What To Do When A Client Receives A Federal Grand Jury Subpoena

Introduction

Those unfamiliar with the federal criminal process feel understandable anxiety when served with a grand jury subpoena.

Lawyers representing subpoena recipients often experience a similar reaction, especially when they lack familiarity in handling such matters. While Federal Rule of Criminal Procedure 17- which governs grand jury subpoenas-provides some guidance, representing a client based solely on a review of its contents leaves counsel ill-equipped to deal with the challenges at hand.

The seemingly simple and straightforward language of that provision conceals the practical realities of the grand jury subpoena response process, which are far more complicated and nuanced than might appear at first blush. With those challenges in mind, this article endeavors to serve as a primer for lawyers, especially those uninitiated to the federal criminal process, to protect the interests of their clients by identifying and dealing with the key legal, factual and ethical issues potentially triggered by the issuance of a grand jury subpoena.

Understanding the Applicable Legal Framework

The Relevant Provision

None of the Federal Rules of Criminal Procedure apply specifically to grand jury subpoenas. By its terms, Federal Rule of Criminal Procedure 17 relates to trial proceedings, and authorizes the issuance of subpoenas to either "command the witness to attend and testify" or "order the witness to produce any books, papers, documents, data, or other objects the subpoena designates."1 Nevertheless, courts have regularly applied Rule 17 in the context of evaluating grand jury subpoenas for testimony and documents, focusing on the rule's language empowering the court to "quash or modify the subpoena if compliance would be unreasonable or oppressive."2

The Scope of the Grand Jury's Authority

Oft-quoted language by the Supreme Court notes that the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not."3When exercising this authority, the grand jury has a right to "every man's evidence."4 This means, as a practical matter, that subpoenas issued during the grand jury's investigative process are subject to few limitations.

A party seeking to demonstrate that compliance with a grand jury subpoena would be "unreasonable or oppressive" because the information sought is irrelevant has a steep hill to climb. A relevancy challenge will be denied unless the objecting party can meet the onerous burden of showing that "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."5

Beyond its broad authority to collect information, the grand jury's power is also aided by the absence of jurisdictional and procedural limitations often present in other contexts. The grand jury is not constrained by procedural or evidentiary rules and claims of privacy or competence are not valid bases to defeat a subpoena.6 Grand jury subpoenas need not be supported by probable cause, and those issued through normal channels enjoy the presumption of validity.7

The grand jury's powers are not unlimited, however. Courts have rejected subpoenas which are designed to conduct a civil investigation, or to harass or intimidate the subpoena recipient.8 Subpoenas designed to allow the government to use the grand jury to gather evidence against a defendant post-indictment are also subject to being invalidated.9 Valid claims of privilege, including the privilege against self-incrimination, the attorneyclient privilege, and the marital privilege, also serve to limit the grand jury's reach.10

How to Represent a Grand Jury Subpoena Recipient

Examine the Language of the Subpoena

The starting point in determining how to respond to a grand jury subpoena is to understand fully its content. The body of the subpoena will identify what is seeks: "Ad testifacandum" subpoenas require a witness to testify; "duces tecum" subpoenas require the production of documents or objects. To evaluate a duces tecum subpoena, counsel should focus on the scope of the requested information. The face of the subpoena form provides space for a listing of the requested documents or objects, but often-particularly when the case is complex-the subpoena will append a listing of additional materials sought. A typical subpoena attachment will not only detail the type of documents or objects sought, but also define key terms, designate the relevant time period and require that claims of privilege be detailed.

It is important to understand that in many federal districts, subpoenas in criminal cases are served without the court's prior review. Simply because the subpoena has been signed by clerk does not mean that a judge has even reviewed its contents beforehand, much less concluded that the information sought falls within the scope authorized by law. Subpoena recipients are expected to challenge those requests that are objectionable. In the absence of such an objection, courts typically do not even examine grand jury subpoenas, much less opine on their legitimacy.

Gather Information to Allow for Informed Decision-Making

Meet Threshold Obligations

Once counsel understands what the subpoena seeks, it is important to prevent the client from making the situation worse. Subpoena recipients should be instructed to refrain from having any substantive communication with anyone other than counsel until the landscape of the investigation can be appropriate surveyed.

Even seemingly innocuous conversations between individuals can have serious consequences when examined through the lens of a grand jury investigation. At...