What is a federal grand jury "target letter"?

Can the grand jury indict me without notice and counsel?

Q: What is a federal grand jury "target letter"? Why and when would a target of the federal grand jury receive one? Does this mean that a person who receives such a letter is likely to get indicted?

A: Federal grand juries conduct investigations into possible violations of federal criminal law. They have the power to subpoena witnesses to appear before them to testify and produce information.

The Department of Justice has special policies when the subpoenaed person is either a "target" or a "subject" of the grand jury investigation. A "target" is someone the prosecutor or grand jury has substantial evidence to link to a crime, and who, in the judgment of the prosecutor, is likely to be indicted. A "subject" of a grand jury investigation is someone whose conduct is within the scope of the grand jury's investigation.

Due to the potential for unfairness and misunderstanding in making a person who is likely to be indicted testify or produce documents before a grand jury, prosecutors must first attempt to get the target to voluntarily appear. If that doesn't work, the prosecutor must get the approval of the grand jury and the United States Attorney or the responsible Assistant Attorney General in order to issue a subpoena.

In deciding whether to subpoena a target, prosecutors will consider the importance of the testimony or information sought, whether the prosecutor can get the testimony or information from other witnesses, and whether the answers to the questions the prosecutors and grand jurors intend to ask would be privileged.

If the target of a grand jury investigation is subpoenaed, it's the policy of the Department of Justice to advise the witness of his or her rights, either by attaching an "advice of rights" form to the subpoena or in a letter than accompanies the subpoena. In the case of a witness who's the target or subject of the investigation, the following advice is provided: "The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: [the general subject matter of inquiry, for example "conducting an illegal gambling business in violation of 18 U.S.C. Section 1955"]. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire."

Targets are also advised that their conduct is being investigated for possible violation of federal criminal law.

Q: Does anyone have to tell you at a grand jury hearing that you're being indicted? Is it legal to indict a person without their knowledge or representation?

A: There isn't a requirement that you be advised ahead of time that an indictment is going to be returned against you. Grand jury proceedings are considered secret. In general terms, this means that the authorities aren't allowed to reveal what happens before a grand jury.

If you're a "target" (loosely defined as a person against whom the government has evidence of an involvement in a crime for which you may be charged) or a subject of a grand jury investigation, the government may want to question you about your involvement in the crime under investigation. In that case, the United States Attorney's Manual requires federal prosecutors to advise you in writing of your right to counsel and to use your privilege not to incriminate yourself if you so choose.

If you think you're the target or subject of a grand jury investigation, you might consider getting a lawyer to open communications with the prosecutor. Sometimes the prosecutor will confirm her intention to indict you, engage in plea negotiations before the indictment, or agree to surrender instead of arrest when the indictment is returned. Other times, the prosecutor will request that the indictment be sealed by the court until your arrest, to reduce the chance you'll flee to avoid prosecution.

A criminal indictment is a serious matter, so looking for a lawyer at the earliest opportunity is a good idea.

Q: What is witness tampering?

A: It's a federal crime to tamper with a witness, victim or an informant. Witness tampering can include harassing, intimidating or making threats to a witness to prevent them from providing testimony or documents, or from attending a trial or other proceeding. It includes killing or attempting to kill a person who might give information or documents to federal officials. Witness tampering can be misleading conduct, such as hiding a witness from authorities to prevent testimony at trial, or making false statements to convince another person to lie. Attempts to silence a witness through cajoling or bribing them are also considered witness tampering. So is instructing someone not to cooperate with a government investigation and denying involvement in illegal activity.

Penalties under the federal witness tampering statute range from up to one year for less serious violations, to life imprisonment or the death penalty for a killing.