What Is the Role of the Grand Jury in Federal Criminal Cases??

As part of the grand jury’s investigative authority, federal grand juries can issue subpoenas that require witnesses to testify and compel the production of documents. While subpoenas serve to advance the grand jury’s investigation (e.g., for probable cause), they also impose legal obligations on the individual they target.

II. Prosecutorial Control

A federal prosecutor has a great deal of control over the evidence and testimony presented to the grand jury. The federal prosecutor determines who will testify, what questions will be asked, what documentary evidence (if any) will be shown to the jurors, and when the investigation will conclude.

III. The Grand-Jury Environment

Due to the grand jury’s secret nature, the following conditions are standard:

• The accused person is generally absent
• Defense counsel may be present outside the grand jury room, but counsel cannot accompany a testifying witness inside the room
• The witness or target is alone with the grand jury (and the federal prosecutor)

IV. The Obligation to Comply

Because subpoenas are court orders, individual targets of federal grand-jury subpoenas have an obligation to comply unless there is a valid legal basis for noncompliance. To the extent that a subpoena targets an individual’s Fifth Amendment right against self-incrimination, a compelling reason to refuse to testify to the grand jury may exist. However, failure to comply with a grand jury subpoena without a valid legal reason can lead to criminal contempt charges, and even jail time.

V. Self-Incrimination and Unwitting Target Status

Testifying to a grand jury carries significant risks. The testimony provided may lead to additional questions, the target’s testimony may be incriminating, or the grand jury investigation may uncover evidence that increases the target’s risk of facing criminal prosecution.

How does the prosecutor-controlled federal grand-jury process run?

Typically, a federal prosecutor will initiate grand-jury proceedings upon being advised by investigators who have presented evidence suggesting the necessity to pursue charges for one or more federal crimes. This means that in most cases, by the time the process begins, a prosecutor already has a particular result (i.e., an indictment) in mind. From there, the prosecutor will have a primary role in shaping the inquiry, and the federal prosecutor will present evidence and legal guidance while the grand jury independently makes its determination. As to the makeup of a federal grand jury, there are a few key points to keep in mind:

• A federal grand jury contains between 16 and 23 members.
• In order to be legally competent to conduct business, a federal grand jury must contain at least 16 members.
• The minimum number of members required for a federal grand jury to conduct business (16) is higher than the minimum number of members required to return a true bill (an indictment). As to the indictment process itself:
• In order to issue an indictment, at least twelve federal grand jurors must concur.
• This twelve-vote requirement does not necessarily mean that twelve of 23 (the total number of members who were summoned to the grand jury) must participate.
• The twelve-vote requirement refers to those who are present and participating at the time that the issue is presented.
• As a result, the vote to seek an indictment does not necessarily represent the majority or consensus of the grand jury as a whole. The federal prosecutor typically leads the process through the grand-jury stage. The prosecutor calls the witnesses, he or she decides whether to allow the witnesses to be questioned by the grand jurors, and the prosecutor decides when to present the evidence to the grand jury. The prosecutor also explains to the grand jury whether it is justified to proceed to seek an indictment for one or more specific federal charges.

Which federal accusations require an indictment, and when can a defendant waive one?

Federal grand juries focus on felony charges, not every federal offense. The Fifth Amendment states 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. In constitutional discussions regarding the federal criminal justice system, “infamous crime” is generally understood to be a felony. Within the grand-jury system, there are certainly some exceptions to the requirement for indictments. For example, a defendant may waive the constitutional requirement for an indictment by a grand jury for a noncapital offense, with the government's consent and the court's approval. Additionally, Federal Rule of Criminal Procedure 7(b) addresses proceeding by information for an offense punishable by imprisonment for more than one year. An “information” is similar to an indictment in that it is a formal document filed by a federal prosecutor that lists the criminal charges the prosecutor seeks to pursue and initiates a criminal prosecution. In contrast to an indictment, an information does not require a grand jury to evaluate the government’s evidence and make a finding of probable cause before the proceeding can advance to the trial stage. While a defendant may waive indictment or agree to have the case proceed via information for a noncapital offense, with the government's consent and the court's approval, this is not possible for capital offenses. The government must always seek an indictment from a grand jury for capital offenses to avoid infringing on a defendant’s Fifth Amendment protections.

What does a federal no-bill change, and can prosecutors present the case again?

After review, a federal grand jury may do one of two things: it may approve an indictment or return a no bill. An indictment is a formal accusation that permits the case to move forward to the trial stage. A no-bill does not establish that prosecution is impossible, although it means that the matter cannot proceed to a trial at this stage in the investigation.

However, this does not mean that you are off the hook. The federal government can present the matter again to a grand jury after a prior no bill, even without a requirement that it first obtain additional evidence. An indictment could still follow if the target refuses to enter a plea bargain.

Double jeopardy generally is not a bar in cases that the government presents again to the grand jury after returning a no bill because the case has not reached the trial stage and therefore has not “been decided on the merits.”

How Can I Assert My Rights If I Am the Target of a Federal Grand Jury Investigation?

To protect your rights when facing a federal grand jury investigation, it is essential to have an experienced defense lawyer on your side. At Spodek Law Group, our team of experienced criminal defense lawyers understands the grand-jury process and can help you take informed steps to protect your rights. We can advise you on whether to answer questions or enter a plea bargain and can defend your case strategically.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.