A grand jury can use the power of the court to subpoena evidence and witnesses. In this process, the prosecutor will visit the office of the court clerk and obtain subpoena forms. The prosecutor will then fill them out and put the name of the person on each one that is being subpoenaed.
The prosecutor will then have a police officer or federal marshal subpoena the person.
There are two types of subpoenas:
- Subpoena ad testificandum: Brings people to testify before the court
- Subpoena duces tecum: Brings evidence before the court
A person who is the recipient of a subpoena has three options:
- Comply and go to the grand jury to testify
- Convince the court that you do not have to comply
- Be held in contempt
You comply with the subpoena by doing exactly what it instructs you to do. If it states that you are to appear before the grand jury on a time and date to testify, you should do so. If it states that you are to appear at that time and date and produce evidence for review, you should do so. See Subpoena vs Summons.
If you believe that you do not have to comply, then you will need to file a motion to quash the subpoena. Quashing a subpoena means that that court is declaring it null and void. You might do this if you could prove to the court that complying with it would make you violate your constitutional rights.
You also may ask the court to quash/modify the subpoena because what it is requesting you to do is somehow unreasonable or oppressive. This request might be made regarding a subpoena that orders you to produce a lot of records. For instance, if the subpoena states that you must produce 50,000 pages of records in 24 hours, you may be able to convince the court that this is an unreasonable request.
If you just refuse to do what the subpoena has asked you to do, the prosecutor will ask that you be held in contempt. This could result in you being fined and jailed.
Why People Receive Subpoenas
If you have received a subpoena to testify before a grand jury, there are several vital things to know before you appear. Prosecutors usually subpoena witnesses to appear at a grand jury for two reasons:
- The prosecutor thinks that the witness has important information about a crime that has been committed against a third party, and wishes to obtain that information to get an indictment against that person (this can be testimony or evidence, as noted above).
- The prosecutor thinks that the witness is a possible target for criminal prosecution and wants to obtain evidence against them.
People that have been called to testify in front of a grand jury to be a witness are not necessarily warned that they are or could become targets of an investigation. Note that Miranda warnings are not required. Unless you are given some type of immunity, any testimony that you provide in a grand jury hearing can be used against you later.
Are You A Target or a Witness?
A defense lawyer can usually talk to the prosecutor to determine if you are a target in a grand jury investigation. If you are, the defense lawyer could try to work a deal where you agree to testify at the grand jury hearing, in exchange for immunity.
Being Immune From Prosecution
The prosecution may make you immune to prosecution if you refuse to testify based upon your 5th Amendment rights, or if you have worked out a deal with your defense attorney. A prosecutor may offer two types of immunity; which type will depend upon how serious your criminal conduct was:
- Transactional immunity: The person that is given immunity may not be prosecuted for crimes that are related to the subject matter in the testimony.
- Use immunity: The witness that has been given immunity could in the future be prosecuted for some crimes that are related to the topic that is discussed in the testimony. However, the immunized testimony may not be used in any possible future prosecution.
Prosecutors may give immunity to compel a small time criminal to testify against a criminal kingpin. For instance, the prosecutor might give immunity to a small time drug dealer, in exchange for providing testimony against a major drug trafficker. The witness who will not testify after he is given immunity could be held in contempt and jailed.
What About the Right to Counsel?
Lawyers may not accompany their clients into the grand jury room. All grand jury proceedings are closed and witnesses cannot be represented by lawyers during the testimony. Lawyers can stay near the testimony room and the witnesses can leave the room for a few minutes to talk to their attorneys if this is needed. Lawyers may advise clients to always exercise this right before they answer each question.