Grand Jury Investigation
The grand jury is an arm of the prosecution. It is used in some situations to assist in the investigation of potential criminal activity. A grand jury meets in secret, with only the prosecutor, a court reporter, and perhaps an agent or investigator present.
Clients in Louisiana may be investigated by either state or federal grand juries. In federal matters, a defendant must be indicted by a grand jury or waive indictment to be charged with federal felony offenses. The Louisiana criminal justice system operates primarily by “information” (charges in a bill of information filed by the District Attorney or one of his prosecutors), although a parish grand jury may be utilized to investigate state crime and institute charges by indictment.
State grand jury investigations in Louisiana are generally conducted by the District Attorney’s office, while the U.S. Attorney’s Office presents evidence to the federal grand jury. The federal and state systems are unique, and your choice of counsel is important because counsel must know the intricacies of the grand jury conducting the investigation in order to advise you properly. Brett L. Grayson is an experienced counsel who know the differences and know how to get things accomplished under either system.
Target or Witness
When you receive a grand jury subpoena, you may be the target of the investigation or merely a witness. A target of a grand jury is the person or company under investigation. Pursuant to the United States Attorney’s Manual, the subject of an investigation is a person whose conduct is within the scope of the grand jury investigation. The U.S. Department of Justice requires its prosecutors required to advise grand jury witnesses of whether they are a target or a witness. Because the actions of a grand jury are conducted in secret, the prosecutors may tell you that they cannot advise why you are being summoned to the grand jury. Generally, your lawyer will be able to get some information that will indicate your status, so hire an attorney.
Targets or subjects of a grand jury have the same constitutional rights as someone accused of a crime outside of a grand jury. You have the right to counsel and the right to remain silent. It is the advice of this firm that you exercise both rights. In some states, you actually have the right to have your attorney with you in the grand jury room while you testify or while you invoke your right to silence. In the federal court system, you have the right to have your attorney right outside of the grand jury room so that you can ask questions of your attorney. Unless your attorney has negotiated immunity or you are ordered to answer a specific question by a judge, it is generally our practice to direct you to invoke privilege.
The U.S. Supreme Court has repeatedly held that even an “innocent man” has the right to plead the Fifth Amendment. It has also held that it is counsel’s duty to inform the witness or client of this right and determined that the Fifth Amendment is one of the most important and historically protected privileges.
Again, keep silent!
Even if you are merely a witness and truly are not a target of subject of a grand jury investigation, you have the same rights. You are entitled to have assistance of counsel and the right to invoke privilege. As with targets, this firm recommends not testifying without immunity. If you are only a witness, why wouldn’t the prosecutor grant immunity? Because you don’t know the reason for the investigation or the scope of the investigation (even if you know the reason), you might be snared by your statements if you testify. As indicated, the Fifth Amendment is intended to protect the innocent man, so demand immunity.
Target & Subject Defined
The U.S. Attorney’s Manual defines a “subject” is someone “whose conduct is within the scope of the grand jury’s investigation.” See § 9-11.150, U.S. Attorney’s Manual (1993) . It defines a “target” of an investigation as someone “to whom the prosecutor or the grand jury has substantial evidence linking him to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” § 9-11.150, U.S. Attorney’s Manual (1993).
Miranda Warnings Not Required
The by law the prosecution is not required to advise you of your rights (Miranda warnings). That is only required if you are “in custody.” Because grand jury witnesses and targets are not in custody, they are not read their rights. This can expose you to prosecution if you say anything that is incriminating or leads to incriminating information. However, pursuant to U.S. Department of Justice policies, federal prosecutors are supposed to advise “targets” and “subjects” of their rights.
If a grand jury finds sufficient evidence of a crime, it returns a “true bill” of indictment. If not, it returns “no bill.” An indictment is required for felony crimes charged in federal court, but generally Louisiana state courts proceed by information (without presentment to a grand jury). An indictment can only be dismissed by a judge because it was returned by a grand jury. It can only be amended by a superseding indictment, again returned by a grand jury.
In both Louisiana state courts and federal courts, if you are charged by indictment, you are not entitled to a preliminary hearing. You will need a lawyer if indicted.
A person who is called upon to either produce documents or provide testimony for a grand jury needs the help of a highly skilled criminal defense attorney.
Many lawyers do not realize that they are not permitted to accompany their client into the room where the grand jury meets. This is crucial, because while the client has the Fifth Amendment right to remain silent, the lawyer is not allowed to be with the client when questions are asked. In other words, the person needs to be well prepared by his or her attorney before they go to testify or produce documents.
An aggressive attorney also needs to look at whether a motion to quash a subpoena should be filed on behalf of the client. Such motions seek a court order, which rules that the person either does not have to produce the documents, or need not answer questions from the grand jury.
Lafayette criminal defense attorney Brett L. Grayson knows the grand jury process. He has more than 30 years of legal experience, and has prepared witnesses and clients for grand jury investigations in several cases.
If you or someone you care about is in this situation, please feel free to call 337-706-7646, or contact the law firm online. Your future is my business.