Grand Jury Investigation
Convening a grand jury is a tool that is as old as our republic. A panel of ordinary citizens, numbering as large as 21 members, sits and listens to the government’s evidence against an individual or entity. If the government has enough evidence to persuade a majority of them that there is probable cause to believe that a crime has been committed, then an indictment will be issued and the individual or entity will be forced to stand trial. Probable cause exists is measured against how a reasonable person wold view the evidence, and is not the same as likelihood. The grand jury need not find that the subject of the grand jury investigation probably committed a crime, just that there is enough evidence to open the doors of the courthouse so that the government may attempt to prosecute. The grand jury, therefore, acts as the single greatest check on the government’s exercise of its most awesome power, the power to take away one’s liberty.
As a general matter, federal prosecutors control nearly ever aspect of the grand jury process. Unlike a criminal trial, the grand jury does not involve a process that directly results in a conviction. As a result, someone subpoenaed to appear before a grand jury does not have the right to have an attorney present, the rules of evidence do not apply, there is no cross examination, and an indictment can be issued without unanimous decision from the grand jury. In fact, the only privilege that a grand jury witness can invoke is the right against self-incrimination, also known as ‘pleading the Fifth’.
The grand jury has broad powers and can subpoena documents and people to testify. However, for an indictment the evidence presented to the grand jury only requires proof sufficient to show “probable cause” exists that a crime was committed, and that a person or entity has committed it. This is one of the lowest bars under the law of the United States and often leads to grand juries acting as a “rubber stamp” for prosecutors. What this means is that if you are under grand jury investigation, an indictment is likely and that it may be in your best interest to consults a licensed criminal defense attorney.
Federal grand juries use a judicial tool called a subpoena to force individuals, or entities to testify, or produce documents and/or things. Generally, subpoenas can be split into two types, a subpoena duces tecum, and a subpoena ad testificandum.
- A subpoena duces tecum is an order to produce things e.g. documents, hard drives, articles of clothing.
- A subpoena ad testificandum is an order to appear and give testimony under oath. There are some ways to avoid having to testify, but consult a licensed criminal defense attorney to learn more.
One of the most intimidating aspects of grand juries is that they are convened and operate in secret. The government and grand jury jurors are forbidden from divulging details about the grand juries’ cases. This is an attempt to protect the integrity of any potential ongoing investigations, and to keep subjects of the grand jury investigation in the dark about potential trouble on the horizon. This secrecy is what prevents a witness in a grand jury investigation from having a lawyer present, but there may still be significant advantages to consulting a licensed criminal defense attorney about your testimony.
What Happens If I am Indicted?
An indictment is the federal equivalent of a criminal complaint, or information, which holds a defendant to answer at trial for accusations made against them. That does not mean that there are no opportunities for a licensed criminal defense attorney to hold the government accountable for mistakes it has made in the course of its investigation that violated your rights, or that you are not entitled to the same guarantee of due process as everyone else.
First and foremost, you may face liability after a grand jury investigation, even if the grand jury did not identified you as a target when it began, when you testified, and even if you had nothing to hide when you gave testimony. You want to play defense from the outset to prevent unintended consequences, and part of that requires preparation.
Consult a licensed criminal defense attorney to help you understand your options and how best to move forward after an indictment.
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