Criminal Defense Lawyers

Federal Grand Jury Subpoenas

What is a Federal Grand Jury Subpoena?

A federal grand jury subpoena is an order issued by a federal grand jury, under the supervision of a federal district court, commanding you to appear and testify before the grand jury (known as a subpoena ad testificandum) or to produce documents or other evidence to the grand jury (known as a subpoena duces tecum)12.The purpose of a federal grand jury is to investigate potential violations of federal criminal law. It has wide discretion to probe into any information that might relate to its investigation, even if no particular defendant or charge is identified yet1. The grand jury operates in secret, with only the grand jurors, prosecutor, court reporter, and subpoenaed witnesses allowed in the room1.Importantly, a grand jury subpoena is different from a trial subpoena. The grand jury does not decide guilt, only whether there is probable cause to believe a crime was committed and the accused committed it3. If so, the grand jury will issue an indictment, leading to criminal charges. But the final determination of guilt is made at trial.

What Should You Do If You Receive a Federal Grand Jury Subpoena?

Receiving a federal grand jury subpoena can be an intimidating experience. After all, it means you are now involved, to some degree, in a federal criminal investigation. But don’t panic. Here are the key steps to take:

1. Don’t ignore it. Failure to comply with a grand jury subpoena can result in being held in contempt of court1. So ignoring it is not an option.
2. Determine what type of subpoena it is. Is it a subpoena ad testificandum requiring you to personally appear and testify? Or a subpoena duces tecum requiring you to produce documents? The subpoena itself should make this clear4.
3. Ascertain your status. Are you just a witness whose information is being sought? A “subject” who the government thinks might have some involvement? Or a “target” who the government believes likely committed a crime?3 The prosecutor may tell you if asked, but isn’t required to. Your status can change as the investigation progresses.
4. Hire experienced counsel. Regardless of your status, you should promptly retain a criminal defense attorney experienced with federal grand jury matters. Do not try to respond on your own. The risks of misstep are too high.
5. Assert your rights. You have constitutional rights even when subpoenaed by a grand jury. Most importantly, your Fifth Amendment right against self-incrimination allows you to refuse to answer questions that could implicate you in a crime3. Your attorney will advise you on this.
6. Consider moving to quash. In some cases, you may have grounds to challenge the subpoena itself as being overly broad, unduly burdensome, or otherwise legally deficient3. Your attorney can evaluate this and potentially file a motion to quash with the court.
7. Prepare your response. If you must testify or produce documents, thorough preparation is critical. Your attorney will help you get ready and protect your rights throughout the process. Proper preparation can avoid unforced errors.
8. Comply with the subpoena. Unless the subpoena is quashed, you must ultimately comply with its commands or face contempt charges. Produce the requested documents and appear as directed, but follow your attorney’s guidance to protect your interests.

Grounds for Challenging a Federal Grand Jury Subpoena

While federal grand jury subpoenas are presumed to be valid, they can be challenged on certain limited grounds3. Some potential bases for quashing or limiting a subpoena include:

• Overbreadth. The subpoena is too broad and sweeping in what it requests, going beyond what is reasonably needed for the investigation1.
• Undue burden. The subpoena would be excessively burdensome to comply with, such as requesting a massive volume of records or seeking information that would be very difficult to gather1.
• Privilege. The subpoena improperly seeks information protected by the attorney-client privilege, doctor-patient privilege, or other legally recognized privileges1.
• Bad faith. The subpoena was issued for an improper purpose, such as to harass, intimidate, or punish rather than to further a legitimate investigation1.
• Fundamental unfairness. Complying with the subpoena would be fundamentally unfair or oppressive under the circumstances.

Evaluating whether any of these grounds apply requires careful legal analysis based on the specific facts of your situation. An experienced attorney can assess the viability of a challenge to your subpoena.Ultimately, the decision of whether to quash or modify a subpoena rests with the court overseeing the grand jury. The court must balance the grand jury’s investigative needs against the burden on the subpoena recipient and their legal rights. Successful challenges to federal grand jury subpoenas are relatively rare, but are possible in appropriate cases.

Responding to a Subpoena Ad Testificandum

If your federal grand jury subpoena requires you to personally appear and testify, thorough preparation with your attorney is essential. Some key considerations:

• Understand your rights. Before testifying, make sure you understand your Fifth Amendment right to avoid self-incrimination. You can assert this right and refuse to answer any question that could potentially implicate you in criminal activity3.
• Prepare your testimony. Review any relevant documents and discuss potential areas of questioning with your attorney. Stick to the facts and don’t speculate. It’s okay to say you don’t remember or don’t know something.
• Be truthful. Lying to a grand jury is perjury, a serious federal crime3. Always tell the truth, even if you think it might be harmful to you or someone else.
• Listen carefully. Pay close attention to the prosecutor’s questions and make sure you understand before answering. Feel free to ask for clarification if needed.
• Keep your answers concise. Answer only the question asked, then stop. Don’t volunteer additional information or start explaining. The prosecutor will ask follow-ups if they want you to elaborate.
• Stay calm. Being in the grand jury room can be intimidating, but getting flustered will only make it harder. Take a deep breath and speak slowly and clearly. Your attorney can’t be in the room with you, but knowing you’re well-prepared should boost your confidence.

Remember, even if you are not a target, your status can change. Consulting experienced counsel and being thoroughly prepared are the best ways to protect yourself when testifying before a federal grand jury.

Responding to a Subpoena Duces Tecum

A federal grand jury subpoena duces tecum requires you to produce documents or other tangible evidence1. Gathering and producing the requested materials can be a significant undertaking, especially for a broad subpoena. Some tips:

• Preserve everything. As soon as you receive the subpoena, take steps to ensure all potentially responsive documents are preserved, including issuing a litigation hold to stop any routine deletion of records.
• Determine the scope. Carefully review the subpoena to determine what information is being requested. If it is overly broad or unduly burdensome, your attorney may be able to negotiate a narrowing of the scope with the prosecutor.
• Collect the documents. Conduct a thorough search for responsive documents, including electronic records. Consider hiring an e-discovery vendor to assist if the volume is large.
• Review for privilege. Have your attorney review the collected documents to identify any that may be protected by the attorney-client privilege or other privileges, as these may potentially be withheld1.
• Prepare a privilege log. For any documents withheld on the basis of privilege, a log identifying the documents and the basis for the privilege claim should be prepared.
• Produce the documents. The non-privileged responsive documents should be produced to the grand jury by the return date on the subpoena, following any specific instructions in the subpoena regarding the production format.

Properly responding to a subpoena duces tecum requires a significant devotion of time and resources, particularly for companies or individuals with a large volume of records. Engaging an experienced attorney to assist is crucial to ensuring a complete and timely response while protecting any applicable privileges.

Potential Consequences of Non-Compliance

Failing to comply with a federal grand jury subpoena can have serious consequences. If the court finds you in contempt, potential sanctions include:

• Monetary fines. The court can impose a financial penalty for each day of non-compliance or a lump sum fine2.
• Imprisonment. In more serious cases, individuals can be jailed for contempt until they comply with the subpoena2.
• Adverse inference. In a trial, the court may instruct the jury that it can infer the withheld information would have been unfavorable to the non-compliant party.
• Reputational harm. Being held in contempt of court can significantly damage your reputation, both professionally and personally. It may impact your ability to find employment or obtain loans, for example.

The best way to avoid these consequences is to take prompt steps to comply with any federal grand jury subpoena you receive, while asserting your legal rights with the assistance of experienced defense counsel. Hoping it will go away is not an option when a subpoena is involved.

Conclusion

Receiving a federal grand jury subpoena can be a stressful experience, but knowing your rights and having a plan of action can help immensely. The key is to take the subpoena seriously, engage experienced counsel right away, and work diligently to prepare your response and protect your interests.Remember, a subpoena does not necessarily mean you are suspected of wrongdoing. It simply means the grand jury believes you have information relevant to its investigation. By responding carefully and asserting your rights, you can navigate the process while minimizing your legal risk.