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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.
Grand Jury Function and Process
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.
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What Are Your Rights?
Essentially, every person subpoenaed before the Grand Jury in whatever capacity for whatever purpose enjoys the same basic rights.
These rights include:
- The absolute right to consult with/be advised by an attorney;
- The right to be accompanied inside most state grand juries by your attorney (who may not speak , object , or interfere but with whom you can consult) when you are testifying;
- The right to have your attorney outside the grand jury room and to halt the proceeding to consult with him/her as needed, when testifying before a federal grand jury;
- The right not to answer any question before any grand jury that might tend to incriminate yourself;
- The right not to disclose confidential communications recognized by law as such as a result of certain relationships: attorney-client; doctor-patient; priest-penitent; husband-wife;
- The right to claim “privilege” and withhold production of certain requested documents until the question of whether or not the prosecution is entitled to access them is litigated/resolved;
- The absolute right not to produce any documents in which the act of production is deemed “testimonial” and the contents of the same is [self]-incriminating;
- The right to challenge/move to quash documents subpoenas that are over-broad, vague and/or punitive or where production is unnecessarily burdensome, oppressive and or unduly expensive;
- And a right to request new/convenient dates and/or more time for compliance.
What a subpoenaed person does NOT have the right to:
- Fail to appear (you can be held in criminal contempt) as required/requested;
- Simply refuse to testify/ comply without articulating a viable basis;
- Automatically appear to testify in your own behalf (in MA one may seek permission from the DA to testify but it is within the DA’s discretion to allow it);
- Call witnesses on your own behalf;
- Interfere with/impede the grand jury process;
- Obstruct a grand jury investigation;
- Lie, commit perjury, suborn perjury, or provide false evidence to the Grand Jury;
- And/or immediately access grand jury evidence.
Know Your Status
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”.
- For the most part, a witness is someone the prosecution believes holds helpful/useful information that is relevant to their investigation.
- A subject is someone on whom the grand jury’s attention is currently focused for whatever reason; because those reasons can often include increased suspicion, it is very important they consult with an experienced attorney before the situation gets worse.
- A person of interest is someone whom the grand jury is already suspicious of and is either taking a closer look at or already beginning to develop evidence against.
- A target is someone for whom the grand jury already has established sufficient probable cause to indict for (charge with) certain crimes or for whom the state of the grand jury investigation is such that the prosecution believes it will have the same in short-order.
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.
Grand Jury Pitfalls
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.
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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.
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