The Fifth Amendment to the U.S. Constitution holds that in order to be charged with a capital or “otherwise infamous” crime, a person has to be indicted by a grand jury. The U.S. Supreme Court has held that this Fifth Amendment requirement is not imposed on the states, and a grand jury indictment is not therefore not constitutionally required for a state felony. The New York state constitution, however, mirrors the U.S. Constitution in its requirement that a person facing a felony charge first be indicted by a grand jury.
In the federal system, a grand jury is given wide latitude in hearing evidence in order to determine whether or not a person will be indicted. In most cases, a person who is the subject or target of the grand jury is indicted. This is what led to the now infamous quote that a grand jury would “indict a ham sandwich” if the prosecutor asked them to do so.
Federal grand juries consist of 16 to 23 members who are tasked with hearing the evidence presented and making a determination on whether or not there is enough evidence to bring a criminal charge against a potential defendant. Grand juries can subpoena documents and even witnesses to appear before them to testify. If the person being asked to testify is the potential defendant, the U.S. Attorney’s office will send them a target letter advising them of their rights. The Department of Justice considers a person a target when the prosecution or the grand jury has “substantial evidence” linking the person to a crime and the prosecutor regards the person as a potential defendant.
Some of the rights a person is advised of when they are a target are that they have the right to refuse to answer a question if the answer would incriminate them, that anything they say can be used against them in criminal proceedings, and that they have a right to consult with an attorney. Although a person appearing before a federal grand jury has the right to confer with an attorney, the person is not allowed to be accompanied into the grand jury room by the attorney. During the course of the questioning however, a person may be allowed to step outside to consult with his or her attorney. The Sixth Amendment right to counsel is not readily applicable in such a situation because the target is not yet charged with a crime when appearing before a grand jury.
In some situations, when a person is being investigated for a possible violation of federal criminal laws, the FBI or other federal law enforcement agents may attempt to conduct interviews before the person testifies before the grand jury. Any statements made to these agents can later be used against the person. It is therefore important to avoid giving interviews to federal agents without an attorney present or without the prior advice of an attorney. Similarly, if a person receives a target letter, he or she should consult an attorney immediately for advice on how to proceed.
Contact a Syracuse Criminal Defense Attorney
If you are the subject of a federal grand jury investigation or have received a target letter from the U.S. Attorney’s office, you need an experienced criminal defense attorney representing you. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.