The subpoena and the return date, testifying compared with invoking the privilege, immunity and what it does and does not buy, the target letter, secrecy and its limits, the charging instrument and how a defect is raised, joinder and severance of counts and defendants, and the statute of limitations and what tolls it.
A subpoena for documents can raise a Fifth Amendment problem even when nothing written in the documents is protected. Producing items implicitly asserts that they exist, that they are in the producer's control, and that they answer the description used. Where those assertions are incriminating and not already known, the act is testimonial. The foregone conclusion doctrine removes the protection where the government can independently establish what the production would concede.
An indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged, signed by an attorney for the government and citing the provision alleged to have been violated. It gives the defendant notice sufficient to prepare a defense and allows a later plea of double jeopardy. A charge omitting an element is defective. Because only a grand jury may alter what it charged, proof that broadens the charge presents a constructive amendment problem.
The privilege against self-incrimination applies in the grand jury room, but it is asserted answer by answer rather than announced at the door. A blanket refusal is generally rejected, because the privilege reaches answers that would tend to incriminate rather than attendance itself. Counsel is excluded from the room, though a witness may leave to consult. A valid refusal is met either by dropping the subject or by a compulsion order backed by immunity.
A federal grand jury subpoena issues under Rule 17 in the name of the court, signed in blank by the clerk and completed by the government. It may command testimony, the production of designated material, or both. The return date fixes when the obligation matures and starts the practical clock for any objection. Nonappearance and refusal to produce are addressed through the court's contempt power and through civil confinement for a recalcitrant witness.
Rule 8(a) permits joinder of offenses that are of the same or similar character, are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Rule 8(b) permits joinder of defendants alleged to have participated in the same act or transaction or series of them. Misjoinder is a pleading defect tested on the face of the instrument. Prejudicial joinder under Rule 14 assumes proper pleading and asks whether trying the counts together would be unfair.
Federal witness immunity comes by court order on the government's application, and it supplies use and derivative use immunity: no compelled testimony, and nothing derived from it, may be used against the witness except in a prosecution for perjury, false statement, or failure to comply. Transactional immunity, which bars prosecution for the conduct itself, is not the federal statutory form. Proffer protection is narrower still and rests on contract.
Rule 6(e)(2) imposes an obligation of secrecy on grand jurors, interpreters, court reporters, operators of recording devices, typists, government attorneys and personnel to whom disclosure is made. No obligation is imposed on a witness. Rule 6(e)(3) then lists permitted disclosures, including to attorneys for the government, to officials for national security purposes, and by court order on a showing of particularized need. Violations are punishable as contempt.
Records held by a bank, an employer or a communications provider belong to the custodian, and the person they describe ordinarily has no standing to object. Congress supplied partial substitutes: the Right to Financial Privacy Act governs federal access to financial records but exempts grand jury subpoenas, and the Stored Communications Act sets tiers of process with judicially ordered delay of notice. Most such subpoenas are answered without the affected person knowing.
Rule 17(c)(2) permits a court to quash or modify a subpoena if compliance would be unreasonable or oppressive. A grand jury subpoena carries a presumption that it was issued for a proper purpose, so the moving party bears the burden of showing that there is no reasonable possibility the material sought will produce information relevant to the investigation. Privilege, burden and overbreadth are the grounds most often argued, and modification is the more common result than outright quashing.
Department of Justice policy defines a target as a person the prosecutor has substantial evidence linking to the commission of an offense and who is a putative defendant, a subject as a person whose conduct is within the scope of the grand jury's investigation, and a witness as everyone else. The definitions appear in the Justice Manual, create no rights, and can change as an investigation develops. What a designation signals is the government's present view, not a commitment.
The general federal limitation period requires that a non-capital offense be charged within five years after it was committed. Congress set longer periods for offenses against financial institutions, certain terrorism offenses and offenses against children, and removed the period entirely for a few categories. The clock runs from completion of the offense, which for a continuing offense means its last act. Fugitive status and a request for evidence abroad both suspend it.
