What is a federal grand jury?

A federal grand jury is an investigative body, composed of 16 to 23 citizens, that convenes to listen to testimony and review evidence presented by federal prosecutors.  The grand jury has broad power to subpoena witnesses and documents.  The grand jury relies on federal prosecutors to present evidence and testimony regarding potential federal offenses in order to determine whether charges should be brought.  In the federal system, a grand jury term is 18 months.

If the members of a grand jury find probable cause to believe that an individual committed a federal crime, it issues an indictment.  The Fifth Amendment guarantees the right to indictment by a grand jury, unless a defendant chooses to waive that right.  At least 12 members of the grand jury must vote to indict in order for charges to be brought.  The decision by a grand jury to indict is called returning a “true bill.”  The decision not to indict is called returning a “no bill.”

What is the standard that controls a grand jury’s decision to indict?

The standard governing the decision to indict is probable cause.  Probable cause is simply a reasonable basis to believe that a crime may have been committed.  This is a lower standard of proof than “preponderance of the evidence,” the standard used in civil cases, and much lower than  “beyond a reasonable doubt,” the standard needed for a conviction.

How are federal grand jury proceedings different from trials and other court proceedings?

Unlike trials and other hearings, which are typically open to the public, federal grand jury proceedings are secret.  Only prosecutors, the grand jurors, court reporters and the testifying witness are allowed to be present in the grand jury room.  Prosecutors are not allowed to be present during deliberations of the grand jury.

Witnesses subpoenaed to testify before a grand jury do not have a right to have their attorneys present in the grand jury room.  However, witnesses who are represented by a federal criminal defense lawyer will almost always be allowed to confer with their attorneys outside of the grand jury room.

Prosecutors, grand jurors, and court reporters are bound to strict rules of secrecy regarding grand jury proceedings.  This secrecy is based on several concerns, including not notifying the targets of grand jury proceedings that they may be charged (and thus have a possible reason to flee), and protecting the reputation of those not yet charged with a crime.  In practice, the targets of a grand jury investigation will often find out about the existence of the investigation.  This is especially true in high-profile investigations, where the details are often reported on by the media, sometimes on a daily basis.

Unlike prosecutors and members of the grand jury, witnesses subpoenaed by the grand jury are typically not bound by any rules of secrecy.  Such witnesses are free to relate the existence of the grand jury investigation, and the substance of their testimony, to whomever they choose.

What is a grand jury subpoena?

Federal grand juries have broad powers to subpoena the testimony of witnesses, and the production of documents or other evidence.  We cover the subject of subpoenas in detail in another article.  We urge you to review that article because understanding grand jury subpoenas is vital to understanding the nature and function of the grand jury.

For purposes of this article, it is important to note that grand jury subpoenas—both for testimony and for the production of documents or other evidence—should be taken very seriously.  Failure to comply with grand jury can lead fines or even imprisonment, so it is important to seek guidance from a skilled federal investigations attorney if you receive such a subpoena.

Can grand jury decisions be appealed?

A grand jury’s decision to indict a person or corporation cannot be appealed upon the issuance of the indictment.  However, the indictment returned by the grand jury can be challenged in the federal district court on any number of grounds, depending on the specific facts of the case.  For example, an indictment could be challenged on the ground that it was brought outside of the applicable statute of limitations, or that it fails set forth a violation of the federal criminal laws.  There are many other types of challenges that can be brought to an indictment issued by the grand jury.

Do I need an attorney if I am subpoenaed to testify in a grand jury proceeding?

Ordinary citizens can be drawn into grand jury investigations in several ways. You may receive a letter formally notifying you that you are a witness, subject, or target of a grand jury investigation. Such a letter may be accompanied by a subpoena requiring that you appear to testify before a federal grand jury.  You may also receive a subpoena requesting documents. Or, federal agents may suddenly raid your home or place of business.  In these situations, it is important for you to know what your rights and obligations are.

If you or someone you know is in one of these situations, it may be difficult to determine the extent of exposure to criminal prosecution. And you cannot always rely on what federal prosecutors or agents tell you about your status in the investigation.

As part of our federal investigations practice, we have helped countless individuals in such situations. First, we are able to advise our client about their potential exposure in a given case, based on the facts of their involvement and their knowledge of the crime(s) under investigation.  In many cases, we are also able to disentangle our clients from the investigation quickly. In other cases, we are able to arrange informal interviews between the prosecutor and our client, in a comfortable office setting where we can be present for our client during the interview (which is unlike what happens in a grand jury proceeding).  Finally, we are also able to communicate with prosecutors and agents on behalf of our clients, and thus prevent our clients from making statements that may be later used against them at trial.

To learn more about how our attorneys can help you during a federal investigation, please feel free to call us today for a free consultation .