Difference Between a Grand Jury Subpoena and a Trial Subpoena.

Grand jury subpoenas commonly gather evidence in federal investigations before prosecutors file criminal charges. These subpoenas present broad investigative power available to federal prosecutors. They are used to gather documents, testimony, digital evidence, and other types of evidence from:

• Third-Party Witnesses
• Targets and Subjects

If your federal prosecutor issued a grand jury subpoena, your defense attorney must act promptly. However, your defense attorney should not be the same attorney as your prior prosecutor (or an attorney from the same law firm), because your prior prosecutor has a conflict. Your defense attorney should also not be the same attorney as the target’s attorney (or an attorney from the same law firm), because your target’s attorney has a conflict. While we represent corporate clients in grand jury investigations, we don’t represent corporate clients as outside counsel. You can refer to our Grand Jury Subpoenas page for more information.

2. Trial Subpoena

Trial subpoenas obtain evidence for cases that are already proceeding through court. There are two types of trial subpoenas: trial subpoenas for witnesses and trial subpoenas for documents. A trial subpoena for a witness is used to obtain testimony from a witness who is testifying at trial. A trial subpoena for documents is used to obtain documents, digital evidence, or other types of evidence for use at trial.

3. Grand Jury vs. Trial Subpoenas

The key differences between grand jury and trial subpoenas are:

• Grand jury subpoenas commonly gather evidence before prosecutors file charges, whereas trial subpoenas obtain evidence for cases already proceeding through court.
• Grand jury proceedings are generally secret, whereas criminal trials are generally public.
• Neither grand jury nor trial subpoenas may safely be ignored.

What does receiving a federal grand jury subpoena mean?

1. Is There an Active Criminal Investigation?

Yes, receiving a grand jury subpoena indicates that there is an active criminal investigation. However, it is important to understand that this investigation will not necessarily involve you facing criminal charges. A grand jury subpoena is an evidentiary tool that prosecutors use to build an indictment, and prosecutors need not make any showing of probable cause before issuing one, because the purpose of the subpoena is to determine whether probable cause exists.

2. Am I a Target?

Not necessarily, as receiving a grand jury subpoena does not mean you are a target of the investigation. In fact, it could mean the opposite. Generally, there are three types of subpoena recipients in grand jury investigations: witnesses, subjects, and investigative targets. Many subpoena recipients are witnesses who will never become subjects or investigative targets. Witness subpoenas are issued to a third party for records that may be available to the grand jury through other sources, to determine whether a grand jury investigation needs to be opened (in which case the subpoena is not issued to a witness but instead issued to a subpoena recipient who may be a witness), and to determine whether a witness can provide information about a potential target or witnesses. However, it is possible for a witness subpoena recipient to become a subject or an investigative target as the grand jury investigation proceeds, and it is imperative that subpoena recipients understand what they can and cannot do in the grand jury investigation.

3. Who Is the Target?

Federal grand jury subpoenas do not need to identify the target of the grand jury investigation, nor do they have to say whether subpoena recipients are witnesses, subjects, or investigative targets. Therefore, if you have received a federal grand jury subpoena, it is imperative that you determine your status within the investigation and take steps to avoid unnecessary liability and criminal charges.

• If you have received a federal grand jury subpoena after your indictment, then your indictment is an indication that you are a target. However, post-indictment grand jury subpoenas may also target additional suspects or offenses. Even if you are already the target of the investigation, your defense attorney can still help protect you. With that said, you will need to protect yourself with a new attorney who has no conflicts and has experience representing defendants in grand jury investigations.
• If you are not yet indicted, then you need to determine whether you are a witness, a subject, or an investigative target. Each of these scenarios calls for a different response from your defense attorney, and your defense attorney can only afford to make informed decisions if your defense attorney knows your status.

4. What is a Target?

A target is an individual or entity who is a putative defendant; in other words, prosecutors regard you as a putative defendant based on substantial evidence linking you to a crime. A subject is someone who is not yet a putative defendant, but whose conduct falls within the scope of a federal investigation. Many subpoena recipients who are not investigative targets or subjects will be classified as witnesses.

How do issuance and evidence rules differ between subpoenas?

1. Which Parties May Request a Subpoena?

Both prosecutors and defendants may request a subpoena, though the process for requesting a subpoena is similar. However, it is important to differentiate between subpoenas requesting evidence for use at trial and subpoenas requesting evidence for use in criminal cases before the trial.

2. What is the Difference Between Grand Jury Subpoenas and Trial Subpoenas?

The primary difference between grand jury subpoenas and trial subpoenas is the purpose for which the subpoenas are used. Grand jury subpoenas obtain evidence for use in criminal grand jury proceedings, while trial subpoenas obtain evidence for use in criminal cases. Grand jury subpoenas also differ from pretrial subpoenas. Under Federal Rule of Criminal Procedure 17, subpoenas for trial or pretrial proceedings (which are called Rule 17(c) subpoenas) must prove that the material requested is “relevant to the preparation of the party’s case or defense,” it must be “admissible as evidence,” and it must satisfy all relevant requirements pertaining to “specificity.” Grand jury subpoenas provide broader investigative latitude than pretrial subpoenas because investigators can present evidence in grand jury proceedings that would be inadmissible at trial. Pretrial subpoenas ordinarily may not serve as general criminal discovery devices, and it is usually only in these cases that a trial court can determine whether the evidence in the subpoena must be disclosed or can be withheld based on Rule 17(c) and other relevant constitutional or statutory protections.

3. How do I Request a Trial or Pretrial Subpoena?

To request a trial or pretrial subpoena, a party must make a request with the clerk who is which party’s clerk and then, if and when necessary, the clerk will issue a subpoena in the appropriate jurisdiction and supply the party with the signed and sealed subpoena. For grand jury subpoenas, the clerk of court issues a blank subpoena that is signed and sealed, and the prosecutor fills it in and serves it without prior approval from the grand jury or a judge. The standards differ: the relevancy, admissibility, and specificity test that governs Rule 17(c) trial subpoenas does not apply to grand jury subpoenas, which are presumed reasonable and may be quashed only if there is no reasonable possibility that the materials sought will produce information relevant to the investigation.

4. What Evidence Is Permissible in Federal Grand Jury Proceedings?

In federal grand jury proceedings, grand jurors can consider evidence that would be inadmissible at trial. For example, federal prosecutors can consider hearsay and other evidence that is inadmissible under the Federal Rules of Evidence. However, with regard to evidence that is admissible at trial, federal grand juries are subject to the applicable Federal Rules of Evidence, the United States Constitution, and all other relevant protections.

5. What Rules Apply to Evidence at Trial?

The evidence used at trial is governed by the applicable Federal Rules of Evidence and other constitutional protections. Along with any other objections, a defendant’s attorney can object to evidence that violates these rules.

6. How Do Prosecutors Get Subpoenas?

Prosecutors can get subpoenas under Federal Rule of Criminal Procedure 17, but there are several requirements they must satisfy in order to obtain a subpoena for a criminal trial. A trial subpoena for a witness issues from the clerk without any advance showing to a judge; only a Rule 17(c) request for pretrial production of documents is subject to judicial scrutiny. Grand jury subpoenas are handled differently, and, as a result, prosecutors can more easily obtain grand jury subpoenas. Because prosecutors can issue grand jury subpoenas without prior evidentiary review, prosecutors can frequently issue grand jury subpoenas without issuing a trial subpoena first.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

What rights do witnesses have in each proceeding?

1. What Are My Rights as a Federal Grand Jury Witness?

As a federal grand jury witness, your Fifth Amendment right against self-incrimination is protected. However, you will not be allowed to take the Fifth Amendment in response to the grand jury’s entire line of questioning. Instead, you will need to take the Fifth Amendment in response to specific questions. Additionally, your Fifth Amendment privilege as a witness may be subject to the required-record and collective-entity doctrines. Each of these rules have different implicatons, so they require their own distinct Fifth Amendment analysis. You may also be able to invoke other relevant statutory or constitutional protections in order to protect yourself. Your defense attorney can provide additional information about these protections as well.

2. What Are My Rights as a Federal Trial Witness?

As a federal trial witness, your Fifth Amendment right against self-incrimination is protected. Like grand jury witnesses, you will not be able to take the Fifth Amendment in response to the entire line of questioning. Instead, you will have to invoke your privilege on a question-by-question basis. Additionally, a trial witness’s Fifth Amendment privilege is subject to the same rules as a grand jury witness’s Fifth Amendment privilege. You may also be able to invoke other relevant statutory or constitutional protections to preserve the privilege.

3. Where Will My Lawyer be During My Testimony?

If you are a federal grand jury witness, your lawyer will generally not be allowed to enter the grand jury room when you are testifying. As a federal grand jury witness, you may be allowed to leave the grand jury room to consult with your attorney, but this is generally on a case-by-case basis. If you are a federal trial witness, you will testify before the judge, the prosecutors, and the parties involved in the case. Your lawyer can be in the courtroom while you testify and can object to questions that are improper and that violate your privileges.

4. What Else Do I Need to Know as a Federal Trial Witness?

As a federal trial witness, you may be called to testify by the prosecution or the defense. If the defense called you to testify, your Fifth Amendment privilege will be subject to the limitations that apply to your right to present a defense. If the prosecution calls you to testify, the defense will have the opportunity to cross-examine you. Additionally, the Sixth Amendment permits a defendant to compel a witness to testify at trial. A trial witness’s Fifth Amendment privilege may also be subject to the following: the required-record doctrine, the collective-entity doctrine, and other constitutional protections.

5. What About Confrontation Rights?

If you are a witness in a federal criminal case, your confrontation rights may be limited by several circumstances. In most cases, if the prosecution intends to call you as a witness at trial, the defendant will have the right to cross-examine you. If the defendant called you to testify, the prosecution can cross-examine you as well.

6. What Are the Rights of Federal Grand Jury Targets and Subjects?

As a target or subject of a grand jury investigation, you will not have the same rights as the witness in the federal grand jury proceeding. For example, targets and subjects are typically not allowed to attend grand jury proceedings, and they do not have the right to cross-examine witnesses or present defenses in a grand jury proceeding. However, your defense attorney can engage with the federal prosecutors and may be able to protect you and assert defenses on your behalf.

What should I do after receiving either subpoena?

1. Can a Judge Quash or Modify a Subpoena?

Under Federal Rule of Criminal Procedure 17(c)(2), a court can quash or modify a subpoena if compliance would be “unreasonable or oppressive.” The federal rules separately provide that a court may hold in contempt a witness who disobeys a subpoena “without adequate excuse.” Various circumstances may justify a motion to quash or modify a subpoena, and there are several defenses to a subpoena. Several examples of the grounds for quashing or modifying a subpoena are discussed below:

• Excessive breadth. Subpoenas that ask for extensive amounts of documents, information, or testimony can be excessive in their breadth.
• Unreasonable burden. Subpoenas that are over-broad or overly burdensome can be challenging in a subpoena.
• Attorney-client and marital privileges. The attorney-client and marital privilege protect disclosures from being compelled through subpoenas, and an individual’s response to a subpoena must take these protections into account.
• Incrimination. In certain cases, document production and testimony can communicate incriminating facts without requiring a specific and individual admission of guilt.
• Improperly issued subpoena. If a subpoena was improperly issued, your defense attorney will have the opportunity to object to it.

2. Can I Contact the Prosecutor or Attorney Who Issued the Subpoena?

Yes, as long as you are represented by an experienced federal defense attorney who knows how to properly negotiate on your behalf. Your defense attorney can use his or her negotiations with the prosecutors or attorneys in your case to limit the scope of your responses to the subpoena, negotiate a longer deadline, or arrange for compliance with the subpoena through different means (e.g., in writing instead of providing testimony). As the attorneys’ negotiations progress, they will have a clearer understanding of your status in the criminal investigation, and this will help the defense attorney craft a strategy aimed to protecting you as much as possible.

3. Can I Destroy the Evidence Requested in the Subpoena?

Generally, knowingly destroying evidence that falls within the scope of a subpoena or a subpoena’s target is prohibited, and doing so can lead to additional exposure in the investigation. However, it is important to distinguish this rule from the general obligation to preserve records. While subpoena recipients must preserve responsive evidence, they must also comply with their organizations’ general record retention policies. If you have received a grand jury subpoena, your defense attorney will be able to assist you with complying with the subpoena while protecting you to the best extent possible.

4. Are State Subpoenas Different from Federal Subpoenas?

State subpoenas can be different from federal subpoenas. State laws differ from one another regarding the secrecy of grand jury proceedings, service of process for subpoenas, geographic reach of subpoenas, grounds for challenging subpoenas, procedure for issuing subpoenas, and criminal and civil contempt for failing to comply with subpoenas. As a result, subpoena recipients in state criminal investigations and criminal trials will need to make informed decisions about how to respond with their defense attorney’s assistance.

5. What is a Privilege Log?

A privilege log identifies subpoenaed material that a subpoena recipient is withholding from production on the grounds of a relevant privilege. If you receive a subpoena, your defense attorney will be able to help you determine what evidence needs to be produced and what evidence should be withheld. If necessary, your defense attorney can help you prepare a privilege log.

What happens if I ignore a criminal subpoena?

1. Can a Judge Hold Someone in Contempt for Disobeying a Criminal Subpoena?

Yes, courts have contempt power under Federal Rule of Criminal Procedure 17(g) and analogous state rules. The rule states, “If a person fails to obey a subpoena without adequate excuse or attempts to avoid compliance without adequate excuse, the court can hold that person in contempt.” Similar to other federal and state rules, Federal Rule of Criminal Procedure 17(g) is not self-executing; rather, it authorizes judges to enforce the rules in criminal trials. If the court finds a party in contempt under this rule, that party can face a variety of punishments, such as fines, probation, or imprisonment, as provided under 28 U.S.C. § 401, in federal court, and the applicable state law in state court.

2. Does the Fifth Amendment Excuse Recipients from Responding to a Criminal Subpoena?

No, the Fifth Amendment does not excuse a recipient from responding to a criminal subpoena. The Fifth Amendment excuse a recipient from compelled disclosures, but it allows the government to issue subpoenas in criminal cases. Instead of ignoring criminal subpoenas, subpoena recipients must file a timely objection with the court that issued the subpoena. With this in mind, constitutional privileges may provide the grounds for quashing or modifying a criminal subpoena. For example, if you have received a subpoena that seeks or demands your testimony or a document or other evidence to which you assert the Fifth Amendment privilege, then you will need to invoke the Fifth Amendment privilege by filing a timely objection with the court that issued the subpoena. If you have been issued a criminal subpoena, you should not ignore it, but instead, you should work with your defense attorney to determine whether the subpoena must be obeyed or if you are able to preserve your privilege through a motion or other means.

3. What are the Differences Between Civil and Criminal Contempt?

The key difference between civil and criminal contempt is that civil contempt is coercive, whereas criminal contempt punishes completed disobedience. Civil contempt judges do not impose fixed punishments or fines but instead hold the party in contempt until the party complies with the court’s orders. However, criminal contempt judges impose fixed punishments or fines for completed acts of disobedience, even if the party eventually complies. Federal grand jury subpoenas and criminal trial subpoenas are generally enforced in the same manner. However, the penalties for contempt are determined on a case-by-case basis, and the penalties for contempt in state court differ based on state statutes and state laws.

4. Does Noncompliance with a Criminal Subpoena Result in Imprisonment or New Criminal Charges?

Noncompliance with a criminal subpoena does not automatically result in imprisonment or additional criminal charges. In order for a party to face contempt, a few requirements must be satisfied. For example, the subpoena must be served on the party in accordance with federal or state rules, and the party must fail to comply despite adequate notice of the subpoena. If the party has an adequate excuse, the party will not be held in contempt. However, this does not necessarily mean that the party will be able to avoid contempt if the party is unable to provide an adequate excuse. Similarly, if the party made a timely objection to the subpoena, the court will not hold the party in contempt.

5. Is the Privilege to Object Forfeited if the Party Fails to Object in a Timely Fashion?

Yes, if the party fails to raise a pertinent objection in a timely fashion, then the party will forfeit the privilege to object. This is true in most criminal trials, grand jury investigations, and other cases. However, this does not mean that the party will forfeit all of the privilege to object. For example, if the party has made a timely objection to the subpoena, but subsequently fails to comply with the subpoena, the party’s failure to comply with the subpoena will not waive all pertinent objections.

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 212-300-5196.