Grand Jury Investigations

One of the most frightening things many people have ever experienced is to get served with a Grand Jury Subpoena. While the experience can be very unsettling, it helps to know what happens and to turn to an experienced federal criminal defense attorney to assist during the whole process.

The Fifth Amendment to the United States Constitution provides that no person shall be held to answer for certain crimes “unless on a presentment or indictment of a Grand Jury.” Among other things, this means that before an individual can be charged with a federal crime, a grand jury must first return (or issue) a federal indictment.

When the framers of the Constitution placed the Grand Jury Clause into the Constitution, the basic idea was to put some impediment between the Government and the people, requiring that a prosecutor show “probable cause” before bringing criminal charges against a citizen. Although the Grand Jury started off as a protection for citizens in federal cases, it has changed to the point where in current times the Grand Jury is really just an arm of the prosecution.

Prosecutors use Grand Juries (which are quite different than trial juries) to investigate potential criminal activity. The Grand Jury is comprised of a group of citizens that meet regularly to hear evidence concerning various alleged crimes. Among other powers, a Grand Jury has the authority to issue subpoenas that require individuals to either produce documentary or other evidence or testify in front of the Grand Jury. Although this power resides within the Grand Jury, the subpoenas themselves are almost always drafted by the federal prosecutor who is directing the investigation.

When an individual receives a Grand Jury subpoena, he or she should retain an experienced federal criminal lawyer right away. This is true regardless of whether the subpoena seeks the production of documents or directs an individual to appear before the Grand Jury to provide testimony.

With respect to a subpoena requiring the production of documents, these subpoenas are often particularly broad and, in essence, request all of the records that a business or individual may possess. Quite naturally, it can be very time consuming and therefore expensive to comply with a request of this nature. A Grand Jury subpoena cannot be ignored. On some occasions, though, a privilege or other protection can be asserted to avoid production of some or all of the materials requested. Since the law regarding these privileges and other protections is very specialized, the services of an experienced federal criminal lawyer are required so that the business or individual can assess whether they have the right to refuse to produce certain materials based on a privilege or other legal authority.

Regarding subpoenas that direct an individual to appear before the Grand Jury and provide testimony, the law and procedure in this area is also very specialized. For this reason, before appearing before the Grand Jury to testify, an individual in this situation needs to have an experienced federal criminal lawyer contact the prosecutor and gather more information concerning the matter before going any further. During these discussions, the lawyer should be able to assess whether the individual is the focus of the investigation or whether he or she is merely a witness who may possess relevant information concerning the investigation. In addition, these discussions often lead to an agreement that provides some form of protection or immunity from prosecution to the individual that was served with the subpoena. After a discussion like this occurs, the lawyer will be better equipped to provide advice on how to proceed.

For instance, when appearing in front of a Grand Jury to provide testimony, an individual has a Constitutional right to remain silent. In addition, even when the decision is made to answer the Grand Juries questions, an individual is permitted to leave the Grand Jury room and confer with his lawyer before answering those questions. The facts of each case dictate the path that should be taken. However, before determining what path to take, it is absolutely essential for an individual to retain an experienced federal criminal lawyer.

At Kish & Lietz, we understand the grand jury process, and we can help you navigate through this specialized area of federal criminal law. If you have a Grand Jury matter you would like to discuss, please feel free to call (404) 588-3991, or contact us online.