Responding to a Grand Jury Subpoena
April 23, 2021
When the United States Department of Justice prosecutors and Assistant United States Attorneys want to prosecute for a crime, they must present the case to a federal grand jury and obtain an indictment. However, before that can happen, an investigation into the alleged criminal activity typically occurs. During such an investigation, the prosecutors use the power of the grand jury to issue Grand Jury Subpoenas commanding testimony and the production of documents from witnesses or anyone else who is tangentially related to a white-collar criminal investigation. Even if you have done nothing wrong, it is possible you or your company may be served with a Grand Jury subpoena. Grand juries, at the urging of prosecutors, readily authorize these subpoenas. If you or an employee at your business receives a grand jury subpoena, will you know what to do?
The Two Types of Federal Subpoenas
A Grand Jury Subpoena is typically served by two federal agents who appear unannounced at your home or place of business. It is highly likely that they will want to interview you before
handing you the subpoena. This is a critical moment in the process, and you must consider whether it is in your best interests to speak with them. Best practices suggest consulting with counsel right then and there. Do not hesitate to tell the federal agents that you need to consult with your attorney. Ask for their business cards and let them know your attorney will be in touch with them immediately.
As soon as you receive a subpoena, you should call an attorney. Your legal counsel will advise you on the best way to respond. For instance, individuals may be able to assert their fifth amendment rights and not submit certain documents. Unfortunately, that right does not usually extend to corporations when those entities are subpoenaed.
If your company receives a grand jury subpoena for documents (including business records, emails and other correspondence), you have a duty to immediately preserve them. Federal investigators will often cast a wide net when looking to gather evidence. Deleting emails and shredding documents will only make matters worse and could result in obstruction of justice charges. Bear in mind, it’s likely that many of the items requested by the subpoena may have already been obtained from other sources. For example, your email service provider may already have been contacted by the authorities, or company bank records may have been received from the bank where you do business. For these reasons, it’s crucial to enlist the help of a white collar defense attorney after you receive a subpoena. Everything you do from that point forward will have a significant effect on the investigation.
Witness, Subjects, and Targets
Simply receiving a subpoena from a federal grand jury does not mean charges against you are imminent. You could simply be a witness, which means federal prosecutors believe you have knowledge of facts or documents pertaining to the grand jury investigation. On the other hand, you could be a target of the investigation. If you are a target, federal investigators believe that they have evidence linking you to the commission of a crime and will likely move to indict you soon.
In the middle of a target and witness is a subject; this is someone whose actions are being scrutinized by the grand jury but not presently linked to any crimes. Beware: without a thoughtful and precise legal strategy, your status as a witness could quickly change into a subject or target. One way to go from a witness to someone facing federal charges—contempt of court, specifically—is by ignoring the subpoena.
You Need an Attorney
If at all possible, hire a lawyer before you receive a federal grand jury subpoena. Your attorney can handle everything from receiving the subpoena and responding to defending you in court. Our firm, specifically Attorney Barry M. Wax, has decades of experience negotiating pre-indictment matters with prosecutors and mounting a vigorous defense in court. Your initial consultation is free. The sooner you contact a lawyer, the better.