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Do I Have to Talk to a Federal Grand Jury?

October 11, 2021 Federal Criminal Attorneys

The short answer is no. However, if you’ve been subpoenaed to testify before a federal grand jury, learning all you can about what you’re up against can guide you about what to do next.

Why Are Witnesses Subpoenaed By Federal Grand Juries?

There are two possible reasons. One reason is that the prosecution believes that you, as a witness, may have important information about a crime committed by someone else. The other reason is that the prosecutor believes you may have committed a crime yourself. In that case, you’re considered a target.

Any testimony that witnesses give to a grand jury can be used as evidence against them later. The only exception is if you are granted special witness immunity from prosecution prior to testimony.

How Do I Know If I’m a Target?

Your lawyer can usually find out from the prosecutor if you’re a target. If so, your lawyer might try to make a deal for you to testify with immunity. You might also be granted immunity if you have a legitimate refusal to testify based on your Fifth Amendment rights.

What Is Immunity?

There are two types of immunity. Which one is granted would depend on the gravity of the target’s criminal history:

  • Transactional immunity is when a witness cannot be prosecuted for any criminal activity related to the topic of the testimony.
  • Use immunity is when a witness could potentially be prosecuted for criminal activity related to the subject of the inquiry. However, the testimony itself may not be used in a future prosecution.

Prosecutors routinely grant immunity to small potatoes criminals in exchange for witness testimony about the fat cat criminals.

Am I Required to Testify?

A witness who refuses to testify after being given immunity can be held in contempt of court by a judge and jailed. In that case, it’s not a good idea to refuse to testify, although you do have the option.

The legal premise for giving testimony is that a grand jury is entitled to evidence from anyone who has it. If you have information that could impact a criminal investigation, you’re expected to show up and share what you know.

Nevertheless, there are always exceptions.

How Can I Get an Exemption?

You are entitled to certain privileges as a U.S. citizen. Those privileges include asserting your Fifth Amendment right against self-incrimination. If the information you have could be used against you, you have the right to refuse to testify.

Additional privileges that may apply include marital privilege and attorney-client privilege. If anything you are asked to testify about would violate any of your privileges, you have the right to remain silent. If not, then you must tell the grand jury what you know.

How Does a Grand Jury Work?

Grand juries are more laid-back than courtrooms. Nevertheless, they play an essential role in the criminal case-building process. Grand juries work with the prosecutor to establish whether there is sufficient evidence to bring criminal charges against a potential defendant. The jurors are on a fact-finding mission. Witnesses are not found guilty or charged with crimes.

What’s the Difference Between Grand Juries and Preliminary Hearings?

Not all states use grand juries. Instead, they use preliminary hearings that precede criminal trials. The hearings are adversarial in nature. Like grand juries, preliminary hearings are used to see whether there’s enough evidence to charge a suspect. A preliminary hearing may be followed by a grand jury to gather additional evidence.

What Happens At Grand Jury Hearings?

There is no judge presiding over grand jury proceedings. It’s just the jurors, the witnesses and the prosecutor. The prosecutor will explain the law and assist the jurors with gathering evidence and hearing testimony. Any evidence is welcome, and it can be almost anything.

Grand juries are secret proceedings. All testimony is kept confidential. That helps witnesses to feel more comfortable and protects the reputation of the target in case the jury chooses not to indict.

An indictment does not require unanimous agreement among all the jurors. Agreement among 2/3 or 3/4 of jurors is all that’s needed for an indictment.

On the other hand, the jury might chose not to indict. If that happens, the prosecutor may still indict the defendant based on the evidence established so far.

For the prosecution, grand juries are a kind of litmus test of the strength of a case. Grand jury findings can either support and advance the case or show clearly insufficient evidence to establish guilt.

The trial will go faster if a grand jury chooses to indict. Without a grand jury indictment, the prosecutor must clearly show the trial judge that there is sufficient evidence to proceed with the case. With a grand jury indictment, the prosecutor can skip that step and proceed directly to trial.

If you have been subpoenaed to testify before a grand jury and you think you might be a target, consult with a federal grand jury investigation lawyer immediately to discuss your situation.




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