Grand Jury Subpoenas: A Trap for the Unwary, by Jacob Manian

A grand jury subpoena is an indispensable tool for government prosecutors to gather evidence in a criminal investigation. Prosecutors can use a grand jury subpoena to compel individuals to testify under oath before a federal grand jury, or to produce documents or both.

Prosecutors can have a grand jury subpoena served on a company as well. The company can be required to produce documents, as well as an individual designated as the records custodian for the company to answer questions under oath before a federal grand jury.

What if the individual or company has nothing to hide? Just show up on the designated date with the documents and give testimony under oath, right? Wrong! An individual or company has no idea what evidence the prosecutor already has, nor any clue how the prosecutor views certain conduct that the individual or company may have engaged in.

A seemingly harmless transaction, email, note, text or off-hand remark made years prior can quickly become the intense focus of a prosecutor. Navigating the minefield of a grand jury subpoena without the guidance of experienced counsel can prove disastrous.

A lawyer experienced in federal investigations can analyze all relevant information to ascertain where the individual or company fits in the overall investigation. The lawyer can talk to the prosecutor to negotiate the scope of documents to be produced, or even an agreement that documents can be produced without testimony.

If the prosecutor insists on speaking with the individual, the lawyer can sometimes arrange for an interview with investigators in lieu of grand jury testimony. Given that the lawyer cannot be in the room while his or her client testifies before a grand jury, an interview is far preferable. In such circumstances, the lawyer can be in the room to make sure the questions are fair, the answers are clear and the client is protected. The lawyer may be able to obtain a proffer agreement from the government which gives the client additional protections during the investigation.

Having a lawyer represent you or your company in response to a grand jury subpoena does not imply guilt. To the contrary, an experienced lawyer can work to prevent you or your company from becoming ensnared in a limitless government probe filled with potential traps and abuses. If you or your company receives a grand jury subpoena, or any contact from a government agent, contact the lawyers of Fox, O’Neill & Shannon, S.C. immediately to make sure you or your company are protected.