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Q&A Grand Jury subpoenas

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What is a Grand Jury?
The purpose of the grand jury is to determine whether or not there is probable cause to believe that any federal felony has been committed. A typical federal grand jury consists of between 16-23 citizens drawn from the community. 
The jurors meet in a closed courtroom, with no judge, no accused, no press, and no lawyer but the prosecutor present. This means your lawyer will NOT be present in the closed court room.  The grand jurors decide whether or not to indict a person or persons by listening to witnesses and evaluating evidence obtained by grand jury subpoenas. At least 12 grand jurors must find that there is sufficient probable cause in order to return a True Bill,  which when signed by the prosecutor becomes the indictment: the formal criminal charge that the government must prove beyond a reasonable doubt at trial. If the grand jury does not find sufficient probable cause, which almost never occurs, then it returns a No Bill.
 
What is a Grand Jury Subpoena? 
 
A grand jury subpoena indicates that a grand jury has been impanelled and a criminal investigation is underway.  A grand jury subpoena indicates that the federal government/law enforcement believe that you have evidence or could provide testimony that would help them in their criminal investigation. 
 
Why did I receive a Grand Jury Subpoena?
 
There are generally three reasons a person may receive a grand jury subpoena.
 
It is the Department of Justice’s policy to advise a grand jury witness of his or her rights if such witness is a “target” or “subject” of a grand jury investigation.
 
A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a possible defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.
 
A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation. 
 
Finally, a “witness” means that the person is not under investigation but has personal knowledge of facts relevant to the grand jury investigation.
 
 
When a district court insists that the notice of rights not be appended to a grand jury subpoena, the advice of rights may be set forth in a separate letter and mailed to or handed to the witness when the subpoena is served.
Advice of Rights
  • The grand jury is conducting an investigation of possible violations of Federal criminal laws involving:  e.g., conducting an illegal gambling business in violation of 18 U.S.C. § 1955
  • You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.
  • Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.
  • If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire.
 
What Type of Subpoena Have I Received?
 
There are two types of subpoenas: 
(1) a subpoena duces tecum which commands the person to produce certain documents 
(2) a subpoena ad testificandum which commands a person to appear before the grand jury on a particular date to testify. 
 
A subpoena duces tecum may seek all non-privileged documents and physical evidence including documents or information which another party may have already produced, or information which may readily be available other than from the subpoenaed party. Moreover, a subpoena duces tecum may require the production of original documents. This may be especially important; for example, where it is important to capture notations, erasures, or colored markings on documents that may not show up on copies.
A subpoena duces tecum may also be served on anyone at any place in the United States provided that service is proper. Subpoenas may also be served on persons in foreign jurisdictions as long as the government follows certain procedures.
 
 
During actual Grand Jury testimony, what can my lawyer do? 
During the proceeding your attorney may be present, but not in the grand jury room since grand jury proceedings are secret. The only persons permitted in the grand jury room are the Assistant United States Attorney, the grand jurors, the witness, and a court reporter. During the proceeding, a grand jury witness may ask to be excused to confer with an attorney before answering each question. While this process is disruptive and a bit awkward, it is absolutely critical to have an attorney present during any grand jury proceeding.
 
Again, your lawyer can’t be with you in the grand jury room, but we can be right outside the room and you have the right to consult with us after each and every question. In fact, you can spend as much time as you need conferring with us, as long as you are not attempting to disrupt the 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. In most federal jurisdictions you can also take notes of any questions asked during the grand jury session. These can later be shared with your attorney. 
 
 
NOTE: If a truthful answer to a grand jury question would incriminate you, you can invoke the 5th Amendment right to not incriminate yourself and refuse to answer.
Please click here for a good description of grand jury subpoenas.
Conaway & Strickler, PC can help you through this process and take the anxiety away from you and your attempt to understand this very complicated process.  Call us now at 404-816-5000.
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