Pennsylvania Investigating Grand Jury Subpoenas FAQ

Cohen Seglias Pallas Greenhall & Furman PC

How does a Pennsylvania grand jury work?

A Pennsylvania investigating grand jury is a group of 23 to 38 jurors selected from the community pursuant to the Pennsylvania Investigating Grand Jury Act to assist prosecutors and law enforcement officers in investigating allegations of criminal conduct. There are usually three statewide investigating grand juries operating at all times in Pennsylvania—sitting in the eastern district (Norristown), middle district (Harrisburg), and western district (Pittsburgh), respectively.

Who operates Pennsylvania grand juries?

Pennsylvania statewide grand juries are operated by the Pennsylvania Office of Attorney General (OAG), which is responsible for presenting evidence of potential criminal conduct to the grand jurors. The OAG works under the oversight of a supervising judge appointed by the Pennsylvania Supreme Court. The supervising judge is responsible for swearing in witnesses, deciding motions, and ruling on the issuance of presentments and reports. Pennsylvania district attorneys have the power to empanel county grand juries, which operate in a similar manner.

What powers does a Pennsylvania grand jury have?

Pennsylvania grand juries have the power to issue subpoenas for documents and other physical evidence. The grand jury also has the power to issue subpoenas compelling live testimony. The supervising judge has the authority to issue search warrants and other court orders, including orders holding witnesses in contempt of court. The supervising judge also has the power to grant immunity to witnesses in danger of self-incrimination.

How are grand juries different from trial juries?

An investigating grand jury listens to evidence presented by the OAG in order to recommend whether a company/entity or an individual should be charged with a crime. Grand juries only operate for criminal cases and only hear evidence from prosecutors. If a grand jury recommends that crime(s) should be charged, the recommendation comes in the form of a grand jury presentment. The grand jury also can vote to issue a grand jury report, which is a public document describing potential criminal conduct and making recommendations for legislative, executive or administrative action.

By contrast, a trial (or petit) jury is a smaller group of jurors selected to hear and decide a specific civil or criminal case. Unlike a grand jury, a trial jury hears evidence from both sides of a civil or criminal dispute (not just prosecutors), and renders a verdict deciding the case.

What is a grand jury subpoena?

A grand jury subpoena is a document issued at the request of prosecutors and signed by the supervising judge demanding the production of testimony or records or both.

Are grand jury proceedings open to the public?

No, grand juries meet in secret and the supervising judge, prosecutors, and attorneys are required to sign a secrecy oath. However, witnesses who appear before the grand jury are free to disclose their testimony unless they have been court-ordered not to do so.

Are defense attorneys allowed in grand jury hearings?

Yes, an attorney for a person subpoenaed to appear before the grand jury can and should be present in hearings before the supervising judge. In these situations, the attorney can make legal arguments and objections to the judge. All of this occurs outside the presence of the grand jurors. Contrary to federal grand jury practice, a person subpoenaed to appear before a state grand jury can also have counsel present during his/her testimony before the grand jury. However, the role of the attorney in this situation is more limited. In this setting, the attorney can only counsel (give advice) to the witness. In other words, the attorney cannot make objections or address the grand jurors in any way.

Is my company or its employees in trouble if we receive a grand jury subpoena?

It depends on who the target is. If a company and/or its employees are the target of a grand jury’s investigation, a subpoena can be a sign of serious trouble. However, if a company and/or its employees are mere witnesses in possession of evidence that the prosecutor wants to target, the company and its employees are usually not in trouble. Unfortunately, it is not always clear whether a company and its employees are targets or witnesses. Also, simply because the company and its employees are not targets of the investigation does not necessarily mean that they should testify or produce records to the grand jury. There may be privileges or other legal reasons to resist the subpoena.

What do I do if I receive a grand jury subpoena?

It is important to find a lawyer with experience representing companies and their employees during statewide grand jury investigations, preferably an attorney who has previously worked as a prosecutor in the Pennsylvania OAG. The right attorney with good relationships with OAG prosecutors can usually figure out why the company and its employees are being subpoenaed and whether there is any cause for concern.

How do I respond to a grand jury subpoena?

The recipient of a grand jury subpoena must respond to it within 30 days of service or the compliance date, whichever is sooner. This response may take two forms—complying with the subpoena or filing a motion to quash it with the grand jury supervising judge.

Can I refuse a grand jury subpoena?

The proper way to oppose a state grand jury subpoena is by filing a motion to quash. However, unlike a trial subpoena, the grounds for quashing a grand jury subpoena are narrow. The most common ground for quashing a grand jury subpoena is that it demands the production of legally privileged information. The supervising judge will ordinarily decide a motion to quash prior to the questioning of the witness, although objections based on the Fifth Amendment privilege against self-incrimination are usually handled on a question-by-question basis.

A subpoena may also be quashed on the grounds that the information sought is irrelevant or the request is unduly burdensome. However, because the details of the investigation are secret, getting a subpoena quashed on relevancy grounds is often difficult.

What happens if I do not respond in time to a grand jury subpoena?

Time is of the essence when it comes to investigating grand jury subpoenas. The recipient of a grand jury subpoena must respond within 30 days or the compliance date, whichever is sooner. Failure to secure the proper lawyer and timely respond to a grand jury subpoena can result in the permanent waiver of legal privileges and other important rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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