Even though the defense provided by the Fifth Amendment does not apply to corporations, the Fourth Amendment’s protections, on the other hand, do apply. Grand jury duces tecum subpoenas would be struck down if the terms are far too broad to be considered fair under the Fourth Amendment.
A court can only quash an otherwise lawful grand jury subpoena on the grounds that it is excessively burdensome if there is a strong showing of the government’s unreasonableness and abuse of process.
What Are Reasonable Duces Tecum Subpoenas?
The three-pronged test of reasonableness used by federal courts is as follows:
- The subpoena must command only the processing of materials related to the investigation
- The subpoena must define the materials to be generated with some specificity
- The subpoena must ask for materials covering only a reasonable period of time
It’s important to note that the relevancy and materiality tests used to determine the reasonableness of subpoenas served at trial are more rigorous than those used by grand jury subpoenas. A grand jury doesn’t have a catalog of what books and papers exist, and it doesn’t have any way of knowing what they’re about. As a result, it’s unlikely that it’ll be able to specify exactly what it wants. Since the grand jury’s quest for probable cause has no limitations other than that of a rational pursuit, it has a right to a fair margin of scope for evidence, notwithstanding Fourth Amendment objections.
Scope of Grand Jury Subpoenas
In its quest for documents that may help in its investigation, the grand jury has the right to do any exploring or fishing. Arguments on validity are particularly difficult to create because a grand jury subpoena does nothing more than define, for example, 18 U.S.C. ß 371 (the federal conspiracy law) as the statute by which the prosecutor is investigating.
There is, however, a limit on how far a “fishing expedition” will be tolerated. In Schwimmer v. United States, a subpoena directing an attorney to appear before a grand jury and bring with him “all books, records, files, logbooks, diaries, memoranda, correspondence, and other documents” with no time limit was found to be excessive.
The court held that a subpoena ordering an attorney to appear before a grand jury and carry with him all documents relating to eight designated joint projects, where some of the papers were over ten years old and filled four to six legal size file drawers, was overreaching and would be quashed.
When Duces Tecum Subpoenas Can Be Quashed
A court can only quash a subpoena if it is obvious that the subpoena is too wide. A subpoena cannot be quashed solely on the basis of the amount of information requested. In a subpoena duces tecum demanded the creation of “the contents of all three file cabinets” at a given address before a grand jury in connection with a fraud inquiry. The court narrowed the scope of the subpoena so that the government would have to prove that any document dated before the year in which the alleged fraud began was appropriate. The burden of proof for papers dated after that will be on the owners to prove that the records had no conceivable connection to any valid investigation target.
It seems that a warrant would not be quashed if there is a proper time limit. In another Supreme Court case, a grand jury subpoena duces tecum requesting “all documents relating to the operation of the process needed to be maintained… pursuant to New York City Department of Consumer Affairs Rules and Regulations relating to process servers from April 1, 1970, to the present” was found not to be quashable on the ground that it was overbroad.
In In re Grand Jury Investigation (Local 542-International Union of Operating Engineers), the union’s motion to quash a federal grand jury subpoena duces tecum requiring the creation of “all original books and documents of above-referenced organization for the period January 1, 1972, through June 30, 1974” was rejected on the grounds that it was unfair and too large.
A subpoena demanding the production of nearly all of the witness’s law firm’s financial transactions for a period of 51/2 years did not breach the Fourth Amendment in En re Berry, despite the fact that it was too large.
The New Jersey Superior Court recognized in In re Grand Jury Subpoena Duces Tecum, that a grand jury should be given wide leeway in conducting its inquiry: “If the investigation is to be substantive, some discovery or fishing must be inherent and entitled to occur in all documentary production pursued by a grand jury.”
Our Defense Lawyers Handle Duces Tecum Subpoenas
Thus, it appears that a subpoena duces tecum will be quashed when it is extremely broad in time limitation as well as scope. However, reasonableness under the Fourth Amendment must be determined by the facts of each case. As stated in Schwimmer: “The constitutional safeguard against unreasonable searches and seizures is more than a reach at mechanics in the process. It is concerned with intrinsic as well as extrinsic aspects, and its look is a reality, not theory, in respect to the whole of what is being done.”
If you are facing a federal grand jury, please call federal criminal lawyers with Norman Spencer PC to speak with a defense attorney today.