WHY DOES THE GRAND JURY WANT TO HEAR FROM ME?

The answer to this question depends on whether you have been subpoenaed as a target, a subject, or a witness.

A “target” is someone the prosecutor wants to indict. If you are a target of the investigation, then you are essentially a defendant who has not yet been charged.

A “witness” is someone who has information, but has no blame or involvement in the alleged crime and faces little risk of being indicted. For example, the teller who was held up in a bank robbery might be called before the grand jury as a witness.

A “subject” is someone whose status is uncertain. This person’s conduct falls “within the scope of the grand jury’s investigation,” but the prosecutor needs more information before deciding whether to seek charges against him. For example, the following individuals might be a “subject” in a grand jury investigation: 

• The billing clerk in a doctor’s office, in a billing fraud investigation.
• The siblings, parents, children or significant others of bank robbers or drug traffickers who received and spent some of the ill-gotten gain.
• Whether a subject ultimately is deemed to be a target or a witness will depend on how deeply he was involved in the alleged criminal activity; the deliberateness of his involvement; the extent to which he profited from his involvement; and his level of cooperation with the grand jury’s investigation.

Prosecutors do not always neatly and precisely adhere to these three categories. Some prosecutors see only targets and witnesses. Others categorize almost everyone as a subject (until the day they seek an indictment). Moreover, your status may change as the investigation proceeds.

WHAT HAPPENS IN THE GRAND JURY ROOM?

On the day of your testimony, you will go the grand jury room and wait outside, in an anteroom, to be called. Grand jury proceedings are private, so when it is your turn to testify, you will appear before the grand jury alone; your lawyer will not be allowed in the room with you.

You will sit or stand at a table in front of the jurors. A court reporter will be nearby to transcribe the proceedings. The federal prosecutor will place you under oath and advise you that if you do not tell the truth, you may be subject to criminal penalties for perjury. The prosecutor also will advise you that you can refuse to answer a question if the answer would tend to incriminate you, and that you will be allowed a reasonable opportunity to leave the room and consult with your lawyer during the questioning. The prosecutor then will ask you questions about the case, seeking to elicit relevant evidence. When the prosecutor has finished, the jurors also may ask questions.

CAN I REFUSE TO APPEAR BEFORE THE GRAND JURY?

No. If you refuse to appear before the grand jury you will be held in contempt of court and jailed. A better alternative is to appear before the grand jury, assert your Fifth Amendment right to remain silent, and refuse to answer questions that may incriminate you. Another option, depending on your situation, may be to appear and testify under a grant of immunity (protection from prosecution).