Originally published on September 25, 2020
There’s an old legal maxim that the grand jury has a right to every man’s evidence. This Maxim remains true today and the means by which the grand jury retrieves that evidence is through grand jury subpoenas, for testimony, for documents, or for other evidence.
What is a grand jury subpoena?
· It’s a document delivered to an individual requiring them to either appear before the grand jury and testify about things that they know or to deliver documents or other material evidence to the grand jury that they can inspect. There’ll be a list of the categories of documents that need to be produced.
What power is behind a grand jury subpoena?
· A grand jury subpoena is supported by the power of the Federal Court and U.S. marshals. Failure to respond gives them the right to go to your house, put you in custody, and force you to respond and cooperate with the investigation.
Am I a criminal suspect if I receive a grand jury subpoena?
· You might be, or you might be completely innocent. Let’s imagine we have a money laundering investigation where money is transferred from one bank to another to another. The grand jury is going to have to issue subpoenas to custodians of records at the various banks to get the records of the transfers and so on. Those custodians are not typically suspected of any complicity in the fraud, it’s the records that are important to the government.
· However, in some cases, the grand jury subpoena does, in fact, mean that you or your company is being targeted for prosecution, or at least that you might be suspected of criminal conduct. It’s important to hire an attorney when you receive the subpoena, who can help you understand the nature of the investigation.
The first rule of fight club…
· Do not talk to anyone other than your lawyer or spouse about the subpoena, and certainly not anyone you think might be implicated in the investigation. Most importantly, don’t talk to the agent who served you the subpoena or the United States attorney who is supervising the investigation. Any statements you make to law enforcement, or to anybody, can be used against you. And that’s true, even if you’re just calling to do an inquiry, you might say something you wish you wouldn’t have said down the road.
How can I challenge a subpoena?
If you are implicated in the potential crime, there are a number of legal avenues to defend yourself. The most common is by asserting your fifth amendment privilege against self-incrimination.