Five Tips for Helping Your Client Navigate the Federal Grand Jury Process

• Date: 01 July 2019

Published in Litigation, Volume 45, Number 4, Summer 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Five Tips for

Helping Your Client

Navigate the Federal

Grand Jury Process

MATTHEW E. BECK AND DANIELLE M. CORCIONE

Matthew E. Beck and Danielle M. Corcione are former federal prosecutors in the District of New Jersey and are members of the

law firm of Chiesa, Shahinian & Giantomasi PC. Jenny Chung, an associate at the firm, contributed to the drafting of this article.

Effectively responding to a grand jury subpoena is critical for your

clients and may have extensive and disastrous consequences if

mistakes are made. That’s why what you do, and how you do it,

matters. Here are five tips that will help you successfully counsel

and direct a subpoena recipient in the right direction.

Explain the Basics to Your Client

The grand jury is a secret proceeding that aids a prosecutor in

investigating a case, and it may ultimately result in an indictment

charging an individual, a company, or both, with a crime.

A federal grand jury is composed of randomly selected individu-

als from the community who are no different than we are—men

and women, young and old, doctors and musicians. The grand jury

consists of up to 23 people, but a quorum of 16 grand jurors is re-

quired before evidence may be heard. Regardless of whether there

are 16 or up to 23 grand jurors present, 12 grand jurors are always

required to vote for a “true bill”—which results in an indictment.

The grand jury is not a trial. It is important to remember that

the grand jurors are not determining whether the accused is

guilty or not guilty; such a verdict can only be rendered at tri-

al. Instead, the grand jury is empowered by law to evaluate the

strength of the evidence presented to them by the prosecutor

and to determine whether there is “reasonable cause to believe”—

meaning that it is probable the accused committed the crime

charged. In other words, the prosecutor only has to show that

the defendant could have been involved in a crime, not that he

was. Finding probable cause is generally a low bar. As a practi-

cal matter, a grand jury will almost always return an indictment

presented to it by an able prosecutor. This has led to the famous

proverbial phrase that a prosecutor can get a grand jury to “in-

dict a ham sandwich.”

There is no judge in the grand jury. You, as the attorney, can-

not be there. The prosecutor selects what evidence to present

to the grand jury and instructs the grand jury on the law. The

prosecutor is also permitted to vigorously question a hostile or

uncooperative witness.

While grand jurors, the prosecutor, and the grand jury court

reporters are under a strict duty to keep any matter occurring

before the grand jury a secret, the rule of secrecy does not apply

to grand jury witnesses. If your client is a grand jury witness,

your client has the right to tell the whole world about the ques-

tions asked and the answers given. Of course, it may not be in

your client’s best interest to do so.

Although the authority to subpoena witnesses belongs

to the grand jury, in practice, subpoenas are issued by the