Receiving a federal subpoena can be unsettling, particularly when it relates to a criminal investigation. A subpoena may require you to appear and testify, produce documents or electronic records, or appear before a federal grand jury.
Federal subpoena attorney Michael J. Petro represents individuals who receive subpoenas in connection with federal criminal investigations and prosecutions. Attorney Petro has more than 35 years of criminal defense experience representing clients in serious federal matters.
If you receive a federal subpoena, do not ignore it. At the same time, receiving a subpoena does not necessarily mean that you have committed a crime or that you should immediately speak with federal investigators. The first step is determining why the subpoena was issued, what it requires, and whether responding could create criminal exposure.
What Is a Federal Criminal Subpoena?
A subpoena is a legal command requiring a person to appear and testify, produce specified evidence, or both.
Federal Rule of Criminal Procedure 17 governs subpoenas in federal criminal proceedings. A subpoena can require a witness to attend and testify at a specified time and place. A subpoena can also require production of books, papers, documents, data, or other objects.
Federal subpoenas may arise during:
- Federal grand jury investigations
- Criminal trials
- Evidentiary hearings
- Sentencing proceedings
- Other federal criminal proceedings
The fact that the government has subpoenaed you does not, standing alone, establish whether prosecutors view you merely as a witness or believe that your conduct may be connected to criminal activity.
What Should You Do When You Receive a Federal Subpoena?
The most important initial rule is simple: do not ignore the subpoena.
Federal Rule of Criminal Procedure 17 provides mechanisms for enforcement of federal criminal subpoenas, and a witness who disobeys a subpoena without adequate excuse may face contempt proceedings.
You should also avoid making hurried decisions about testimony or document production before understanding your legal position.
After receiving a subpoena:
- Preserve the subpoena and everything delivered with it
- Note the date, time, and location for compliance
- Do not destroy, alter, conceal, or delete potentially responsive evidence
- Avoid discussing the investigation unnecessarily with other witnesses
- Determine whether the subpoena requires testimony, documents, or both
- Consider consulting an experienced federal criminal defense attorney before responding
The appropriate response depends heavily upon the type of subpoena and your relationship to the investigation.
Federal Grand Jury Subpoenas
A federal grand jury subpoena deserves particular attention because it can indicate an active criminal investigation.
A federal grand jury investigates possible violations of federal criminal law and determines whether there is probable cause to return an indictment.
A person receiving a grand jury subpoena may be a witness with useful information. But in other circumstances, the person’s own conduct may be under investigation.
The Department of Justice distinguishes between a witness, a subject, and a target. DOJ describes a subject as someone whose conduct falls within the scope of the investigation, and a target as someone whom prosecutors believe is linked by substantial evidence to a crime and whom they regard as a potential defendant.
Determining where you may fall within that spectrum can be extremely important before deciding how to respond.
Are You a Witness, Subject, or Target?
A subpoena itself may not tell you.
This is one reason legal representation can be valuable before appearing before a grand jury or agreeing to an interview with federal agents.
Defense counsel may communicate with the prosecutor to obtain information concerning the nature of the investigation and, when possible, the client’s status.
The government’s characterization is not necessarily permanent. A person’s status can change as investigators obtain additional evidence.
Someone initially viewed as a witness may later become a subject or target. Conversely, an investigation may establish that the person committed no crime.
Can You Refuse to Testify Because of the Fifth Amendment?
The Fifth Amendment privilege against self-incrimination can be critically important when a subpoenaed witness faces potential criminal exposure.
But receiving a subpoena does not ordinarily mean that a witness can simply ignore the subpoena or decide not to appear.
The privilege generally concerns compelled testimony that could incriminate the witness. The application of the privilege depends upon the questions asked and the circumstances.
The Department of Justice’s own grand jury guidance recognizes situations in which prospective witnesses may assert the Fifth Amendment privilege and specifically addresses how prosecutors should handle a target who indicates an intention to invoke it.
A witness who believes their truthful testimony could be incriminating should seek legal advice before appearing to testify, rather than waiting until questioning begins.
Can Your Attorney Go Into the Federal Grand Jury Room With You?
Generally, defense counsel does not accompany a witness inside the grand jury room while the witness is testifying.
That does not mean a grand jury witness must proceed without legal advice.
An attorney can advise the witness before the appearance and assist the witness in understanding potential criminal exposure, the Fifth Amendment, and other legal issues surrounding the testimony.
The inability of counsel to sit beside the witness during grand jury questioning makes preparation before the appearance particularly important.
Subpoenas for Documents and Electronic Evidence
A federal subpoena may require production of documents or other evidence rather than—or in addition to—testimony.
Rule 17 expressly permits a subpoena to demand books, papers, documents, data, and other objects.
A document subpoena may seek:
- Emails
- Text messages
- Business records
- Financial records
- Bank records
- Contracts
- Corporate records
- Medical or billing records
- Photographs
- Electronic files
- Computer data
- Other specified evidence
Do not assume that a subpoena for records is simply an administrative request.
The documents themselves may be important evidence in a federal investigation, and the act of identifying, collecting, or producing records can present legal issues that should be considered before production.
Do Not Delete Documents After Receiving a Subpoena
Once a subpoena or federal investigation is known, potentially relevant records should be preserved.
Deleting emails, destroying documents, altering records, wiping electronic devices, or attempting to conceal evidence can create serious additional problems.
This applies even when the underlying investigation ultimately establishes no criminal wrongdoing by the subpoena recipient.
Preservation should therefore be one of the first considerations after receiving a subpoena.
Can a Federal Subpoena Be Challenged?
In appropriate circumstances, yes.
For subpoenas governed by Rule 17(c), a court may quash or modify a subpoena when compliance would be unreasonable or oppressive.
Depending upon the circumstances, issues may arise concerning:
- Scope of the subpoena
- Relevance of requested material
- Privileged communications
- Confidential information
- Burden of compliance
- Fifth Amendment concerns
- Other legal protections
A subpoena should therefore be reviewed carefully rather than treated as an unquestionable demand for everything requested.
Attorney-Client Privilege and Other Protected Information
Some subpoenaed information may be protected by a recognized privilege.
For example, confidential attorney-client communications may be protected from disclosure when the requirements of the privilege are satisfied.
Other privileges or protections may apply depending upon the nature of the records and proceeding.
The existence of potentially privileged material does not mean the subpoena should simply be ignored. Instead, the privilege should be identified and asserted through the appropriate procedure.
Should You Talk to the FBI or Federal Agents?
Receiving a subpoena is sometimes followed or preceded by a request to speak with federal agents.
A subpoena requiring testimony or records is different from a request for a voluntary interview.
You should understand that distinction before agreeing to answer questions.
A person may believe he or she is merely helping investigators while prosecutors are simultaneously evaluating that person’s own conduct.
Statements made during an interview can become important evidence later.
Before participating in a voluntary interview with the FBI or another federal agency, it is important to understand the subject of the investigation and your potential exposure.
What If You Did Nothing Wrong?
People who have committed no crime are frequently subpoenaed because they possess information relevant to an investigation.
Nevertheless, an innocent witness should still take a federal subpoena seriously.
A witness may not know all of the information investigators have obtained. Questions may concern business transactions, communications, financial records, relationships with other people, or events that occurred years earlier.
Preparation can help ensure that testimony is accurate and that the witness understands the nature of the proceeding.
Why Early Legal Advice Matters
The period between receiving a subpoena and responding to it can be important.
Before compliance, an attorney may be able to:
- Review exactly what the subpoena requires
- Determine whether testimony, documents, or both are demanded
- Communicate with the federal prosecutor
- Seek information about the nature of the investigation
- Evaluate whether the client may be a witness, subject, or target
- Identify Fifth Amendment concerns
- Identify privileged or protected material
- Evaluate whether grounds exist to challenge or narrow the subpoena
- Prepare the client for testimony
- Address document preservation and production
These issues are much easier to evaluate before testimony is given or documents are produced.
Federal Subpoenas and Grand Jury Investigations
Federal grand jury investigations can develop over months or even years and may involve numerous witnesses, businesses, financial institutions, and electronic records.
A subpoena may therefore be only one part of a much larger federal investigation.
If the subpoena concerns suspected fraud, health care fraud, drug offenses, firearms offenses, public corruption, financial crimes, or another serious federal offense, understanding the government’s investigation before responding can be particularly important.
Learn more about federal investigations and grand jury proceedings.
Experienced Federal Subpoena Attorney
Michael J. Petro has more than 35 years of criminal defense experience representing individuals facing federal investigations and prosecutions.
If you have received a federal subpoena to testify, produce records, or appear before a federal grand jury, you should evaluate it promptly. The appropriate response depends upon what the government is investigating, what information is being sought, and whether your own conduct could potentially be implicated.
Contact federal subpoena attorney Michael J. Petro to discuss the subpoena before responding or providing testimony.