situations when it is necessary to subpoena a witness and institute contempt proceedings for recalcitrance in such circumstances. In most situations, however, it would seem preferable to subpoena the witness before a new grand jury. A prosecutor should not present to the grand jury for use against a person whose constitutional rights clearly have been violated evidence which the prosecutor personally knows was obtained as a direct result of the constitutional violation.
As a general rule, it is proper to present hearsay to the grand jury, United States v. Calandra U. Each United States Attorney should be assured that hearsay evidence presented to the grand jury will be presented on its merits so that the jurors are not misled into believing that the witness is giving his or her personal account.
Leibowitz , F. Trass , F. In United States v. Williams , S. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.
While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review. Federal Rule of Criminal Procedure 6 d authorizes attorneys for the government to appear before the grand jury. For purposes of that rule, an "attorney for the government" is defined in Fed. The authority for a United States Attorney to conduct grand jury proceedings is set forth in the statute establishing United States Attorney duties, 28 U.
United States Attorneys are directed in that statute to "prosecute for all offenses against the United States. When a United States Attorney or Assistant United States Attorney needs to appear before a grand jury in a district other than the district in which he or she has been appointed, the United States Attorney for either the district of appointment or the district of the grand jury should complete an appointment letter, appointing the attorney as a Special Assistant United States Attorney SAUSA.
Departmental attorneys, other than United States Attorneys and AUSAs, may conduct grand jury proceedings when authorized to do so by the Attorney General or a delegate pursuant to 28 U.
The Attorney General has delegated the authority to direct Department of Justice Attorneys to conduct grand jury proceedings to all Assistant Attorneys General and Deputy Assistant Attorneys General in matters supervised by them. Order No. Federal Rule of Criminal Procedure 6 d provides that the only prosecution personnel who may be present while the grand jury is in session are "attorneys for the government.
An agency attorney or other non-Department of Justice attorney must be appointed as a Special Assistant or a Special Assistant to the Attorney General, pursuant to 28 U. When the less common Special Assistant or Special Assistant to the Attorney General appointment is to be used in cases or matters within the jurisdiction of the Criminal Division, the Office of Enforcement Operations should be contacted for information.
A letter of appointment is executed and the oath of office as a Special Assistant to a United States Attorney must be taken see 28 U. Requests for such appointments must be made in writing through the Director of the Executive Office for United States Attorneys and must include the following information:.
I understand the restrictions on the grand jury secrecy obligations of this appointment as a Special Assistant to the United States Attorney and do hereby certify that I will adhere to the requirements contained in this letter.
The use of agency attorneys as Special Assistants before the grand jury has been upheld by the courts. Wencke , F. Birdman , F. The United States Attorney or Departmental attorney with responsibility for the case retains full responsibility, notwithstanding the participation of government attorneys from other agencies. Attorneys for the government should ensure that any interpreter used in a grand jury proceeding is aware of his or her secrecy obligation, and that the interpreter has received the necessary security clearance and has been properly sworn.
Disclosure of materials covered by Federal Rule of Criminal Procedure 6 e may be made without a court order "to an attorney for the government for use in the performance of such attorney's duty. Forman, 71 F. The Department of Justice routinely receives requests for access to documents from Congress, from individuals or entities filing requests pursuant to the Freedom of Information Act FOIA , and from private and government lawyers engaged in civil litigation.
Records retention practices can make it difficult to identify what evidence may properly be provided in response to a request and may hamper the proper use of non-grand jury information by civil attorneys of the Department. For example, if a file marked "Grand Jury" includes documents obtained by grand jury subpoena and documents otherwise obtained, it is difficult in some instances to determine whether the Rule 6 limitations on disclosure apply to certain documents in the file.
The task is more difficult in those situations where the prosecutor who handled the grand jury matter is no longer in government service. The Guidelines, which apply to the United States Attorneys and to the litigating Divisions of the Department, will make it easier to determine those documents that reveal matters occurring before the grand jury and those that do not.
Although local practice, local rules, and case law varies to some extent among the Circuits, every effort should be made to apply a consistent procedure that will maintain the integrity of evidence obtained by the grand jury and, at the same time, assist in identifying what are "matters occurring before a grand jury. Generally, government attorneys who are handling only civil cases do not have automatic access to grand jury materials but may obtain access to such materials only upon court order issued pursuant to Fed.
Sells Engineering, Inc. A specific exception has been created for certain banking financial matters. See 18 U. Accordingly, whenever it is practicable to do so, prosecutors obtaining evidence in a criminal investigation should use the following procedures.
These procedures supplement those described in the Department's Federal Grand Jury Practice Manual, January , pages through The procedures do not create any rights in third parties:. Make the System Simple. The identification system should be simple but it should permit the prosecutor to determine the source of the evidence and how it was obtained i. The identification system also should permit the prosecutor to determine what use the grand jury made of the evidence: what evidence generally was made available to the grand jury, what evidence was physically offered and made available to the grand jury, and what evidence was entered as an exhibit or otherwise formally presented to the grand jury.
The foregoing procedures should help ensure that documents obtained during an investigation are maintained in a system that allows easy access to original documents, that clearly separates documents that were obtained by subpoena from those obtained by other means, and that enables identification of evidence the grand jury actually considered. Prior approval of the Assistant Attorney General or a Deputy Assistant Attorney General for the Criminal Division generally is required before a grand jury subpoena may be issued to an attorney for information relating to the representation of a client.
Prior approval of the Attorney General generally is required before a grand jury subpoena may be issued to obtain information from, or records of, a member of the news media. See 28 C. This change was for the stated purpose of eliminating "an unreasonable barrier to the effective enforcement of our two-tiered system of criminal laws by allowing a court to permit disclosure to a State or local official for the purpose of enforcing State law when an attorney for the government so requests and makes the requisite showing.
The subdivision now reads as follows:. E The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand jury matter It is both the intent of the amended rule, and the policy of the Department of Justice, to share grand jury information whenever it is appropriate to do so. Thus, the phrase "appropriate official of a State or subdivision of a State" shall be interpreted to mean any official whose official duties include enforcement of the State criminal law whose violation is indicated in the matters for which disclosure authorization is sought.
This policy is, however, subject to the caution in the Advisory Committee notes that " t here is no intention to have Federal grand juries act as an arm of the State. It is clear that the decision to release or withhold grand jury information may have a significant impact upon relations between Federal prosecutors and their state and local counterparts, and disclosure may raise issues that go to the heart of the Federal grand jury process. Accordingly, Federal prosecutors must request authorization to apply for an order permitting the disclosure of grand jury material to State or State subdivision authorities under Rule 6 e 3 E iv.
In a matter being handled by a litigating Division within the Department, Federal prosecutors must seek prior authorization from the Assistant Attorney General of that Division or a delegate.
A form is available to Department attorneys for submitting requests to the Criminal Division for approval to disclose grand jury information under Rule 6 e 3 E iv. Prosecutors are cautioned that in certain types of cases, particularly tax and tax-related cases, some grand jury information may also be subject to additional statutory and regulatory restrictions governing disclosure and sharing. Empanelment of Special Grand Juries for organized crime 18 U.
When providing such notice, United States Attorneys should indicate why an indictment cannot be found to obviate the issuance of a grand jury report. It should also be explained how the facts developed during a criminal investigation support one of the authorized types of reports. Before any draft report is furnished to the grand jury, it must be submitted to the Chief of the Organized Crime and Gang Section for approval.
It is not clear what remedy the government would have if a court acted wrongly in sealing a special grand jury report and refusing to make it public.
The Chief of the Organized Crime and Gang Section should be notified promptly if a court finally determines for any reason that a grand jury report is deficient or not proper to be released, so that consideration may be given to the possibility of taking the matter to the court of appeals.
Title 31, United States Code, section a prohibits evasion of certain currency transaction reporting and record-keeping requirements, including structuring schemes.
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