Criminal Defense Lawyers

Minnesota Federal Grand Jury Subpoena Defense

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

Understanding Federal Grand Juries

Before we dive into the nitty gritty of how to respond, let’s make sure we’re on the same page about what exactly a federal grand jury is and what it does. In a nutshell, a grand jury is a group of citizens who are summoned by a federal court to hear evidence presented by prosecutors and decide whether there is probable cause to believe a crime has been committed and that the case should proceed to trial. Unlike a trial jury, grand jury proceedings are secret. There’s no judge, no defense attorneys allowed in the room. It’s just the grand jurors, the prosecutor, a court reporter, and any witnesses who are subpoenaed to testify. The whole thing is pretty one-sided, which is why a lot of people say a prosecutor could get a grand jury to “indict a ham sandwich” if they wanted to. In the federal system, grand juries are made up of 16-23 people and they typically sit for 18-month terms, meeting on a regular basis to hear cases brought by the U.S. Attorney’s Office in their district. Here in Minnesota, we’ve got grand juries convening in both the District of Minnesota courthouses in Minneapolis and St. Paul.

Types of Federal Grand Jury Subpoenas

Okay, so what exactly is this piece of paper you’ve been served with? There are two main types of federal grand jury subpoenas:

1. Subpoena ad testificandum – This type of subpoena commands you to show up and testify before the grand jury on a specific date and time.
2. Subpoena duces tecum – In addition to requiring your testimony, a subpoena duces tecum orders you to bring certain documents or other evidence with you to produce to the grand jury.

The subpoena should specify which type it is, but if you’re not sure, the first step is to have an experienced federal criminal defense attorney review it for you ASAP. Trust me, you don’t want to go this alone.

Risks of Testifying Before a Federal Grand Jury

Here’s the deal – anything you say in front of a grand jury can and will be used against you. Even if you’re not the target of the investigation (and the prosecutor may not tell you if you are), your testimony could potentially incriminate you or lead the government to dig into your own affairs. You’ve probably heard about your Fifth Amendment right against self-incrimination. While you can assert that privilege and refuse to answer certain questions if the answers would tend to incriminate you, simply showing up and pleading the Fifth in response to everything is going to raise some red flags. Alternatively, if you do choose to testify, you need to be very careful about what you say. Lying to a grand jury is a federal crime (perjury), even if you think you’re just stretching the truth to protect yourself or someone else.

Options for Responding to a Federal Grand Jury Subpoena

So what should you do if you receive a subpoena? You’ve basically got three options:

1. Comply fully. If you don’t have anything to hide and the subpoena isn’t asking for anything privileged or confidential, cooperating with the government may be the simplest way to go. But you still need to have an attorney advise you first.
2. Negotiate. Depending on the circumstances, your attorney may be able to negotiate with the prosecutor to narrow the scope of the subpoena or even get it withdrawn altogether. This is often done through a series of back-and-forth conversations and letters between your attorney and the prosecutor.
3. Challenge the subpoena. If there are legal grounds to object to the subpoena (or part of it), your attorney can file a motion to quash (cancel) or modify the subpoena. Some common grounds include:

• The subpoena is overbroad, unduly burdensome, or seeks irrelevant information
• The subpoena violates your constitutional rights (e.g. privilege against self-incrimination, attorney-client privilege)
• The subpoena was improperly issued or served
• The information sought is protected by a statute or regulation (e.g. medical privacy laws)

Filing a motion to quash puts the ball back in the prosecutor’s court to justify to a judge why the subpoena is proper. But it’s not something you do lightly. Courts presume that grand jury subpoenas are reasonable, so you’ve got to have a pretty solid argument to get one thrown out.

Practical Tips for Responding to a Federal Grand Jury Subpoena

Regardless of which route you and your attorney decide to take, here are some practical do’s and don’ts to keep in mind:DO:

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• Hire an experienced federal criminal defense attorney immediately. Do not try to handle this on your own!
• Have your attorney contact the prosecutor right away to open up a dialogue and start gathering information.
• Preserve any documents or evidence requested in the subpoena. Don’t shred or delete anything.
• Be honest with your attorney about any potential skeletons in your closet. They need to know the full story to advise you properly.
• Take the subpoena seriously and respond by the deadline provided. Ignoring it won’t make it go away.

DON’T:

• Talk about the subpoena or the investigation with anyone other than your attorney. That includes friends, family, coworkers, etc.
• Try to influence, intimidate or prevent other witnesses from testifying. That’s considered obstruction of justice.
• Lie or provide false information to the grand jury, the prosecutor, or your own attorney. The cover-up is often worse than the crime.
• Destroy or alter any documents or evidence, even if you think they might be incriminating. Again, obstruction of justice.
• Assume you’re in the clear just because you haven’t been charged with a crime (yet). A grand jury investigation can take months or even years.

What Happens After You Testify or Produce Documents?

So let’s say you’ve testified before the grand jury or handed over the requested documents. Now what? Unfortunately, you probably won’t get a straight answer from the prosecutor about what happens next. Grand jury proceedings are secret, remember? The grand jury will eventually vote on whether or not to issue an indictment (formal charges) against the target(s) of the investigation. If they do, the case will proceed to trial. If they don’t, the investigation may end there, but there are no guarantees. Even if you’re not the one indicted, your testimony and documents become part of the official record and could potentially be used as evidence in a future trial or other proceeding. That’s why it’s so important to have an attorney advise you through the process and make sure you don’t say or produce anything that could come back to bite you later.

Finding the Right Federal Criminal Defense Attorney

I can’t stress this enough – if you’ve been subpoenaed by a federal grand jury, you need to find an experienced federal criminal defense attorney to represent you ASAP. But how do you know who to trust with something this important? Here are some key things to look for:

• Experience handling federal grand jury matters and federal criminal cases in general. This is not the time for a general practice attorney who dabbles in a little bit of everything.
• Knowledge of the local federal court system and the prosecutors and agents involved in your case. Those relationships and insider insights can be invaluable.
• Responsiveness and accessibility. You want an attorney who will return your calls and emails promptly and keep you informed at every stage of the process.
• A track record of success in negotiating with prosecutors and, if necessary, fighting charges in court. Ask for references or examples of past cases they’ve handled.
• Good chemistry. You need to feel comfortable confiding in your attorney and confident in their ability to guide you through this stressful time.

At Spodek Law Group we have over 50 years of experience and can help you navigate any legal matter. Call us today at 212-210-1851.