Motions to Quash: Challenging Improper Grand Jury Subpoenas
Challenging Improper Grand Jury Subpoenas
Getting served with a grand jury subpoena can be intimidating. But just because you received one doesn’t mean you have to comply. If the subpoena is improper or overbroad, you may be able to get it quashed – meaning the court declares it invalid so you don’t have to respond. Here’s what you need to know about motions to quash grand jury subpoenas.
What is a Grand Jury Subpoena?
A grand jury subpoena commands someone to testify or provide documents and evidence related to a criminal investigation. Prosecutors issue them to gather information to determine if charges should be filed in a case.
Grand jury subpoenas are pretty broad – they can seek all kinds of records and testimony. And you can’t object when the prosecutor issues one. But if the subpoena violates your constitutional rights or important privileges, you can fight it.
When Can You Challenge a Grand Jury Subpoena?
There are a few main ways a grand jury subpoena can be improper or overreaching:
It’s overbroad or seeks irrelevant information
It violates a valid privilege like attorney-client privilege or the Fifth Amendment right against self-incrimination
It violates the Fourth Amendment by being unreasonable or lacking probable cause
If the subpoena has any of these defects, you can file a motion to quash – asking the court to invalidate the subpoena so you don’t have to comply.
How Do You File a Motion to Quash?
The first step is to notify the prosecutor that you plan to file the motion. This gives them a chance to withdraw or modify the subpoena to address your concerns. If they won’t, here’s how to file the motion:
Draft the motion. This legal document explains why the subpoena is improper and should be quashed. You’ll need to research the law on grand jury subpoenas to make solid arguments.
File with the court. In federal court, you’d file the motion in the district court where the grand jury is convened. State procedure varies.
Serve the prosecutor. Make sure to provide a copy to the prosecutor according to the court rules.
Wait for a response. The prosecutor will file a response, and the court may hold a hearing before deciding the motion.
Get the court’s order. If successful, the court will issue an order quashing or modifying the subpoena so you don’t have to comply with it.
What Arguments Can You Make to Quash a Subpoena?
Here are some of the most common arguments for quashing grand jury subpoenas:
Overbreadth
You can argue the subpoena is overbroad and seeks irrelevant information. Grand jury subpoenas must be limited to information pertinent to the investigation. If it’s like a fishing expedition seeking anything under the sun, argue the court should narrow it.
Privileged Information
Subpoenas seeking privileged information like:
Attorney-client communications
Information covered by doctor-patient confidentiality
Records protected by executive privilege
Violate important rights and protections. The court should quash subpoenas encroaching on valid privileges.
Fifth Amendment Violation
The Fifth Amendment protects your right not to incriminate yourself. If the subpoena demands testimony that could expose you to criminal liability, it may be quashed for violating your Fifth Amendment rights.
Fourth Amendment Violation
The Fourth Amendment prohibits unreasonable searches and seizures. You can argue the subpoena lacks probable cause or sweeps too broadly in violation of the Fourth Amendment.
Burdensomeness
If complying with the subpoena would be unreasonably burdensome, you can ask the court to quash it on those grounds. For example, producing millions of records could be excessively burdensome.
What Happens If You Lose Your Motion?
If the court denies your motion to quash, you’ll have to comply with the subpoena or risk being held in contempt of court. Fines and even jail time are possible penalties. Your other options are to:
Appeal the ruling. You may be able to get the denial of your motion overturned by a higher court.
Negotiate with the prosecutor. See if they’ll agree to narrow the scope or withdraw the subpoena.
Assert your Fifth Amendment right. Refuse to provide self-incriminating testimony, but comply with document requests.
Produce some records but continue challenging others. You may have better luck quashing parts of the subpoena.
When Should You File a Motion to Quash?
Ideally, you’ll file the motion before the subpoena’s production deadline. That prevents contempt charges if you don’t comply. But if you missed the deadline, you can still challenge the subpoena and ask the court to invalidate any contempt sanctions.
Timing matters, so don’t delay in consulting an attorney if you want to fight the subpoena. You only have a limited window to file a motion to quash.
Should You Try to Quash a Grand Jury Subpoena?
Challenging a grand jury subpoena is no easy feat. Prosecutors have broad power to compel information relevant to an investigation.
But if your rights are violated or the subpoena is clearly improper, it’s worth trying to quash it. An experienced criminal defense lawyer can help analyze the subpoena and file a persuasive motion challenging it.
Contesting an unjust subpoena can protect your rights and avoid providing information that could land you in legal jeopardy. In the right case, filing a motion to quash can be the best defense strategy.
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