30+ Years' Experience. Nationally Recognized Defense.
In addition to having the power to decide who, what, when , where and how to charge [with]crimes, state and federal prosecutors have another extremely powerful tool that helps tip, if not skew, the scales of justice in their favor; the Grand Jury.
While grand juries are the principal method in which felony charges (in the form of indictments) are brought in most jurisdictions, they are also used as an investigative vehicle in which prosecutors avail themselves of the wide-ranging subpoena power not only to initiate criminal cases, but also to obtain evidence, establish probable cause, and bolster prospective charges. For the most part, grand juries are tightly controlled by the prosecution and are uniquely one-sided, with results all but predetermined. (Hence the old saw “a grand jury can indict a ham sandwich “.)
By contrast, putative defendants and/or grand jury “targets” are not entitled to reciprocal subpoena power at this early stage, cannot prevent/dictate/influence/interrupt the Grand Jury process, are not entitled to “secret” grand jury evidence until after (in many federal jurisdictions “long after”) the process is completed, are not able to present their own witnesses, and in most instances have no absolute right to appear before the Grand Jury to testify in their own behalf.
Essentially, every person subpoenaed before the Grand Jury in whatever capacity for whatever purpose enjoys the same basic rights.
These rights include:
What a subpoenaed person does NOT have the right to:
As soon as you have been subpoenaed it is critical you determine your status (how the prosecution views you). This is best done through an experienced Boston criminal defense lawyer who not only knows (and is known by) the players on the other side, but who understands the related terms and their consequences and what can/should be done about them.
Generally, the applicable terms for one’s status are: “witness”, “subject”, “person of interest” and “target”.
There is no absolute right to be informed of one’s status before a grand jury, although most prosecutors find requests about the same to be reasonable and are often willing to accommodate attorneys they know and trust with an honest reply. By contrast, DOJ (federal) guidelines suggest when so asked, Assistant US Attorneys should try to honestly reply—which often comes in the form of “it’s too early to tell” or “we don’t know yet”. However, when issuing a formal subpoena for someone they already know/deem to be in target status, federal prosecutors are required to provide written notice of the same, along with printed Miranda warnings, in the form of a “target letter”. Any recipient of the same, who has not retained counsel, should do so immediately.
Ask any experienced criminal defense attorney and he/she will tell you they have had far more clients “talk themselves into trouble than out of it”. While this doesn’t always mean an attorney will advise a client not to testify before a grand jury, it means his or her first instinct should be to say “no” until he/she knows more about the investigation, the client’s status, the prosecution’s objectives and/or the known and unknown (to the prosecution) jeopardy the client might be facing. For the experienced lawyer, this not only means frank and open conversations with the prosecution as soon as the subpoena is served, but also engaging in a thorough and confidential interview of the client.
Bottom line, the likelihood of securing some form of immunity depends on how badly the prosecution wants/needs one’s client’s testimony/assistance. An experienced defense attorney knows how to discern and exploit this to his/her client’s benefit, and the best way he/she can help a subpoenaed client is to safely navigate him/her from the potential target side of the ledger to the confirmed witness side, where neither jeopardy nor exposure will result from their compliance. Needless-to-say, doing so takes considerable, skill, experience, know-how and [oftentimes] diplomacy.
Brad Bailey is a highly respected Boston criminal defense attorney, who is also a former state and federal prosecutor. In this last capacity, he personally oversaw and conducted hundreds of state grand jury investigations and proceedings in both NY and Massachusetts, as well as approximately fifty separate federal grand jury investigations in Boston.
He is intimately familiar with state and federal grand jury practice, protocols, and procedures and frequently represents persons and entities nationwide who are summonsed/subpoenaed to appear before grand juries here in Massachusetts, in NY, and throughout NE. If you have received a grand jury subpoena, do not hesitate to contact Brad Bailey Law.
For immediate help, contact us via our contact form, or by telephone at (617) 500-0252.
Brad Bailey is the go-to defense attorney for white collar crimes, federal crimes, as well as serious state felony charges. He is without question one of the most experienced criminal defense attorneys in Boston.