Criminal Defense Lawyers

Massachusetts Federal Grand Jury Subpoena Defense

What to Do If You Receive a Federal Grand Jury Subpoena in Massachusetts

Understanding Federal Grand Juries

Before we dive into the nitty gritty of your subpoena, let’s make sure we’re on the same page about what a federal grand jury actually is. In a nutshell, it’s a group of 16-23 citizens who hear evidence presented by federal prosecutors and decide if there’s probable cause to charge someone with a federal crime. The key things to know are:

• Grand jury proceedings are secret. Only the grand jurors, prosecutors, court reporter, interpreter (if needed) and witnesses are allowed in.
• Grand juries have broad investigative powers and can subpoena witnesses, documents, or other evidence.
• Their purpose is to determine if there’s enough evidence to indict, not to determine guilt. That’s what a trial is for.

So while it may feel like an accusation, being subpoenaed doesn’t necessarily mean you’re suspected of a crime. The grand jury is just looking into whether a crime may have occurred.

Two Types of Grand Jury Subpoenas

There are two main types of federal grand jury subpoenas you could receive:

1. Subpoena ad testificandum – requires you to testify before the grand jury
2. Subpoena duces tecum – requires you to provide documents or other evidence

The subpoena should clearly state what’s being asked of you. If it’s a subpoena ad testificandum, it will tell you when and where to appear to give testimony. For a subpoena duces tecum, it will describe the specific documents or evidence you need to produce.

Your Three Options

Okay, so you’ve got this subpoena in your hand. What are your choices? In general, you have three options:

1. Comply with the subpoena and provide the requested testimony or documents
2. File a motion to quash the subpoena
3. Assert your Fifth Amendment right against self-incrimination

Let’s break each of these down.

Option 1: Comply with the Subpoena

Your first instinct may be to just comply, especially if you don’t think you have anything to hide. But here’s the thing – you always have the right to an attorney, even if you’re just a witness. It’s wise to consult with an experienced federal defense lawyer before testifying or handing anything over to make sure your rights are protected. Why? A few reasons:

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• Anything you say to the grand jury can potentially be used against you later. An attorney can help you prepare and advise you on how to answer questions truthfully without incriminating yourself.
• If you’re submitting documents, an attorney can ensure you’re complying with the subpoena while not handing over more than required or waiving any privileges.
• Complying may not be in your best interest if the subpoena is overly broad or seeks information that’s privileged or irrelevant. An attorney can assess the validity of the subpoena.

So while compliance is certainly an option, it’s not a decision you should make lightly or without proper legal counsel.

Option 2: File a Motion to Quash

Let’s say you look at this subpoena and something seems off. Maybe it’s asking for documents that are irrelevant or would be unduly burdensome for you to produce. Or maybe it’s so broad and vague that you can’t even tell what they want. In these situations, you may have grounds to challenge the subpoena by filing a motion to quash. A motion to quash essentially asks the court to void or modify the subpoena. Potential arguments for quashing a subpoena include:

• It fails to allow a reasonable time to comply
• It requires disclosure of privileged information
• It subjects you to an undue burden
• It’s overly broad or seeks irrelevant information

This is where having an attorney is crucial. Challenging a subpoena requires making legal arguments to the court. An experienced federal defense lawyer will be able to assess the validity of the subpoena and craft persuasive arguments for why it should be quashed or modified. It’s important to note that successfully quashing a subpoena isn’t easy. Federal grand juries have very broad investigative powers. But if the subpoena is truly improper, it may be your best option.

Option 3: Assert Your Fifth Amendment Rights

We’ve all heard the phrase “pleading the Fifth” but what does that actually mean in the context of a grand jury subpoena? In a nutshell, the Fifth Amendment gives you the right not to be a witness against yourself. This means you can refuse to answer questions if the answers could potentially incriminate you.Here’s how it works. Let’s say you show up to testify and the prosecutor starts asking you questions that you feel could implicate you in a crime. You have the right to assert your Fifth Amendment privilege in response to those specific questions. You can’t just refuse to answer everything, but you can selectively invoke the privilege for questions that could lead to self-incrimination. Now, if you’re thinking “I’ll just plead the Fifth for everything and not say a word,” not so fast. Asserting the privilege when it doesn’t apply can potentially lead to contempt charges. This is another area where having an attorney is invaluable. They can advise you on when and how to properly assert your Fifth Amendment rights.It’s also important to understand that the Fifth Amendment privilege is personal. This means it only applies to your own potential self-incrimination. You can’t assert it on behalf of a corporation or for documents that may incriminate others. The privilege also doesn’t apply if you’ve been granted immunity.

Immunity: The Government’s Tool for Compelling Testimony

Speaking of immunity, this is a tactic federal prosecutors sometimes use to compel reluctant witnesses to testify. In basic terms, immunity is a promise by the government not to prosecute you for the information you provide.There are two main types of immunity:

1. Use and derivative use immunity – prevents the government from using your testimony, or any evidence derived from it, against you in a criminal case. This is the most common type.
2. Transactional immunity – provides complete protection from prosecution for the offense(s) involved in the testimony. This is rarer.

If you’re granted immunity, you can no longer assert your Fifth Amendment privilege. You must testify or face contempt charges. The idea is that the immunity removes the danger of self-incrimination. Immunity decisions are made by the prosecutors, not the grand jury. And they’re not handed out automatically. Usually, you have to assert your Fifth Amendment privilege first, then the prosecutors will decide if your testimony is valuable enough to grant immunity. If you’re offered immunity, it’s crucial to have your attorney review the terms carefully. You want to ensure the immunity is as broad as possible and that you understand exactly what protections you’re getting.

Protecting Privileged Information

When responding to a subpoena, it’s vital to safeguard any privileged information. The two most common privileges in the grand jury context are attorney-client privilege and marital communications privilege. Attorney-client privilege protects confidential communications between you and your lawyer related to legal advice. This means the government can’t force you or your lawyer to disclose these discussions. The key is that the communications must be for the purpose of obtaining legal advice and made in confidence. Marital communications privilege protects private communications between spouses. This privilege is also limited to confidential communications made during the marriage. It doesn’t apply to observations or communications made in the presence of third parties. Other potentially applicable privileges include doctor-patient privilege, clergy-penitent privilege, and the Fifth Amendment act of production privilege (which can apply to documents in some cases). Navigating privilege issues in the face of a subpoena is complex. You don’t want to inadvertently waive a privilege by disclosing protected information. At the same time, improperly withholding information under a claim of privilege can get you into hot water. This is yet another reason to have an experienced attorney in your corner.

Dealing with Subpoenaed Documents

If your subpoena seeks documents, the first step is to preserve any records in your possession that might be responsive. This means you can’t delete, alter, or destroy any potentially relevant documents once you’ve been served. Doing so could be considered obstruction of justice. The next step is to carefully review the subpoena with your attorney to determine what exactly it’s asking for. Subpoenas often use broad language, but you’re only obligated to produce documents that are actually responsive to the specific request. Your attorney can help you assess which documents need to be produced and which may be protected by privilege, privacy laws, or other grounds. They can also handle the production process, ensuring documents are organized, labeled, and submitted as required. If the subpoena is overly broad or unduly burdensome, your attorney may be able to negotiate with the prosecutors to narrow the scope or allow more time for compliance. If that fails, filing a motion to quash may be necessary. The key is to be thorough and diligent in your response. You don’t want to withhold responsive documents that aren’t privileged. At the same time, you don’t want to overcomply by producing irrelevant or protected information.

Witness Preparation: Getting Ready to Testify

If you’re called to testify before the grand jury, preparation is essential. The first rule of testifying is simple but critical: always tell the truth. Lying to a grand jury is perjury, a serious federal offense. That said, just because you have to tell the truth doesn’t mean you have to volunteer information that wasn’t asked for. This is where witness preparation with your attorney comes in. They can help you anticipate likely questions and practice giving truthful but concise answers.Some key tips for testifying:

• Listen carefully to each question and make sure you understand it before answering. Don’t be afraid to ask for clarification if needed.
• Take your time. Pause before answering to collect your thoughts and formulate a complete response.
• Stick to the facts. Don’t guess, speculate, or exaggerate.
• If you don’t remember something or aren’t sure, say so. “I don’t know” or “I don’t recall” are perfectly acceptable answers when true.
• Be respectful and polite, even if the questioning gets tough. Getting argumentative or sarcastic won’t do you any favors.

Remember, your attorney can’t come into the grand jury room with you. But they can wait outside, and you have the right to consult with them if you need to. If you’re unsure about an answer, you can ask to step out to speak with your attorney.

The Aftermath: What Happens Next

After you testify or produce documents, the waiting game begins. The grand jury will continue its investigation, which may involve hearing from other witnesses or reviewing additional evidence. This process can take weeks or even months.Ultimately, the grand jury will vote on whether to indict. If they find probable cause, they’ll return a “true bill” and an indictment will be filed. If not, they’ll return a “no bill” and the case will be closed without charges. It’s important to understand that even if you’re not indicted, that doesn’t necessarily mean you’re in the clear. The investigation could potentially be reopened later if new evidence comes to light. And if you are indicted, that’s just the beginning of the criminal process. The key is to stay in close communication with your attorney throughout the process. They can keep you updated on any developments and advise you on any further steps you need to take.

The Importance of Experienced Counsel

If there’s one takeaway from all this, it’s that facing a federal grand jury subpoena is not something you should handle on your own. The stakes are high, and the legal landscape is complex. Having an experienced federal criminal defense attorney by your side is essential.Your attorney can:

• Help you understand your rights and obligations under the subpoena
• Assess the validity of the subpoena and explore challenges if appropriate
• Assist in preparing and producing responsive documents
• Prepare you for testifying and protect your rights during questioning
• Negotiate with prosecutors on immunity or other issues
• Advise you on any potential criminal exposure and develop a defense strategy if needed

In short, your attorney is your advocate and your guide through this daunting process.If you’re facing a federal grand jury subpoena in Massachusetts, don’t wait to seek legal help. The sooner you involve an attorney, the better protected your rights will be. Look for an attorney with deep experience in federal criminal defense and a track record of success in grand jury matters. Remember, a subpoena isn’t an accusation, but it is serious. Taking prompt, proactive steps to respond with the help of skilled counsel is the best way to navigate this challenging situation and protect your interests.