The federal grand jury is a group of ordinary citizens who are summoned to serve on the grand jury, not unlike citizens are commonly summoned to serve on juries in criminal and civil cases. The grand jury is composed of not less than 16, but not more than 23 members. Fed. R. Crim. P. 6 (a)(1). The federal grand jury serves two main functions. First, it returns indictments against those person who have allegedly committed federal crimes. In this regard, the grand jury decides if there is probable cause to believe that a defendant committed a federal crime. Probable cause is one of the lowest standards of proof the law recognizes. Second, because federal grand juries have subpoena powers through the court, they are used as a tool by federal prosecutors to investigate alleged federal crimes. They can subpoena business records, bank records, witnesses to testify about facts, and the target of the investigation themselves to testify about what they did if they are foolish enough to do so. Although all proceedings before the grand jury, except deliberations and voting, are recorded, with limited exceptions, grand jury proceedings are generally secret and a court order is required to reveal proceedings before the grand jury. Fed. R. Crim. P. 6 (e)(1) through (3).
The grand jury is usually impaneled for 12 to 18 months, and may be extended for an additional 6 months if the court determines that an extension is necessary in the "public Interest. Fed. R. Crim. P. 6(g). Only the members of the grand jury, the court reporter, an interpreter, if needed, the prosecutors, and the witness being questioned may be present in the grand jury room while the grand jury is in session. Fed. R. Crim. P. 6(d)(1). No one but the members of the grand jury (or an interpreter needed to assist a hearing impaired grand juror) may be present when the grand jury is deliberating or voting. Fed. R. Crim. P. 6(d)(2).
There are generally two types of grand jury subpoenas, subpoenas to testify, and subpoenas duce tecum, which require the witness to produce documents or other items, and usually testify as well, at least about the documents and items being produced. When a person receives a grand jury subpoena, he or she must appear unless excused by the government’s prosecutor. A grand jury subpoena, like all subpoenas, are court orders, and if ignored, could subject the offender to possible prosecution for contempt and potential incarceration.
Many people subpoenaed to testify before a grand jury are merely witnesses. However, some people subpoenaed are "targets" or subjects" of the grand jury’s and the government’s investigation. These "targets" or "subjects" usually receive a "Target Letter" or "Subject Letter" informing them that they are targets or subjects, or put another way, the object, or one of the objects, of the grand jury’s and the government’s investigation. There is little difference between the term "target" and the term "subject" in the context of grand jury subpoenas. However, being identified as a "target" clearly means that the person is in the government’s cross-hairs.
The Fifth Amendment of the U.S. Constitution requires that anyone charged in federal court with "a capital. or otherwise infamous crime," which essentially means any felony providing for possible imprisonment of one year or more, must be charged by way of a grand jury indictment. An indictment is nothing more than a charging document which briefly states each alleged crime or crimes being charged separately. Each separate charge is referred to as a "Count" of the indictment. The indictment also cites to the federal statute or statutes the government is proceeding under at the end of each count. The indictment is presented to the members of the grand jury, who vote on it. There must be a "quorum" of at least 16 grand jury members present to consider any grand jury business, including the return of an indictment. . Fed. R. Crim. P. 6 (a)(1). If twelve or more grand jurors determine that there is probable cause to believe that the defendant or defendants listed in the indictment did commit the crime or crimes set out in the indictment, the grand jury returns a "True Bill," allowing the government to prosecute the defendant or defendants named in the indictment for the listed charges. Fed. Rule Crim. P. 6(f). The indictment is signed by the grand jury foreman, and at least one federal prosecutor. If 12 grand jurors cannot agree that there is probable cause to charge the target of the government’s investigation, a rare occurrence, to say the least, they return a "No True Bill." In contrast, Federal misdemeanors, crimes with possible sentences of less than one year, are charged by way of an information, which is essentially the same as an indictment, but is not presented to, or voted on, by a grand jury, and is not signed by the grand jury foreman. Instead, a federal prosecutor signs the information. The only way an information may be used in a case involving a felony is if the defendant waives his or her right to be charged by way of a grand jury indictment in open court and signs a written waiver. Fed. R. Crim. P. 7(b).
It is critically important that everyone receiving a grand jury subpoena consult with an experienced federal criminal defense attorney to discuss their situation and possible exposure to criminal charges. Even those who are not "targets" or "subjects" initially, can become so quite quickly. Often, this does not become clear until the person is sitting in the grand jury room testifying. Therefore, it is essential to consult with qualified legal counsel before responding to any grand jury subpoena. While the criminal defense lawyer cannot go into the grand jury room with the witness, the lawyer is allowed to remain immediately outside of the grand jury room. The witness may request to consult his or her attorney as often as needed while appearing before the grand jury, and must be excused and allowed a reasonable opportunity to consult with his or her lawyer while testifying before the grand jury. Very often, defense counsel can arrange to have the person receiving the grand jury subpoena meet with the government’s prosecutors and agents outside of the grand jury room for a oral proffer where defense counsel will be present to protect the witness and insure that the witness does not make things worse for themselves.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago. Mr. Hernández has appeared before numerous federal grand juries around the country in countless cases as a federal prosecutor, and has represented both individuals and corporations who were subpoenaed by federal grand juries as a criminal defense counsel.