The Fifth Amendment provides that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and the Federal Rules of Criminal Procedure put that into practice: an offense punishable by more than one year in prison must be prosecuted by indictment unless the defendant waives it in open court (Fed. R. Crim. P. 7). If you have been subpoenaed, told you are a subject or a target, or learned that people around you are being called to testify, a grand jury is already at work. Spodek Law Group P.C. owes loyalty to only you, and we can help you understand where you stand before you say anything to anyone.
Who sits in the room.
A federal grand jury has 16 to 23 members (Fed. R. Crim. P. 6(a)). While it is in session, the only other people allowed in the room are the attorneys for the government, the witness being questioned, an interpreter when needed, and a court reporter or recording operator (Rule 6(d)(1)). No judge presides over the testimony and no defense lawyer is present, including the witness's own lawyer, and while the jurors deliberate and vote even the prosecutor has to leave (Rule 6(d)(2)).
A regular grand jury serves until the court discharges it and may sit longer than 18 months only if the court extends it, for no more than six months at a time (Rule 6(g)). Larger districts, and districts where the Attorney General certifies a need, must also summon special grand juries that serve 18-month terms (18 U.S.C. § 3331).
How an indictment happens.
The Justice Manual describes the grand jury's principal function as deciding whether there is probable cause to believe that one or more persons committed a federal offense. The prosecutor presents the evidence, usually through agents and other witnesses, and asks the jurors to return an indictment. At least 12 jurors must concur, and the indictment is returned to a magistrate judge in open court (Rule 6(f)).
The Supreme Court held in United States v. Williams (1992) that a court cannot dismiss an otherwise valid indictment because the prosecutor did not present substantial exculpatory evidence. Department policy nonetheless requires a prosecutor who is personally aware of substantial evidence that directly negates a subject's guilt to present or otherwise disclose it before seeking an indictment (JM 9-11.233).
Witness, subject or target.
The Justice Manual defines a target as a person the prosecutor or the grand jury has substantial evidence linking to the commission of a crime and who, in the prosecutor's judgment, is a putative defendant, and a subject as a person whose conduct is within the scope of the investigation (JM 9-11.151). Department policy is to advise a subject or target witness of his or her rights.
Before a known target is subpoenaed to testify, the Manual directs prosecutors to try to secure a voluntary appearance first and, failing that, to obtain approval from the U.S. Attorney or the responsible Assistant Attorney General (JM 9-11.150). If a target and the target's lawyer state in a signed writing that the target will refuse to testify on Fifth Amendment grounds, the target ordinarily should be excused unless the grand jury and the U.S. Attorney agree to insist on the appearance (JM 9-11.154).
The Fifth Amendment and immunity.
A grand jury subpoena is a command to appear, but the Fifth Amendment still allows a witness to decline to answer questions when a truthful answer could be incriminating. The government's answer to that is immunity. Under 18 U.S.C. § 6002, once the witness is given a court order, the witness may no longer refuse on Fifth Amendment grounds, but no testimony or other information compelled under the order, and nothing directly or indirectly derived from it, may be used against the witness in a criminal case, except in a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
Whether to invoke the privilege, whether to seek immunity and whether to testify at all are decisions to make with counsel well before the date on the subpoena.
Your lawyer waits outside the door.
Because Rule 6(d) keeps defense counsel out of the grand jury room, the preparation has to happen before you walk in. The advice of rights set out in the Justice Manual tells a witness who has retained counsel that the grand jury will permit a reasonable opportunity to step outside the room to consult with counsel.
Grand jury testimony is given under oath, and a knowingly false material declaration before a grand jury is a separate federal crime punishable by up to five years in prison (18 U.S.C. § 1623). Rule 6(e)(2) lists the people bound by grand jury secrecy, including the jurors, the government's attorneys and the court reporter, and it provides that no obligation of secrecy may be imposed on anyone else except as the rule itself allows, so a witness is not on that list.
Where the defense starts.
Most people learn about a grand jury investigation from a subpoena, a target letter, a call from an agent or word that a colleague has testified, and each of those is a chance to act before an indictment is voted. Counsel can find out whether you are a witness, subject or target, deal with the prosecutor over the scope of a document subpoena, prepare you or negotiate the terms of your appearance, and in the right case make a presentation that changes the charging decision.
We owe loyalty to only you, and the consultation is risk-free - you can ask us anything you want, as long as it takes.