A grand jury is an investigatory tool used by prosecutors to determine whether to bring criminal charges or an indictment against an individual or corporation. The grand jury process differs greatly from a jury trial to determine guilt or innocence. However, it should be treated just as seriously. Accordingly, the first step is to consult an experienced attorney as soon as possible to avoid implicating yourself or otherwise hurting your case. A grand jury investigation poses multiple risks that are important to understand.
Finding Out About a Grand Jury Investigation
If you’re under investigation, you may find out about it when a federal agent contacts you or someone you know to ask questions. You may also be served with a grand jury subpoena to produce documents or testify. Importantly, while you may be a target of criminal charges, it’s also possible that the agent is investigating you as a potential witness or “a subject” who they haven’t decided whether to target. Regardless of which one it is, you need to seek legal advice.
Cooperating with an Investigation
Agreeing to answer an agent’s questions may be beneficial, provided you do so under the guidance of an attorney. It can be tempting to start talking to show you are being helpful, especially if you think you have nothing to hide and the agent is conducting an administrative or civil investigation rather than a criminal one. However, there are significant risks.
Without a lawyer, you may unknowingly admit something important that can be used against you. You may also provide inaccurate or mistaken answers that can result in criminal charges for giving a false statement.
Even in a civil investigation, there can be criminal liability. Often, agencies like the SEC and others work with the Department of Justice on a joint or parallel investigation. Evidence gathered by one agency can be shared with others. This is why a criminal lawyer should be consulted in any federal investigation. An attorney who only handles civil investigations may allow their client to make statements without realizing they could be used in a criminal indictment.
Getting a Grand Jury Subpoena
If you’re served with a grand jury subpoena to produce documents or testify, there may be ways to challenge it if your attorney advises not to cooperate. Individuals have a constitutional right against self-incrimination under the 5th Amendment, which may be invoked when refusing to provide documents or testimony. However, businesses other than sole proprietorships generally don’t have this right. Members, shareholders, officers, or employees of an LLC or corporation cannot exercise the right against self-incrimination as custodians of the company’s records.
The 5th Amendment doesn’t always apply to individuals. There are exceptions and nuances to invoking the 5th Amendment, particularly when using it to avoid producing records, as discussed in a prior blog post.
However, there are other grounds for challenging a subpoena available to both individuals and businesses besides the 5th Amendment. Where a subpoena requests documents, objections may be raised if the subpoena is overly broad, asks for irrelevant information, requests privileged information, or on other grounds.
When challenging testimony, it is possible to ask for a proffer agreement. With a proffer agreement, you meet with agents to answer questions about the investigation with written assurance that your statements cannot be used against you unless the agents discover the same information independently. Importantly, the agreement does not provide blanket immunity, so legal representation is necessary to protect your rights.
Responding to an Investigation
Every response to an investigation should go through an experienced criminal attorney. There are significant dangers in attempting to handle it alone or with a lawyer who handles civil matters.
If you are facing an investigation, contact us for a consultation to learn how we can help.