What Should I Do if I’m Subpoenaed to a Federal Grand Jury?

What Should I Do if I’m Subpoenaed to a Federal Grand Jury?

Being subpoenaed to testify before a federal grand jury can be an intimidating and stressful experience. However, it does not necessarily mean you are suspected of a crime. Grand juries play an important role in the investigative process, but there are things you can do to protect your rights. Here is some advice on what to expect and how to respond if you receive a federal grand jury subpoena.

What is a Federal Grand Jury?

A federal grand jury is a group of 16 to 23 citizens who listen to evidence presented by federal prosecutors and decide whether there is probable cause to believe a crime has been committed and to charge a person with that crime¹. The grand jury operates in secret – its proceedings are closed to the public and records are sealed. This allows prosecutors to compel testimony and obtain evidence in the early stages of an investigation without public knowledge.

Federal grand juries are very powerful investigative tools. They can subpoena documents and witnesses to testify. If you refuse to testify you may be held in contempt of court, which can result in fines or jail time to coerce compliance. However, you still have important constitutional rights when testifying.

You Can Assert Your 5th Amendment Right

The 5th Amendment of the U.S. Constitution gives you the right not to provide testimony that may incriminate you. This means you cannot be compelled to answer questions before a grand jury if you believe the answers could implicate you in criminal activity². However, you cannot refuse to testify simply because you do not want to cooperate. You must assert your 5th Amendment privilege on a question-by-question basis.

Your attorney can help determine when to assert this right. It is usually advisable to avoid answering questions about:

• Your knowledge of or participation in the subject of the investigation
• Actions, communications, or relationships that could link you to criminal activity

You can still be compelled to testify regarding basic factual matters not likely to incriminate you. But your attorney can object if questions become problematic.

Get Legal Advice on Any Documents or Physical Evidence

In addition to testimony, a grand jury subpoena may require you to provide documents or other physical evidence. Your attorney can advise if there are good faith reasons to object to producing the material. As a general rule, you should comply with requests for physical evidence unless there is a valid legal objection. Destroying or concealing subpoenaed evidence can lead to criminal charges like obstruction of justice.

Always Tell the Truth

If you decide to testify before the grand jury, it is imperative that you answer all questions truthfully. Lying under oath – even about minor details – can lead to federal charges of perjury or making false statements⁴. The government takes false testimony very seriously. The penalties can be severe.

That said, you should be careful not to speculate or guess answers if you do not recall specific facts. Saying “I don’t remember” is better than providing inaccurate information. You can also ask to review records or documents to refresh your recollection prior to answering.

Do Not Disclose Your Testimony

Grand jury proceedings are secret and you are prohibited from disclosing your testimony to anyone, including friends and family. The only exception is you may discuss it with your attorney. Unauthorized disclosures can potentially be prosecuted as contempt of court or obstruction of justice⁵.

It is understandable to want to talk to loved ones about the experience. However, it is essential you keep grand jury proceedings confidential. You should promptly inform the prosecutor of any unauthorized disclosures.

Don’t Forget Your Legal Options After Testifying

Remember that being subpoenaed or testifying before a grand jury does not necessarily mean you are suspected of a crime. Many witnesses are subjects of investigation, not targets. However, if after testifying you do become a target, promptly consult your attorney about legal options. Depending on the case, they may advise legal measures such as:

• Seeking immunity.
• Negotiating a plea bargain.
• Preparing motions to suppress evidence or dismiss charges.
• Going to trial.

The best defense begins early in the process.

References

1. Federal Grand Jury, DOJ

2. Fifth Amendment, Legal Information Institute

3. Federal Rules of Criminal Procedure 17, LII

4. 18 U.S. Code § 1001, Cornell Law School

5. 18 U.S. Code § 401, Cornell Law School