What is a federal grand jury subpoena??

A federal grand jury subpoena is an order to appear to testify under oath and/or to produce documents, business records or other evidence in your possession for a federal criminal grand jury proceeding. A grand jury subpoena is not simply an interview request, a request for information, or an invitation to come in. It is an order, and it can take two forms: a subpoena ad testificandum, which is a subpoena to testify, and a subpoena duces tecum, or a subpoena to produce documents and other evidence.

How the Grand Jury Operates

You cannot understand the American legal system without having some idea how the grand jury operates. The Fifth Amendment says: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." The idea goes back to the Magna Carta. England stopped using grand juries in 1933, and outside the United States and Liberia they have all but disappeared, but in the federal system the grand jury is still alive and well. Before anyone is charged with a serious federal crime, the allegations go to a panel of 16 to 23 citizens picked at random from voter registration rolls. The grand jury is a body that hears evidence, but it does not make a determination of guilt or innocence. Rather, it determines whether there is enough evidence to charge a person with a crime.

The Supreme Court has called the grand jury "a kind of buffer or referee between the Government and the people," a shield against overzealous prosecutors. Grand juries don't act as a shield. That's not to say that they are necessarily malicious. Nevertheless, they tend to act like a sword, advancing the prosecution's cause. Prosecutors are the only lawyers allowed in the room while the grand jury deliberates or votes. Since the grand jury meets in secret, the defense has no access to its proceedings, and therefore no opportunity to counter the prosecution's evidence. You may have heard that a former New York judge once said a prosecutor could get a grand jury to "indict a ham sandwich."

Traditionally, an investigation will begin when federal agents see evidence of a crime, and refer it to the local U.S. Attorney's Office. An Assistant U.S. Attorney then decides whether to present the evidence to a grand jury, and if the prosecutor believes someone should be charged, it has to go to the grand jury first. A grand jury subpoena is drafted by an AUSA and then issued through the Court in the district in which the person being subpoenaed resides. The subpoena is presumed reasonable, and the burden is on the person subpoenaed to prove the subpoena is unreasonable in order to have it quashed. The subpoena may be addressed to a specific individual, or to a custodian of records of a business. It is often served by the FBI. But a lawyer can agree to accept service of the subpoena.

Federal Agents

If investigators reach out to you, it's not a good idea to talk to a federal agent about your case without first consulting with counsel. Everything you say is evidence. If you lie to agents, you could be facing a false statement charge. Also, remember that agents may lie to you. In a Supreme Court case, the police falsely told a homicide suspect that his accomplice had implicated him, and the suspect confessed. The Court said that trickery can be okay (depending on the totality of the circumstances) so long as it doesn't "shock the conscience." A lie does not make your statements involuntary and inadmissible.

Picture this. An FBI agent knocks on your door with no warrant. Don't let the agent in. Ask for the agent's business card. Without exigent circumstances, or unless the search is incident to an arrest, federal agents generally can't enter and search your home unless they get your permission. If the agent tries to get in by force, don't get physical; don't say anything more than, "I'm sorry, but I haven't given you permission to enter my home." You have no obligation to answer questions from the agent. Anything you say can be used against you as evidence. If you decide to talk to the agent, step outside, shut the door, and limit what you say to your identification. Then say, "I want to speak with my attorney before making a statement." If the agent says something like, "You shouldn't need a lawyer if you didn't do anything wrong," most people are likely to defer to the agent's superior knowledge, experience, and status. Resist that temptation and invoke your 5th Amendment right to remain silent.

Grand jurors take an oath to keep the proceedings secret. Prosecutors are bound as well, under Rule 6(e) of the Federal Rules of Criminal Procedure. Why? Because a failure to keep the grand jury proceedings secret could allow people for or against the investigation to influence the grand jury by tampering with jurors; it might discourage witnesses from being candid if they know the statements they are making won’t be kept secret; it might also cause wrongdoers to flee before an indictment and arrest; and it protects the reputation of a person the grand jury declines to indict (no bill). As a witness, though, you are in a different position. There are some exceptions, but generally, the rule does not apply to witnesses. But you will hear the prosecutor tell the witness they can't disclose anything, and the prosecutor may threaten to charge them with obstruction if they do. The advice: talk to a lawyer before you disclose anything. Usually, it's not in your interest to discuss your testimony with anyone else.

A subpoena from a federal grand jury gives no particular indication as to whether the target of the investigation is the witness or someone else. The most important initial step to responding to a subpoena is to retain experienced counsel. You may even need to hire separate counsel to advise you and the company's employees. The grand jury may have no interest in you or your company. Rather, it may think you have relevant information about someone else involved in the investigation. An early goal for counsel is to determine if you are a focus of the investigation. It is DOJ's Justice Manual policy to advise a grand jury witness of their rights if they are a "target" or a "subject." A witness is a person who is not a subject or target, but who the government believes may have relevant information. A subject is a person whose conduct is within the scope of the investigation. A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of a company that is a target is not automatically a target, and the same goes for a company whose officer or employee is one.

If you are testifying as a witness in a grand jury proceeding, you are not permitted to have a lawyer in the room, but you should tell your lawyer to be in the courthouse so you can go outside and consult with your lawyer if necessary. While testifying, you can leave the room and consult with your lawyer on a one-to-one basis before answering a question. A witness may assert the privilege against self-incrimination under the Fifth Amendment of the U.S. Constitution to refuse to answer an individual question, but a records custodian may not invoke the privilege against self-incrimination to refuse to comply with a subpoena for documents and records. (Business entities have no Fifth Amendment rights.) In both instances, it is critical to speak with a lawyer before you testify.