What a grand jury subpoena is
Federal prosecutors use a grand jury to gather evidence and decide whether to seek an indictment. The grand jury’s subpoena power is how that evidence is collected. A subpoena can ask for one or both of two things:
- Testimony
- You are ordered to appear and answer questions under oath before the grand jury.
- Records
- You are ordered to produce documents, data or other items the subpoena describes. These are sometimes called subpoenas duces tecum.
Individuals, businesses, banks, medical practices and other record keepers all receive them. Many subpoenas go to people who are only witnesses.
Witness, subject or target
A subpoena does not always tell you how the government views you. The Justice Department’s manual describes a subject as a person whose conduct is within the scope of the investigation, and a target as a person prosecutors have substantial evidence linking to a crime and consider a likely defendant. Anyone else is a witness.
Your role shapes almost every decision that follows, and it can change as the investigation develops. A lawyer can ask the prosecutor how the government currently views you before you testify or produce anything.
If you are asked to testify
Grand jury proceedings are closed. Under the federal rules, only the prosecutors, the witness being questioned, an interpreter if needed and a court reporter may be in the room. Your lawyer waits outside.
Justice Department policy calls for targets and subjects to receive an advice of rights. It says you may refuse to answer questions that would tend to incriminate you, that anything you say may be used against you, and that you may step outside the room to consult your lawyer.
If you are a target, department policy says you will ordinarily be excused from appearing when you and your lawyer state in writing that you will invoke the Fifth Amendment. Whether to testify, invoke or seek another arrangement is a decision to make with a lawyer before the date arrives.
Your lawyer waits outside the grand jury room.
If you are asked for records
A records subpoena calls for a careful search and a documented production. Deleting, changing or withholding covered material can lead to separate obstruction charges, even when the underlying investigation goes nowhere.
The scope and timing of a production can sometimes be discussed with the prosecutor. A court may quash or modify a subpoena when compliance would be unreasonable or oppressive, but a motion must be made promptly. A business that receives a subpoena for its records faces different questions from an individual, including who searches for and produces them.
Can you talk about it?
The federal rules impose grand jury secrecy on jurors, prosecutors and court staff, not generally on witnesses. Some subpoenas, however, come with a request or a court order not to disclose them. Discussing the investigation with others who may be involved can also create risk. Ask a lawyer before you talk about it with anyone.
What happens if you ignore it
A federal court may hold in contempt a witness who disobeys a subpoena without an adequate excuse. Even when you believe the subpoena is wrong or you intend to invoke your rights, the response should go through a lawyer before the deadline.
How Kaufman Legal Group can help
Jason represents people in federal matters in the Southern District of Florida. He can review the subpoena with you, contact the prosecutor about your role and the deadline, and prepare you for testimony or a records production. He works with Phil Horowitz and Victor E. Rocha, and together they have more than 100 years of combined experience. The first consultation is free and confidential. Call (954) 648-8965.