Page 58 Environmental Crimes Deskbook 2nd Edition
e primary function of the modern grand jury is to review the evidence presented by t he prosecutor
and determine whether there is probable cause to return an indictment. If the grand jury fails to return
an indictment, the prosecutor can try a gain to obtain an indict ment, i.e., double jeopardy does not apply.
An indictment normally consists of a short and plain statement of where, when, and how the defendant
allegedly committed the oense. Each oense must be set out in a separate count. Indictments for complex
crimes, such as environmental crimes, may consist of hundreds of pages.
For criminal environmental investigations, “long-term” grand juries will typically be impaneled. ese
grand juries generally sit fewer days e ach week, and t heir terms can be extended in six-month increments
for up to t hree years. Should a grand jury “expire” before an indict ment can be returned, the prosecutor
need not re-present all of the evidence to the new grand jury. e new gra nd jury is provided with tran-
scripts of previous proceedings for its review.
Rule 6(e) of the Federal Rules of Criminal Procedure prohibits grand jurors from disclosing what hap-
pened before the gra nd jury, unless they are ordered to do so in a judicial proceeding. Witnesses before a
grand jury are not so prohibited, however. us, interviewing grand jury witnesses (should they be willing)
on the substance of their testimony is a common component of a company’s internal investigation, as will
be discussed later.
While a witness may not have his or her lawyer present in the grand jury room, he or she may interrupt
the testimony and leave the grand jury room to consult with counsel. A witness ca lled before a grand jury
under a grant of immunity may not refu se to testify based upon concerns about self-incrimination. e
grant of immunity overcomes the witness’ privilege against self-incrimination. is grant of immunity
prohibits the prosecutor from using that testimony (or the “fruits” of such testimony) to bring charges
against the witness. Should the prosecutor decide to pursue charges, she bears the burden of proving an
independent source for the evidence. Notably, however, false testimony before a grand jury may result in
the witness being separately prosecuted for perjury.
e target of a grand jury investigation has no right to present evidence in his or her defense. Generally,
a target is not called before the grand jury u nless it is essential for the prosecutor to do so. Many prosecu-
tors will inform a witness if they are a target of the grand jury investigation, if asked. Nevertheless, only
the U.S. Court of Appeals for the Second Circuit requires that such information be provided as a matter of
law.2 us, if your client is contacted by the government, it is important to determine his or her status (wit-
ness, subject or target) before consenting to an interview. Depending upon what the prosecutor divulges,
it may be prudent to obtain some sort of immunity from prosecution for information shared by your client
during the interview,3 or to provide an attorney proer. In extreme circumstances, it may be advisable for
your client to avoid being interv iewed through reliance on the Fifth Amendment’s privilege against self-
incrimination. Such a refusal, however, generally results in indictment.
B. The Grand Jury Subpoena
A grand jury has broad power to investigate, and the scope of its subpoena power is co-extensive. All
relevant witnesses, non-privileged documents, and other physica l evidence may be subpoenaed so long as
the demand is not unreasonably burdensome on t he recipient. e prosecutor may not use a grand jury
subpoena to conduct a “shing expedition”4; however, the low burden of “relevance” is easily met, a nd a
subpoena is rarely invalidated on the basis that it sought information irreleva nt to the grand jury’s inves-
tigation. Subpoenas also may not be used to conduct civil investigations, trial discovery, or to hara ss or
intimidate those subpoenaed. Showing misuse of a grand jury or its subpoena powers is a dicult burden
for the defense to meet, however.
When responding to a subpoena duces tecum, i.e., for documents or other evidence, counsel should
remember that the obligation to respond to the subpoena is a continuing one.5 us, later-discovered mate-
3. is is often referred to as “Queen for the Day” immunity.
United States v. R. Enterprises, Inc., 498 U.S. 292
C v. American T
obacco Co., 264 U.S. 298
, 305-06 (1924).
United States v. Barth, 745 F.2d 184
, 189 (2d Cir
. 1984), cert. denied
, 470 U.S. 1004 (1985).