Behind the Grand Jury Room Door.

# What Happens Inside a Federal Grand Jury Room? # What Happens Inside a Federal Grand Jury Room? Federal grand juries use similar (but not identical) procedures to federal trial juries. Key similarities include:

• The grand jury is selected by the U.S. District Court.
• The jury consists of ordinary citizens.
• The jury must not have any relationship to the prosecution, defense, or a particular trial judge.

However, key differences exist. For instance:

• The grand jury does not determine guilt or innocence.
• The grand jury does not decide the appropriate punishment.
• The grand jury only decides the particular charge.
• The grand jury only determines if there is probable cause.
• The grand jury investigates suspected violations of the federal criminal law.
• The grand jury can investigate and indict individuals, corporations, organizations, and other entities.
• The grand jury determines whether to proceed with the federal prosecution to trial.
• The grand jury creates or reviews a grand jury indictment.
• The grand jury can do this independently.
• The grand jury can do this with the federal prosecutor.
• The grand jury can review the federal prosecutor’s evidence against the defendant.
• The grand jury can take its own evidence from federal law enforcement agencies. ### What is the Role of a Federal Grand Jury? The role of a federal grand jury is to investigate potential criminal charges and decide if there is enough evidence to justify pursuing a trial. However, for the average person, this process may feel rigged in favor of the government. With this in mind, it is important to seek the experienced representation of a federal grand jury lawyer if you or your business are under investigation.

At Spodek Law Group, our attorneys have experience handling federal grand jury investigations. We can assist you by:

• Helping you or your business to avoid being indicted
• Defending your interests at the federal grand jury
• Ensuring that your rights are protected throughout the investigation ## What Happens During a Federal Grand Jury Session? A federal grand jury session includes between 16 and 23 jurors, and at least 16 jurors must be present in order for the grand jury to conduct business.

The Federal Rules of Criminal Procedure, Rule 6(d), limit who may be present while the grand jury is in session, keeping the proceedings closed to the public. While the rules do not stipulate, federal grand jury rooms usually look like classrooms.

While the rules of criminal procedure generally ensure openness and transparency within the criminal justice system, grand jury investigations are an exception. As the rules say, the grand jury session will exclude everyone except:

• The grand jurors
• The federal prosecutors
• The grand-jury witness, only when called to testify
• An interpreter
• The court reporter
• The court security or court officials, if necessary

The Federal Rules of Criminal Procedure and the Rules for Grand Jury proceedings both make clear that a witness summoned to the grand jury must testify under oath. The rules specify that the witness must take a formal oath to tell the truth, and perjury is a possible consequence of lying to the grand jury.

Within this closed-door environment, a grand juror who believes a witness is withholding evidence can ask the federal prosecutor to ask the witness additional questions. While the rules allow a grand juror to ask the witness questions on their own, they cannot do so alone unless the federal prosecutor is present.

At the close of a grand jury session, the prosecutor must leave so that the grand jury can conduct its deliberation and voting in private. Like the deliberative and voting process of a jury in a criminal trial, a grand jury vote on a formal indictment must also be a secret proceedings.

During deliberation and voting, no one may be present except the grand jurors themselves and any interpreter needed to assist a hearing-impaired or speech-impaired juror.

While the jury’s voting and deliberation must occur in secret, the Federal Rules of Criminal Procedure, Rule 6(e), impose a general obligation of secrecy on grand jury proceedings subject to narrow exceptions, and permit the court to keep a returned indictment sealed until the defendant is in custody or has been released pending trial. If this happens, the public will have the right to learn what charges the grand jury returned, and the information will become part of the record of the case.

With that in mind, it is important to remember that grand jurors are ordinary citizens and not trained legal experts. They may become confused or question the evidence presented to them during a grand jury session, and prosecutors are not always able to sway them to their side. ## Why Do Prosecutors Dominate Federal Grand Jury Evidence? In federal criminal cases, Federal Rule of Evidence 1101(e)(1) explicitly excludes grand jury proceedings from the scope of most evidence rules.

The U.S. Supreme Court has confirmed the strength of this rule in its landmark ruling in Costello v. United States. The ruling held that federal indictments can be based entirely on hearsay evidence, and that “hearsay evidence, if considered by the grand jury, is sufficient to establish the probable cause required for indictments.”

In United States v. Calandra, the U.S. Supreme Court also refused to extend the exclusionary rule to the federal grand jury. The exclusionary rule prohibits evidence that was illegally obtained or obtained without a warrant from being used in criminal cases. However, this rule only applies to criminal trials. In United States v. Calandra, the Court acknowledged that while federal prosecutors have “no more reason to invade the privacy of the innocent in the grand jury than in the trial court,” it declined to adopt the exclusionary rule due to concerns that this would limit grand jury investigations and weaken the government’s prosecution.

Inside the grand-jury room, the federal prosecutor has a virtually unchecked power to choose how much and what evidence will be presented to the jurors. Federal grand jury witnesses cannot cross-examine the government’s witnesses, and targets ordinarily cannot present their own defense.

The federal prosecutor is the only lawyer in the room, and this is by design. Because the federal prosecutor is the only one who speaks with and advises the grand jury, he or she can shape the jurors’ understanding of the governing law and guide them through the procedural issues.

However, it is important to remember that grand jurors are ordinary citizens, not trained legal experts. They may disagree with the federal prosecutor’s interpretation of the law and may find the federal prosecutor’s arguments unconvincing.

While the grand jury can investigate anyone suspected of breaking the law, prosecutors will generally use the grand jury process only when the target of the investigation is aware that it is facing criminal charges. In white-collar investigations, for example, federal prosecutors will use the grand jury process to obtain documents and call witnesses. If the grand jury finds probable cause to return a formal indictment, the case will then proceed to the trial stage. ## How Many Grand Jurors Have to Vote to Indict? Under Rule 6(f) of the Federal Rules of Criminal Procedure, at least twelve grand jurors must concur for an indictment to issue. While federal indictments do not require a unanimous vote, they do require a twelve-vote majority. As a result:

• If fewer than twelve grand jurors vote to indict, no indictment will issue.
• If more than twelve grand jurors vote to indict, an indictment will issue.

Under the Federal Rules of Criminal Procedure, “no matter how many jurors attend,” at least twelve votes are needed for an indictment to issue.

Rule 6(c) also specifies that “the foreperson shall record, and file with the clerk, how many grand jurors concurred.” While the grand jury’s concurrence tally is kept on file with the U.S. District Court, this document is not part of the public record unless the court orders it to be made public.

In contrast to some state-level criminal prosecutions, most federal felony charges must be prosecuted through the grand jury process. Under Rule 7 of the Federal Rules of Criminal Procedure, an indictment is required for any offense other than criminal contempt that is punishable by death or by imprisonment for more than one year, except when a defendant waives his or her right to an indictment. Under Rule 7(b), a target may waive indictment when facing a non-capital offense. When the waiver is obtained, the federal prosecutor does not have to present evidence to a grand jury and can directly file charges. ### How Long Do Federal Grand Jury Proceedings Take? Federal grand jury proceedings usually take several months, with a time limit of 18 months. This includes the grand jury’s investigation and deliberation phase. Due to the limited time to investigate and present evidence to the grand jury, the prosecutors generally begin their investigation long before presenting their case.

Beyond the 18-month term, the court may extend a grand jury’s service by no more than six months if it determines that the extension is in the public interest. For example, when prosecutors present evidence to grand juries in complex financial investigations, the court may allow longer timelines for investigations that require extensive evidence. ## What Should I Do After Receiving a Grand Jury Subpoena? Grand juries possess extraordinarily broad authority to subpoena individuals’ testimony, documents, objects, and other evidence. Receiving a subpoena from a grand jury does not necessarily mean that criminal charges will follow, although it certainly has the potential to lead to criminal charges.

As outlined by the Federal Rules of Criminal Procedure, there are two types of grand jury subpoenas. When a subpoena requires your attendance to give testimony at the grand jury, it is a subpoena ad testificandum, issued under Rule 17(a). A subpoena duces tecum, issued under Rule 17(c), may order the recipient to produce any books, papers, documents, data, or other objects that the subpoena designates.

While subpoenas are enforceable documents, people and businesses who receive grand jury subpoenas may be able to negotiate with prosecutors. For example, recipients of grand jury subpoenas can often negotiate with the prosecutor regarding the date they must return the subpoenaed evidence, how much they need to produce, and how they will produce it. In many cases, subpoenaed individuals and businesses can also work with the prosecutor to return subpoenaed evidence in rolling productions to ensure that the timeline they must meet is feasible.

In addition, it may be possible to challenge a grand jury subpoena that is unreasonable, oppressive, or improperly requests privileged evidence. To challenge these subpoenas, one should contact a lawyer to review the subpoena before engaging with the prosecutor. Once the lawyer decides to challenge the subpoena, then the lawyer must file a motion to quash or modify the subpoena with the U.S. District Court. The Federal Rules of Criminal Procedure require the target to file the motion before the date they must return the subpoenaed evidence.

If you receive a subpoena in a white-collar investigation, make sure you are clear about what you must do. A privilege log, which is a list of the specific items you are withholding and the legal privilege that allows you to withhold them, may also be necessary. Federal grand jury subpoenas generally require a privilege log. However, in this case, your federal defense lawyer can explain your options.

Unfortunately, if your grand jury subpoena is found to be valid, you cannot ignore it. Refuse to obey a grand jury subpoena can result in contempt of court. When the grand jury’s subpoena is held valid, you can face fines and a possible term of imprisonment for contempt. ## Can a Grand Jury Witness Have a Lawyer? In a criminal trial, the witness has a right to have counsel present. In contrast, this right is not available in the grand jury process.

While you have the right to be represented by a lawyer, you do not have a right to have your lawyer present in the grand-jury room when you give your testimony.” This means that once you are called as a witness, your lawyer will wait outside the grand jury room, and you can leave the room to consult with your lawyer during a session when necessary.

A witness has the right to refuse to answer the grand jury’s questions when it could lead to self-incriminating criminal charges. In other words, a witness may assert the privilege against self-incrimination in response to each specific question the grand jury asks.

Similarly, a grand-jury witness has a right to assert attorney-client privilege, which prohibits the disclosure of information the witness shares with their lawyer. However, this is not the same as the attorney-client privilege given to lawyers. In this case, the witness must maintain their privilege by explicitly asserting the privilege in response to the grand jury’s questions.

Unlike trial proceedings, immunity can strip grand-jury witnesses’ right to avoid responding to incriminating questions. If a target’s immunity is granted, it can disqualify a target’s Fifth Amendment privilege against self-incriminating evidence. As a result, the target must answer the grand jury’s questions when questioned. If an immunized target continues to refuse to answer the grand jury’s questions, they can face coercive contempt confinement.

Finally, remember that the grand jury’s role is to investigate suspected violations of federal criminal law. Lying to the grand jury constitutes perjury, an additional federal offense. A witness who destroys subpoenaed evidence, alters evidence, or lies to a grand jury can be charged under 18 U.S.C. § 1519, which allows for the prosecution of anyone “who knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or other tangible object” in order to obstruct an investigation. ## Can Anyone Talk About What Happened in the Grand Jury? Yes, grand-jury witnesses are generally free to speak about their participation, and they can discuss their responses as well as the questions the grand jury asks them.

Unlike the witness, however, the others that attend grand-jury proceedings have specific duties to maintain confidentiality. Under Rule 6(e), grand-jury proceedings are confidential, and it says:

• Grand jury proceedings, including the testimony of witnesses, are confidential.
• Only certain individuals, including federal prosecutors, the court reporter, interpreters, and other assisting personnel, may disclose a grand jury’s secrets.
• When the court allows the disclosure of the proceedings, the a disclosure must be in writing and should specify the circumstances under which disclosure is permitted.

If a juror, federal prosecutor, or court reporter knowingly violates this rule, then the violation of Rule 6(e) may be punished as contempt.

Rule 6(e) prohibits the disclosure of grand-jury evidence to the public even after the grand jury ends its proceedings. Grand-jury secrecy will continue long after the grand jury’s investigation.

As a result, except in specific circumstances, grand-jury targets cannot publicly disclose any information obtained during the proceedings. This include information obtained from the grand jury’s investigation, as well as the content of the grand jury’s decision to return an indictment. The circumstances under which the court can permit this include:

• In order to enforce the secrecy obligations of Rule 6(e)
• Pursuant to the rules of grand jury evidence disclosure
• As provided in other federal grand jury rules
• If the grand jury, as a result of the investigation, returned a formal indictment
• In a situation where a subpoena was served, but the target refused to testify to the grand jury
• In order to seek advice of a judge on whether to grant witness immunity

In addition to Rule 6(e), witness disclosures may also be restricted if the grand jury investigation falls within an ongoing grand jury investigation, if a protective order was issued for confidentiality, or if a witness’s testimony is in sealed materials that were not released to the public.

Finally, Rule 6(e) does not protect information obtained by the federal prosecutor from grand jury proceedings. Evidence obtained independently of the grand jury proceedings is not subject to secrecy and can be shared at the court’s discretion. ## What Happens After a True Bill or No Bill? If a grand jury returns a true bill, Rule 6(f) of the Federal Rules of Criminal Procedure requires that the indictment be returned to the court in open court. Then, under Federal Rule 9, an arrest warrant or a summons may be issued to enforce the criminal charges and proceed with the arraignment. In addition, Rule 10 requires that the defendant be arraigned after a grand jury indictment or an information is filed. While a true bill marks the end of the grand jury’s investigation, it is not a verdict of guilt. An indictment may still be dismissed before the trial process begins, and at trial, prosecutors must still prove every element of the charged offense to a high standard of proof (beyond a reasonable doubt). If a grand jury issues a no bill, this means that it has determined there is no probable cause to return an indictment. Legally, a no-bill does not prevent prosecutors from continuing to seek an indictment from the grand jury for the same charges. However, this means the prosecutor will still have to obtain the grand jury’s approval and cannot bypass a no-bill by simply persuading a judge to authorize the criminal prosecution. While a no-bill may end the case in most situations, it does not stop federal prosecutors from attempting to seek an indictment again if new information comes to light. When a grand jury returns a no-bill, double jeopardy is not applicable because the proceeding did not result in a trial. Double jeopardy requires that the defendant be prosecuted twice for the same offense, but this only applies if the defendant was convicted, acquitted, or if the case was dismissed by the court. While a no-bill means the federal case will not proceed, a no-bill is not a verdict. Thus, if prosecutors seek an indictment from the grand jury again, this will not constitute double jeopardy. If the government later decides to re-try the case in court based on a subsequent indictment, double jeopardy still does not attach because a no-bill does not constitute a completed prosecution.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.