Federal grand jury: subpoenas, testimony and indictments

A federal grand jury is a group of 16 to 23 citizens that hears evidence from federal prosecutors in private and decides whether to charge someone with a felony. A grand jury subpoena is a court order that requires a person to testify before the grand jury or to hand over documents or other items.

What does a federal grand jury do?

The Fifth Amendment says no one may be held to answer for a capital or otherwise infamous crime without an indictment by a grand jury. In federal court, any crime punishable by more than a year in prison must be charged by indictment unless the person gives up that right in open court and agrees to be charged by an information instead (Fed. R. Crim. P. 7(a), (b)). The grand jury has two jobs: it investigates, by subpoenaing witnesses and records, and it decides whether to indict.

• Size and vote. A grand jury has 16 to 23 members, and at least 12 must agree to indict (Fed. R. Crim. P. 6(a)(1), 6(f)).
• Who is in the room. Only the grand jurors, the government’s lawyers, the witness being questioned, an interpreter if needed, and a court reporter or recording operator (Rule 6(d)(1)). There is no judge, and the witness’s own lawyer may not come in.
• How long it sits. A grand jury may serve up to 18 months, and the court can extend that by up to 6 months at a time when it finds an extension is in the public interest (Rule 6(g)).
• The indictment. It is returned to a magistrate judge in open court (Rule 6(f)).

Are grand jury proceedings secret?

Yes, for the people inside the system. Grand jurors, interpreters, court reporters, transcribers, government lawyers and certain people who receive grand jury information may not disclose matters occurring before the grand jury, and no secrecy obligation may be imposed on anyone else (Rule 6(e)(2)(A), (B)). A witness is not on that list, so the rule does not stop a witness from talking about their own testimony.

What is a grand jury subpoena?

A grand jury subpoena is an order, issued in the court’s name, that requires a person to testify before the grand jury, to produce documents, data or other objects, or both (Fed. R. Crim. P. 17(a), (c)(1)). A subpoena for records is often called a subpoena duces tecum. Banks, employers, phone companies and other businesses receive many of them, so a subpoena to a business you deal with can be one of the first signs of an investigation.

Grand jury subpoenas are hard to challenge. The Supreme Court has held that a subpoena issued through normal channels is presumed reasonable, the person challenging it has the burden, and a challenge based on relevance fails unless there is no reasonable possibility that the materials sought will produce information relevant to the general subject of the investigation (United States v. R. Enterprises, Inc., 498 U.S. 292 (1991)).

Target, subject or witness: what is the difference?

The Justice Manual, the Justice Department’s internal policy guide, uses two defined terms (JM 9-11.151):

• Target: a person the prosecutor or grand jury has substantial evidence linking to a crime and who, in the prosecutor’s judgment, is a putative (likely) defendant.
• Subject: a person whose conduct is within the scope of the grand jury’s investigation.

“Witness” is not a defined term there. In everyday use it means anyone else called to give evidence. A person’s status can change as the investigation goes on. Department policy is to attach an “Advice of Rights” to subpoenas for targets and subjects, and to tell known targets that their conduct is being investigated (JM 9-11.151). Our page on target letters explains what a target notice means.

If you get a subpoena, do you have to testify?

A subpoena requires you to appear. Disobeying it without an adequate excuse can be punished as contempt (Rule 17(g)). Appearing is not the same as answering every question:

• The Fifth Amendment. You may refuse to answer a question if a truthful answer would tend to incriminate you. The Justice Department’s Advice of Rights says so, and warns that anything you do say may be used against you (JM 9-11.151).
• Your lawyer. Your lawyer can’t come into the grand jury room (Rule 6(d)(1)). The Advice of Rights says a witness who has a lawyer will be given a reasonable opportunity to step outside to consult with that lawyer.
• Targets. If a target and the target’s lawyer state in a signed writing that the target will refuse to testify on Fifth Amendment grounds, Department policy is that the target ordinarily should be excused from appearing (JM 9-11.154).
• Truthfulness. A knowingly false material statement under oath before a grand jury is a federal crime with a maximum of 5 years in prison (18 U.S.C. § 1623(a)).

How does immunity work?

The government can take away the Fifth Amendment objection by giving a witness immunity. With approval from senior Justice Department officials, the U.S. Attorney asks the district court for an order compelling the testimony (18 U.S.C. § 6003). The witness must then answer, but the testimony, and any information directly or indirectly derived from it, can’t be used against the witness in a criminal case, except in a prosecution for perjury, giving a false statement or otherwise failing to comply with the order (18 U.S.C. § 6002).

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that this “use and derivative use” immunity is broad enough to replace the privilege. If the witness is later prosecuted, the government has the heavy burden of proving that its evidence comes from a legitimate source wholly independent of the compelled testimony. A witness who refuses an immunity order without just cause can be confined until they agree to testify, for no longer than the life of the grand jury and never more than 18 months (28 U.S.C. § 1826(a)).

What is a proffer in a criminal case?

A proffer is a meeting in which a person under investigation or charged, with their lawyer, tells prosecutors and agents what they know. It usually happens under a written proffer agreement. Agreements differ from office to office, so the exact terms matter. In general:

• Statements made in plea discussions with a prosecutor are normally inadmissible against the person if no guilty plea results (Fed. R. Evid. 410(a)(4)).
• Proffer agreements often give up part of that protection. Common terms let the government follow up on leads from the statements, or use them to impeach the person if they later testify differently. The Supreme Court has held that a person can waive Rule 410’s protection if the waiver is knowing and voluntary (United States v. Mezzanatto, 513 U.S. 196 (1995)).
• A false statement in a proffer can be charged as a new crime (18 U.S.C. § 1001).

Whether a proffer makes sense depends on the facts, the evidence and the agreement itself, and it is a decision to make with a lawyer who has read the agreement.

What does a federal grand jury indictment mean?

An indictment means the grand jury voted to formally charge a person with a federal crime. It is an accusation, not a finding of guilt. After it is returned, the court issues an arrest warrant or a summons, and the case moves to a first appearance and an arraignment, where the person enters a plea (Fed. R. Crim. P. 9(a), 5, 10). Our guide to the federal case process covers what comes after.

What is a subpoena in a federal criminal case?

In a federal criminal case, a subpoena is a written order, issued under Fed. R. Crim. P. 17, that makes a person come to court or to the grand jury, or produce evidence. There are two kinds, and one subpoena can do both:

• A subpoena to testify orders a witness to appear and give testimony at a stated time and place (Rule 17(a)). One that requires a witness to attend a hearing or trial may be served anywhere in the United States (Rule 17(e)(1)).
• A subpoena for documents (subpoena duces tecum) orders the witness to produce books, papers, documents, data or other objects (Rule 17(c)(1)).

A person who thinks a subpoena goes too far can ask the court to cancel (quash) or narrow (modify) it. The motion must be made promptly, and the court may grant it if compliance would be “unreasonable or oppressive” (Rule 17(c)(2)). For grand jury subpoenas, that standard is applied as described above in R. Enterprises. A witness who disobeys a federal subpoena without an adequate excuse can be held in contempt of court (Rule 17(g)).

How can Criminal Center help with a grand jury subpoena?

If you or someone you love has received a grand jury subpoena, a lawyer can find out whether you are viewed as a witness, subject or target, deal with the prosecutor about the timing and scope of the subpoena, and prepare you to testify or to assert your rights. Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention. For an overview of our work, see federal criminal defense.

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