The grand jury system is a critical component of the American criminal justice process, yet it remains a bit mysterious to many people. Integral to all federal felony prosecutions and many state prosecutions, grand juries review evidence, hear witness testimony, and determine whether there’s enough “probable cause to bring criminal charges against one or more people. One of the most common grand jury-related issues arises when someone receives a summons to appear and be questioned before a grand jury.
Are they merely a witness or are they a target?
In this blog post, we explain the differences between being a target and a witness in a grand jury context, and why it is essential to get trustworthy advice from an experienced criminal defense lawyer in every case, regardless of whether you are a witness or a target.
Stechschulte Nell, Attorneys at Law in Tampa believes deeply in guiding clients through any grand jury involvement with the maximum degree of protection. No one should appear before a grand jury before first consulting fully with a skilled criminal defense lawyer with years of grand jury experience.
The Grand Jury Process: An Overview
Before explaining the distinctions in risk between being a grand jury target or a witness, let’s review how a grand jury functions.
- Grand juries are made up of 16 to 23 people who are members of the community. They serve longer terms than trial jurors because they typically consider evidence in many cases over the course of months. They don’t meet every day. They meet in secrecy, primarily to ensure the confidentiality of the proceedings. In theory, the secrecy is intended to protect the innocent from being publicly shamed if the grand jury investigation finds that no charges are called for.
- Instead of determining guilt or innocence, grand juries assess whether there’s “probable cause” to believe a crime has occurred and if there is enough evidence against a particular individual to formally accuse them of the crime.
- Prosecutors present evidence, witnesses are summoned and are asked to answer questions. The process is led by the prosecution without the presence of a judge or any defense attorney. In fact, if a witness is in with the grand jury and wants to ask their own lawyer a question before they answer the prosecutor’s question, they need to notify the prosecutor that they need a break in the proceedings. Then the witness will step outside the hearing room and consult with their lawyer privately. The defense lawyer is barred from playing any role in the grand jury room.
What’s a Grand Jury Target
A target of a grand jury is an individual about whom the grand jury has substantial evidence linking them to a crime. A target is someone the grand jury is likely to indict if they believe they have gathered enough evidence to satisfy the “probable cause” standard.
Probable cause means there is enough evidence for a reasonable person to believe that a crime was or is being committed and that the individual they target is probably guilty of that crime.
If you are identified as a target, there’s a high chance you might face formal charges. You must get immediate help from a criminal defense lawyer.
Must A Person Appear and Testify Before a Grand Jury?
Every person summoned to testify as a witness in court, including grand jury targets, has legal rights guaranteed by the Fifth Amendment of the Constitution of the United States. Chief among those rights is the “privilege against self-incrimination.” No court or government agency can compel a person to testify against themselves if their truthful answers to the questions may tend to incriminate them.
Whether a witness’s answer would or would not tend to incriminate them is sometimes a legal question to be decided by a judge after a hearing. If a person thinks that answering questions might implicate them as being involved in some potentially criminal activity, they can refuse to answer under the authority of the Fifth Amendment.
These decisions should always be made after consulting with and receiving advice from a highly qualified criminal defense lawyer. Of course, this privilege against self-incrimination also applies when being questioned by police or any other law enforcement agent.
Grand Jury Witness
A witness before a grand jury is a person the prosecutor believes to have information relevant to the investigation. They do not need to be involved in the crime being investigated. Witnesses can be people who saw, heard, or did something that will help the grand jurors understand the full story.
Generally, being a witness means you’re not the focus of the investigation. However, situations can change, and today’s witness can become tomorrow’s target. That’s why it is important to contact an experienced criminal defense lawyer immediately when you learn you are being asked to appear before a grand jury.
If a person is subpoenaed to appear before a grand jury, they may claim the protection of their privilege against self-incrimination. However, unless they have a bona fide fear of being incriminated, they will be expected to give truthful testimony.
Unfortunately, many witnesses think they can fudge the truth a little and skate through the grand jury process without any trouble. This is a very dangerous idea and one that can lead to an additional indictment for perjury or obstructing justice. Those criminal charges can result even if the witness is not charged in the original investigation.
Immunity and Cooperation
Some people fall in between being a target and being a witness. These people may have had some involvement in the crime under investigation, but their role may have been limited or their testimony may be so essential that the prosecutors will consider granting them “immunity” in exchange for their cooperation.
Whether or not to consider accepting this offer is a very grave decision, one that will affect your future and that of your family. What will the consequences be of not cooperating? What risk do you take by becoming a cooperating witness against others who will know you testified against them?
And what kind of immunity is the prosecution offering? It is “derivative immunity” or “transactional immunity?”
Trust Tampa’s Premier Defense Attorneys for Expert Guidance
Only a very experienced criminal defense attorney can provide the kind of specialized legal advice a person in this situation can rely on to decide what to do. And every case is different. At Stechschulte Nell, Attorneys at Law in Tampa, we have the experience and expertise to guide you through these challenging situations.
