Criminal Defense Lawyers

Grand Jury Subpoena vs Regular Subpoena

Look. If your reading this, theres a pretty good chance you just received some kind of legal document demanding you do something—show up somewhere, produce documents, testify about something you may or may not want to talk about. And now your trying to figure out exactly what you’ve gotten yourself into.

The document might say “subpoena” on it. But heres the thing—not all subpoenas are created equal. And the difference between a grand jury subpoena and a regular subpoena isnt just legal technicality. Its the difference between being a minor player in someone elses lawsuit and being the potential target of a criminal investigation.

So which one did you get?

If your subpoena mentions a “grand jury,” if it came from a federal prosecutors office or a state attorney general, if it feels more serious than routine—you need to understand what your dealing with. Because the answer to “what is the difference between a grand jury subpoena and a regular subpoena” might determine whether your life continues normally or gets turned upside down.

Alot of people dont realize how different these two things are until there already in trouble. Dont be one of them.

The Basic Difference in 30 Seconds

Before we go deep, let me give you the quick version.

A grand jury subpoena is part of a criminal investigation. It happens BEFORE charges are filed. The proceedings are secret. The government is trying to decide whether to indict someone—maybe you, maybe someone you know, maybe someone you’ve never met. The stakes is high. We’re talking about potential criminal charges, potential prison time, your entire future potentially at risk.

A regular subpoena—sometimes called a trial subpoena or a discovery subpoena—is different. Its usually part of ongoing litigation, either civil or criminal. A lawsuit has already been filed. Someone needs your testimony or your documents for their case. The proceedings is typically public. Your not necessarily in trouble yourself—your just a source of information.

I know what your thinking. “Both of them force me to do something I dont want to do.” True. But the context is completely different. One is routine. One is potentially life-altering. And the rules, the stakes, the consequences—there all different depending on which type you received.

Lets break it down.

What IS a Grand Jury Subpoena?

A grand jury subpoena is an official order compelling you to provide evidence to a grand jury during a criminal investigation. But to understand what that means, you need to understand what a grand jury is in the first place.

Think about it from the governments perspective. Actually, let me back up. Before prosecutors can charge someone with a serious federal crime—a felony—they typically need a grand jury to agree that theres probable cause. The grand jury is a group of citizens, usually 16 to 23 people in federal court, who hear evidence and decide whether the government has enough to move forward with charges.

Unlike a trial jury that determines guilt or innocence, a grand jury just determines whether theres enough evidence to formally accuse someone. The standard is lower—probable cause, not beyond a reasonable doubt. And heres the kicker: grand jury proceedings are completely secret. No judge presides. No defense attorney is present. Its just the prosecutor, the grand jurors, a court reporter, and whatever witnesses they bring in.

So a grand jury subpoena is the mechanism prosecutors use to get evidence for this process. There are two types:

Subpoena ad testificandum — This one requires you to appear and testify before the grand jury. You’ll answer questions under oath with no attorney in the room with you.

Subpoena duces tecum — This one requires you to produce documents, records, emails, financial statements—whatever physical or electronic evidence the prosecutors want.

The critical thing to understand is that a grand jury subpoena signals an active criminal investigation. Someone is potentially going to prison. And the fact that you received this subpoena means your connected to that investigation somehow—whether as a witness, a subject, or a target.

Third… I’ll come back to what those categories mean in a minute.

What IS a Regular Subpoena?

A regular subpoena—or what lawyers call a trial subpoena or litigation subpoena—operates in a completely different context.

I know what your thinking. “Its still forcing me to do something.” True. But heres the deal: regular subpoenas are a routine part of civil and criminal litigation. There issued after a case has already been filed. A plaintiff is suing a defendant, or a criminal case is proceeding to trial, and someone needs evidence. That evidence might be in your possession, or you might have witnessed something relevant.

Studies show that millions of subpoenas are issued every year across federal and state courts. Most people who receive them arent in any trouble themselves. There just custodians of records, or witnesses to events, or people who happen to have information someone needs.

Regular subpoenas can be issued by:

— Attorneys in pending cases (yes, lawyers can issue subpoenas, not just judges)
— Courts themselves
— Administrative agencies
— Arbitrators in some cases

The proceedings where you’ll testify or produce documents are typically public. A judge presides. Both sides have attorneys present. If your testifying, youll be subject to cross-examination. If your producing documents, both parties can review them.

And critically—regular subpoenas are more negotiable. Your attorney can call the issuing attorney, work out scope limitations, agree to produce some documents but not others, maybe delay compliance. Theres more flexibility in the system.

That flexibility largely disappears with grand jury subpoenas.

The Authority Gap – Who Can Issue These?

Heres one of teh biggest differences that most people dont understand: who has the power to issue these subpoenas in the first place.

Grand jury subpoenas are issued by prosecutors—federal prosecutors, state attorneys general, or district attorneys depending on jurisdiction. And heres the shocking part: they dont need a judge to approve them. A federal prosecutor can issue a grand jury subpoena on their own authority, without any judicial oversight.

This is a massive power. The government can compel you to testify or produce documents just because a prosecutor decided to send you a piece of paper. No court hearing. No review. Just a demand backed by the full weight of federal criminal law.

Regular subpoenas? Way more people can issue them. Any attorney involved in pending litigation can sign and serve a subpoena. Its so routine that paralegals often handle the paperwork. Defense attorneys issue them. Plaintiff attorneys issue them. Corporate lawyers issue them.

The authority gap tells you something about the stakes. When a federal prosecutor signs a grand jury subpoena, the full investigative power of the United States government is behind it. When a civil attorney signs a trial subpoena, its just… litigation. Routine.

One is the government saying “we might be building a criminal case.” The other is a lawyer saying “I need evidence for my lawsuit.” Not the same thing.

Secrecy – The Biggest Practical Difference

If I could only tell you one difference between grand jury subpoenas and regular subpoenas, it would be this: secrecy.

Grand jury proceedings are secret. Completely secret. Rule 6(e) of the Federal Rules of Criminal Procedure requires everyone involved to maintain confidentiality. Prosecutors cant talk about what happens in the grand jury room. Grand jurors cant talk about it. Court reporters cant talk about it. The very existence of the investigation is supposed to remain confidential.

But—and this is important—witnesses generally can talk. Theres some nuance here, but in most cases, if you testify before a grand jury, your not prohibited from discussing your own testimony. You can tell your lawyer (obviously). You can tell your spouse. You can probably tell your employer that you’ve been subpoenaed.

What you cannot do—and this is where people get into serious trouble—is coordinate with other witnesses. If you talk to someone else who might be a witness and discuss testimony, your potentially obstructing justice. The secrecy rules exist partly to prevent exactly that kind of coordination.

Regular subpoenas? The proceedings are typically public record. Depositions might be confidential under protective order, but trial testimony is public. Document productions might be sealed in some cases, but generally, litigation is transparent. You can discuss it with basically anyone.

This secrecy difference has practical implications. With a grand jury subpoena, you might not be able to tell people why your suddenly unavailable. You might have to lie—or at least be evasive—about whats happening in your life. Its stressful in ways that go beyond the legal implications.

Your Status – Witness, Subject, or Target

Heres something that nobody explains clearly enough: when you receive a grand jury subpoena, you have a status. And that status determines everything about how you should respond.

There are three categories:

Witness — Your not suspected of wrongdoing. The prosecutors just think you have information relevant to there investigation. You saw something. You have records. Your a peripheral player who can help them understand what happened.

Subject — Your conduct is within the scope of the investigation. The prosecutors think you might have done something wrong, but they havent definitively concluded that your behavior was criminal. Your in the gray zone.

Target — This is the worst category. The prosecutors have substantial evidence that you committed a crime. They believe your guilty. There building a case against YOU.

Heres the problem: the subpoena itself often wont tell you which category you fall into. Prosecutors are not required to inform you of your status. They might include a “target letter” if your a target—but they might not. They might tell your attorney informally—but they might not.

And—this is crucial—your status can change during the investigation. You can walk into that grand jury room as a witness and walk out as a target. Something you say, some document you produce, can shift how prosecutors view you.

How do you figure out your status? Your attorney can ask. But prosecutors dont have to answer honestly. They dont have to answer at all. Some will tell you, some wont. Its a guessing game with enormous stakes.

With regular subpoenas, this status question doesnt usually apply. Your just a witness in someone elses case. Your not under investigation. The worst that typically happens is some inconvenience.

The Contempt Stakes

What happens if you dont comply? This is where the differences get real serious.

With a regular civil subpoena, the consequences of non-compliance are typically limited. The court might sanction you—fine you, make you pay the other sides attorney fees. In extreme cases, there might be a default judgment in the underlying case. But your not going to prison for ignoring a civil subpoena.

Grand jury subpoenas are different. If you refuse to comply, you can be held in contempt of court. And contempt comes in two flavors:

Civil contempt — This is coercive. The court is trying to force you to comply. You get thrown in jail and you sit there until you decide to cooperate. How long? As long as it takes. People have sat in jail for months, even years, for refusing to testify before grand juries. You stay locked up until you comply or until the grand jury’s term ends—which could be 18 months or more.

Criminal contempt — This is punitive. The court is punishing you for refusing. You get sentenced to a specific term, fines, or both. This goes on your record as a criminal conviction.

People actually go to jail for this. Its not theoretical. Every year, witnesses refuse to testify before grand juries and end up incarcerated. Sometimes their protecting someone else. Sometimes their protecting themselves. Either way, the consequences is real.

This is why you should never ignore a grand jury subpoena. Even if you plan to invoke your Fifth Amendment rights and refuse to answer questions, you need to show up and assert those rights properly. Ignoring the subpoena entirely is the worst possible choice.

Fighting Back – Motion to Quash

Can you challenge a subpoena? Yes. But the standards are different depending on what type you received.

With regular subpoenas, there are multiple grounds to file a motion to quash:

— The subpoena is overbroad (asking for too much)
— The information requested is privileged (attorney-client, doctor-patient, etc.)
— Compliance would be unduly burdensome
— The subpoena was improperly served
— The information isnt relevant to the case

Courts are generally willing to narrow or quash regular subpoenas that overreach. Theres back and forth. Theres negotiation. Theres judicial oversight.

Grand jury subpoenas are harder to fight. Courts give prosecutors enormous deference when it comes to grand jury investigations. The legal presumption is that grand jury subpoenas are valid. The burden is on YOU to prove otherwise.

You can still challenge grand jury subpoenas on privilege grounds. If the documents there requesting are covered by attorney-client privilege or some other recognized privilege, you can refuse to produce them. But relevance objections? Good luck. Grand juries have extremely broad investigative authority. Courts are reluctant to second-guess what prosecutors think might be relevant to there investigation.

I’ve seen it happen where someone fights a grand jury subpoena and wins. Its not impossible. But its… rare. The deck is stacked against you.

The Fifth Amendment Trap

Heres something that trips people up constantly: the Fifth Amendment works differently before a grand jury than most people expect.

Yes, you have a Fifth Amendment right against self-incrimination. You can refuse to answer questions that might incriminate you. But—and this is the trap—you must assert that right question by question. You cant just walk into the grand jury room, say “I take the Fifth,” and leave.

The prosecutor asks you a question. You assert your Fifth Amendment right. They ask another question. You assert again. Each question requires a separate assertion. And some questions might not be incriminating—your name, your address, basic background information. For those, you have to answer.

Theres another trap. If you answer some questions and refuse others, you may have partially waived your Fifth Amendment protection. Prosecutors know this. They might start with innocent-sounding questions to get you talking, then pivot to more dangerous territory. Once you’ve started answering, it becomes harder to stop.

And—actually, let me say this directly—corporations have no Fifth Amendment right against self-incrimination. If the subpoena is directed at your company and demands corporate records, the corporation cannot invoke the Fifth. A corporate custodian must produce the documents even if doing so might incriminate individuals within the company.

This is why grand jury testimony is so dangerous. Your in a room without your lawyer (they wait outside), facing a prosecutor who does this every day, trying to navigate constitutional rights that are more complicated than most people realize.

Immunity – Not Always Your Friend

Heres something I’ve seen alot of people misunderstand: immunity.

If you refuse to testify based on the Fifth Amendment, prosecutors have a tool to overcome your refusal. They can grant you immunity—and once your immunized, you can no longer invoke the Fifth. You have to testify.

There are two types of immunity:

Use immunity — The government promises not to use YOUR testimony directly against you. But—and this is crucial—they can still use evidence they discover independently, even if your testimony pointed them to it. “Use immunity” is narrower than most people think.

Transactional immunity — This is broader. The government cant prosecute you at all for the transaction or events covered by your testimony. But transactional immunity is rare. Prosecutors almost never offer it.

And heres the thing nobody wants to hear: if prosecutors are offering immunity, they probably already have enough evidence against you from other sources. Immunity is usually offered when prosecutors want your testimony to convict someone else—and they dont need your testimony to convict you. If they’re offering you immunity to testify, you might already be cooked regardless.

Immunity also doesnt protect against perjury charges. If you lie while testifying under immunity, you can still be prosecuted for the lie. And prosecutors will be watching very carefully for inconsistencies.

With regular subpoenas, immunity usually isnt even on the table. Your just testifying in civil litigation or at a criminal trial. The Fifth Amendment question rarely comes up in the same way.

Federal vs State Grand Juries

Everything I’ve said so far applies primarily to federal grand juries. But grand juries also exist at the state level—and the rules vary wildly depending on where you are.

Federal grand juries operate under the Federal Rules of Criminal Procedure. Theres consistency across all 94 federal districts. The rules about secrecy, subpoena power, witness rights—there basically the same whether your in New York or California or Texas.

State grand juries are different. For all intensive purposes, each state has its own rules. Some key variations:

— Not all states even require grand jury indictments for felonies. In some states, prosecutors can file charges directly through a “prosecutor’s information” without any grand jury involvement.
— New York allows targets to testify before the grand jury with automatic immunity if they choose to do so. This can be strategic in some cases.
— Texas grand juries have historically been very prosecution-friendly, with limited rights for witnesses and targets.
— California uses grand juries primarily for civil investigations and oversight, not criminal indictments.

If you’ve received a state grand jury subpoena, you need to find an attorney who understands your specific states rules. The federal rules I’ve been discussing might not apply at all.

The Cooperation Decision

Should you cooperate beyond whats legally required? This is the hardest question anyone facing a grand jury subpoena has to answer.

On one hand, cooperation can lead to favorable treatment. Prosecutors have discretion. If your helpful, if you provide valuable information, they might decline to charge you even if they could. They might recommend leniency at sentencing. They might enter into a cooperation agreement that protects you in exchange for your assistance.

On the other hand, cooperation can help prosecutors build their case—potentially against you. Everything you say can be used. Everything you produce becomes evidence. You might be digging your own grave while trying to seem cooperative.

The factors that go into this decision include:

— Your status (witness, subject, or target?)
— Whether others are cooperating (if everyone else is talking, staying silent might look worse)
— The strength of evidence against you (if their caught you anyway, cooperation might be your only option)
— Whether you can negotiate a proffer agreement (a meeting where your statements cant be directly used against you)

There’s no universal right answer. I’ve seen cooperation save people. I’ve also seen it destroy them. This is exactly why you need an experienced criminal defense attorney—someone who can evaluate the specific facts of your situation and advise accordingly.

With regular subpoenas, the cooperation question is usually simpler. Your not in criminal jeopardy. You comply, you testify, you go home. The stakes arent the same.

The Questions Everyone Asks

“What does it mean to have a grand jury subpoena?”

It means your connected to an active criminal investigation. You have information or documents that prosecutors believe are relevant to their efforts to determine whether someone should be indicted. That someone might be you, might be someone you know, or might be someone you’ve never met. The subpoena itself often wont tell you.

“Can you refuse a grand jury subpoena?”

Technically, you can refuse. But the consequences are severe—potential jail time for contempt until you comply. You can assert Fifth Amendment rights to avoid self-incrimination, but you must do so properly, question by question. You cant just ignore the subpoena entirely. Show up, bring a lawyer, and navigate the situation with professional help.

“What are the disadvantages of using a grand jury?”

Grand juries meet in secret, are dominated by prosecutors with no defense attorney present, require only probable cause (not proof beyond reasonable doubt), and typically follow the prosecutors recommendations. From a defendants perspective, grand juries offer few protections. Theres a saying among lawyers: a good prosecutor could get a grand jury to indict a ham sandwich.

“What does it mean when it says subpoena grand jury filed?”

This typically means a grand jury subpoena has been issued as part of an investigation. The “filed” language may appear on court records showing that the subpoena was formally recorded. If you see this language connected to your name or business, you should consult an attorney immediately to understand your situation.

What To Do Right Now

Look. If your reading this because you actually recieved a subpoena—grand jury or otherwise—heres what you need to do.

First, dont panic. But also dont delay. These documents have deadlines, and missing a deadline can make everything worse.

Second, call a criminal defense attorney immediately. Not tomorrow. Not next week. Today. Even if your just a witness, even if you think your not in any trouble, you need professional guidance. An attorney can contact the prosecutors office, learn more about your status, and advise you on how to respond.

Third, dont talk to other people who might be witnesses. Dont coordinate stories. Dont discuss what you know or what you plan to say. That path leads to obstruction charges.

Fourth, preserve everything. Dont delete emails. Dont shred documents. Dont “clean up” files. Document destruction after receiving a subpoena is a federal crime. Leave everything exactly where it is.

At Spodek Law Group, weve handled grand jury subpoenas at every level—federal and state, witnesses and targets, document productions and testimony. Todd Spodek, our managing partner, understands how these investigations work from the inside. Were based in Brooklyn, but we handle federal matters nationwide. If your facing a grand jury subpoena, call us at 212-300-5196. The consultation is confidential. The stakes are too high to wait.