New York Criminal Practice: The Criminal Subpoena and the Grand Jury

As an Assistant District Attorney who served in the Manhattan District Attorney’s Office for seven years and as a New York criminal defense attorney, I have prosecuted, investigated and defended a wide spectrum of crimes ranging from Identity Theft, Forgery and Grand Larceny to Possession of a Weapon, Rape and Kidnapping. Through my years of experience I have heard the same question asked by witnesses of crimes over and over again. That is, “I received a subpoena for the Grand Jury. Do I have to go to the prosecutor’s or District Attorney’s Office?” The answer to this question is always and absolutely in the negative. In fact, ther is “no power in the District Attorney under our existing law to employ a subpoena to [require a] witness to attend his office or any other place where a Grand Jury is not sitting or where a court is not convened in action or proceeding.” People v. Boulet.

Prosecutors are entitled to issue subpoenas on behalf of the Grand Jury that require your personal appearance in front of that body. On the face of the subpoena or the cover letter, the prosecutor will often indicate that he or she would like you to come to the office prior to going to the Grand Jury. Prosecutors are not being dishonest or trying to trick you to come down to their office first in lieu of going to the Grand Jury. There is no reason for them to behave in this manner. In fact, it may save both parties the time and energy of going into the Grand Jury or it may turn out that after a few questions from the prosecutor it will be determined that you are not needed and you can go back home or back to work. At bottom, there are many valid reasons why a prosecutor would request that you come to the office first.

Despite the valid reasons, the prosecutor may believe that you are involved in criminal activity or have information about criminal activity. If you are concerned that you are the target of an investigation or you believe that you may implicate yourself or a loved one in a criminal matter, it may be in your best interest to retain a New York criminal defense attorney to accompany you to the Grand Jury. In the alternative, a criminal defense attorney may be able to challenge the subpoena or tell the prosecutor that you will not come to his or her office. At a minimum, a criminal defense attorney might be able to speak with the prosecutor to better understand the purpose of the subpoena or arrange for a mutually agreeable time for you to come down to the Grand Jury or the District Attorney’s Office. On the other hand, and more importantly, an experienced NY criminal defense attorney can stop you from implicating yourself or a loved one to a prosecutor who may decide to prosecute you or further his or her investigation.

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