If you or your company are the target of a grand jury investigation or have been asked to be a witness in one, questions immediately arise: Should you provide testimony? Should you produce documents? Or, should you exercise your Fifth Amendment rights? In some cases, a search warrant is executed and a grand jury subpoena is served at the same time. This is done to obtain records that were not seized and can be used as a way of determining whether records are being stored in another location or electronically and to prevent records not seized from being destroyed.
Representation for Witnesses, Subjects and Grand Jury Targets
A grand jury is interested in witnesses, subjects and targets. A "witness" has information related to the investigation, but is not under any suspicion. A "subject" is someone the government believes has engaged in suspicious conduct, but it's not clear if s/he committed a crime, so the prosecutor is looking for more information or evidence. A "target" is someone the prosecution believes committed a crime and is looking to indict on criminal charges.
Often, prosecutors have limited information prior to a grand jury investigation. Decisions you make about how to respond to a grand jury subpoena or what to do if you suspect that you are focus of an investigation, can make the difference between whether you are charged or not.
One key is to hire attorneys who have the knowledge and experience to help you make decisions that protect your rights. It is also important that the attorney learn about your interactions for which records or testimony is sought. For instance, if you are asked to produce documents or testify, we can help make sure your don't inadvertently provide evidence against yourself and help you avoid exposure to criminal liability.
It is important that you contact an experienced defense lawyer during—not after—the grand jury investigation, while prosecutors are still determining whether formal charges can and should be filed.
Grand Jury Procedures
In addition to traditional police investigations, federal and state prosecutors often use the powers of a grand jury to investigate white collar crimes. A grand jury investigation has several advantages over normal police investigations, including:
- The power to subpoena witnesses and documents
- Closed, secret proceedings
- Grants of immunity to witnesses
- The prosecutor acts as legal advisor to the grand jury throughout the proceedings
During grand jury proceedings, the federal prosecutor (usually an Assistant United States Attorney) decides which witnesses will be called, questions witnesses and determines whether immunity will be granted for their testimony. The grand jury members listen to the evidence and decide whether to bring charges. The grand jury can also gather additional evidence by issuing additional subpoenas and questioning witnesses. In California, state courts can also proceed by Grand Jury although it is less common but is used with increasing frequency in complex cases.
A federal grand jury subpoena commands the recipient to attend and give testimony before a grand jury at a particular time set by the prosecutor. A subpoena can also demand that a person produce particular documents, business files for example, without appearing before the grand jury.
Prosecutors and grand juries subpoena witnesses whom they believe have information that can help an ongoing investigation. If you receive a subpoena, it does not necessarily mean that you are the subject or target of the investigation.
If you receive a grand jury subpoena, it is important to have an experienced white-collar criminal defense lawyer review it and explain its implications. In some cases, you may be able to assert one or more privileges, such as the attorney-client privilege or the Fifth Amendment right against self-incrimination, regarding subpoenaed documents or testimony. It is also important at this stage not to engage in actions, such as destroying or shredding records or deleting electronically stored records sought by the subpoena, that can cause you to be accused of obstruction of justice.