Frequently Asked Questions in Responding to Federal Grand Jury Subpoenas
The grand jury process is the system where federal criminal cases begin. When the prosecutor's office believes a crime has been committed (such as when the FBI or other federal investigative agency has been conducting a criminal investigation) it will go to the grand jury to obtain an Indictment.
What do I do if I have received a subpoena to testify before the grand jury?The grand jury is entitled to subpoena testimony from any witness that it considers to have relevant information. The name of the prosecutor or agent responsible for the subpoena is usually in the lower right hand corner of the federal subpoena. That person is usually the one who will be conducting the investigation in the grand jury. You are required to appear before the grand jury to testify unless you either get a time extension or have a basis to refuse to testify. If your testimony might tend to incriminate you (that is admit your role in a crime or violation) then you have the right to invoke your Fifth Amendment right against self incrimination and refuse to testify. If you fail to invoke your Fifth Amendment rights and testify in the grand jury anyway, you may be admitting your role in a crime and opening yourself to being prosecuted.
How do I Invoke my Fifth Amendment Privilege in the Grand Jury?If you have a chance of admitting to a crime if questioned about the facts under investigation, then you have the right to refuse to testify. The "Miranda" rights apply in grand jury proceedings but you have to "invoke" your right to refuse to testify. If you, or your attorney, notify the prosecutor's office that you intend to invoke your Fifth Amendment privilege then you may be in a position to avoid testifying in the grand jury. Deciding to invoke your Fifth Amendment Right is a very important decision. Unfortunately, if you invoke your right to refuse to testify, this is a signal to the prosecution that you consider yourself to have been involved in the illegal activity and he or she may look at you more closely and perhaps consider you to be a "target" of the investigation. A "target" is a person who the grand jury is collecting evidence against in order to build an Indictment. Indictments are the formal charges brought in the federal system.
How to I avoid being indicted?If you find out that you are a "target" of the grand jury then it is very likely that you (or your company) will be charged as a defendant in the case. In the federal system, there is often more than one target under consideration in a case. Often the targets of the investigation who cooperate early with the investigation get a better "deal" than the ones who wait for the indictment. In white-collar cases, such as bank fraud, healthcare fraud or bribery, your attorney may be able to convince the prosecution that you are a better witness for the government than a defendant in an Indictment. In order to make the transition from being a potential target of the investigation to being a cooperating witness, your attorney will have to meet with the prosecution and negotiate a deal on your behalf. You may have to start that decision making process immediately after you find out that you are under investigation. If you delay in getting legal advice about cooperating then the prosecution may already have all of the evidence it needs for its case and may be unwilling to negotiate. It is also possible that your attorney can negotiate a plea deal before you are ever even indicted. Sometimes the government will give a better deal to targets who come in (with an attorney) and cooperate with the investigation before formal charges are brought.
My Company has received a subpoena to produce documents. What do I do?The grand jury can subpoena relevant documents, as well as testimony. A subpoena duces tecum is a subpoena that requires the production of documents before the grand jury. This often occurs in white-collar cases like: healthcare fraud, bank fraud, price-fixing cases, bribery cases, and wire fraud or mail fraud cases. If your company has received a subpoena duces tecum you have an obligation to produce records before the grand jury. This can be a very burdensome project. A company will need to hire an attorney in order to assist it in providing records to the grand jury, particularly if it is likely to be a "target" of the investigation. If the company is "under investigation" by the federal grand jury it will need to retain "outside counsel" to assist it in responding to the grand jury investigation. If the officers or employees are targets then they will each need their own attorneys, as well.