TESTIFYING BEFORE THE GRAND JURY – TARGET, SUBJECT or WITNESS

One day you may find yourself unexpectedly involved in a grand jury investigation as a target, subject or witness. Before I explain the important differences between these legal distinctions I want to briefly cover the grand jury basics.

The grand jury is a group of individuals as a collective legal body whose function is to determine if criminal charges (an indictment) should be brought against a particular person or entity. Federal grand juries are comprised of between 16-23 individuals. What happens in a grand jury is kept secret. This is done for two purposes. First, it encourages witnesses to talk freely. Second, if the grand jury decides not to indict, the potential defendant’s reputation is not harmed. There is no judge in a grand jury and thus it is more relaxed than a typical court room. The prosecutor will explain the law to the grand jury and present witness testimony and exhibits for the jury to consider. The rules of evidence that pertain to the introduction of exhibits and testimony are relaxed at this stage and the grand jury has the ability to see and hear much more than what a typical jury would be allowed to consider. The prosecutor is able to compel individuals to give testimony at the grand jury by serving a subpoena-an Order of the Court that compels the individual to appear and testify. Remember, the grand jury does not decide guilt, but only if the prosecutor should bring the criminal charges in the first instance. The jury in a criminal trial is different group of individuals from the grand jury and the jury trial typically does not have the ability to consider everything the grand jury did.

TARGET

There are three different types or classifications of grand jury witnesses: Target – Subject- Witness. If you receive a letter in the mail from the Department of Justice (DOJ) that you are a target, you have been formally notified by the DOJ that they intend to call you before a federal grand jury to testify regarding criminal activity the DOJ believes you participated in. You need to immediately contact a white collar criminal defense attorney. This is very serious and you need to take immediate steps and take action to protect yourself. Chances are the government has been investigating the criminal activity at issue and you for months and possibly years. The absolute worst thing you can do is pick up the telephone and call the DOJ believing you can explain to them why this is a mistake. Please resist the urge to pick up the phone and call them! Most likely, anything you say to the U.S. Attorney will be used against you and you are more likely to hurt your case than help. Contact a white collar criminal defense attorney and follow their directives.

Below is a sample target letter taken right from the U.S. Attorneys’ Criminal Resource Manual:

This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District.

As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify.

We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to _______*. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice.

You are advised that you are a target of the Grand Jury’s investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.

Cordially,

If you receive the “target” letter the U.S. Attorney believes that there is substantial evidence linking you to a crime. However, with skillful lawyering it is not inevitable that the receipt of a target letter results with your indictment.

TARGET versus SUBJECT

If you are the subject of a grand jury investigation you have been identified by the U.S. Attorney as someone who has information that would be helpful to the U.S. Attorneys’ investigation. One’s status may change from “subject” to “target” during an investigation so do not take it lightly if you are called before a grand jury to testify as a subject. A quick way to elevate your status from subject to target is to destroy evidence or lie to the U.S. Attorney. This is what is referred to as obstruction of justice and will not help you in any way.

WITNESS

The third category is that of a “witness”. A witness is someone who the government believes has helpful information but did not do anything wrong. Think of the person walking on the sidewalk and sees a bank robber leaving the bank. While in all likelihood you will be fine, but you don’t want to have something you say misinterpreted.

If you are the target, subject or witness of a grand jury investigation, please call our offices. The attorneys at Danziger Shapiro & Leavitt, P.C. will be happy to discuss the grand jury process with you and explain what options you have going forward. Call us and do not make the mistake of contacting or meeting the U.S. Attorney without your attorney present. We will not charge you for our initial meeting and want to help.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

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