You've been served with a Grand Jury Subpoena - Now What!
Lead by attorney Robert M. Wilson, Kimball & Wilson LLP provides representation to individuals and corporate who are in receipt of a Grand Jury Subpoena or are the target or subject of a grand jury investigation. We take pride in our ability to fully examine each and every aspect of your case. We offer thorough representation and construct a strong and ethical defense on your behalf.
Defense of Grand Jury Investigation
Responding to grand jury subpoenas can cost much more than the time necessary to produce often voluminous documentation and to provide knowledgeable witnesses for testimony. Even when companies are not identified as targets of grand jury investigations, unwary companies often discover too late that they have waived attorney-client and work-product privileges in prior document production and testimony, and have unnecessarily entangled their companies and executives in ongoing investigations.
Bob has extensive experience representing corporate and individual clients in a wide array of grand jury proceedings. The Firms’ representation can begin before service of any grand jury subpoenas, whether as part of an internal investigation after discovery of wrongdoing or when suspicions arise that grand jury subpoenas may be forthcoming. We also are frequently contacted for the first time after service of grand jury subpoenas when time is of the essence to determine the purpose and extent of the investigation, as well as to formulate a comprehensive plan of representation.
Bob is often are retained to represent corporations that have received subpoenas, but are also retained regularly to represent individual officers, directors, and key employees who are called to appear before grand juries. Companies may call on The Firm for any of the following:
- representation throughout grand jury investigations and before appearances before grand jury by officers, directors, and employees (whether as “targets," “subjects" or “witnesses");
- negotiation with U.S. Attorneys, Department of Justice officials, and other officials regarding global settlements;
- negotiation of immunity agreements; and
- representation of companies with regard to grand jury subpoenas for documents.
State and Federal Criminal Grand Jury
Although the American grand jury originally was conceived as a protector of ordinary citizens by other ordinary citizens, the fairness of its criminal operations has been questioned by various commentators and judges. U.S. Supreme Court Justice William Douglas stated, “It is, indeed, common knowledge that the Grand Jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive." Some even have referred to it as a “rubber stamp" for prosecutors. In the criminal system, the California constitution and laws provide that felony prosecutions are initiated only after a determination that there is “probable cause" to believe that specific individuals committed specific crimes. This is done either by “information" presented for examination and approval by a judge, or by indictment after a grand jury hearing and vote. In either case, the purpose of the objective review is to prevent overzealous prosecutors from unjustified, groundless, or unfair prosecutions when “probable cause" does not exist.
The grand jury operates without providing many fundamental rights common in court hearings and trials. For example, the defendant has neither the right to present evidence to the grand jury or cross-examine the witnesses against him or her. Only the prosecutor may present evidence, and the defendant has no right to counsel, even if required to testify. Even judges generally are excluded, leaving the grand jurors to rely on the prosecutor for all information. One early study indicated that 95% of all cases brought to the grand jury resulted in indictments, raising questions about the value of this review because the grand jury is not able to adequately evaluate the evidence presented only by the district attorney.
Protecting Your Interests During Federal Grand Jury Investigations
Federal grand juries have enormous power within our criminal justice system. Responding incorrectly to a federal grand jury subpoena for your testimony or documents, or your company’s documents, can have disastrous consequences.
Although federal judges empanel federal grand juries and formally supervise them, these judges do not usually interfere with federal grand jury investigations. The federal prosecutor, or Assistant United States Attorney (“AUSA"), is the primary government official interacting with the federal grand jury. The federal prosecutor leads all grand jury sessions, although he cannot testify or be present during grand jury deliberations.
Quality Representation While Testifying Before the Grand Jury
Your lawyer can’t be with you in a federal grand jury room, but he can be right outside the room and you have the right to consult with him after each and every question. In fact, you can spend as much time as you need conferring with your lawyer, as long as you are not attempting to disrupt the federal grand jury process. You can also leave the grand jury room in order to brief your attorney about the questions being asked and your responses
Federal grand jury subpoenas can be for (a) testimony (ad testificandum ); (b) documents or objects ( duces tecum ); or (c) both. The face of a federal grand jury subpoena will reveal which of these types you have received. You should be subpoenaed either as an individual or as a custodian of records for a business entity.
If you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering questions by invoking the Fifth Amendment’s Privilege Against Self-Incrimination. The right to invoke this privilege is much broader than most witnesses and even attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer. How can an answer tend to incriminate you? If it furnishes a link in the chain that might lead to your conviction. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty. Why would an innocent person want to invoke the privilege? To keep from being ensnared in a prosecution by mistake.
Corporations and other business entities cannot invoke the privilege against self-incrimination according to current case law. And since a corporation operates through human agents, it must designate a custodian of records when subpoenaed by the federal grand jury. But the Supreme Court has ruled that the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were gathered. If you are properly subpoenaed as a business custodian, it is very important that you limit your answers to this narrow category of questions. Prosecutors love to get corporate or business custodians into the grand jury room and ask extra questions. These questions might seem innocuous, but they are often very dangerous. You need to have your white collar criminal lawyer with you for consultation, right outside of the grand jury room, to insure that you are not tricked into answering one question too many.
Some federal prosecutors like to call witnesses back to the grand jury to testify on multiple occasions. This is dangerous, because it can cause you to inadvertently give inconsistent testimony under oath. Under §1623(c) of the federal criminal code, the government can prosecute you for testifying to two irreconcilably contradictory statements under oath, and the government does not even have to prove that either of the statements in question was false.
State Civil Investigations
The role of the grand jury in civil investigations presents an interesting twist: the original (English) grand juries served to aid the government in finding and prosecuting private citizens’ misdeeds; now, these juries investigate and accuse public figures, defending individual citizens’ rights and expectations. Grand juries, both federal and state, may investigate criminal activity or non-criminal activities. In California, for example, the grand jury can investigate any activity by a public official (other than court), which violates a state law, and many other activities, as long as they occur within the county of the grand jury.
State grand juries, but not federal grand juries, can investigate any non-criminal activity and report and make recommendations based on the results of the investigation. These investigations commonly include reviewing the operation and condition of jails and prisons, investigating the conduct of local public officials, and other similar matters of public health, safety, and welfare. The results of these investigations may be criminal charges, recommendations for new laws, or merely reports to the public identifying problems but proposing no specific solutions.
State Law requires that each grand jury submit a final report of its findings and recommendations to the presiding judge of the Superior Court.
A report, just as an accusation or an indictment, must be approved by at least 12 of the 19 grand jurors (15 if it is a 23 member jury). With so many possible investigations and a term limited to a single year, it is necessary for each grand jury to make hard decisions as to what it wishes to undertake during the term. Except for mandated duties to report on the financial condition of the county and on the conditions of county jails, the grand jury discretion in determining its agenda. Most grand juries divide into committees for conducting investigations and for writing reports, but there seems to be a wide variation between counties as to the number and structure of committees; it is up to each grand jury to determine its own method of operation within the parameters of the law.