Grand jury practice

• Pages: 347-388
• Author: Thomas J. Farrell,Brandon D. Minde

GRAND JURY PRACTICE

12-1

CHAPTER 12

GRAND JURY PRACTICE

I. GENERAL POINTS

§12:01 Grand Juries Are an Investigative Tool

§12:02 Grand Juries’ Proceedings Are Secret

§12:03 Alternative Functions of Grand Juries

§12:04 Grand Jury Reference Materials

II. REPRESENTING A CLIENT IN AN INVESTIGATION

A. General Points

§12:10 Three Categories: Target, Subject, Witness

§12:11 Determining Your Client’s Status

B. Targets

§12:20 The Target Letter

§12:21 Representing a Target

§12:22 The Target’s Testimony in the Grand Jury

§12:23 Deciding Whether to Allow a Target to Testify

C. Subjects

§12:30 Representing a Subject

§12:31 Four Principal Strategies

D. Witnesses

§12:40 Representing a Witness

§12:41 Demanding Immunity

§12:42 Representing Multiple Witnesses

III. DEALING WITH A SUBPOENA

A. Subpoena for Testimony

1. General Points

§12:50 Accept Service and Request an Informal Interview

§12:51 Office Subpoenas

§12:52 Immunity

§12:53 Subsequent Prosecution of the Immunized Witness

2. Interview Protections

§12:60 General Points

§12:61 The “Queen for a Day” Agreement

§12:62 Plea Negotiation Immunity

§12:63 Attorney Proffers

B. Document Production

1. The Fifth Amendment Privilege

§12:70 General Points

GRAND JURY PRACTICE

Criminal Defense Tools and Techniques 12-2

§12:71 Individuals

§12:72 Organizations

2. Complying With the Document Subpoena

§12:80 General Points

§12:81 Accept Service

§12:82 Negotiate the Scope of the Response

§12:83 Negotiate Production by Stages

§12:84 Ask for More Time

§12:85 Track the Documents You Produce

§12:86 Offer an Affidavit From the Custodian

IV. THE GRAND JURY PROCEEDING

A. Preparation

1. Investigating the Grand Jury

§12:90 General Points

§12:91 Gelbard Motions

§12:92 Attempts to Silence Witnesses

2. Preparing Your Client

§12:100 Your Role

§12:101 Explaining the Process to Your Client

§12:102 Preparing Your Client to Testify

B. Objections and Privileges

§12:110 Objections

§12:111 Privileges

§12:112 The Privilege Against Self-Incrimination

C. After the Testimony

§12:120 Debriefing Your Client After His Testimony

§12:121 Declination

D. Prosecutorial Misconduct

§12:130 General Points

§12:131 Presenting Perjured Testimony

§12:132 Subpoenaing a Defense Attorney

§12:133 Failure to Present Exculpatory Evidence

§12:134 Insufficiency of the Evidence

§12:135 Using the Grand Jury to Prepare for Trial

§12:136 The Perjury Trap

V. FORMS

Form 12-1 Sample Target Letter

Form 12-2 Immunity Request Form

Form 12-3 Motion for Order Granting Immunity

Form 12-4 Court Order of Use Immunity

Form 12-5 Letter Immunity

Form 12-6 “Queen for a Day” Agreement

Form 12-7 Proffer Letter

Form 12-8 Act of Production Immunity Letter

Form 12-9 Affidavit by Document Custodian

Form 12-10 Gelbard Motion

Form 12-11 Sample Subpoena Advising Witness Not to Speak With Defense

Form 12-12 Letter Informing Grand Jury Witness of Ability to Speak With the Defense

Form 12-13 Invocation of Rights Card

Form 12-14 Letter Requesting a Declination Letter

Form 12-15 Letter Requesting the Presentation of Exculpatory Evidence

Form 12-16 Letter Asserting Privilege To Former Attorney’s Counsel

Form 12-17 Letter To Grand Jury Judge Asking To Be Heard Before Attorney Testifies

GRAND JURY PRACTICE

12-3 Grand Jury Practice §12:02

I. GENERAL POINTS

§12:01 Grand Juries Are an Investigative Tool

Clients and even many lawyers nd grand juries mysterious. To allay fears and assist your client in making

informed decisions, you must explain what the grand jury is and how it works.

While historically, grand juries were supposed to stand between the sovereign and the citizen by screening

cases and rejecting those unt for prosecution, they have become a powerful investigative tool for prosecutors.

Grand jurors are selected from the same pool as regular jurors, but defense attorneys do not play any role in

challenging or selecting the jurors. Typically, the grand jury consists of 16 to 23 members who sit for 18 months,

but only for a few days each month.

Explain to your client that the grand jury was not impaneled to deal with his case. They hear evidence in any

number of investigations underway at the same time. Neither probable cause nor reasonable suspicion is required

to initiate a grand jury investigation; it is free to investigate the imsiest of rumors and suspicions. [United States

v. R. Enters., Inc., 498 U.S. 292, 297 (1991).]

Grand juries are not impartial bodies. They hear only the evidence the prosecutor chooses to present, much of

it hearsay in the form of interviews summarized by law enforcement agents. The jurors receive their instructions in

the law from the prosecutor, and spend their recesses bantering with agents and prosecutors and their sta. Grand

juries rarely review documents subpoenaed to them. Instead, the prosecutor reads a return, that is, an extremely

brief description of what was subpoenaed and what was received (e.g., “all business records of Enron relating to

its accounting for prots”).

Prosecutors often remind the grand jury that it is not to determine guilt or innocence, only whether there is

probable cause to vote an indictment. Grand jurors learn that their days will go quickly and easily if they ask few

probing questions and vote to indict whenever requested to do so. It is not uncommon to see grand jurors dozing

or reading during testimony.

PRACTICE TIP:

Stress to your client that the grand jury is not there to be charmed or persuaded. His objective is to avoid

testifying. If he must testify, then his goal is to get in and out as quickly as possible while saying as little as

possible in a business-like fashion.

§12:02 Grand Juries’ Proceedings Are Secret

Only the grand jurors, a court reporter, the prosecutor and the witness may be present during the grand jury’s

proceedings. Matters occurring before the grand jury are secret, and the First Amendment right of public access

does not apply. [Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986); United States v. Index Newspapers,

LLC., 766 F.3d 1072, 1084 (9th Cir. 2014) (proceedings on motion to quash grand jury subpoena should be closed)]

Some jurisdictions permit witnesses to have their lawyer present; others consign the attorney to a post outside

the grand jury room and permit the witness to leave and consult with the lawyer. [See §12:100.]

Everyone in the grand jury room except the witness is legally bound to keep its proceedings secret.

Still, leaks occur. Further, in many courthouses, the grand jury room is situated so that the media and repre-

sentatives of the investigation’s targets can stake out the grand jury room, observe who enters, and try to question

outside the grand jury room those who appear to be witnesses.

The defense does not receive transcripts of any testimony until after indictment, when the defendant may obtain

the transcript of his own testimony in discovery. [See, e.g., Fed. R. Cr. P. 16(b)(1)(A).] The defendant cannot obtain

the transcript of a witness’s testimony until the witness testies at trial. [See 18 U.S.C. §3500 (the Jencks Act), or

the state equivalent. But see §12:120 (citing authority that entitles a witness to see a transcript of his testimony).]

The defense will never see the transcripts of the document returns, prosecutor’s legal instructions, descriptions

of the evidence, or the prosecutor’s colloquies with the grand jurors.

Whether a contempt proceeding which relates to a grand jury should be open to the public depends on the

circumstances of each case. “Logic may require that a portion of a contempt hearing transcript be accessible to the

public where there has been a request to make the hearing public, where the witness does not object, and where

the court is satised that opening the hearing will not thwart the grand jury’s investigation or jeopardize other

witnesses or evidence.” [Index Newspapers, 766 F.3d at 1089.] But those portions of the contempt proceeding