A federal agent hands you a subpoena at your Chicago office. It orders you to turn over company records, testify or both. A grand jury is a group of 16 to 23 citizens that meets in private to decide whether prosecutors have enough evidence to bring charges. If you manage accounts or keep your employer’s records, this subpoena may put you at more risk than it seems. Before you respond, you need to know where you stand.
Find out if you are a witness, subject or target
Prosecutors generally sort the people they subpoena into three groups. A witness has useful information. A subject is someone whose actions prosecutors are examining as part of the case. A target faces greater scrutiny because prosecutors believe there is substantial evidence connecting that person to a crime.
Under Justice Department grand jury policy, subjects and targets should receive a warning that anything they say may be used against them. Your status can change as the case develops.
Separate your interests from your employer’s
Your employer will likely bring in its own lawyers, but their client is the company. The company decides whether to keep your statements private or share them with prosecutors. Under federal rules for charging businesses, a company seeking cooperation credit must generally identify the people involved in the misconduct. Your interests and your employer’s may line up at first and then split.
Know the Fifth Amendment’s limits on company records
The Fifth Amendment protects you from giving testimony that could incriminate you. Business records work differently. In Braswell v. United States (1988), the U.S. Supreme Court held that someone responsible for company records generally cannot rely on the Fifth Amendment to keep those records from the government, even when the documents could implicate that person.
The same ruling limits how the government can use that act of production against you personally. Personal papers and sole proprietorship records may also follow different rules. Sorting out which rules apply is a key task for independent federal defense counsel.
Prepare before you enter the grand jury room
If you testify, your lawyer cannot sit beside you. Department policy generally lets you step outside to consult your attorney, so preparation matters. Secrecy rules bind jurors and prosecutors, but they generally do not stop a witness from discussing the testimony.
That freedom has limits. Bank officers, for example, can face penalties for tipping off customers about certain subpoenas. Comparing stories with coworkers may raise witness tampering concerns. A false answer under oath can lead to new charges.
Get independent counsel before you respond
A subpoena is a demand for information, not an accusation. Still, your choices before the return date, the day you must respond, can affect your exposure for years. Before you hand over files, speak with company lawyers or contact the prosecutor, consider retaining your own federal defense attorney. Your attorney represents your personal interests, which may not always align with those of your employer. Counsel can also clarify your status, address the scope of the subpoena and prepare you to testify while protecting any rights that may apply.