# The Federal Grand Jury

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URL: https://www.frixlaw.com/law-library/documents/crs%3A95-1135

## Record

- **Collection:** Congressional research report
- **Document type:** Reports
- **Published:** July 3, 2025
- **Citation:** 95-1135

## Text

The Federal Grand Jury
Updated July 3, 2025

Congressional Research Service
https://crsreports.congress.gov
95-1135

The Federal Grand Jury

Summary
The federal grand jury exists to investigate crimes against the United States and to preserve the
constitutional right of grand jury indictment. Its responsibilities require broad powers.
As an arm of the U.S. District Court which summons it, upon whose process it relies, and which
will receive any indictments it returns, the grand jury’s subject matter and geographical
jurisdiction is that of the court to which it is attached.
As a general rule, the law is entitled to everyone’s evidence. Witnesses subpoenaed to appear
before the grand jury, therefore, will find little to excuse their appearance. Once before the panel,
however, they are entitled to the benefit of various constitutional, common law, and statutory
privileges including the right to withhold self-incriminating testimony and the security of
confidentiality of their attorney-client communications. They are not, however, entitled to have an
attorney with them in the grand jury room when they testify.
The grand jury conducts its business in secret. Those who attend its sessions other than witnesses
may disclose its secrets only when a court determines the interests of justice permit.
Unless the independence of the grand jury is overborne, irregularities in the grand jury process
ordinarily will not result in dismissal of an indictment, particularly where dismissal is sought after
conviction.
The concurrence of the attorney for the government is required for the trial of any indictment
voted by the grand jury. In the absence of such an endorsement or when a panel seeks to issue a
report, the court enjoys narrowly exercised discretion to dictate expungement or permit
distribution of the report.

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The Federal Grand Jury

Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 2
Organizational Matters .................................................................................................................... 4
Jurisdiction ................................................................................................................................ 4
Selection .................................................................................................................................... 4
Tenure ........................................................................................................................................ 7
Proceedings Before the Grand Jury ........................................................................................... 8
Grand Jury and the Prosecutor .................................................................................................. 8
Subpoenas ................................................................................................................................. 8
Common Law Privileges................................................................................................... 12
Constitutional Privileges ................................................................................................... 17
Statutory and Other Limitations of Grand Jury Subpoena Authority ............................... 23
Secrecy .................................................................................................................................... 24
Those Who Need Not Keep the Grand Jury’s Secrets ...................................................... 25
Matters .............................................................................................................................. 26
Disclosure ......................................................................................................................... 28
Enforcement of Grand Jury Secrecy ................................................................................. 34
Final Grand Jury Action .......................................................................................................... 35
Indictment ......................................................................................................................... 35
Refusal to Indict ................................................................................................................ 36
Reports .............................................................................................................................. 36
Discharge .......................................................................................................................... 37
Indictments Dismissed ............................................................................................................ 38

Contacts
Author Information........................................................................................................................ 42

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The Federal Grand Jury

Introduction
“The grand jury [has] a unique role in our criminal justice system.”1 It was born of a desire to
identify more criminals for prosecution and thereby to increase the King’s revenues. With the
exclusive power to accuse also comes the power not to accuse, and early on the grand jury
became both the “sword and the shield of justice.”2
This dual character marks the federal grand jury to this day. As the sword of justice, it enjoys
virtually unfettered power to secretly investigate the mere possibility that federal laws may have
been broken. Yet it remains a potential shield for it must give its approval before anyone may be
brought to trial unwillingly for a serious federal crime.3
What follows is a brief general description of the law relating to the federal grand jury, with
particular emphasis on its more controversial aspects—relationship of the prosecutor and the
grand jury, the rights of grand jury witnesses, grand jury secrecy, and rights of the targets of a
grand jury investigation.

1 United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991).
2 United States v. Cox, 342 F.2d 167, 186 n.1 (5th Cir. 1965) (Wisdom, J., concurring) (quoting AMERICAN BAR

ASSOCIATION, FEDERAL GRAND JURY HANDBOOK 8 (1959), reprinted in Federal Grand Jury: Hearings Before the
Subcomm. on Immigration, Citizenship, and International Law of the House Comm. on the Judiciary, 94th Cong. 277,
283 (1976))).
3 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.... ” U.S. CONST. amend. V. A defendant is free to waive grand jury indictment for any crime that does
not carry the death penalty; and the government may prosecute misdemeanors and other minor federal crimes by either
by indictment or by information, FED. R. CRIM. P. 7; United States v. Cotton, 535 U.S. 625, 630 (2002).

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Background
The grand jury is an institution of antiquity that dates back to the twelfth century. When William
the Conqueror sought to compile the Domesday Book, he called upon the most respected men of
each community. Their reports were collected to form an inventory of England’s property, real
and personal, and served as the foundation of the Crown’s tax rolls.4
Almost a century later in the Assize of Clarendon, the ancestor of the modern grand jury, Henry
II used the same approach to unearth reports of crime,5 and thereby increase the flow of fines and
forfeitures into his treasury.6
From the power to accuse, the power to refuse to accuse (i.e., to protect) eventually developed.
By the American colonial period, the grand jury had become both an accuser and a protector. It
was this protector the Founders saw when they enshrined the grand jury within the Bill of Rights7
and the reason it has been afforded extraordinary inquisitorial powers and exceptional deference.8

4 William Searle Holdsworth, 2 HISTORY OF ENGLISH LAW, 158-61 (1903).

5 Most commentators, after making reference to earlier similar institutions in ancient Greece, Rome, Scandinavia,

Normandy and/or among the Saxons, trace the emergence of the modern grand jury to the issuance of the Assize of
Clarendon by Henry II in 1166, 1 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 251–52
(1883); 1 WILLIAM SEARLE HOLDSWORTH, HISTORY OF ENGLISH LAW 147–48 (1903); WILLIAM STUBBS, SELECT
CHARTERS AND OTHER ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL HISTORY 143 (1888); 2 FREDERICK POLLACK &
FREDERIC WILLIAM MAITLAND, HISTORY OF ENGLISH LAW 642 (1923); THEODORE F.T. PLUCKNETT, A CONCISE
HISTORY OF THE COMMON LAW 112 (1956); Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury,
10 AM. CRIM. L. REV. 701, 703 (1972); Leonard B. Boudin, The Federal Grand Jury, 61 GEO. L. J. 1 (1972); Mark
Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U.
L. REV. 1, 5–6 (1996).
In the Assize of Clarendon and the later Assize of Northampton (1176), “twelve knights of the hundred or, if there are
no knights, ... twelve free and lawful men, ... and ... four men from each township of the hundred” were assembled and
“by their oath” identified from their own knowledge those reputed to have committed crimes. PLUCKNETT, supra note
4, at 112; 3 STEPHEN, supra note 4, at 251; 1 HOLDSWORTH, supra note 4, at 147.
“Assize” refers to “[a] session of a court or council.” Assize, BLACK’S LAW DICTIONARY (12th ed. 2024). In the Assize
of Clarendon and the later Assize of Northampton (1176), “twelve knights of the hundred or, if there are no knights, ...
twelve free and lawful men, ... and ... four men from each township of the hundred” were assembled and “by their oath”
identified from their own knowledge those reputed to have committed crimes. PLUCKNETT, supra note 4, at 112; 1
STEPHEN, supra note 4, at 251; 1 HOLDSWORTH, supra note 4, at 147.
6 PLUCKNETT, supra note 4, at 112. At common law, anyone convicted and “attained” for treason or felony forfeited all
his land and goods to the Crown, 4 WILLIAM BLACKSTONE, COMMENTARIES 376–81; 1 MATTHEW HALE, HISTORY OF
PLEAS OF THE CROWN 354–67 (1778 ed.).
7 United States v. Caruto, 663 F.3d. 394, 398 (9th Cir. 2011) (quoting Wood v. Georgia, 370 U.S. 375, 390 (1962))
(“Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and
oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused,
... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and
personal ill will.”) (alterations in original) (quoting United States v. Marcucci, 299 F.3d 1156, 1161 (9th Cir. 2002) (per
curiam))); see also Henderson v. Dep’t of Vet. Aff., 878 F.3d 1044, 1048 (Fed. Cir. 2017).
8 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1779, at 658 (1833 ed.); United
States v. Williams, 504 U.S. 36, 47–48 (1992) (“In fact the whole theory of [the grand jury’s] function is that it belongs
to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the
people.”).

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The Fifth Amendment right to grand jury indictment is only constitutionally required in federal
cases.9 In a majority of the states, prosecution may begin either with an indictment or with an
information or complaint filed by the prosecutor.10
Although abolition of the right to indictment in many U.S. states and abolition of the grand jury
itself in England were primarily matters of judicial efficiency,11 most of the more contemporary
proposals to change the federal grand jury system are the product of concern for the fairness of
the process or for perceived excesses attributed to prosecutorial manipulation or exuberance.12

9 The Fifth Amendment right to grand jury indictment is not binding upon the states, Hurtado v. California, 110 U.S.

516 (1884); Romansky v. Superintendent Greene SCI, 933 F.3d 293, 297–98 (3d Cir. 2019); Ashburn v. Korte, 761
F.3d 741, 758 (7th Cir. 2014); Stevenson v. City of Seat Pleasant, 743 F.3d 411, 418 n.4 (4th Cir. 2014); Peterson v.
California, 604 F.3d 1166, 1170 (9th Cir. 2010); Goodrich v. Hall, 448 F.3d 45, 49 (1st Cir. 2006); Williams v.
Haviland, 467 F.3d 527, 531 (6th Cir. 2006); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002); Freeman v. City
of Dallas, 242 F.3d 642, 667 (5th Cir. 2001) (en banc); Cooksey v. Delo, 94 F.3d 1214, 1217 (8th Cir. 1996); Minner v.
Kerby, 30 F.3d 1311, 1318 (10th Cir. 1994); cf. Rose v. Mitchell, 443 U.S. 545, 557 n.7 (1979); see also Andrew E.
Taslitz & Stephen E. Henderson, Reforming the Grand Jury to Protect Privacy in Third Party Records, 64 AM. U. L.
REV. 195, 229 (2014) (“[T]he grand jury right is the only criminal procedure provision in the Bill of Rights that has
been held not to apply as against the states.”) (emphasis in the original) (citing McDonald v. City of Chicago, 561 U.S.
742, 764–65 nn.12, 13 (2010)); Roger A. Fairfax, Interrogating the Nonincorporation of the Grand Jury Clause, 43
CARDOZO L. REV. 855 (2022); Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California
Reconsidered, 108 VA. L. REV. 1613 (2022).
10 ARIZ. CONST. art. II, § 30; Ariz. R. Crim. P. 2.1, 2.2; ARK. CONST. art. 2, § 8; CAL. CONST. art. I, § 14, CAL. PENAL
CODE § 737 (2025); COLO. CONST. art. II, § 8, COLO. REV. STAT. § 16-5-101 (2025); CONN. GEN. STAT. 54-45, 54-46
(2025); FLA. CONST. art. I, § 15; HAWAII CONST. art. I, § 10; HAW. REV. STAT. ANN. § 801-1 (2025); IDAHO CONST. art.
I, § 8; ILL. CONST. art. I, § 7, 725 ILL. COMP. STAT. ANN. § 5/111-2 (West 2025); IND. STAT. ANN. § 35-34-1-1 (2024);
KAN. STAT. ANN. § 22-3201(2025); LA. CONST. art. I, § 15; MD. CONST. DECL. OF RTS. art. 21, MD. ANN. CODE, CRIM.
PROC. § 4-102 (West 2025); MICH. COMP. LAWS § 767.1 (2025); MINN. R. CRIM. P. 17.01; MO. CONST. art. I, § 17;
MONT. CONST. art. II, § 20, MONT. CODE ANN. § 46-11-101 (2025); NEB. CONST. BILL OF RTS. § 10; NEB. REV. STAT. §
29-1601 (2025); NEV. CONST. art. I, § 8; N.M. CONST. art. II, § 14; N.D. R. Crim. P. 7; OKLA. CONST. art. II, § 17; OR.
CONST. art. VII, § 5; R.I. CONST. art. I, § 7; S.D. CONST. art. VI, § 10; S.D. CODE ANN. § 23A-6-1 (2024); UTAH CONST.
art. I, § 13; Vt. R. Crim. P. 7; WASH. CONST. art. I, § 25; WASH. REV. CODE § 10.37.015 (2025); WIS. STAT. § 967.05
(2025); WYO. CONST. art. I, § 13, Wyo. R. Crim. P. 3.
Several states continue to recognize a right to grand jury indictment in felony cases, e.g., ALASKA CONST. art. I, § 8;
DEL. CONST. art. I, § 8; KY. BILL OF RTS. § 12; ME. CONST. art. I, § 7; MASS. GEN. LAWS ch. 263, § 4 (2024); MISS.
CONST. art. III, § 27; N.H. REV. STAT. ANN. § 601:1 (2025); N.Y. CONST. art. I, § 6; N.C. CONST. art. I, § 22; OHIO
CONST. art. I, § 10; PA. CONST. art. I, § 10; S.C. CONST. art. I, § 11; TENN. CONST. art. I, § 14; TEX. CONST. art. I, § 10;
VA. CODE ANN. § 19.2-217 (2024). And a few others require it in cases punishable by death or life imprisonment, ALA.
CONST. art. I, § 8; CONN. GEN. STAT. § 54-45 (offenses punishable by death or life imprisonment committed prior to
May 26, 1983); FLA. CONST. art. I, § 15; LA. CONST. art. I, § 15; Minn. R. Crim. P. § 17.01; R.I. CONST. art. I. § 7.
11 “The obituary of the English grand jury might well read: ‘Born in 1166 to increase accusations of crime, lived to be
termed the palladium of justice, and died in 1933 of inutility on a wave of economy.’” Nathan T. Elliff, Notes on the
Abolition of the English Grand Jury, 29 J. CRIM. L. & CRIMINOLOGY 3 (1938).
12 Maris Medina, From Bulwark to Puppet: A Call to Democratize the Archaic Grand Jury, 29 PUB. LINT, L. REP. 292
(2024); Brett Raffish, Making the Fourth Amendment “Real” in Grand Jury Proceedings, 19 GEO. J. L. & PUB. POL’Y
529 (2021); Thaddeus Hoffmeister, The Grand Jury Legal Advisor: Resurrecting the Grand Jury’s Shield, 98 J. CRIM.
& CRIMINOLOGY 1171 (2008); Niki Kuckes, the Useful, Dangerous Fiction of Grand Jury Independence, 41 AM. CRIM.
L. REV. 1 (2004); Ric Simmons, Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice
System, 82 B. U. L. REV. 1 (2002); Susan W. Brenner, Is the Grand Jury Worth Keeping? 81 JUDICATURE 190 (1998);
Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260 (1995);
Anne Bowen Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 WASH. U. L. Q. 885, 927 (1990);
Richard L. Braun, The Grand Jury—Spirit of the Community?, 15 ARIZ. L. REV. 893, 915 (1973); Schwartz, supra note
4, at 770; contra, Melvin P. Antell, Modern Grand Jury: Benighted Supergovernment, 51 ABA J. 153, 154 (1965);
William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174 (1973).

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Organizational Matters
Jurisdiction
The federal grand jury enjoys sweeping authority, but it is limited to the investigation of possible
violations of federal criminal law triable in the district in which it is sitting.13 The grand jury does
not have the power to investigate conduct known to have no connection to the court’s jurisdiction,
but it may inquire whether such a connection exists.14
The grand jury may begin its examination even in the absence of probable cause or any other
level of suspicion that a crime has been committed within its reach. In the exercise of its
jurisdiction, “the grand jury “can investigate merely on suspicion that the law is being violated, or
even just because it wants assurance that it is not,””15 and its inquiries “may be triggered by tips,
rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.”16
Unrestrained “by questions of propriety or forecasts of the probable result of the investigation or
by doubts whether any particular individual will be found properly subject to an accusation,”17 the
grand jury’s “investigation is not fully carried out until every available clue has been run down
and all witnesses examined in every proper way to find if a crime has been committed.”18

Selection
The various United States district courts each summon one or more grand jury panels.19 In
addition, the Attorney General may request the district court to summon a special grand jury in
any of the larger districts or when he or she believes the level of criminal activity in the district
warrants it.20
Originally under the English tradition the sheriff selected the members of the grand jury.21 The
practice of having the sheriff of the county select the members of the grand jury continued for
some time in England and in colonial America, although grand jurors were elected in some
13 Cf. United States v. Cessa, 856 F.3d 370, 372 (5th Cir. 2017) (“[A] grand jury should return an indictment only in a

district where venue lies.”); United States v. Brown, 49 F.3d 1162, 1168 (6th Cir. 1995); Brown v. United States, 245
F.2d 549, 554–55 (8th Cir. 1957); see also 1 SUSAN W. BRENNER & LORI E. SHAW, FEDERAL GRAND JURY: A GUIDE TO
LAW AND PRACTICE § 3.2 (2d ed. 2006 & 2014 Supp.) (noting that the jurisdiction of the court with which the grand
jury is associated includes both territorial and extraterritorial jurisdiction).
14
Blair v. United States, 250 U.S. 273, 283 (1919); Brown, 49 F.3d at 1168; In re Marc Rich & Co., 707 F.2d 663, 667
(2d Cir. 1983); United States v. Neff, 212 F.2d 297, 301–02 (3d Cir. 1954).
15 United States v. Williams, 504 U.S. 36, 48 (1992) (quoting United States v. R. Enterprises, Inc., 498 U.S. 292, 297
(1991) and United States v. Morton Salt Co., 338 U.S. 632, 642–43 (1950)); In re Grand Jury Proceeding, 971 F.3d 40,
54 (2d Cir. 2020); United States v. Erickson, 561 F.3d 1150, 1161 (10th Cir. 2009); In re Grand Jury, 478 F.3d 581, 584
(4th Cir. 2007).
16 Branzburg v. Hayes, 408 U.S. 665, 701 (1972); In re Grand Jury Subpoena, 597 F.3d 189, 196 (4th Cir. 2010); United
States v. York, 428 F.3d 1325, 1332 (11th Cir. 2005).
17 Blair, 250 U.S. at 282.
18 Branzburg, 408 U.S. at 701; see also R. Enters., Inc., 498 U.S. at 297 (The grand jury may “inquire into all
information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none
has occurred”); In re Grand Jury, 478 F.3d at 584.
19 FED. R. CRIM. P. 6(a)(1).
20 18 U.S.C. § 3331. Special grand juries are distinctive in that they may serve for longer terms than a regular grand
jury and have explicit reporting authority, id. §§ 3331–3334.
21 1 HOLDSWORTH, supra note 4, at 148; 2 HALE, supra note 5, at 154.

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colonies.22 At one time, federal law addressed matters governing the selection, qualifications and
exemptions of federal grand jurors largely by reference to the law of the state in which the grand
jury was to be convened.23 These matters are now the responsibility of the court, governed by the
Jury Selection and Service Act of 1968,24 and the selection plan established for the district in
which the grand jury is to be convened.
Federal grand jurors must be citizens of the United States; be eighteen years of age or older; be
residents of the judicial district for at least a year; be able to read, write and understand English
with sufficient proficiency to complete the juror qualification form; be able to speak English; and
be mentally and physically able to serve. 25 Those facing pending felony charges and those
convicted of a felony (if their civil rights have not been restored) are ineligible.26
Discrimination in selection on the basis of race, color, religion, sex, national origin, or economic
status is prohibited.27 Grand jurors must be “selected at random from a fair cross section of the
community in the district or division wherein the court convenes.”28 Either a defendant, an
attorney for the government, or a member of an improperly excluded group may challenge the
selection of a grand jury panel contrary to these requirements.29
Since the grand jury began with indictments based upon the personal knowledge of the members
of the panel, there is some historical justification for the position that bias or want of impartiality
should not disqualify a potential grand juror. The drafters of the Federal Rules of Criminal
Procedure seemed to confirm this view when they rejected proposed language permitting a
challenge of the grand jury based on “bias or prejudice.”30 The case law seems to focus on any

RICHARD D. YOUNGER, THE PEOPLE’S PANEL: THE GRAND JURY IN THE UNITED STATES 1634–1941, at 5–26 (1963);
JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDY IN CRIMINAL
PROCEDURE (1664–1776), at 333–34 n.29 (1970); BOOK OF GENERAL LAWS AND LIBERTYES CONCERNING THE
INHABITANTS OF THE MASSACHUSETTS 47 (1660).
23 1 Stat. 88 (1789); 2 Stat. 82 (1800); 5 Stat. 394 (1840); 21 Stat. 43 (1879); 36 Stat. 1164 (1911); 28 U.S.C. §§ 411,
412 (1946 ed.).
24 28 U.S.C. §§ 1861–1869.
25 Id. § 1865.
26 Id.
27 Id. § 1862; United States v. Savage, 970 F.3d 217, 259 n.40 (3d Cir. 2020).
28 28 U.S.C. § 1861. At least one commentator has criticized this “cross-section,” Kevin K. Washburn, Restoring the
Grand Jury, 76 FORDHAM L. REV. 2333, 2379 (2008) (“In a society that is far more heavily populated and much more
diverse, we ask too much from a grand jury that is culled from an entire county or judicial district. The representation
of each community in such a grand jury is diluted to the point that the grand jury is effectively homogenized.”).
29 28 U.S.C. § 1867; FED. R. CRIM. P. 6(b); Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970); Turner v.
Fouche, 396 U.S. 346 (1970); Duren v. Missouri, 439 U.S. 357, 364 (1979); United States v. Johnson, 95 F.4th 404,
410–11 (6th Cir. 2024) (To make a prima facie showing that the fair cross section requirement has been violated, “a
defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the
representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number
of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in
the jury-selection process”) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)); see also United States v. Slaughter,
110 F.4th 569, 578–79 (2d Cir. 2024); United States v. Hernandez-Estrada, 749 F.3d 1154, 1159 (9th Cir. 2014); United
States v. Kamahele, 748 F.3d 984, 1123 (10th Cir. 2014).
30 “A preliminary draft of Rule 6(b) would have permitted challenge of grand jurors on the grounds of bias, but the
provision was not included in the final draft, apparently on the view that the grand jury should be scrupulously fair but
not necessarily uninformed.” 1 WRIGHT & MILLER’s FEDERAL PRACTICE & PROCEDURE: CRIMINAL § 103 (5th ed. 2025)
(citing United States v. Waldbaum, Inc., 593 F. Supp. 967, 969 (E.D. N.Y. 1984) and United States v. Partin, 320 F.
Supp. 275, 282 (E.D. La. 1970)).
22

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contamination of the panel as a whole and to rely upon each grand juror’s faithfulness to his or
her oath to avoid the adverse consequences of individual bias.31
Federal grand jury panels consist of sixteen to twenty-three members,32 sixteen of whom must be
present for a quorum,33 and twelve of whom must concur to indict.34 The size of grand jury panels
is a remnant of the common law,35 but the common law treatises and the cases provide little
indication of why those particular numbers were chosen.36 Of course, when the grand jury’s
accusations were based primarily upon the prior knowledge of the panel’s members, larger panels
were more understandable.

31 In the oath commonly used, grand jurors swear “not to present or indict any persons through hatred, malice nor ill

will; nor leave any person unpresented or unindicted through fear, favor, or affection, nor for any reward, or hope or
promise thereof.... ” SARA SUN BEALE ET AL., GRAND JURY LAW AND PRACTICE § 4:4 (2024) (reprinting the text of the
federal model jury oath); see e.g., United States v. Ziesman, 409 F.3d 941, 949 (8th Cir. 2005) (quoting Costello v.
United States, 350 U.S. 359, 363 (1956)) (“[I]t cannot be assumed that grand jurors will violate their oath ‘to indict no
one because of prejudice solely because an individual has lied to them on a matter material to the grand jury’s
investigation.’”).
32 FED. R. CRIM. P. 6(a); 18 U.S.C. § 3321.
33 The statements in 18 U.S.C. § 3321 and Federal Rule of Criminal Procedure 6(a) that federal grand juries shall
consist of sixteen to twenty-three members has apparently led to the conclusion that after a panel is convened it is in
session only if sixteen or more of its members are present, 1 SUSAN W. BRENNER & LORI E. SHAW, FEDERAL GRAND
JURY: A GUIDE TO LAW AND PRACTICE, § 5:17 (2d ed. 2006 & 2014 Supp.); DOJ, 1 FEDERAL GRAND JURY PRACTICE
MANUAL 5 (1983); United States v. Leverage Funding Sys., Inc., 637 F.2d 645, 648 (9th Cir. 1980). But for this deeply
held view which neither Congress nor the Court has sought to change, an argument might be made for a quorum of
twelve, the number required for indictment. Otherwise, it might be argued that dissenting panel members, unable to
prevent indictment by their votes, might do so by their absence or departure.
34 FED. R. CRIM. P. 6(f).
35 “The sheriff of every county [was] bound to return to every session of the peace, and every commission of oyer and
terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to
inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be
commanded of them.... As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at
least, and not more than twenty-three.... ” 4 WILLIAM BLACKSTONE, supra note 5, at 276; 1 HALE, supra note 5, at 161.
36 The Supreme Court has referred to “Lord Coke’s explanation that the number of twelve is much respected in holy
writ, as 12 apostles, 12 stones, 12 tribes, etc.” in an effort to explain why the number twelve was chosen for the size of
the petit jury, Williams v. Florida, 399 U.S. 78, 81 (1970). Blackstone alludes to the importance of concurrence of
twelve grand jurors in the indictment, “for so tender is the law of England of the lives of the subjects, that no man can
be convicted at the suit of the king of any capital offense, unless by the unanimous voice of twenty-four of his equals
and neighbors: that is, by twelve at least of the grand jury ... and afterwards, by the whole petit jury, of twelve more,” 4
BLACKSTONE, supra note 5, at 279. This, in turn he finds to explain the maximum size of the grand jury panel, “As
many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at least, but not more than
twenty-three; that twelve may be a majority.” Id. at 276 (emphasis added). Blackstone’s view is reflected in some of the
earlier cases, e.g., United States v. Williams, 28 F. Cas. 666, 670 (C.C.D. Minn. 1871) (“By the act of congress of
March 3, 1865 (13 Stat. 500), it is provided that grand juries in the courts of the United States ‘shall consist of not less
than sixteen and not exceeding twenty-three persons, * * * and that no indictment shall be found without the
concurrence of at least twelve grand jurors.’ The earlier authorities show that the accusing body now called the grand
jury originally consisted of twelve persons, and all were required to concur. The number was subsequently enlarged to
twenty-three, which was the maximum. Undoubtedly one reason why both at common law and by act of congress more
jurors are required to be summoned, and by the act of congress to be impaneled than are necessary to find a bill, is to
prevent, on the one hand, the course of justice from being defeated if the accused should have one or more friends on
the jury; and on the other hand, the better to protect persons against the influence of unfriendly jurors on the panel.”
(citation omitted) (quoting Act Regulating Proceedings in Criminal Cases and for Other Purpose, ch. 86, § 1, 13 Stat.
500, 500 (1865)). See Iowa v. Ostrander, 18 Iowa 435, 443 (1865) “The requiring of twenty-three to be summoned,
though we have found no reasons stated in the books, was probably in order to make sure of obtaining a full jury of
twelve; possibly to be sure of having a few over, so that if the accused should have a friend or two upon the panel, the
course of justice might not be defeated; possibly to prevent a dissolution of the jury by the death or sickness or absence
of one or more of the jurors, or it may be for all of these reasons combined.”).

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The movement, which led to abolition of the right to indictment in many of the states, also
resulted in a reduction in the size of most state grand jury panels.37 Perhaps because of a
reluctance to dilute the federal constitutional right to indictment, there have been few suggestions
for a comparable reduction in the size of the federal grand jury.38
The selection of twenty-three members for a panel which requires only the presence of sixteen to
conduct its business would seem to obviate the need for alternate grand jurors. This is not the
case, however, and the rules permit the court to direct the selection of alternate grand jurors at the
same time and in the same manner as other members of the panel are selected.39

Tenure
After selection, the court swears in members of the grand jury;40 names a “foreperson and deputy
foreperson,”41 and instructs the panel.42 Federal grand juries sit until discharged by the court, but
generally for no longer than eighteen months, with the possibility of a six-month extension.43
Special grand juries convened in large districts or in districts with severe crime problems also
serve until discharged or up to eighteen months, but may be extended up to thirty-six months and
in some cases beyond.44

37

See SARA SUN BEALE ET AL., supra note 30, § 4:8 n.8 for a survey of state provisions, only a half dozen of which
reduce the size of grand jury panels below twelve.
38 One of the few to do so recommended reduction to panels of seven, nine or eleven, with the concurrence of seven
required for indictment. Thomas P. Sullivan & Robert D. Nachman, If It Ain’t Broke, Don’t Fix It: Why the Grand
Jury’s Accusatory Function Should Not Be Changed, 75 J. CRIM. L. & CRIMINOLOGY 1047, 1068–69 (1984).
39 FED. R. CRIM. P. 6(a)(2).
40 Hale v. Henkel, 201 U.S. 43, 60 (1906), overruled by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52
(1964).
41 FED. R. CRIM. P. 6(c).
42 Although there is no requirement that the court charge (i.e., instruct) the grand jury, it is a practice of long standing,
Charge to the Grand Jury, 30 F. Cas. 992 (No. 18,255) (C.C.D. Cal. 1872) (Field, J.); SARA SUN BEALE ET AL., supra
note 30, § 4:5 (model grand jury charge); United States v. Navarro-Vargas, 408 F.3d 1184, 1208 (9th Cir. 2005) (en
banc) (upholding the constitutionality of the model charge); United States v. Knight, 490 F.3d 1268, 1272 (11th Cir.
2007) (same).
43 FED. R. CRIM. P. 6(g).
44 18 U.S.C. §§ 3331, 3333.

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Proceedings Before the Grand Jury
Grand Jury and the Prosecutor
The grand jury does not conduct its business in open court, nor does a federal judge preside over
its proceedings.45 The grand jury meets behind closed doors with only the jurors, the attorney for
the government, witnesses, someone to record testimony, and possibly an interpreter, present.46
In many cases, the government will have already conducted an investigation and the attorney for
the government will present evidence to the panel. In other cases, the investigation will be
incomplete and the grand jury, either on its own initiative or at the suggestion of the attorney for
the government, will investigate.
Originally, the grand jury brought criminal accusations based exclusively on the prior knowledge
of its members. Today, the grand jury acts on the basis of evidence presented by witnesses called
for that purpose and only rarely on the personal knowledge of individual jurors.47
The attorney for the government will ordinarily arrange for the appearance of witnesses before
the grand jury, will suggest the order in which they should be called, and will take part in
questioning them.48 The grand jury most often turns to the prosecutor for legal advice49 and to
draft most of the indictments, which the grand jury returns.50

Subpoenas
Grand jury witnesses usually appear before the grand jury under subpoena.51 The rule calls for
subpoenas to be available in blank for the “parties” to proceedings before the court, but “no one is
45 United States v. Williams, 504 U.S. 36, 47 (1992) (“Although the grand jury normally operates, of course, in the

courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so
to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to
the constitutive one of calling the grand jurors together and administering their oaths of office.”); United States v.
Navarro, 608 F.3d 529, 536 (9th Cir. 2010) (“Grand juries operate secretly. All the judge does, unless a motion comes
to him, is swear in and charge the grand jury before it begins its work, and days, weeks, or months later, receive the
indictments it hands down. A district judge does not preside in or even enter the grand jury room. The only contact the
grand jurors have with the court is the charge the judge gives before they begin, and the use of a room in the
courthouse” (footnotes omitted)); In re Grand Jury Proceedings, 142 F.3d 1416, 1425 (11th Cir. 1998); In re Grand Jury
Proceedings, 241 F.3d 308, 312 (3d Cir. 2001).
46 At one time, only members of the grand jury could be present when the panel was deliberating or voting, FED. R.
CRIM. P. 6(d) (18 U.S.C. App. (1994 ed.)). The rule has been changed to permit the presence during deliberations and
voting of interpreters assigned to assist hearing or speech impaired jurors, FED. R. CRIM. P. 6(d).
47 United States v. Zarattini, 552 F.2d 753, 756 (7th Cir. 1977); In re April 1956 Term Grand Jury, 239 F.2d 263, 26869 (7th Cir. 1956).
48 United States v. Merrill, 685 F.3d 1002, 1013 (11th Cir. 2012); Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005);
United States v. Wadlington, 233 F.3d 1067, 1075 (8th Cir. 2000).
49 United States v. Wahib, 578 F. Supp. 3d 951, 957 (“As legal advisor to the grand jury, the prosecutor must give the
grand jury sufficient information concerning the relevant law to enable it intelligently to decide whether a crime has
been committed.”).
50 United States v. Sigma Int’l, Inc., 196 F.3d 1314, 1323 (11th Cir. 1999), vacated on other grounds, 251 F.3d 1358
(11th Cir. 2001) (“A prosecutor’s job is to present evidence of criminal activity to a grand jury. In so doing, the
prosecutor may also explain why a piece of evidence is legally significant ... ”).
51 A subpoena is an order of the court demanding that an individual appear at one of its proceedings and produce
evidence on a matter then under consideration. There are two kinds of subpoenas—subpoenas ad testificandum and
subpoenas duces tecum. The first is simply a command to appear and testify; the second not only demands the
witness’s presence at a certain time and place but also requires him to bring certain evidence with him. Federal law
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meaningfully a party in a grand jury proceeding.”52 Nevertheless, there seems little question that
subpoenas may be issued and served at the request of the panel itself,53 although the attorney for
the government usually “fills in the blanks” on a grand jury subpoena and arranges the case to be
presented to the grand jury.54 Unjustified failure to comply with a grand jury subpoena may result

with regard to subpoenas in criminal cases is governed in large measure by Rule 17 of the Federal Rules of Criminal
Procedure:
A subpoena must state the court’s name and the title of the proceeding, include the seal of the court, and command
the witness to attend and testify at the time and place the subpoena specifies. The clerk must issue a blank
subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena
is served.
***
The court (other than a magistrate judge) may hold in contempt a witness who, without adequate excuse, disobeys
a subpoena issued by a federal court in that district. A magistrate judge may hold in contempt a witness who,
without adequate excuse, disobeys a subpoena issued by that magistrate judge as provided in 28 U.S.C. § 636(e).
FED. R. CRIM. P. 17(a), (g).
52 In re Snoonian, 502 F.2d 110, 112 (1st Cir. 1974).
53 United States v. Calandra, 414 U.S. 338, 343 (1974) (“The grand jury may compel the production of evidence or the
testimony of witnesses as it considers appropriate ... ”); cf. United States v. Williams, 504 U.S. 36, 48–49 (1992).
54 United States v. Thomas, 736 F.3d 54, 61 n.10 (1st Cir. 2013); Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005)
(“[T]he term ‘grand jury subpoena’ is in some respects a misnomer, because the grand jury itself does not decide
whether to issue the subpoena; the prosecuting attorney does.”); Coronado v. Bank Atlantic Bancorp, Inc., 222 F.3d
1315, 1320 (11th Cir. 2000); In re Grand Jury Proceeding, 752 F. Supp. 2d 173, 177 (D. P.R. 2010) (“Although grand
jury subpoenas are issued in the name of the district court, they are issued in blank ... [and] are in fact almost
universally instrumentalities of the United States Attorney’s office” (alterations in original) (quoting In re Grand Jury
Matters, 751 F.2d 13, 16 (1st Cir. 1984))). Subpoenas duces tecum will in fact frequently permit alternative means of
compliance under which the witness is given the option of presenting the documents to the attorney for government
who is assisting the grand jury, see e.g., the appendices in In re Grand Jury Proceedings, 887 F. Supp. 288, 291 (M.D.
Ga. 1995); United States v. Int’l Paper Co., 457 F. Supp. 571, 577 (S.D. Tex. 1978). But see Wadlington, 233 F.3d at
1075 (“The Government rests on its authority to subpoena witnesses in advance of their presentation to the grand jury
in order to allow for the efficient presentation of evidence and to save time for grand jurors. See United States v.
Universal Mfg. Co., 525 F.2d 808, 811–12 (8th Cir. 1975) (holding that the Government may have advance access to
documents and other evidentiary matter subpoenaed by or presented to a federal grand jury); see also In re Possible
Violations of 18 U.S.C. §§ 201, 371, 491 F. Supp. 211, 213 (D. D.C. 1980) (holding that the Government may call a
grand jury witness to its offices pursuant to subpoena on the day of grand jury proceedings for a consensual interview
so that government attorneys may identify the nature of the proposed testimony).... Rule 17(a) of the Federal Rules of
Criminal Procedure states that a subpoena ‘shall command each person to whom it is directed to attend and give
testimony at the time and place specified therein.’ This language has been interpreted to mean that witnesses may be
subpoenaed to give testimony at formal proceedings, such as grand jury proceedings, preliminary hearings, and trials. It
does not authorize the Government to use grand jury subpoenas to compel prospective grand jury witnesses to attend
private interviews with government agents”); Lopez, 393 F.3d at 1349 (“The prosecutor may issue the subpoena
without the knowledge of the grand jury, but his authority to do so is grounded in the grand jury investigation, not the
prosecutor’s own inquiry. Federal prosecutors have no authority to issue grand jury subpoenas independent of the grand
jury.”).

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in a witness being held in civil contempt,55 convicted for criminal contempt,56 or both.57 A witness
who lies to a grand jury may be prosecuted for perjury,58 or for making false declarations before
the grand jury.59
Conversely, others with information they wish to provide to the grand jury are prohibited from
doing so except through the court or the attorney for the government.60 Consequently, neither a
55 28 U.S.C. § 1826(a). (“Whenever a witness in any proceeding before ... any ... grand jury of the United States refuses

without just cause shown to comply with an order of the court to testify or provide other information ... the court ... may
summarily order his confinement at a suitable place until such time as the witness is willing to given such testimony or
provide such information.... ”) See, e.g., In re Grand Jury Subpoena, 597 F.3d 189 (4th Cir. 2010).
“[C]ivil contempt ... is remedial, and for the benefit of the complainant. [C]riminal contempt ... is punitive to vindicate
the authority of the court.... [T]he relief ... is remedial if the defendant stands committed unless and until he performs
the affirmative act required by the court’s order.... ” Hicks v. Feiock, 485 U.S. 624, 631–32 (1988). Civil contempt is
imposed “for the obvious purpose of compelling the witnesses to obey the orders to testify.... However, the justification
for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the
court’s order. Where the grand jury has been finally discharged a contumacious witness can no longer be confined
since he then has no further opportunity to purge himself of contempt.” Shillitani v. United States, 384 U.S. 364, 368,
371 (1966).
In the case of civil contempt under § 1826, the recalcitrant witness must be released after eighteen months even if the
grand jury has not been discharged, In re Grand Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197,
206 (7th Cir. 2003).
While fear is not just cause for failure to obey a grand jury subpoena, the witness’s fear is a factor to be considered in
determining whether civil contempt is likely to induce compliance. In re Grand Jury Proceeding (Doe), 13 F.3d 459,
461 (1st Cir. 1994); In re Grand Jury Proceedings, 914 F.2d 1372, 1374–75 (9th Cir. 1990); In re Grand Jury
Proceedings of Dec., 1989, 903 F.2d 1167, 1169 (7th Cir. 1990); In re Grand Jury Proceedings, 862 F.2d 430, 432 (2d
Cir. 1988).
56 18 U.S.C. § 401 (“A court of the United States shall have power to punish by fine or imprisonment, at its discretion,
such contempt of its authority, and none other, as ... (3) Disobedience or resistance to its lawful writ, process, order,
rule, decree, or command.”); e.g., In re Grand Jury, 971 F.3d 40, 52 (2d Cir. 2020).
57 E.g., United States v. Thompson, 925 F.3d 292, 294–95 (6th Cir. 2019); United States v. Marquardo, 149 F.3d 36,
39–41 (1st Cir. 1998); In re Grand Jury Proceedings (Goodman), 33 F.3d 1060, 1061 (9th Cir. 1994); In re Grand Jury
Witness, 835 F.2d 437, 440 (2d Cir. 1987); United States v. Ryan, 810 F.2d 650, 653 (7th Cir. 1987); United States v.
Alvarez, 489 F. Supp. 2d 714, 719–20 (W.D. Tex. 2007); cf., United States v. Ashqar, 582 F.3d 819, 821–22 (7th Cir.
2009).
58 18 U.S.C. § 1621 (“Whoever ... having taken an oath before a competent tribunal, officer, or person, in any case in
which a law of the United States authorizes an oath to be administered, that he will testify ... truly, ... willfully and
contrary to such oath states ... any material matter which he does not believe to be true ... is guilty of perjury and shall
... be fined under this title or imprisoned not more than five years, or both ... ”).
59 18 U.S.C. § 1623 (“(a) Whoever under oath ... in any proceeding before ... any ... grand jury of the United States
knowingly makes any false material declaration ... shall be fined under this title or imprisoned not more than five years,
... or both ... (c) ... In any prosecution under this section, the falsity of a declaration ... shall be established sufficient for
conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the
point in question in any proceeding before ... any ... grand jury. It shall be a defense ... that the defendant at the time he
made each declaration believed the declaration was true. (d) Where, in the same continuous ... grand jury proceeding in
which a declaration is made, the person making the declaration admits such declaration to be false, such admission
shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially
affected the proceeding, or it has not become manifest hat such falsity has been or will be exposed ... ”). United States
v. Butterworth, 511 F.3d 71, 74 (1st Cir. 2007).
60 Sibley v. Obama, 866 F. Supp. 2d 17, 22 (D.D.C. 2012)), aff’d, No. 5198, 2022 WL 6603088 (D.C. Cir. Dec. 6,
2012); In re Application of Wood, 833 F.2d 113, 116 (8th Cir. 1987); In re New Haven Grand Jury, 604 F. Supp. 453,
455–56 (D. Conn. 1985). Section 1504 of title 18 of the U.S. Code provides, “[w]hoever attempts to influence the
action or decision of any grand ... juror of any court of the United States upon any issue or matter pending before such
juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written
communication, in relation to issue or matter, shall be fined under this title or imprisoned not more than six months, or
both. Nothing in this section shall be construed to prohibit the communication of a request to appear before the grand
jury.”

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potential defendant nor a grand jury target nor any of their counsel has any right to appear before
the grand jury unless invited or subpoenaed.61 Nor does a potential defendant nor a grand jury
target nor their counsel have any right to present exculpatory evidence to the grand jury nor to
present a substantive objection.62
Grand jury appearances, however, are more likely to be fought than sought. Resistance is futile
most often. Absent self-incrimination or some other privilege, the law expects citizens to
cooperate with efforts to investigate crime.63 In the name of this expectation, a witness may be
arrested, held for bail, and under some circumstances incarcerated.64 Even when armed with an
applicable privilege, a witness’ compliance with a grand jury subpoena is only likely to be
excused with respect to matters protected by the privilege. A witness subpoenaed to testify rather
than merely produce documents may be compelled to appear before the grand jury and claim the
privilege with respect to any questions to which it applies.65
Witnesses also enjoy the benefit of fewer checks on the grand jury’s exercise of investigative
power than might be the case if the inquisitor were a government official rather than a group of
randomly selected members of the community.66 Thus as a rule, the grand jury is entitled to every
individual’s evidence even though testimony may prove burdensome, embarrassing, or socially or
economically injurious for the witness.67
A grand jury subpoena may even “trump” a pre-existing protective court order under some
circumstances.68 This is not to say that the grand jury’s authority is without limit, or that
61 United States v. Williams, 504 U.S. 36, 52 (1992); United States v. Mandujano, 425 U.S. 564, 581 (1976); United

States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988); United States v. Pabian, 704 F.2d 1533, 1538-539 (11th Cir.1983);
United States v. Dynkowski, 720 F. Supp. 2d 475, 479 (D. Del. 2010); United States v. Ernst, 857 F. Supp. 2d 1098,
1105 (D. Or. 2012), aff’d, 623 F. App'x 333 (9th Cir. 2015); but see In re Application of Wood, 833 F.2d at 116 (court
may permit a matter to be presented to the grand jury by a private individual, if the prosecutor declines to do so; the
decision to prosecute, however, rests with the attorney for the government, should the grand jury vote to indict).
It has been suggested that targets be afforded the opportunity to appear before the grand jury as a matter of right, Peter
Arnella, Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without
Adjudication, 78 MICH. L. REV. 463, 569 (1980).
62 Williams, 504 U.S. at 51–54; United States v. Darden, 688 F.3d 382, 387 (8th Cir. 2012); United States v. Class, 38 F.
Supp. 3d 19, 29 (D.D.C. 2014); United States v. Kubini, 19 F. Supp. 3d 579, 621 (W.D. Pa. 2014).
63 Blair v. United States, 250 U.S. 273, 280–81 (1919); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617
(1929); Stein v. New York, 346 U.S. 156, 184 (1953).
64 18 U.S.C. §§ 3144, 3142. The procedure applies to witnesses “in a criminal proceeding,” a class which includes
material grand jury witnesses, United States v. Awadallah, 349 F.3d 42, 49–51 (2d Cir. 2003); Bacon v. United States,
449 F.2d 933, 936–41 (9th Cir. 1971). See generally, CRS Report R41903, Federal Material Witness Statute: A Legal
Overview of 18 U.S.C. § 3144, by Charles Doyle; Robert Boyle, The Material Witness Statute Post September 11: Why
It Should Not Include Grand Jury Witnesses, 48 N.Y.L. SCH. L. REV. 12 (2003).
65 Mandujano, 425 U.S. at 572.
66 E.g., In re Sealed Case (Lewinsky), 162 F.3d 670, 674 n.4 (D.C. Cir. 1998) (“No grand jury witness may refuse to
answer questions on the ground that the questions are based on illegally obtained evidence.”).
67 United States v. Calandra, 414 U.S. 338, 345 (1974) (“In Branzburg v. Hayes, [408 U.S. 665,] 682 and 688, the
Court noted that ‘[c]itizens generally are not constitutionally immune from grand jury subpoenas ... ’ and that ‘the
longstanding principle that “the public ... has a right to every man’s evidence” ... is particularly applicable to grand jury
proceedings.’ The duty to testify may on occasion be burdensome and even embarrassing. It may cause injury to a
witness’ social and economic status. Yet the duty to testify has been regarded as ‘so necessary to the administration of
justice’ that the witness’ personal interest in privacy must yield to the public’s overriding interest in full disclosure.”
(alterations in original) (quoting Blair, 250 U.S. at 281)).
68 The question of whether a protective order arising out of federal civil litigation takes precedence over a grand jury
subpoena for material covered by the order has divided the federal courts of appeal. One approach requires the
demonstration of a compelling need or of extraordinary circumstances before the secrecy of a protective order can be
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excessive prosecutorial zeal before the grand jury is unknown, or that there is never any just
cause for a witness’s refusal to answer a question or provide a document, but simply that the
restraints on the grand jury’s authority have been narrowly drawn and applied.

Common Law Privileges
Federal grand jury subpoenas are subject to the maxim that, “the grand jury ... may not itself
violate a valid privilege, whether established by the Constitution, statutes, or the common law.”69
In the context of grand jury subpoenas, as in most others, federal evidentiary privileges are
governed by the Federal Rules of Evidence.70
The Rules do not articulate specific privileges. Instead, they declare that federal law concerning
privileges is “governed by the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience.”71
Although the standard is clearly evolutionary, present federal law seems to reflect three levels of
privilege recognition. Some privileges like doctor-patient have been refused recognition at least
for the time being, some like journalist-source have been recognized for limited purposes that
may or may not provide the basis for a motion to quash a grand jury subpoena, and some like
clergy-communicant have been recognized as evidentiary privileges for grand jury purposes.72

breached, while others take the position that grand jury subpoenas trump protective orders. In re Grand Jury Subpoena
(Roach), 138 F.3d 442 (1st Cir. 1998) describes the split among the circuits over precisely when a pre-existing
protective order should take precedence over a grand jury subpoena. The Fourth, Ninth, and Eleventh Circuits have
adopted a per se rule under which “the existence of an otherwise valid protective order [is] not sufficient grounds to
quash the subpoena duces tecum issued by the ... grand jury,” 138 F.3d at 444 (alterations in original) (quoting In re
Grand Jury Subpoena, 836 F.2d 1468, 1478 (4th Cir. 1988); In re Grand Jury Subpoena, 62 F.3d 1222, 1224 (9th Cir.
1995); and In re Grand Jury Proceedings, 995 F.2d 1013, 1020 (11th Cir. 1993)); see also In re Grand Jury Subpoenas,
627 F.3d 1143, 1144 (9th Cir. 2010). The Second Circuit has espoused a balancing test thought to prefer the protective
order over the grand jury subpoena, In re Grand Jury Subpoena, 138 F.3d at 444–45 (citing, Martindell v. International
Tel. & Tel. Corp., 594 F.2d 291, 295 (2d Cir. 1979); see also In re Grand Jury Subpoena Duces Tecum, 945 F.2d 1221,
1223–24 (2d Cir. 1991). The First Circuit has endorsed a modified per se rule under which “[a] grand jury’s subpoena
trumps a Rule 26(c) protective order unless the person seeking to avoid the subpoena can demonstrate the existence of
exceptional circumstances that clearly favor subordinating the subpoena to the protective order,” In re Grand Jury
Subpoena, 138 F.3d at 445. The Third Circuit agrees with the First, In re Grand Jury, 286 F.3d 153, 157–58 (3d Cir.
2002). See generally, Brian Baggott, Return to Certainty: Why Grand Jury Subpoenas Should Supersede Civil
Protective Orders, 10 SUFFOLK JOURNAL OF TRIAL AND APPELLATE ADVOCACY 43 (2005).
69 Calandra, 414 U.S. at 346; United States v. Nixon, 418 U.S. 683, 709 (1974); In re Grand Jury Subpoenas 04-124-03
and 04-124-05, 454 F.3d 511, 520 (6th Cir. 2006); In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007); In re Grand
Jury Proceedings, 616 F.3d 1172, 1181 (10th Cir. 2010); In re Grand Jury Investigation, 966 F.3d 991, 996 (9th Cir.
2020).
70 FED. R EVID. 1101(c), (d)(2), 501; In re Grand Jury Investigation, 399 F.3d 527, 530 (2d Cir. 2005); In re Grand Jury
Proceeding, 241 F.3d 308, 313 (3d Cir. 2001).
71 Act of Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1926, 1933 (codified as amended at 28 U.S.C. app.) (“Except as
otherwise required by the Constitution of the United States or provided by Act of Congress or in rule prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political
subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of
the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be determined in accordance with State law.”); see also FED. R.
EVID. 501.
72 In re Grand Jury Investigation, 918 F.2d 374, 384-85 (3d Cir. 1990).

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Thus, the federal courts have said that for purposes of federal law no evidentiary privilege exists
in cases of:
•
•
•
•
•
•
•
•
•
•
•
•

physician-patient;73
accountant-client;74
researcher-source;75
parent-child;76
employer-stenographer;77
banker-depositor;78
draft counselor-client;79
police observation post location;80
probation officer-probationer;81
insurance company-client;82
academic peer review;83
medical peer review;84

73 Merrill v. Waffle House, Inc., 227 F.R.D. 467, 471 (N.D. Tex. 2005) (quoting, Whalen v. Roe, 429 U.S. 589, 602

n.28 (1977) (“physician-patient privilege is unknown to the common law”) (quoting, Whalen v. Roe, 429 U.S. 589, 602
n.28 (1977)); United States v. Bek, 493 F.3d 790, 801–02 (7th Cir. 2007); Swan v. Miss Beau Monde, Inc., 566 F. Supp.
3d 1048, 1068 (D. Or. 2021); Langenfeld v. Armstrong World Industries, Inc., 299 F.R.D. 547, 551 (S.D. Ohio 2014);
Awalt v. Marketti, 287 F.R.D. 409, 423 (N.D. Ill. 2012); Heilman ex rel. Heilman v. Waldron, 287 F.R.D. 467, 472 (D.
Minn. 2012). Federal courts do, however, recognize a psychotherapist-patient privilege, Jaffee v. Redmond, 518 U.S. 1,
15 (1996).
74 United States v. Arthur Young & Co., 465 U.S. 805, 817 (1984); Valero Energy Corp. v. United States, 569 F.3d
626, 630 (7th Cir. 2009); United States v. Bisanti, 414 F.3d 168, 170 (1st Cir. 2005); FDA Inspector Gen. v. Glenn, 122
F.3d 1007, 1012 (11th Cir. 1997); Forsythe v. Brown, 281 F.R.D. 577, 587 (D. Nev. 2012), report and recommendation
adopted, No. 10-CV-00716, 2012 WL 1833393 (D. Nev. May 18, 2012); Perez v. Wallis, 77 F. Supp. 3d 730, 748
(N.D. Ill. 2014) (citing In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000)).
75 In re Grand Jury Proceedings, 5 F.3d 397, 403 (9th Cir. 1993); United States v. Doe, 460 F.2d 328, 333–34 (1st Cir.
1972); United States v. Trs. of Bos. Coll., 831 F. Supp. 2d 435 (D. Mass. 2011), aff’d in part, rev’d in part sub nom., In
re Request from the U.K., 718 F.3d 13 (1st Cir. 2013), and aff’d in part sub nom., In re Request from the United
Kingdom, 685 F.3d 1 (1st Cir. 2012), and aff’d in part, rev’d in part sub nom., In re Request from the United Kingdom,
718 F.3d 13 (1st Cir. 2013); but see Cusumano v. Microsoft Corp., 162 F.3d 708, 714–15 (1st Cir. 1998) (recognizing
qualified journalist-like privilege).
76 Under Seal v. United States, 755 F.3d 213, 215 (4th Cir. 2014); United States v. Dunford, 148 F.3d 385, 390–91 (4th
Cir. 1998); In re Grand Jury Proceedings, 103 F.3d 1140, 1146 (3d Cir. 1997); United States v. Duran, 884 F. Supp.
537, 541 (D. D.C. 1995); contra In re Grand Jury Proceedings, 949 F. Supp. 1487, 1497 (E.D. Wash. 1996).
77 United States v. Schoenheinz, 548 F.2d 1389, 1390 (9th Cir. 1977).
78 Am. Elec. Power Co., Inc. v. United States, 191 F.R.D. 132, 141 (S.D. Ohio 1999); Delozier v. First Nat ’l Bank, 109
F.R.D. 161, 163–64 (E.D. Tenn. 1986); Harris v. United States, 413 F.2d 316, 319–20 (9th Cir. 1969).
79 In re Grand Jury Subpoena, 329 F. Supp. 433, 436–37 (C.D. Cal. 1971).
80 United States v. Foster, 986 F.2d 541, 542–44 (D.C. Cir. 1993).
81 United States v. Simmons, 964 F.2d 763, 768–79 (8th Cir. 1992).
82 Linde Thompson Langworthy Kohn & Van Dyke v. RTC, 5 F.3d 1508, 1514 (D.C. Cir. 1993); Petersen v. Douglas
County Bank & Trust Co., 967 F.2d 1186, 1188 (8th Cir. 1992).
83 Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990); Leon v. County of San Diego, 202 F.R.D. 631, 637 (S.D. Cal.
2001).
84 Hamdan v. Ind. U. Health N. Hosp., Inc., 880 F.3d 416, 421 (7 th Cir. 2018); Adkins v. Christie, 488 F.3d 1324, 1330
(11th Cir. 2007); Agster v. Maricopa County., 422 F.3d 836, 839 (9th Cir. 2005); Virmani v. Novant Health Inc., 259
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mediation;85
union officials-union members;86
Secret Service protective function;87and
private investigator-client.88

A second group consists of recognized or emerging qualified privileges, whose effectiveness
against a grand jury subpoena may be uncertain at best. Members of the group include privileges
for:
•
•
•
•

critical self-evaluation;89
journalists (not generally recognized for grand jury purposes);90
presidential communications;91
state legislators;92

F.3d 284, 286–93 (4th Cir. 2001); Roberts v. Legacy Meridian Park Hosp., Inc., 299 F.R.D. 669, 672–73 (D. Or. 2014);
Gargiulo v. Baystate Health, Inc., 826 F. Supp. 2d 323, 327 (D. Mass. 2011); Mattice v. Mem’l Hosp., 203 F.R.D. 381,
384–86 (N.D. Ind. 2001) (collecting cases).
85 In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492–93 (5th Cir. 1998); other than in cases of grand
jury subpoenas, two lower federal courts have recognized a qualified mediation privilege, Sheldone v. Pa. Tpk
Comm’n, 104 F. Supp. 2d 511, 512–18 (W.D. Pa. 2000); Folb v. Motion Picture Indus. Pension & Health Plans, 16 F.
Supp. 2d 1164, 1170–81 (C.D. Cal. 1998), aff’d, 216 F.3d 1082 (9th Cir. 2000); see also In re Wendy’s Co. S’ holder
Derivative Action, 44 F.4th 527, 537 (6th Cir. 2022) (citing Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc.,
332 F.3d 976, 980 (6th Cir. 2003)) (“[F]ederal law recognize[s] a privilege protecting communications made during
mediation proceedings.... ”).
86 In re Grand Jury Subpoenas Dated Jan. 20, 1998, 995 F. Supp. 332, 334–37 (E.D. N.Y. 1998).
87
In re Sealed Case, 148 F.3d 1073, 1079 (D.C. Cir. 1998).
88 U.S. Dep’t of Educ. v. NCAA, 481 F.3d 936, 938 (7th Cir. 2007); Ubiquiti Networks, Inc. v. Kozumi USA Corp., 295
F.R.D. 517, 525 (N.D. Fla. 2013).
89 In re Block Island Fishing, Inc., 323 F. Supp. 3d 158, 161 (D. Mass. 2018) (“The O’Connor court identified four
‘potential guideposts’ for the application of the self-critical analysis privilege: (1) materials protected have generally
been those prepared for mandatory governmental reports; (2) only subjective, evaluative materials have been protected;
(3) objective data in those same reports have not been protected; and (4) in sensitivity to plaintiffs’ need for such
materials, court have denied discovery only where the policy favoring exclusion has clearly outweighed plaintiffs’
need.”) (quoting O’Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D. Mass. 1980)); Freiermuth v. PPG Indus., Inc.,
218 F.R.D. 694, 697 (N.D. Ala. 2003) (citing the circuits that have refused to recognize the privilege); In re Kaiser
Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (declining to recognize privilege when asserted against the
government); Bredice v. Doctor’s Hosp., Inc., 50 F.R.D. 249, 251 (D. D.C.1970), aff’d, 479 F.2d 920 (D.C. Cir. 1973)
(privilege recognized); Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524–25 (N.D. Fla. 1994); In re Grand
Jury Proceedings (File Sealed), 861 F. Supp. 386, 389–91 (D. Md. 1994) (privilege not applicable to grand jury
matters).
90 Branzburg v. Hayes, 408 U.S. 665, 667 (1972); In re Grand Jury Subpoena, 397 F.3d 964, 968–73 (D.C. Cir. 2005)
(holding that no First Amendment privilege existed in a grand jury context, but noting disagreement within the panel
over whether a qualified common law journalist privilege (unavailable under the facts before court) might exist),
superseded, In re Grand Jury Subpoena, 438 F.3d 1141 (D.C. Cir. 2006); Horne v. WTVR, LLC, 893 F.3d 201, 212 (4th
Cir. 2018) (recognizing a qualified journalist privilege); United States v. Treacy, 639 F.3d 32, 42 (2d Cir. 2011)
(recognizing qualified privilege); Chen v. FBI, 687 F. Supp. 3d 115, 126 (D. D.C. 2023), dismissed, No. 23-5198, 2023
WL 6284257 (D.C. Cir. Sept. 25, 2023) (per curiam) (same).
91 In re Sealed Case, 121 F.3d 729, 742–57 (D.C. Cir. 1997) (per curiam) (recognizing qualified privilege may be
available to quash grand jury subpoena); Cheney v. U.S. Dist. Ct., 542 U.S. 367, 382–90 (2004); Trump v. Thompson,
20 F.4th 10, 26–27 (D.C. Cir. 2021); Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 522–23 (S.D. N.Y. 2010),
subsequent determination, No. 07 Civ. 5435, 2010 WL 5421928 (S.D. N.Y. Dec. 21, 2010).
92 Pernell v. Fla. Bd. of Governors of the State Univ., 84 F.4th 1339, 1344 (11th Cir. 2023); La Union del Pueblo Entero
v. Abbott, 68 F.4th 228, 235 (5th Cir. 2023); Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par., 849 F.3d 615, 624
(5th Cir. 2017); Orange v. City of Suffolk, 855 F. Supp. 620, 622–24 (E.D. N.Y. 1994).

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state secret/national security;93
bank examiners;94
state recognized privileges;95
state tax returns;96 and
intra-agency, government deliberative process.97

The handful of privileges that provide the grounds for quashing a grand jury subpoena include
•
•
•
•
•

attorney-client;98
attorney work product;99
clergyman-communicant;100
informer identity;101
spousal immunity;102

93 Gen. Dynamics Corp. v. United States, 563 U.S. 478, 484 (2011) (recognizing privilege); United States v. Reynolds,

345 U.S.1, 6–7 (1953); United States v. Zubaydah, 595 U.S. 195, 204 (2022); United States v. Alahmedalabdaloklah,
94 F.4th 782, 811 (9th Cir. 2024), cert. denied, No. 24-125, 2024 WL 5011718, at *1 (U.S. Dec. 9, 2024) (mem.);
United States v. Abu-Jihaad, 630 F.3d 102, 140–41 (2d Cir. 2010); Al-Haramain Islamic Found. v. Bush, 507 F.3d
1190, 1196 (9th Cir. 2007); El-Masri v. United States, 479 F.3d 296, 303 (4th Cir. 2007); cf. Tenet v. Doe, 544 U.S. 1, 9
(2005) (holding that the “well-established” state secrets privilege has not replaced the Totten rule); FBI v. Fazaga, 595
U.S. 344, 355 (2022) (holding the Foreign Intelligence Surveillance Act (FISA) does not the state secrets privilege).
94 Schneiber v. Society for Savings Bancorp, Inc., 11 F.3d 217, 220 (D.C. Cir. 1993) (recognizing privilege); S.E. Pa.
Trans. Auth. v. Orrstown Fin. Servs., 367 F. Supp. 3d 267, 276 (M.D. Pa. 2019); Principe v. Crossland Sav., FSB, 149
F.R.D. 444, 447 (E.D.N.Y. 1993).
95 Hamilton v. Radnor Twp., 662 F. Supp. 3d 536, 542 (E.D. Pa. 2023) (diversity case); Sierra Club v. Woodville
Pellets, LLC, 553 F. Supp. 3d 378, 383 (E.D. Tex. 2021) (environmental self-audit); United States v. Mass. Gen. Hosp.,
Inc., 498 F. Supp. 3d 186, 190 (D. Mass. 2020) (medical peer review); In re Production of Records to Grand Jury, 618
F. Supp. 440 (D. Mass. 1985) (social worker communications).
96 In re Grand Jury Subpoena Dated April 18, 2007, 485 F. Supp. 2d 709, 710-11 (E.D. Va. 2007); In re Grand Jury
Subpoena, 144 F. Supp. 2d 540, 541-42 (W.D. Va. 2001).
97 Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 7–9 (2001); Waterman v. IRS, 61 F.4th 152,
156 (D.C. Cir. 2023); Transgender L. Ctr. v. Immigr. & Customs Enf’t, 46 F.4th 771, 782–83 (9th Cir. 2022); In re
United States, 441 F.3d 44, 63 (1st Cir. 2006); Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302, 1306–307
(Fed. Cir. 2006).
98 In re Pac. Pictures Corp., 679 F.3d 1121, 1130 (9th Cir. 2012); In re Grand Jury Proceedings, 609 F.3d 909, 912 (8th
Cir. 2010); In re Grand Jury Subpoena, 419 F.3d 329, 338–39 (5th Cir. 2005); In re Grand Jury Subpoena Under Seal,
415 F.3d 333, 338 (4th Cir. 2005); In re Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001); In re Subpoenaed
Grand Jury Witness, 171 F.3d 511, 513 (7th Cir. 1999); cf. Swidler & Berlin v. United States, 524 U.S. 399, 410–11
(1998) (holding that the attorney-client privilege survives the death of the client where the privilege had been asserted
in the face of a grand jury subpoena).
99 In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 184 (2d Cir. 2007); In re Green Grand Jury, 492 F.3d
976, 979 (8th Cir. 2007); In re Grand Jury Subpoena, 419 F.3d at 339; United Kingdom v. United States, 238 F.3d
1312, 1321 (11th Cir. 2001); cf. In re Grand Jury Proceedings, 616 F.3d 1172, 1184–85 (10th Cir. 2010); In re Grand
Jury Subpoenas, 561 F.3d 408, 411–12 (5th Cir. 2009); In re Grand Jury Proceedings, 350 F.3d 299, 301–04 (2d Cir.
2003) (holding the work product privilege had not been waived or forfeited).
100 In re Grand Jury Investigation, 918 F.2d 374, 384–85 (3d Cir. 1990); Duffy v. Kent County Levy Court, 800 F.
Supp. 2d 624, 628 (D. Del. 2011).
101 In re Perez, 749 F.3d 849, 855–59 (9th Cir. 2014); United States v. Alaniz, 726 F.3d 586, 609–10 (5th Cir. 2013); In
re Grand Jury Investigation, 922 F.2d 1266, 1270–72 (6th Cir. 1991); Puerto Rico v. United States, 490 F.3d 50, 62–64
(1st Cir. 2007) (recognizing a more broadly stated law enforcement privilege); cf. Wolfson v. United States, 672 F.
Supp. 2d 20, 27–28 (D.D.C. 2009).
102 Trammel v. United States, 445 U.S. 40, 53 (1980); United States v. Pineda-Mateo, 905 F.3d 13, 15 (1st Cir. 2018);
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•
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spousal communications;103 and
psychotherapist-patient.104

Perhaps the two most commonly cited privileges in motions to quash grand jury subpoenas are
the attorney-client privilege and the closely related attorney work product privilege. The attorneyclient privilege covers “[c]onfidential disclosures by a client to an attorney made in order to
obtain legal assistance.”105 The privilege does not foreclose grand jury inquiry into attorney-client
communications which are themselves criminal or are in furtherance of some future criminal
activity.106 Nor, as a general rule, does the privilege cover the identity of the client nor details
concerning payment of the attorney’s fee,107 and thus the privilege will usually not constitute
grounds to quash a grand jury subpoena directed to secure that information.108
This last general rule may be subject to any of three exceptions. The privilege may extend to
information concerning the identity of the client or the particulars of the fee arrangement when
(1) “disclosure would implicate the client in the very criminal activity for which legal advice was
sought; ... [(2)] disclosure of the client’s identity by his attorney would have supplied the last link
in an existing chain of incriminating evidence likely to lead to the client’s indictment; ... [or (3)]

United States v. Fomichev, 899 F.3d 766, 771 (9th Cir. 2018), opinion amended on denial of reh'g, 909 F.3d 1078 (9th
Cir. 2018); United States v. Underwood, 859 F.3d 386, 390 (6th Cir. 2017); United States v. Brock, 724 F.3d 817, 822–
23 (7th Cir. 2013); United States v. Miller, 588 F.3d 897, 904 (5th Cir. 2009); United States v. Jarvison, 409 F.3d 1221,
1231 (10th Cir. 2005); United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000); United States v. Morris, 988
F.2d 1335, 1338–41 (4th Cir. 1993).
103 Blau v. United States, 340 U.S. 332 (1951); Fomichey, 899 F.3d at 771; Underwood, 859 F.3d at 390; United States
v. Breton, 740 F.3d 1, 10–11; Brock, 724 F.3d at 820–22; United States v. Banks, 556 F.3d 967, 974 (9th Cir. 2009);
Jarvison, 409 F.3d at 1231.
104 Jaffee v. Redmond, 518 U.S. 1 (1996) (recognizing a generally applicable federal privilege in another context and
leaving development of the dimensions of the privilege for another day); United States v. Fackrell, 991 F.3d 589, 605
(5th Cir. 2021); United States v. Lara, 850 F.3d 686, 690 (4th Cir. 2017); United States v. Ghane, 673 F.3d 771, 782-85
(8th Cir. 2012); United States v. Chase, 340 F.3d 978, 985 (9th Cir. 2003) (refusing to recognize a dangerous patient
exception to the federal privilege and noting a circuit split on the issue); In re Grand Jury Investigation, 114 F. Supp. 2d
1054, 1055 (D. Or. 2000) (holding that a grand jury target had waived his psychotherapist-patient privilege).
105 Fisher v. United States, 425 U.S. 391, 403 (1976); United States v. Snyder, 71 F.4th 555, 566 (7th Cir. 2023), rev’d
and remanded, 603 U.S. 1 (2024); In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021); In re Grand Jury Subpoena, 2
F.4th 1339, 1345 (11th Cir. 2021); In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014).
106 In re Grand Jury Proceedings, 609 F.3d 909, 912 (8th Cir. 2010) (“Under the crime-fraud exception, attorney-client
privilege ‘does not extend to communications made for the purpose of getting advice for the commission of a fraud or a
crime’”) (quoting In re Green Grand Jury Proceedings, 492 F.3d 976 (8th Cir. 2007)); see also In re Abbott Lab’s, 96
F.4th 371, 377 n.4 (3d Cir. 2024); United States v. Carr, 83 F.4th 267, 276 (5th Cir. 2023); In re Grand Jury Subpoena,
745 F.3d at 687 (The government “must make a prima facie showing that (1) the client was committing or intending to
commit a fraud or crime, and (2) the attorney-client communications were in furtherance of that alleged crime or
fraud”); In re Grand Jury Proceedings, 417 F.3d 18, 22 (1st Cir. 2005); In re Grand Jury Subpoenas, 144 F.3d 653, 659–
62 (10th Cir. 1998).
107 Taylor Lohmeyer Law Firm P.L.L.C., 957 F.3d 505, 510 (5th Cir. 2020) (citing In re Grand Jury Subpoena, 926 F.2d
1423, 1431 (5th Cir. 1991)); Gerald B. Lefcourt, P.C. v. United States, 125 F.3d 79, 86–88 (2d Cir. 1997); United States
v. Ellis, 90 F.3d 447, 450–51 (11th Cir. 1996); but see Amador v. United States, 98 F.4th 28, 37 (1st Cir. 2024) (“Trial
courts are under a duty to inquire when confronted with a potential conflict of interest that could impact a defendant’s
Sixth Amendment right to representation free from conflict” but trial court exceeded its discretion when it subjected
defendant’s attorney to examination under oath by prosecutor concerning the source of attorneys’ fees).
108 Ralls v. United States, 52 F.3d 223, 225–26 (9th Cir. 1995); In re Grand Jury Proceedings, 42 F.3d 876, 878–79 (4th
Cir. 1994); Vingelli v. United States (DEA), 992 F.2d 449, 451–54 (2d Cir. 1993). The motion to quash is no more
likely to be granted because the prosecutor failed to comply with the guidelines of the United States Attorneys’ Manual
concerning the issuance of grand jury subpoenas seeking client information, In re Grand Jury Proceedings, 42 F.3d at
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the payment of the fee itself is unlawful ... [or] the fee contract contain[s] any confidential
communication.”109
The attorney “work product privilege protects any material obtained or prepared by a lawyer in
the course of his legal duties, provided that the work was done with an eye toward litigation.”110
Like the attorney-client privilege, it is subject to a crime/fraud exception.111 Unlike that privilege,
however, “the work product privilege belongs to both the client and the attorney, either one of
whom may claim it.112 An innocent attorney may claim the privilege even if a prima facie case of
fraud or criminal activity exists as to the client.”113

Constitutional Privileges
The cases which give rise to attorney-client and attorney work product claims not infrequently
include Sixth Amendment invocations as well.114 At first blush, the Sixth Amendment right to the
assistance of counsel might be thought to afford but scant ground upon which to base a motion to
quash a grand jury subpoena since the right does not ordinarily attach until an individual has been
accused of a crime, e.g., after indictment.115 This is in fact a very real limitation, but one which
admits to exception where either the client has already been indicted or arrested or where the
vitality of the right requires pre-attachment recognition.116
109 In re Grand Jury Subpoenas, 906 F.2d 1485, 1488, 1489, 1492 (10th Cir. 1990); In re Grand Jury Proceedings, 33

F.3d 1060, 1063–64 (9th Cir. 1994); Ralls, 52 F.3d at 225–26; In re Subpoenaed Grand Jury Witness, 171 F.3d 511, 514
(7th Cir. 1999); Guo Wengui v. Clark Hill, PLC, 338 F.R.D. 7, 15 (D.D.C. 2021); Taylor Lohmeyer Law Firm PLLC v.
United States, 385 F. Supp. 3d 548, 555 (W.D. Tex. 2019), aff’d, 957 F.3d 505 (5th Cir. 2020).
110 In re Sealed Case, 29 F.3d 715, 718 (D.C .Cir. 1994); In re Sealed Case, 146 F.3d 881, 884–87 (D.C. Cir. 1998); In
re Subpoenaed Grand Jury Witness, 171 F.3d at 514; In re Grand Jury Subpoena, 274 F.3d 563, 574 (1st Cir. 2001); In
re Grand Jury Proceedings, 401 F.3d 247, 250 (4th Cir. 2005); In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d
180, 183–84 (2d Cir. 2007); In re Grand Jury Proceedings, 616 F.3d 1172, 1184 (10th Cir. 2010); In re Grand Jury
Subpoena, 745 F.3d 681, 693 (3d Cir. 2014); see also In re Grand Jury 2021 Subpoenas, 87 F.4th 229, 252 (4th Cir.
2023); Am. Oversight v. DOJ, 45 F.4th 579, 590 (2d Cir. 2022); In re Grand Jury, 23 F.4th 1088, 1093 (9th Cir. 2022).
111 United States v. Carr, 83 F.4th 267, 276 (5th Cir. 2023); In re Sealed Search Warrant, 11 F.4th 1235, 1249 (11th Cir.
2021) (per curiam); In re Grand Jury Subpoena, 745 F.3d at 694; In re Grand Jury Proceedings, 609 F3d 909, 912 (8th
Cir. 2010); In re Grand Jury Subpoenas, 561 F.3d 408, 411 (5th Cir. 2009); In re Green Grand Jury Proceedings, 492
F.3d 976, 979–80 (8th Cir. 2007); In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005); In re Grand Jury
Proceedings, 401 F.3d at 251; In re Sealed Case, 223 F.3d 775, 778–79 (D.C. Cir. 2000); In re Richard Roe, Inc., 168
F.3d 69, 70–72 (2d Cir. 1999).
112 In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 174 (4th Cir. 2019).
113 In re Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000); In re Grand Jury Proceedings, 609 F.3d 909, 912 (8th
Cir. 2010); In re Grand Jury Subpoenas, 561 F.3d at 411; In re Grand Jury Proceedings Thursday Special Grand Jury,
33 F.3d 342, 349 (4th Cir. 1994).
114 U.S. CONST. amend.VI (“In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of
Counsel for his defence.”).
115 “[U]ntil such time as the ‘government has committed itself to prosecute, and ... the adverse positions of the
government and defendant have solidified’ the Sixth Amendment right to counsel does not attach.” Moran v. Burbine,
475 U.S. 412, 432 (1986) (quoting, United States v. Gouveia, 467 U.S. 180, 189 (1984) and Kirby v. Illinois, 406 U.S.
682, 689 (1972)); see also United States v. Warrington, 78 F.4th 1158, 1164 (10th Cir. 2023); United States v. Snyder,
71 F.4th 555, 566 (7th Cir. 2023); United States v. Medley, 34 F.4th 326, 333 (4th Cir. 2022); McFarland v. Lumpkin, 26
F.4th 314, 322 (5th Cir. 2022); United States v. Kourani, 6 F.4th 345, 353 (2d Cir. 2021); United States v. Olson, 988
F.3d 1158, 1160 (9th Cir. 2021); United States v. Kubini, 19 F. Supp. 3d 579, 618 (W.D. Pa. 2014) (citing, United
States v. Williams, 504 U.S. 36, 49 (1992)) (“The Supreme Court has likewise recognized that the Sixth Amendment
right to counsel does not attach prior to the grand jury’s return of an indictment.”).
116 United States v. Van Engel, 15 F.3d 623, 630 (7th Cir. 1993), abrogated on other grounds by United States v. Canoy,
38 F.4th 873 (7th Cir. 1994) (“The preindictment investigation of Kravit could violate the Sixth Amendment therefore,
only if it affected his representation of Van Engel at the later stages of the case, in particular the trial.”), abrogated on
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As a general rule, a grand jury subpoena will only be quashed on the basis of Sixth Amendment
considerations on those rare instances where it is shown to have been motivated solely by an
intent to harass,117 where compliance would unnecessarily result in an actual conflict of interest
between the attorney and his or her client, or where compliance would unnecessarily tend to
undermine the attorney-client relationship.118 The Sixth Amendment, however, does not assure a
grand jury witness of the right to have an attorney present when the witness testifies before the
grand jury.119
A successful refusal to appear or testify before the grand jury, based upon the First Amendment
guarantees of the freedoms of the press, association, or expression,120 is even more rare. Under

other grounds by, United States v. Canoy, 38 F.4th 873 (7th Cir. 1994); In re Grand Jury Subpoena, 913 F.2d 1118,
1128 (5th Cir. 1990) (“[T]he district court’s exercise of its discretion to quash the subpoena because it created a serious
interference with Reyes-Requena’s relationship with his attorney is justified for several reasons. Reyes-Requena’s
Sixth Amendment rights had attached. The prosecution against him was moving swiftly—an indictment issued within
three weeks of Reyes-Requena’s detention hearing. DeGeurin’s representation of Reyes-Requena was effectively
stalled during the two-to-three-week interval that he contested the subpoena. The government made no effort to
explain, even rhetorically, why it was necessary to subpoena DeGeurin during that critical juncture in his representation
of the defendant. The government made not a single argument in the district court or before this court to suggest that a
brief delay in the process, until a lull in the Reyes-Requena prosecution or until after his conviction would have been
imprudent.”).
117 Cf. Trump v. Vance, 591 U.S. 786, 805 (2020) (“[G]rand juries are prohibited from engaging in ‘arbitrary fishing
expeditions’ and initiating investigations ‘out of malice or an intent to harass.’”) (quoting United States v. R. Enters.,
Inc., 498 U.S. 292, 299 (1991)); United States v. Trump, 91 F.4th 1173, 1197 (D.C. Cir. 2024), vacated and remanded,
603 U.S. 593 (2024).
118 United States v. Bergeson, 425 F.3d 1221, 1224–27 (9th Cir. 2005); In re Grand Jury Proceedings, 33 F.3d 1060,
1062–63 (9th Cir. 1994); In re Grand Jury Matter, 926 F.2d 348, 351 (4th Cir. 1991).
119 Conn v. Gabbert, 526 U.S. 286, 292 (1999); United States v. Mandujano, 425 U.S. 564, 581 (1976); United States v.
McKenna, 327 F.3d 830, 838 (9th Cir. 2003). Although the lower federal courts have generally recognized the right of a
grand jury witness to suspend his or her testimony in order to consult with an attorney immediately outside the grand
jury room, In re Grand Jury Subpoena, 97 F.3d 1090, 1092–93 (8th Cir. 1996); Gabbert v. Conn, 131 F.3d 793, 801 (9th
Cir. 1997), rev’d on other grounds, 526 U.S. 526 (1999), as the Supreme Court observed in Conn, the Court itself has
never held that such an accommodation is constitutionally required, Conn v. Gabbert, 526 U.S. at 292; In re Grand Jury
Investigation, 182 F.3d 668, 671 n.3 (9th Cir. 1999).
Subject to various limitations, a number of states permit state grand jury witnesses to have an attorney present when
they testify, e.g., ARIZ. REV. STAT. § 21-412 (2025) (only targets of investigation); COLO. REV. STAT. § 16-5-204(4)(d)
(2025); CONN. GEN. STAT. § 54-47f (2025); FLA. STAT. § 905.17 (2025); 725 ILL. COMP. STAT. 5/112-4.1 (2025); IND.
CODE ANN. § 35-34-2-5.5 (2025) (only targets); KAN. STAT. ANN. § 22-3009 (2025); LA. CODE CRIM. PROC. ANN. art.
433 (2024) (only targets of an investigation); MASS. GEN. LAWS ch.277, § 14A (2024); MICH. COMP. LAWS § 767.3
(2025); Minn. R. Crim. P. 18.03 (only witnesses who have waived or been granted immunity); NEB .REV. STAT. § 291411 (2025); NEV. REV. STAT. § 172.239 (2025) (target of grand jury); N.M. STAT. § 31-6-4 (2025) (attorney for
targets); N.Y. CODE CRIM. PROC. § 190.52 (only witnesses who have waived immunity); OKLA. STAT. ANN. tit. 22, §
340 (2025); 42 PA. CONS. STAT. § 4549 (West 2025); S.D. CODIFIED LAWS § 23A-5-11 (2025); UTAH CODE ANN. § 7710a-13 (West 2025); VA. CODE ANN. § 19.2-209 (2024) (special grand jury); WIS. STAT. § 968.45 (2025).
120 U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”).

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extreme circumstances, it will provide the grounds to avoid a contempt citation or to quash a
federal grand jury subpoena.121 Generally it will not.122
The Fourth Amendment prohibits unreasonable governmental searches and seizures.123 What
might be unreasonable under other circumstances, may well be considered reasonable in a grand
jury environment. For example, grand jury subpoenas are not considered per se unreasonable
simply because they require neither probable cause nor the filter of an approving neutral
magistrate. 124
The opportunity to be heard on a motion to quash before complying makes the grand jury
subpoena in many respects less intrusive than the warrant.125

121 Branzburg v. Hayes, 408 U.S. 665, 707–78 (1972) (“[N]ews gathering is not without its First Amendment

protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly
different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes
of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand
juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand
juries must operate within the limits of the First Amendment.... ” (footnote omitted)); In re Grand Jury Investigation of
Possible Violation of 18 U.S.C. § 1461, 706 F. Supp. 2d 11, 18–19 (D.D.C. 2009) (“[D]espite its admonition in
Branzburg, the Supreme Court has yet to define the appropriate standard for reviewing grand jury subpoenas that
implicate First Amendment concerns. However, several courts of appeal, in addition to this Court, have adopted a twopart test to determine whether to enforce a subpoena that may infringe on First Amendment rights. See In re Grand
Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1312 (8th Cir. 1996); In re Grand Jury Proceedings, 776 F.2d 1099,
1102–03 (2d Cir. 1985). In order to survive a First Amendment challenge the government must show that they have a
compelling interest in obtaining the sought-after material and that there is a sufficient nexus between the subject matter
of the investigation and the information they seek.”).
122 Branzburg, 408 U.S. at 667 (freedom of the press); Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (“Neither
does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand
jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to
reveal a confidential source.”); In re Grand Jury Subpoena, 438 F.3d 1141, 1145–50 (D.C. Cir. 2006) (declining to
recognize either a First Amendment or common law privilege under the facts before it); In re Grand Jury Subpoena,
947 F. Supp. 1314, 1318–21 (E.D. Ark. 1996); In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229, 231–34
(4th Cir. 1992) (freedom of expression); Nat ’l Commodity & Barter Ass’n v. United States, 951 F.2d 1172, 1174–75
(10th Cir. 1991) (“[W]hen a party makes a prima facie showing of First Amendment infringement, the government must
show a compelling need to obtain the documents identifying petitioner’s members. Further, the government must show
that the records sought bear a substantial relationship to this compelling interests.... ‘A good-faith criminal
investigation into possible evasion of reporting requirements through the use of a private banking system that keeps no
records is a compelling interest’” (quoting First Nat’l Bank v. DOJ, 865 F.2d 217, 220 (10th Cir. 1989)); In re the
Grand Jury, 171 F.3d 826, 835 (3d Cir. 1999) (freedom of religion). The Department of Justice has issued guidelines
relating to subpoenas issued to media and its representatives, 28 C.F.R. § 50.10 (2024), but they do not create
enforceable legal rights, In re Grand Jury Subpoena, 438 F.3d at 1152–53.
Reporters, academics and others have periodically suggested adjustments in the law in this area, e.g., Christina
Koningisor, The De Facto Reporter’s Privilege, 127 YALE L.J. 1176 (2018); Mary-Rose Papandrea, Citizen Journalism
and the Reporter’s Privilege, 91 MINN. L. REV. 515 (2007); Monica Langley & Lee Levine, Branzburg Revisited:
Confidential Sources and First Amendment Values, 57 GEO. WASH. L. REV. 13 (1988); Leslye DeRoos Rood & Ann K.
Grossman, The Case for a Federal Journalist’s Testimonial Shield Statute, 18 HASTINGS CONST. L. Q. 779 (1981), an
effort which may not be without its own pitfalls, see, Are Oliver Stone and Tom Clancy Journalists: Determining Who
Has Standing to Claim the Journalist’s Privilege, 69 WASH. L. REV. 739 (1994); Using the Shield as a Sword: an
Analysis of How the Current Congressional Proposals for a Reporter’s Shield Law Wound the Fifth Amendment, 20
ST. JOHN’S J. LEGAL COMMENT. 339 (2006).
123 U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.”).
124 Zurcher v. Stanford Daily, 436 U.S. 547, 562–63 (1978).
125 Id. at 575–76 (Stewart, J. dissenting). The government might respond to a motion to quash by seeking a search
warrant for the same material, if it has sufficient evidence to establish probable cause.

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Even “forthwith” subpoenas, where the opportunity to quash may be minimized,126 have
generally been thought to pass constitutional muster, either because the party to whom they were
address complied, i.e., consented,127 or because the circumstances presented exigencies similar to
those to which Fourth Amendment demands have traditionally yielded.128
The shadow of the Fourth Amendment is visible in Rule 17(c) of the Federal Rules of Criminal
Procedure, which supplies the grounds most often successfully employed to quash a grand jury
subpoena:
A subpoena may also command the person to whom it is directed to produce the books,
papers, documents or other objects designated therein. The court on motion made promptly
may quash or modify the subpoena if compliance would be unreasonable or oppressive.

However, a “‘grand jury proceeding is accorded a presumption of regularity, which generally may
be dispelled only upon particularized proof of irregularities in the grand jury process.’
Consequently, a grand jury subpoena issued through normal channels is presumed to be
reasonable.”129
A subpoena is “unreasonable or oppressive” if (1) it commands the production of things clearly
irrelevant to the investigation being pursued; (2) it fails to specify the things to be produced with
reasonable particularity; or (3) it is unreasonable in terms of the relative extent of the effort
required to comply.130
126 In some instances, a forthwith subpoena may command performance “forthwith” and not later than some short

period thereafter, e.g., In re Grand Jury Subpoenas, 597 F.3d 189, 202 (4th Cir. 2010) (“production [of subpoenaed
documents] must proceed forthwith and must be complete as [soon as] counsel can make it no later than May 12, 2006
[(7 days later)]”). In other instances, a forthwith subpoena may command immediately performance, thereby reducing
the possibility of filing a timely motion to quash or to seek the assistance of counsel, and raising questions as to when a
forthwith subpoena is really an arrest or search warrant available without the necessities of the Fourth Amendment.
127 United States v. Susskind, 4 F.3d 1400, 1401 (6th Cir. 1993), adopting Part IV of its previously vacated opinion
reported at United States v. Susskind, 965 F.2d 80, 85–87 (6th Cir. 1992); United States v. Allison, 619 F.2d 1254, 1257
(8th Cir. 1980).
128 United States v. Lartey, 716 F.2d 955, 962 (2d Cir. 1983) (evidence suggested that delay might well have resulted in
the destruction or alteration of the subpoenaed records); United States v. Wilson, 614 F.2d 1224, 1228 (9th Cir. 1980)
(evidence indicated that delay might have afforded an opportunity to forge documents); United States v. Triumph
Capital Grp., Inc, 211 F.R.D. 31, 55–56 (D .Conn. 2002) (exigent circumstances—the threat that evidence sought
would be destroyed—justified use a forthwith grand jury subpoena).
129 United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (quoting United States v. Mechanik, 475 U.S. 66, 75
(1986) (O’Connor, J., concurring in the judgment)); see also In re Grand Jury Proceedings, 744 F.3d 211, 220 (1st Cir.
2014); In re Grand Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997); In re Grand Jury Proceedings, 607 F. Supp.
2d 803, 806 (W.D. Tex. 2009); In re Grand Jury Subpoenas, 438 F. Supp. 2d 1111, 1120–21 (N.D. Cal. 2006).
130 R. Enters., Inc., 498 U.S. at 299–301 (1992); In re Grand Jury, 478 F.3d 581, 585 (4th Cir. 2007) (“In the absence of
such a privilege, a subpoena may still be unreasonable or oppressive under Rule 17(c) if it is irrelevant, abusive or
harassing, overly vague, or excessively broad. Additionally, some courts have recognized that Rule 17(c) enables
district courts to quash a subpoena that intrudes gravely on significant interests outside of the scope of a recognized
privilege, if compliance is likely to ‘entail consequences more serious than even severe inconveniences occasioned by
irrelevant or overbroad request for records’”) (citations omitted) (quoting In re Grand Jury Matters, 751 F.2d 13, 18 (1st
Cir.1984); In re Grand Jury Subpoenas, 906 F.2d 1485, 1496 (10th Cir. 1990); In re Grand Jury Subpoena Duces
Tecum Dated November 15, 1993, 846 F. Supp. 11, 12–14 (S.D.N.Y. 1994) (quashing as overbroad a grand jury
subpoena for all computer hard disk drives and floppy diskettes without any particular reference to their content). In R.
Enterprises, the Court held that the party seeking to quash bears the burden of establishing that a particular subpoena is
unreasonable because it is unduly burdensome or because of its want of specificity or relevancy and that a motion to
quash on grounds of relevancy “must be denied unless there is no reasonable possibility that the category of materials
the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” 498
U.S. at 301); In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (10th Cir. 2010); In re Grand Jury Subpoena, 175 F.3d
332, 339 (4th Cir. 1999); In re Sealed Case, 121 F.3d 729, 759 (D.C. Cir. 1997). Moreover, burdensomeness is a matter
(continued...)

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It is not unreasonable under the Fourth Amendment nor contrary to the Fifth Amendment
privilege against self-incrimination to subpoena a witness to appear before the grand jury in order
to furnish a voice exemplar,131 a handwriting exemplar,132 to sign a consent form authorizing the
disclosure of bank records,133 or for juveniles to produce a DNA sample and a complete set of
fingerprints.134 Consequently, the courts will not quash an otherwise valid subpoena issued for
any those purposes.135
Although the Fifth Amendment privilege against self-incrimination136 precludes requiring a
witness to testify at his or her criminal trial,137 it does not “confer an absolute right to decline to
respond in a grand jury inquiry.”138 Once before the grand jury, a witness may decline to present
self-incriminating testimony.139 The right does not include the option to protect pre-existing,
voluntarily prepared personal papers on the ground that they are self-incriminatory,140 but a
witness may refuse to produce that documents where the act of production (rather than the mere

of context, In re Grand Jury Proceedings, 744 F.3d at 221 (1st Cir. 2014) (“NITHPO ultimately does little more than
enumerate the categories of requested documents and generally protest ‘the sheer amount of time and resources that
would be required to comply’ with the subpoena duces tecum. But all subpoenas demand some amount of time and
resources from their recipients, and absent a more specific explanation of how the burden in this case is unreasonable,
we decline to disturb the district court’s judgment.”). Here again, failure to comply with guidelines in the United States
Attorneys’ Manual or other internal directives will not per se render a grand jury subpoena subject to being quashed, In
re Grand Jury Proceedings, 42 F.3d 876, 880 (4th Cir. 1994).
131 United States v. Dionisio, 410 U.S. 1 (1973).
132 United States v. Mara, 410 U.S. 19 (1973).
133 Doe v. United States, 487 U.S. 201 (1988).
134 In re Green Grand Jury Proceedings, 371 F. Supp. 2d 1055, 1056–58 (D. Minn. 2005); In re Shabazz, 200 F. Supp.
2d 578, 581–85 (D.S.C. 2002) (applying Fourth Amendment analysis to a motion to quash a grand jury subpoena duces
tecum for a saliva sample sought for DNA testing purposes).
135 United States v. Meregildo, 876 F. Supp. 2d 445, 450 (S.D. N.Y. 2012) (“Among other limitations, a ‘grand jury is
... without power to invade a legitimate privacy interest protected by the Fourth Amendment.’ ... While a grand jury
subpoena may constitute a search, ‘[w]hat a person knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection.’ Thus, grand jury subpoenas compelling voice exemplars, handwriting
samples, and hair samples fall outside the ambit of the Fourth Amendment protection. By contrast, grand jury
subpoenas involving intrusions into the body, such as blood testing implicate the Fourth Amendment’s prohibition of
unreasonable searches.”) (first and third alterations in original) (citations omitted) (first quoting United States v.
Calandra, 414 U.S. 338, 346 (1974); and then quoting Katz v. United States, 389 U.S. 347, 351 (1967)).
136 U.S. Const. amend. V (“[N]or shall any person ... be compelled in any criminal case to be a witness against
himself.... ”).
137 Cf. Griffin v. California, 380 U.S. 609, 613–14 (1965) (prosecutors are constitutionally barred from making
uninvited comments on the defendants’ failure to testify to the jury); United States v. Carswell, 996 F.3d 785, 797 (7th
Cir. 2021); United States v. Ayewoh, 627 F.3d 914, 922–23 (1st Cir. 2010).
138 United States v. Mandujano, 425 U.S. 564, 572 (1976). Nor is a witness entitled to Miranda warnings even if he or
she is a target of the grand jury’s investigation. Id. at 579; United States v. Williston, 862 F.3d 1023, 1032 (10th Cir.
2017); United States v. Byram, 145 F.3d 405, 409 (1st Cir. 1998); United States v. Gomez, 237 F.3d 238, 241–42 (3d
Cir. 2000); United States v. Quam, 367 F.3d 1006, 1008 (8th Cir. 2004); United States v. Trinh, 638 F. Supp. 2d 143,
147 (D. Mass. 2009).
139 Gomez, 237 F.3d at 240. The Fifth Amendment, however, ordinarily does not permit a grand jury witness to refuse
to answer on grounds his testimony will expose him to prosecution under foreign law, In re Grand Jury Proceedings of
the Special April 2002 Grand Jury, 347 F.3d 197, 208 (7th Cir. 2003) (citing, United States v. Balsys, 524 U.S. 666,
673–700 (1998)); In re Grand Jury Investigation, 542 F. Supp. 2d 467, 469 (E.D. Va. 2008); United States v. Alvarez,
489 F. Supp. 2d 714, 721–23 (W.D. Tex. 2007).
140 United States v. Hubbell, 530 U.S. 27, 35–36 (2000) (citing, Fisher v. United States, 425 U.S. 391, 409 (1976) and
United States v. Doe, 465 U.S. 605, 612 (1984)); In re Grand Jury Subpoena, Dated April 18, 2003, 383 F.3d 905, 909
(9th Cir. 2004).

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content of the documents) would itself be incriminating.141 The privilege, nevertheless, is a
personal one, and as a result provides no basis to quash a grand jury subpoena duces tecum for
the records of corporate or other legal entities rather than of individuals.142
The Fifth Amendment Due Process Clause,143 with and like the “unreasonable or oppressive”
standard of Rule 17 of Federal Rules of Criminal Procedure, supplements other grounds for a
motion to quash grand jury subpoenas when confronted with potential abuse of the grand jury
process or practices that are fundamentally unfair.
Thus, a grand jury subpoena is subject to a motion to quash if issued for the sole or dominant
purpose of preparing the government’s case against a previously indicted target, but not if there is
a possible valid purpose for the subpoena.144 Nor may the grand jury subpoena be used solely as a
discovery device for civil cases in which the government has an interest.145

141 Hubbell, 530 U.S. at 40–43; In re Grand Jury Proceeding, 971 F.3d 40, 55 (2d Cir. 2020); In re Twelve Grand Jury

Subpoenas, 908 F.3d 525, 528 (9th Cir. 2018) (per curiam); In re Grand Jury Witnesses, 92 F.3d 710, 712–13 (8th Cir.
1996); In re Grand Jury Subpoena Dated April 18, 2003, 383 F.3d 905, 909–10 (9th Cir. 2004); In re Grand Jury
Subpoena, 991 F. Supp. 2d 968, 972–76 (E.D. Mich. 2014).
142 Braswell v. United States, 487 U.S. 99 (1988); In re Twelve Grand Jury Subpoenas, 908 F.3d at 528; In re Grand
Jury Subpoena Issued June 18, 2009, 593 F.3d 155, 158–59 (2d Cir. 2010); In re Grand Jury Subpoena, 584 F.3d 175,
184 (4th Cir. 2009); In re Grand Jury Subpoena, 991 F. Supp. 2d at 972–76; cf. Bellis v. United States, 417 U.S. 85
(1974) (upholding the contempt citation of an attorney for failure to comply with a grand jury subpoena for his law
firm’s business records).
143 U.S. CONST. amend. V (“[N]or shall any person ... be deprived of life, liberty, or property, without due process of
law.... ”).
144 In re Grand Jury 2021 Subpoenas, 87 F.4th 229, 251–52 (4th Cir. 2023); United States v. Punn, 737 F.3d 1, 6 (2d Cir.
2013) (“The law is settled in this circuit and elsewhere that it is improper to utilize a Grand Jury for the sole or
dominating purpose of preparing an already pending indictment for trial”); United States v. US Infrastructure, Inc., 576
F.3d 1195, 1214 (11th Cir. 2009) (“A defendant claiming grand jury abuse ‘has the burden of showing that the
Government’s use of the grand jury was improperly motivated.’ While the grand jury cannot be used ‘solely or even
primarily’ to gather evidence against an indicted defendant, it can be used to investigate whether a defendant
committed crimes not covered in the indictment. ‘[T]he law presumes, absent a strong showing to the contrary, that a
grand jury acts within the legitimate scope of its authority’” (alteration in original) (footnotes omitted) (first quoting
United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994), then quoting United States v. Bros. Const. Co., 219 F.3d 300,
314 (4th Cir. 2000), and then quoting United States v. R. Enters., Inc., 498 U.S. 292, 300 (1991)); In re Green Grand
Jury Proceedings, 492 F.3d 976, 986 (8th Cir. 2007) (“The government may not use the grand jury’s investigative
powers for the sole or dominant purpose of a preparing a pending indictment for trial. If the grand jury proceedings are
directed toward other charges or persons, ‘its scope cannot be narrowly circumscribed and any collateral fruits from
bona fide inquires may be utilized by the government.’” (first quoting United States v. Puckett, 147 F.3d 765, 770 (8th
Cir.1998), and then quoting United States v. Wadlington, 233 F.3d 1067, 1074 (8th Cir. 2000)); United States v.
Apperson, 441 F.3d 1162, 1189 (10th Cir. 2006); United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001) (“if a grand
jury’s continuing indagation results in the indictment of parties not previously charged, the presumption of regularity
generally persists. So too when the grand jury’s investigation leads to the filing of additional charges against previously
indicted defendants” (citation omitted)); United States v. Bros. Constr. Co., 219 F.3d 300, 314 (4th Cir. 2000).
145 In re Grand Jury Subpoenas, 175 F.3d 332, 339–40 (4th Cir. 1999); cf., United States v. Sells Eng’g, Inc., 463 U.S.
418, 432 (1983) (“If prosecutors in a given case knew that their colleagues would be free to use the materials generated
by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to
root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal
prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper
per se”). The attorney for the government, however, need not seek court approval to use in a related civil matter the
knowledge he gained by assisting a grand jury, United States v. John Doe, Inc., 481 U.S. 102, 111 (1987).

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Finally, the Constitution provides that “for any speech or debate in either House, they [the
members of Congress] shall not be questioned in any other place.”146 The privilege precludes
questioning before the grand jury of a Member’s legislative acts.147

Statutory and Other Limitations of Grand Jury Subpoena Authority
Federal law prohibits the use of evidence tainted by illegal wiretapping.148 The prohibition
permits a grand jury witness to refuse to answer inquiries derived from illegal wiretapping.149
Similarly, a grand jury subpoena directed towards earlier testimony secured under a promise of
immunity from prosecution may be quashed if sought solely for the purpose of indicting the
witness.150
The courts are divided over the question of whether a statute that classifies information as
confidential thereby takes the information beyond the reach of a federal grand jury subpoena, or
otherwise confines the grand jury’s prerogatives.151
The vitality of regulatory limitations upon the grand jury subpoena power are equally unclear.
The courts have consistently held that the government’s failure to comply with the guidelines in
the United States Attorneys’ Manual concerning grand jury subpoenas does not constitute valid

146 U.S. Const. art. I, § 6, cl. 2.
147 In re Grand Jury Subpoenas, 571 F.3d 1200, 1202–03 (D.C. Cir. 2009); United States v. Rostenkowski, 59 F.3d

1291, 1300 (D.C. Cir. 1995); United States v. Swindall, 971 F.2d 1531, 1543 (11th Cir. 1992); cf. In re Sealed Case, 80
F.4th 355, 365 (D.C. Cir. 2023). Federal law also affords members of state and local legislative bodies a similar
privilege. La Union del Pueblo Entero v. Abbott, 93 F.4th 310, 318 (5th Cir. 2024); Pernell v. Fla. Bd. Governors. of the
State Univ., 84 F.4th 1339, 1343 (11th Cir. 2023) In re North Dakota Legis. Assembly, 70 F.4th 460, 463 (8th Cir. 2023),
vacated sub nom., Turtle Mountain Band of Chippewa Indians v. N.D. Legislative Assembly, 144 S. Ct. 2709 (2024)
(mem.).
148 18 U.S.C. § 2515 (“Whenever any wire or oral communications has been intercepted, no part of the contents of such
communication and no evidence derived therefrom may be received in evidence ... before ... any grand jury ... if the
disclosure of that information would be in violation of this chapter [18 U.S.C. §§ 2510–2522].” No such rule governs
admissibility of evidence before the grand jury with respect to interceptions under the Foreign Intelligence Surveillance
Act. See, 50 U.S.C. § 1806 (use of information); In re Grand Jury Subpoena, 597 F.3d 189, 201 (4th Cir. 2010).
149 Gelbard v. United States, 408 U.S. 41, 43–44 (1972) (citing 18 U.S.C. § 2515); In re Grand Jury Proceedings, 988
F.2d 211, 213 (1st Cir. 1992); In re Grand Jury, 111 F.3d 1066, 1077–79 (3d Cir. 1997); In re Grand Jury Investigation,
437 F.3d 855, 857 (9th Cir. 2006); cf. United States v. Muhtorov, 20 F.4th 558, 627 (10th Cir. 2021).
150 In re Grand Jury Proceedings, 45 F.3d 343, 347–48 (9th Cir. 1995) (interpreting 18 U.S.C. § 6002).
151 For instance, one court has suggested that a grand jury subpoena does not constitute a “court order” sufficient to
trigger the exception to the confidentiality requirements of the Privacy Act, 5 U.S.C. § 552a, with respect to records
maintained by the federal government, Doe v. DiGenova, 779 F.2d 74, 85 (D.C. Cir. 1985), while another court has
reached a contrary conclusion, In re Grand Jury Subpoena Issued to the United States Postal Service, 535 F. Supp. 31,
32–33 (E.D. Tenn. 1981). The D.C. Circuit has noted a similar divergence of views on the question of whether a grand
jury subpoena constituted a court order sufficient to trigger an exception in the Fair Credit Reporting Act (15 U.S.C. §
1681), Doe, 779 F.2d at 81 n.16 (citing, In re Grand Jury Subpoena Duces Tecum Concerning Credit Bureau, Inc., 498
F. Supp. 1174 (N.D. Ga. 1980) and In re Application of Credit Information Corp. of New York to Quash Grand Jury
Subpoena, 526 F. Supp. 1253 (D. Md. 1981)), in contrast to, In re Grand Jury Proceedings, 503 F. Supp. 9 (D.N.J.
1980) and In re Subpoena Duces Tecum, 460 F. Supp. 1007 (E.D. Mich. 1978)); compare also, United States v. 218
Third St., 805 F.2d 256, 60–62 (7th Cir. 1986), with In re Castiglione, 587 F. Supp. 1210 (E.D. Cal. 1984), with respect
to exceptions to the confidentiality requirements of the Right to Financial Privacy Act (12 U.S.C. § 3420)). In re
August, 1993 Regular Grand Jury, 854 F. Supp. 1380, 1382–85 (S.D. Ind. 1994) recognizes the authority to quash a
grand jury subpoena to preserve the confidentiality of hospital records concerning drug abuse treatment patients under
42 U.S.C. § 290dd-2. See also In re Grand Jury Proceedings, 607 F. Supp. 2d 803, 806–07 (W.D. Tex. 2009)
(“[C]ourts in other circuits have rejected claims from state officials that compliance with a federal-grand-jury subpoena
would mean that they would violate state confidentiality laws or that a separate court order is necessary for
enforcement of a subpoena”).

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ground upon which to quash or modify a grand jury subpoena,152 but implications of ethical rules
purporting to proscribe the manner in which government attorneys may act with respect grand
jury subpoenas and other matters arising out of their duties are less clear.153

Secrecy
Federal grand juries conduct their business in secret, primarily154 at the direction of Rule 6 of the
Federal Rules of Criminal Procedure that limits who may attend,155 and the circumstances under
which matters involving the conduct of their business may be disclosed.156 Grand jury secrecy
predates the arrival of the grand jury in this country and the Supreme Court has said that “the
proper functioning of our grand jury system depends upon” it.157 On the other hand, it has always
been freely acknowledged that there are circumstances when, in balancing the interests of justice,
the interests to be served by disclosure will outweigh the interests in secrecy.
The cloak surrounding the grand jury’s business serves several interests:
(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the
utmost freedom to the grand jury in its deliberations, and to prevent persons subject to
indictment or their friends from importuning the grand jurors; (3) to prevent subornation
of perjury or tampering with the witness who may testify before [the] grand jury and later
appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures
by persons who have information with respect to the commission of crimes; (5) to protect
[the] innocent accused who is exonerated from disclosure of the fact that he has been under

152 In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 880 (4th Cir. 1994); In re Grand Jury Proceedings, 13 F.3d

1293, 1296 (9th Cir. 1994).
153 Compare, Whitehouse v. U.S. Dist. Ct., 53 F.3d 1349 (1st Cir. 1995) (upholding a rule that required judicial approval
before serving a grand jury subpoena for client information on an attorney), with, Stern v. United States District Court,
214 F.3d 4 (1st Cir. 2000) (holding invalid a rule, comparable but subject to a comment suggesting grounds for judicial
disapproval).
154 The federal circuits disagree over the extent to which federal courts may disclose grand jury matters, apart from
Rule 6, based on their inherent supervisory powers. In re Petition for Order Directing Release of Records, 27 F.4th 84,
90 (1st Cir. 2022) (“The Second and Seventh Circuits have held that ‘Rule 6(e)(3)(E) is permissive not exclusive’.... On
the other side of the split, four circuits have concluded ‘that Rule 6(e) is exhaustive, and that district courts do not
possess inherent, supervisory power to authorize the disclosure of grand jury records outside of Rule 6(e)(3)’s
enumerated exceptions.’”) (first quoting Carlson v. United States, 837 F.3d 753, 766–67 (7th Cir. 2016); and then
quoting Pitch v. United States, 953 F.3d 1226, 1229 (11th Cir. 2020) (en banc) (first citing In re Petition of Craig, 131
F.3d 99, 101–03 (2d Cir. 1997); then citing McKeever v. Barr, 920 F.3d 842, 850 (D.C. Cir. 2019); then citing United
States v. McDougal, 559 F.3d 837, 840 (8th Cir. 2009); and then citing In re Grand Jury, 932 F.2d 481, 488 (6th Cir.
1991)).
155 FED. R. CRIM. P. 6(d) (“The following persons may be present while the grand jury is in session: attorneys for the
government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording
device.... No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired
juror, may be present while the grand jury is deliberating or voting.”).
156 FED. R. CRIM. P. 6(e)(2), (7) (“(A) No obligation of secrecy may be imposed on any person except in accordance
with Rule 6(e)(2)(B). (B) Unless these rules provide otherwise, the following persons must not disclose a matter
occurring before the grand jury: (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an operator of a recording
device; (v) a person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom
disclosure is made under Rule 6(e)(3)(A)(ii) or (iii) ... (7) Contempt. A knowing violation of Rule 6, or of guidelines
jointly issued by the Attorney General and the Director of National Intelligence pursuant to Rule 6, may be punished as
a contempt of court.”); see generally, CRS Report R45456, Federal Grand Jury Secrecy: Legal Principles and
Implications for Congressional Oversight, by Michael A. Foster.
157 Rehberg v. Paulk, 566 U.S. 356, 374 (2012); United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (quoting
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 (1979)).

Congressional Research Service

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The Federal Grand Jury

investigation and from the expense of standing trial where there was no probability of
guilt.158

Conversely, circumstances may exist under which evidence of what occurred before the grand
jury could prevent a miscarriage of justice or serve some other public interest. These conditions
may develop in any environment in which evidence unearthed by the grand jury might be
relevant. They can arise in the federal criminal trials which often follow from a grand jury
investigation, in state criminal investigations and proceedings, in civil litigation, and in
administrative and legislative proceedings.
The boundaries of grand jury secrecy have been defined by balancing the public interest in the
confidentiality of grand jury proceedings against the public interest in disclosure in a particular
context.159 In some cases such as disclosure to a second grand jury, the rule permits disclosure
without court approval;160 in other cases such as disclosure to a civil litigant, the rule requires
court approval after balancing the conflicting interests represented in a particular request for
disclosure.161

Those Who Need Not Keep the Grand Jury’s Secrets
Rule 6 expressly declares that “[n]o obligation of secrecy may be imposed on any person except
in accordance with” its provisions,162 and only proscribes disclosures by members of the grand
jury, its court reporters and interpreters, the attorney for the government, and any personnel to
whom grand jury matters are disclosed so that they may assist the attorney for the government.
This implies that a grand jury witness may usually disclose his or her grand jury testimony,163 and
those not listed in Rule 6 generally need not keep the grand jury’s secrets even if they learned of
158 United States v. John Doe, Inc., 481 U.S. 102, 109 n.5 (1987) (quoting United States v. Rose, 215 F.2d 617, 628–29

(3d Cir. 1954) and United States v. Procter & Gamble Co., 356 U.S. 677, 681–82 n.6. (1958)); Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 219 n.10 (1979).
Douglas Oil Co. offered an alternative formulation, “First, if preindictment proceedings were made public, many
prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to
testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk
that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.
Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the
grand jury will not be held up to public ridicule,” Douglas Oil Co., 441 U.S. at 219. The two are obviously similar and
subsequent lower court decisions seem to show no real preference, Pitch, 953 F.3d at 1232 (citing Douglas Oil, 441
U.S. at 218); O’Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014) (same); In re Grand Jury Subpoena, 493 F.3d
152, 154 (D.C. Cir. 2007) (per curiam) (same); United States v. Aisenberg, 358 F.3d 1327, 1346 (11th Cir. 2004) (citing
Douglas Oil, 441 U.S. at 218); In re Newark Morning Ledger Co., 260 F.3d 217, 221 (3d Cir. 2001) (same); Camiolo
v. State Farm Fire & Cas. Co., 334 F.3d 345, 355 (3d Cir. 2003) (citing Rose, 215 F.2d at 628–29); In re Petition of
Craig, 131 F.3d 99, 102 (2d Cir. 1997) (same); Anilao v. Spota, 918 F. Supp. 2d 157, 172 (E.D. N.Y. 2013) (same).
159 Douglas Oil Co., 441 U.S. at 218–19 (“disclosure is appropriate only in those cases where the need for it outweighs
the public interest in secrecy”); see also Forbes Media LLC v. United States, 61 F.4th 1072, 1079–80 (9th Cir. 2023);
SEC v. Rajarat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A95-1135. Public record. Not legal advice.