Responding to a Grand Jury Subpoena
If you receive a federal grand jury subpoena, that means that you or someone you know or were affiliated with is the target of a federal criminal investigation by the Department of Justice. In order for someone to be indicted, the Fifth Amendment to the United States Constitution mandates the use of a grand jury for all capital and infamous crimes. In practice, all federal felonies must be indicted by a grand jury unless a defendant waives the right and instead pleads to a so-called “Information.”Grand juries consists of 16-23 individuals. The grand jury’s principal function is to determine if probable cause exists to secure an indictment. A grand jury does not decide if someone is actually guilty. All people indicted by a grand jury are considered innocent until they either plead guilty to the offense or are proven guilty beyond a reasonable doubt at trial.
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What is a Grand Jury?
Federal grand juries in the United States are comprised of citizens who are chosen by the courts. The process of choosing a grand jury is somewhat similar to the process of picking a petit or trial jury. However, grand juries normally sits for an extended period of time and review numerous cases compared to a petit jury that sits for the duration of a single trial.Grand jury secrecy is important. Grand juries also have the power to issue a subpoena for documents and grand jury witness testimony that will help it evaluate the case. These subpoenas are issued at the request of the government. The subpoenaed materials are then returned to the grand jury in order to further its investigation.There are hundreds of grand juries throughout the United States. Some federal districts have more than one sitting at one time while smaller districts will employ only one. Grand juries meet on a schedule that is determined by the district in which it sits. Some may meet every two weeks or every month depending on the criminal case-load that exist in their particular district.
Witness, Subject, Target
A “target” is a person as to whom the prosecutor or the jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative 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. In terms of criminal exposure, a “subject” falls on the spectrum somewhere between a “target” and a “witness.” The prosecutor may believe a “subject” has engaged in criminal activity but does not have the corroborating evidence yet to label this individual as a “target.”A “witness” is an individual who may information that law enforcement believes might be relevant in a criminal investigation to help prove either the guilt or the innocence of another individual. The criminal exposure of a “witness” is low – the prosecutor generally believes a “witness” did not do anything wrong but has information to aid the pending investigation.
Indictment
Irrespective of status as grand jury witnesses, subjects, or targets, the end result of a grand jury‘s investigation is to end up with an indictment against a defendant or defendants. After all, it is the job of the grand jury to evaluate information to then decide against whom felony charges should be brought. Because an indictment is thus always the end goal of the process, anyone involved in the grand jury process must understand the danger of ending up being charged.
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Understanding Your Federal Grand Jury Subpoena
A federal grand jury subpoena is a formal request for testimony, documents, or both issued by a federal district court judge at the request of a federal prosecutor. Once the decision to empanel a grand jury has been made, you will need to take appropriate steps to preserve any responsive electronic or hard-copy documents within your possession or control.
- Anticipate questions – Working with your attorney, you should seek to anticipate the questions that you are likely to be asked during the proceedings and make sure you are prepared to respond appropriately.
- Strategize – Aside from preparing your answers, what is the best overall strategy for protecting yourself against criminal prosecution? When and how should you request to speak with your attorney during the proceedings? What other steps can you take (outside of the grand jury process) to mitigate your potential exposure? The more you strategize in advance, the better able you will be to protect yourself against undesirable consequences.
Strategies for Grand Jury Investigations
While some of our clients react shocked about being served a subpoena, other clients had reason to believe that one was coming. Clients who expected a subpoena were typically contacted by federal agents for interview requests before or were generally aware of a pending grand jury investigation, for example, because friends or business partners have already received a subpoena.
Plan
The idea behind planning a grand jury subpoena is to put yourself into a position, in which you, if ordered to produce documents, will be able to produce “good” documents that show your “good” intent rather than being caught off guard. Depending on the industry you are in, you should make sure that your corporate paperwork has been checked by attorneys, that pertinent contracts are executed, and that your documentation overall leaves an impression of organization, sophistication, and persuasiveness. For example, if you run a healthcare business, it would behoove you to set up a corporate compliance program and to appoint compliance staff within your company in order to demonstrate your intent to comply with all laws. Similarly, if you have a business with multiple employees, always make sure that you have everyone‘s files and taxes and all accounting up to date.
Preserve
It is a really bad idea to think that the destruction or hiding or altering of requested documents is a viable option. In fact, the easiest and fastest way to get charged with a federal felony is tampering with evidence. Federal law is very clear that the lack of cooperation with a subpoena or a lack of document preservation will result in obstruction of justice charges. So, instead of wasting time with such illegal acts, you should pursue an active document preservation policy. Organize, prioritize, and categorize your business records. Make sure you inform your employees proactively and in writing about your company‘s policy to cooperate with the government. Show the government that you have, prior and in addition to the subpoena, collected, stored, and saved relevant documents yourself. This could go a really long way.