Do I need an attorney if I am served with a Grand Jury Subpoena?
You may not need an attorney for every type of legal case, but when served with a Grand Jury Subpoena, you absolutely do.
If you get served with a grand jury subpoena and must provide documents and/or testify, it is crucial to have an experienced attorney by your side. Your lawyer will ensure you understand each step of the process and that you do not incriminate yourself.
An experienced federal criminal defense attorney understands how law enforcement and government officials proceed during an investigation and will help you prepare for any meetings or interviews you may decide to have and can help you to avoid implicating yourself in criminal activity. Your attorney may be also able to learn certain information about the investigation by talking to law enforcement agents or the Assistant United States Attorney. They will need time to reach out to law enforcement or the AUSA and the sooner you act, the more time you will have to conduct your own investigation and preserve and collect any necessary documents.
Receiving a grand jury subpoena can be stressful and can have a significant impact on your life. Make sure you understand the implications of getting served with a grand jury subpoena. If you have been served with a grand jury subpoena and have any questions, contact Koffsky & Felsen, LLC at 203-327-1500. The partners at Koffsky & Felsen, LLC are highly experienced federal criminal defense attorneys and have over 50 years of combined experience. We work as a team with our clients to protect your rights and achieve the best results in your case.
What is a grand jury?
A grand jury is a group of 16 to 23 citizens, who sit for a term of up to 18 months (this term can be extended by up to six months under the Federal Rules of Criminal Procedure) and meet regularly to hear testimony and decide whether there is probable cause that an individual, group of individuals or corporation has committed a crime.
Probable cause merely means it is more likely than not. This is a lower standard than “beyond a reasonable doubt”(the standard the government must meet to prove someone’s guilt at trial). The grand jury’s job is not to determine guilt or innocence but to decide whether there is a basis for the government to bring about a criminal charge.
Therefore, a grand jury does not have to be unanimous. A grand jury can return an Indictment if twelve or more members of the grand jury agree that the government has shown probable cause that a crime has been committed by an individual, individuals or company/organization. An Indictment is an official charge that the defendant committed the crime alleged against him or her (or the entity if a corporation or business entity is being charged).
What is a grand jury subpoena?
A subpoena is a Court Order that you appear at a certain date and time to a particular place. A grand jury subpoena is a Court Order that you appear to testify in or provide documents related to a grand jury. The subpoena can either require you to appear and testify as a witness and/or require you to produce evidence.
Why did I get a grand jury subpoena?
There are three main reasons why people are served with a grand jury subpoena. These reasons are:
- You are the target of the investigation – there is substantial evidence linking you to the crime being investigated.
- You are a subject of the investigation – there is reason to believe you are involved in the investigation.
- You are a witness to the investigation – there is reason to believe you have personal knowledge and can provide information relevant to the investigation.
Regardless of whether you are a target, subject or witness — or whether you think you were served the subpoena in error — it is essential that you do not incriminate or implicate yourself in any way to law enforcement or during your testimony in front of the grand jury. You should consult with an experienced attorney who can help guide you through the process and ensure you are not providing any information that can harm you in the long run.
Can I ignore a subpoena?
Do NOT ignore a subpoena! You can be found in contempt if you ignore a subpoena. If you refuse to comply with a subpoena, the Court has the power to impose a civil penalty for contempt of Court, including incarceration of up to eighteen months.
What should I do if I get a grand jury subpoena?
You should immediately contact an attorney and do not speak to anyone about it until you seek advice from counsel.
Sometimes law enforcement agents will show up at your house or place of employment and hand you a subpoena. The subpoena will order you to:
- appear at a certain date and time to a particular place
- whether you need to bring documents with you and what those documents will be
Different subpoenas can mean different things. There are two types of subpoenas:
- Subpoena ad testificandum – requires you to appear and testify as a witness
- Subpoena duces tecum – requires you to produce certain physical evidence
It is important to understand that you are under no obligation to speak with law enforcement.
When you are served with a grand jury subpoena, law enforcement agents will likely show up at your home or your place of work. At that time, law enforcement agents may try to question you when they serve you with the subpoena. Again: you are under no obligation to speak with law enforcement. The only thing you need to do is accept service of the subpoena.
Regardless of how harmless a question may seem, if you answer it, the response can be used against you later. You DO NOT need to acknowledge whether you know about the subject matter they are investigating or whether you have or can provide information related to their investigation.
The agent may give you a business card with his or her contact information or direct you or your attorney to contact the Assistant United States Attorney (AUSA) handling the investigation. Give this contact information to you attorney.
Getting served with a subpoena does not necessarily even mean that you will have to appear in Court and testify. Your attorney can contact the AUSA handling the investigation and it may be decided that you simply need to provide certain documents or answer some questions, which can be done through your attorney or by meeting for a proffer session. A proffer session is a meeting between a person who is a subject of a federal criminal investigation, the person’s lawyer, and a prosecutor or investigator.
Note: there are several legal and tactical implications when meeting with the government, or agreeing to a proffer, so it is important to discuss this and other issues with counsel before talking to law enforcement or the AUSA.
Any information that you provide to law enforcement during a federal criminal investigation must be truthful. If you lie to a federal agent you face being charged with Making a False Statement, which is a serious federal offense. In some cases, withholding evidence is considered a false statement.
Before you decide whether to talk to any government agent or employee, make sure you communicate with your attorney about the circumstances surrounding the service of the subpoena and tell your attorney everything he or she needs to know to help you decide whether it is a good idea for you to cooperate in an investigation, and if so, to what extent.
What if I am required to testify in a grand jury?
Your attorney is not permitted to go with you into the Grand Jury room. It is important for you to anticipate any questions you may be asked and how to answer them. Any statements you make are made under oath, meaning you have sworn to tell the truth and if you lie you can be prosecuted for making a false statement or perjury. Therefore, it is imperative that you tell your attorney everything about your knowledge of and/or involvement in any conduct related to the investigation. Your attorney may be able to learn certain information about the investigation by talking to law enforcement agents or the AUSA.
Even though your attorney will not be in the courtroom with you when you testify, you can tell the prosecutor to stop questioning you at any time so you can speak to your attorney, who can sit right outside the courtroom. You can tell the prosecutor that you need a break to talk to your attorney as many times as necessary, as long as you are not doing so to obstruct the investigation.
The most important thing you need to know is that you have a Fifth Amendment right against self-incrimination, meaning you do not have to testify if that evidence will implicate you in any criminal activity. If your testimony/the evidence you provide may lead to other evidence that may result in self-incrimination, that information is also protected by the Fifth Amendment. If you have ANY concern that the information you may be asked to provide could lead in any way to information that could implicate you in any offense, tell your attorney so you can determine how to proceed.
The takeaway: Contact an attorney immediately, and do not speak to anyone until you seek advice from counsel. Do not discuss anything with law enforcement or the government without your counsel present. That way your attorney can take notes, stop questioning at any time, and identify and address issues before they become more of a problem.
