Introduction

Receiving a grand jury subpoena can be a stressful and worrisome time.  It basically means that the government believes that you are involved in a federal offense or believes that you have material information about a federal offense.

In addition to understanding what the grand jury subpoena is requesting of you, you should also be aware of the applicable privileges and constitutional protections under the law and U.S. Constitution.  

This article, drafted by the federal defense attorneys at Oberheiden, P.C., explains grand jury subpoenas; the difference between witness, subject, and target; what it is like to testify before the grand jury; “bill” versus “true bill” meanings; and, most importantly, how a defense attorney can guide you through this federal process.

What is a Grand Jury Subpoena?

The grand jury subpoena is a powerful investigative tool of the federal government used to identify and gather evidence about a certain federal crime.  There are two types of grand jury subpoenas: (1) subpoena duces tecum and (2) subpoena ad testificandum. The former requires the recipient to produce certain documents, and the latter requires the recipient to appear before the grand jury at a certain time and a certain date to provide testimony.

Grand juries have 23 jurors, 16 of which must be present in order for the jury to have a quorum.  The grand jury may return an indictment only if there is a vote by at least 12 jurors.  The 23 jurors who sit on the grand jury are sworn to secrecy and to the objective duty of assisting the prosecutor in determining whether there is probable cause to initiate formal charges against the individual being targeted. The failure to respond to a grand jury subpoena can lead to stringent penalties.

“Witness” versus “Subject” versus “Target”

There are critical differences between a witness, subject, and target including how the government proceeds against you or the severity of the possible fines, penalties, and potential jail time.  

A witness is an individual who may have important information that the government believes would be relevant to its investigation for the crime at issue.  Witnesses are not typically charged with crimes.  A subject is an individual who the government believes may be connected to or may have engaged in the crime at issue; in other words, subjects are putative defendants. The government often has evidence connecting subjects to the crime.

Lastly, a target is an individual intricately connected to the commission of the crime.  The government and the grand jury generally have substantial evidence to return an indictment against the individual.  

What is the Process of Testifying Before the Grand Jury?

Prior to testifying before the grand jury, your defense attorney will decide if it is feasible and proper to file any applicable challenges to the scope and extent of the subpoena. Your attorney will prepare you on what to say and how to say it as well as what to do during the proceeding if you need to speak with your attorney.

Once all challenges have been filed and you and your attorney have fully prepared, you would then be ready to testify before the grand jury.  After you have completed your testimony, you and your attorney should review the testimony you delivered. Sometimes, the prosecution may want you to testify again.

Your second testimony would proceed similarly to the first.  The same or similar questions may be asked of you.  Therefore, you and your attorney need to make sure that your first testimony is accurate and that you do not make any contradictory statements during your second testimony. 

“True Bill” versus “No Bill”

What is the difference between a true bill and a no bill?  If the grand jury issues what is called a “true bill,” you will be indicted.  If the grand jury issues a “no bill,” it means that it did not find probable cause that the defendant was involved in the commission of the crime.

In these latter cases, the government’s investigation with respect to that individual will be over.  In cases where the grand jury issues a true bill, you and your attorney may need to file a motion to dismiss.

Some examples of reasons for challenging an indictment include the following: bias or prejudice; perjured testimony; too much hearsay; failing to disclose exculpatory evidence; or any violation of a constitutional guarantee.  If your case goes to trial, you must remember that the government’s burden—beyond a reasonable doubt—is much higher than the probable cause standard used at the grand jury proceeding.

How an Attorney Can Help You with A Grand Jury Subpoena 

Below is a list of how a defense attorney can help you if you receive a grand jury subpoena:

• Your attorney will immediately open the communication channels with the government to see if any productive information can be gained. 

• One of the first tasks your attorney will undertake is to narrow down the scope of your subpoena through communication with the government—this can occur via reduced subpoena scope, deadline extensions, rewording of the subpoena requests, etc.

• Through careful communications with the government, an attorney can help you determine your degree of liability and culpability.

• Your attorney may be able to determine—based on the subpoena or from communications with the government—the nature of the investigation; the offenses being considered; the recipient’s role in the investigation; etc.

• Your attorney can advise you on the attorney-client privilege and other applicable constitutional privileges such as the Fifth Amendment privilege against self-incrimination.

• An attorney can assess whether it is proper and feasible to move to quash your subpoena if compliance would be “unreasonable or oppressive” as per Rule 17(c)(2) of the Federal Rules of Criminal Procedure.

• Cooperation, good faith, and negotiation are critical strategies of a successful outcome that your attorney can guide you towards. 

• The attorney can negotiate with the government to help achieve leniency and mitigation in your case.

• If your subpoena calls for the production of documents—duces tecum—your attorney will guide you in starting to accumulate and compile responsive documents immediately.

• If your subpoena calls for the delivery of your testimony--ad testifacandum—your attorney will help you develop questions and appropriate answers.

• Your attorney will assist and require that you implement a document preservation policy within your business as soon as possible.

• Despite Rule 6(e)(2) of the Federal Rules of Criminal Procedure that strictly prohibits grand jurors, interpreters, court reporters, federal prosecutors, and other court personnel from disclosing any matter that occurs before the grand jury, some information nevertheless comes to the media’s attention; your attorney can help you reduce your media exposure.

“First and most importantly, you need to remember that the burden is on the prosecution to demonstrate probable cause during grand jury proceedings.  You also need to remember when and how to assert your Fifth Amendment privilege against self-incrimination, as this is a critical constitutional guarantee.  Lastly, because of the severity in punishment, liberty, and reputation that are possible after receiving a grand jury subpoena, retaining a competent and experienced federal attorney will be key to your defense.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Conclusion 

Grand jury subpoenas are powerful tools used by the government to initiate a criminal investigation. A grand jury subpoena can ask you to provide testimony, produce documents, or sometimes both.

Regardless of what the subpoena is asking, it is important to exercise extreme caution and act promptly. Retaining a competent and experienced federal defense attorney should be the first step in your defense. Your attorney can help you by communicating with the prosecutor handling your case, ascertaining the nature of the charges, advising you on protecting your constitutional rights, and guiding you towards dismissal, mitigation, leniency, or, if applicable, a strong personalized defense strategy at trial.