Federal Grand Jury
According to the US Attorney's Manual, a “target” is an individual “as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." (US Dept. of Justice, Attorney's Manual 9-11.151, Aug. 2002, accessible here). Since not every individual indicted by a grand jury is found guilty, whether the evidence necessarily must be “substantial” is debatable. Federal prosecutors perceive their targets as guilty throughout the course of their investigation, even though many individuals are acquitted by a federal grand jury.
A “subject” is defined as one “whose conduct is within the scope of the grand jury's investigation," but is not the target of investigation. Id. Additionally, an individual who the prosecution believes will assist them in establishing probable cause for an indictment is a “witness.”
Targets, subjects, and witnesses may be subpoenaed to appear before the grand jury. Subjects and witnesses should be particularly cautious when they testify, because their testimony could be more damaging than advantageous to their ends. The US Attorney's Manual states, "an effort should be made to secure the target's voluntary appearance, [and if] a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the [US] Attorney … have approved the subpoena." Id. at 9-11.150. Additionally, according to the US Attorney's Manual, if a target of or subject asks to present his testimony, "the prosecutor has no legal obligation to permit such witnesses to testify." Id. at 9-11.152. Only once a witness “explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath," may an individual be given the chance to testify. Id. Importantly, the requirement that individuals be represented by counsel cannot be fulfilled by merely having counsel present during their testimony.
During “routine clear cases or when such action might jeopardize the investigation or prosecution,” secrecy is essential and the target should not be informed that his case is being reviewed by the grand jury “because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice." Id. 9-11.152.
The Process of a Federal Grand Jury
Under the Federal Rules of Criminal Procedure, one of the 16 to 23 members of a grand jury is selected for the position of foreperson, and is given the tasks of signing indictments and overseeing oaths and affirmations. FRCrP 6(a)(1) and FRCrP 6(c). Another member of the jury is chosen as the deputy foreperson. FRCrP 6(c). Unless otherwise ordered by the court, the number of jurors that concur with the indictment is recorded and sealed from the public. Id. All involved in the administration of the matter, including government attorneys, jurors, transcribers, court reporters, and interpreters, are prohibited from revealing information about a grand jury session. Id. 6(e)(2)(B). Furthermore, only "attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device” are permitted to be in attendance during the grand jury session. FRCrP 6(d)(1). Even the target and his attorney cannot be present, unless the target is testifying. The government alone has the opportunity to present its evidence against the target, and this can include evidence, such as hearsay, that would not be admissible at a trial (USAM 9-11.232). If 12 or more grand jurors conclude that an indictment should be issued, the target is indicted. Id. 6(f).
The indictment is a clear and succinct written document, signed by a government attorney, which explains the facts that comprise the criminal charge. FRCrP 7(c)(1). Each count of the indictment must offer the applicable statute for the offense, but it may claim that the means “by which the defendant committed the offense are unknown." Id. If the citation for the statute is absent or cited incorrectly, the indictment can still stand, unless the accused was somehow deceived or prejudiced. Id. 7(c)(3). Before the accused is taken into custody, the indictment is usually sealed. FRCrP 6(e)(4).
The target is informed of the indictment and becomes the “defendant” after the US Attorney and a federal agent see the Federal Magistrate Judge and are issued an arrest warrant.
The Arrest Warrant
An arrest warrant, which is issued and signed by the magistrate, includes the name of the defendant, the criminal charge, and an order for the defendant’s prompt arrest. FRCrP 9(a) and FRCrP 9(b)(1) (incorporating by reference the provisions of FRCrP 4(1)(b)). The defendant will then be seized by several federal agents and brought immediately to county jail. By the following business day (usually a Monday), the federal agents will present the defendant before the federal court, usually after he or she is led on a “perp walk” in front of local reporters.
The Detention Hearing
The Magistrate Judge will follow the subsequent process when deciding whether the defendant will be held in custody until his trial. Once the defendant has arrived at the courthouse, a Magistrate Judge will assess whether he or she should be released by considering the likelihood that the person will flee and the probability that the individual’s freedom may threaten the community or any particular person. 18 U.S.C. § 3142(b). In certain instances, for example, when one is indicted for a drug crime with a penalty of at least 10 years imprisonment, a violent or terrorism-related crime with punishment of 10 or more years in prison, any crime that carries a punishment of life in prison or the death penalty, or any felony committed in addition to at least two of the aforementioned crimes, then there is a rebuttable presumption that the defendant will be a threat to society. Id. § 3142(f)(1).
If a Magistrate Judge releases a person on an unsecured appearance bond or personal recognizance, that individual cannot commit any crime while released. 18 U.S.C. § 3142(a)(1) and Id. § 3142(b). If not released on an unsecured appearance bond or personal recognizance, the individual may still be released of he complies with a variety of requirements, such as posting a bond, continued employment, limited travel, drug testing, living in a halfway home, drug counseling, obeying a curfew, or remaining at home. Id. § 3142(c). A detention hearing will be carried out if the Judge deems it inappropriate to release the defendant. Id. § 3142(f).
When posting a bond for a Federal case, an individual cannot provide payment through a bail-bondsman as one can for a State case. Rather, the person may have to pay a certain percentage of the bond on his own or agree to lose the bond if he does not appear in court.
If a continuance is not requested, the detention hearing is convened as soon as the defendant appears in before the Magistrate. 18 U.S.C. § 3142(f). Continuances are rarely longer than five days, the detention hearing will most likely be held less than five days after arriving at the courthouse. Id. The defendant has several rights during the detention hearing, including the right to testify, to be represented by counsel, to cross-examine witnesses, to introduce witnesses, and put forward information, but the detention hearing is subject to different regulations regarding evidence than trials. Id. In order for the defendant to be detained, the Magistrate must find credible and persuasive support that the individual will still pose a threat to the community or any person even if any possible conditions are imposed on his release. Id.
If an individual is released, the court will issue a statement that contains the conditions of release and the subsequent punishments for disobeying one of those conditions. 18 U.S.C. § 3142(h). On the other hand, it the individual is held in custody, the court will issue a written record explaining the factual basis for the individual’s detention. In this case, the court will also order that the individual be brought back to court for subsequent proceedings, have occasion to seek counsel, and be detained apart from convicted offenders. Id. § 3142(i).
During the arraignment, the defendant can choose to plead guilty or not guilty. He may also choose to plead nolo contendere with the court’s agreement. Only after weighing considering "the parties' views and the public interest in the effective administration of justice" may the court decide to permit a plea of nolo contedere. Id. 11(a)(1)(3). In the case of a not guilty plea, the court must decide either to hold the defendant in custody or to release him on bond under certain conditions. The defendant’s federal criminal trail will start in no more than 70 days, unless there is a waiver for the right to a speedy trial.
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