Published on April 22nd, 2014 by Alan L Sklover
Question: Dear Mr. Sklover: I just received notice that I must appear before a federal Grand Jury regarding something that may have been going on at my former job.
I am very distressed. What should I do? Please advise.
Answer: Dear Melanie: I have had several clients in your circumstance during my career, and with each one I say this: “I am not trained or experienced in the criminal law, and so I really can’t advise regarding it. Nonetheless, I have learned a few things in my time, and I also have the good fortune of meeting highly qualified Criminal Defense Counsel.” Here’s what you need to know:
1. Without question, you need to immediately retain an experienced and qualified Criminal Defense attorney, who is licensed in your locale and well versed in Grand Jury procedure. Most, but not all, experienced Criminal Defense attorneys are either (i) former Prosecutors, or (ii) former Public Defenders, both of whom have seen the criminal justice system “from the inside.”
If you receive a Grand Jury subpoena it is important that you have such an attorney “in your corner,” even if you believe you have done nothing whatsoever wrong. First, even if you have been assured that you are “not in trouble” or “are not a target of the investigation,” you might be, or you might later become a target due to something the Prosecutors or the Grand Jury learn during the investigation to take place. In fact, in most situations, it is only the Grand Jury – and not Prosecutors, investigators or police officers – who can decide who will be prosecuted for alleged wrongdoing. Also, you may have unwittingly, on the job, been associated with others who engaged in criminal behavior.
For example, in the course of a Grand Jury investigation about fraud on customers of your former employer, it may come to light that your former employer also engaged in tax evasion, an entirely different criminal offense. It just might be that you had nothing whatsoever to do with defrauding customers, but you were somehow a part of the group whose work ended up engaged in the tax evasion, knowingly or not.
Freedom is precious; being prosecuted can be one of the worst experiences of your lifetime. It is simply something that is hard to argue with: if there ever was a time you need to be guided by your own legal counsel, it is this one.
To obtain names of experienced Criminal Defense attorneys in Detroit, you should contact the local Bar Association or Criminal Defenders’ Society.
2. Because the Grand Jury subpoena is regarding your former employer, you might just also need to retain an attorney qualified and experienced in employment law, as well. In this specialized world of ours, our professionals need to be specialized to offer you the best professional guidance. I am an employment attorney, with little experience in criminal defense matters. Most of the very best criminal defense attorneys cannot claim to have experience or expertise in employment matters, either.
Your appearance before the Grand Jury might cause employment-related issues you need to analyze and resolve if, for examples:
(a) you have signed an employment or severance agreement that requires that you promptly notify your former employer of such an event;
(b) you still have deferred compensation (stock options, restricted stock, or other forms) that you might forfeit if you share confidential information with anyone;
(c) you might be entitled to reimbursement of your legal fees for your criminal defense attorney under the by-laws of your former employer or the terms of an employment or severance agreement;
(d) if your Grand Jury Subpoena requires that you provide documents to the Grand Jury, you might be violating confidentiality obligations or some other legal obligations to your former employer, or be violating some legal “privilege” by doing so; and
(e) your appearance before a Grand Jury might cause unintended or unexpected consequences for you with your current employer for a wide variety of reasons, including the fact that you owe a duty of loyalty to your present employer and you can’t be certain that the Grand Jury might not ask you questions about it, as well.
For individual attention and assistance, Mr. Sklover is available for telephone consultations lasting 30 minutes, 60 minutes, or 2 hours. If you would like to set up a consultation, just [click here.]
3. Here’s something of an explanation of what a Grand Jury is. A “Grand Jury” is a group of people from your community who have been assembled to decide if criminal charges should be brought against a person or persons. They are used by both state Courts and federal Courts to listen to evidence and decide who should be prosecuted for serious crimes.
Why are they called “Grand?” Generally, because they are larger than trial juries; while juries rarely exceed twelve members, “Grand” juries in some localities consist of up to 23 people at one time. They also often stay assembled for a longer period than does a trial jury, in some instances for up to 36 months. As explained below, they also have kind of “grand” powers.
A Grand Jury is convened by a Prosecutor, often after referral from police investigators, seeking to indict someone who it is believed committed one or more criminal offenses. In the Grand Jury, the Prosecutor presents evidence, and the Grand Jurors can ask questions of witnesses. The Prosecutor or the Grand Jury can issue subpoenas to get documents, witnesses or other forms of evidence.
Grand juries don’t decide if someone is guilty of a crime, but only if there is enough evidence to charge them with a crime, and if so to direct that they go to a trial. If a grand jury does decide to bring a serious charge against a person, it is called “voting a true bill” or “indicting” them.
Both state and federal Prosecutors use Grand Juries, but the state and federal Grand Jury procedures are often quite different.
4. It is most important to note that Grand Juries are very “one-sided,” meaning (a) they have no Judges supervising, (b) are operated in secrecy, and (c) do not permit people to have their lawyers with them. Because Grand Juries do not convict people of crimes or send people to jail, they have very few procedural safeguards: (a) They have no Judge to supervise what goes on. It is “one-sided” because supervision is only by a Prosecutor, who is seeking to gain an indictment; (b) They are entirely closed to the public and operated in secrecy, meaning there is no openness to public scrutiny; and (c) people appearing before Grand Juries are not permitted to have an attorney present with them.
5. Compounding the “danger” of Grand Juries is that they need far less evidence to indict (that is, bring charges against) a person than trial juries need to find them guilty of a crime. For me, this is the most important thing for people to understand about Grand Juries: they do not need much evidence to indict a person of a crime. Whereas trial juries need to find there exists “proof beyond a reasonable doubt,” Grand Juries need to find only that there exists “probable cause” to do so, which is a much, much lower standard of evidence or proof. There is an old saying, attributed to many different people: “A Grand Jury could indict a ham sandwich.”
6. Your Criminal Defense Counsel can Counsel you, Prepare you, and Negotiate for You. In this circumstance, your Criminal Defense Counsel can counsel you regarding what your vulnerability may be in this process. He or she can also prepare you to testify truthfully, and fully, but also carefully when you appear before the Grand Jury. Since your subpoena probably asks that you provide documents if you have any for the Prosecutor and Grand Jury to review, your Criminal Defense Counsel can also assist you in that process. Most importantly, your Criminal Defense Counsel will likely negotiate for you both possible immunity from prosecution based on the information you provide, and might even be able to make your personal appearance before the Grand Jury unnecessary. Your Criminal Defense Attorney may, with some limitations, be able to request of your former employer that it reimburse you for your legal expense in this process. As you can see, having an experienced Criminal Defense Attorney on your side and “in your corner” is a real must-do.
And, too, if you have somehow been involved in illegal activity, your Criminal Defense Attorney can “bargain” for you either immunity or a reduced penalty for your offenses.
I hope and expect this is of some help to you, and that things go well for you in this circumstance.
My Best to You,
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