Federal Criminal Defense Law Firm:
Grand Jury - Federal Criminal Defense Lawyer

McNabb Associates represents those who have been subpoenaed to appear before a Federal Grand Jury. The person being subpoenaed can be a "target," a "subject," or a "witness."

The "target" of a federal grand jury, as defined by the US Attorney's Manual, is "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." US Dept. of Justice, Attorney's Manual 9-11.151, Aug. 2002, available here [hereinafter USAM]. The use of the term "substantial" is problematic of course, and if every person ever indicted by a grand jury was convicted, the use of the term would be more appropriate. Clearly, however, there are plenty of examples of people who are acquitted of their federal charges. Nonetheless, it is important to understand that federal prosecutors view the targets of an investigation as guilty.

The term "target" is distinguished from the term "subject," which means that that person "is a person whose conduct is within the scope of the grand jury's investigation." Id. Likewise, a "witness" is a person who is expected to help the government find probable cause to have an indictment issue from the grand jury.

All three may be asked or subpoenaed to appear before the grand jury, and if the individual is not careful, especially if he is a "subject" or a "witness," that testimony could hurt rather than help his cause. According to the USAM, "an effort should be made to secure the target's voluntary appearance, [and if] a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the [US] Attorney … have approved the subpoena." Id. at 9-11.150. If this were always the case, however, sealed indictments and the media circus surrounding high-profile arrests would be things of fiction. Furthermore, the USAM points out that, in the event a subject or target requests or demands the opportunity to tell the grand jury his side of the story, "the prosecutor has no legal obligation to permit such witnesses to testify." Id. at 9-11.152. If this person is given the "opportunity" to testify, it will be done only after the "witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath." Id. Note that being represented by counsel is not the same, as you will see in a moment, as having counsel present during the testimony.

Finally, notification of targets that a grand jury is considering his case is not "appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice." Id. 9-11.152. In other words, secrecy drives the process.

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