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Appointed Counsel for Grand Jury Witnesses
  • Federal system

Federal courts have taken steps to ensure that indigent witnesses subpoenaed by a federal grand jury can have counsel appointed to represent them. Acting pursuant to the Criminal Justice Act of 1964, § 3006A of title 18, United States Code, and the federal Judicial Conference’s Guidelines for the Administration of the Criminal Justice Act, federal district courts have adopted rules for furnishing representation to witnesses who are financially unable to obtain adequate representation.

  • See, e.g., Local Rules for the U.S. District Court for the Eastern District of
    California, Criminal Justice Act Plan,

The rule for the Eastern District of California provides an example of this process. The Criminal Justice Act requires that appointed counsel must be provided for persons in certain situations, such as those who have been charged with a serious crime, are in custody as a material witness or are facing a hearing on their mental competence.

The Eastern District of California’s rule implements this statutory requirement, but it also gives judges the discretion to appoint counsel in other situations. The Eastern District of California’s rule states, for example, that

[w]henever a district judge or United States magistrate judge determines that the interest of justice so require, representation may be provided for any financially eligible person who . . . has been called as a witness before a grand jury, a court, the Congress, or a federal agency or commission which has the power to compel testimony, and there is reason to believe, either prior to or during testimony, that the witness could be subject to a criminal prosecution, a civil or criminal contempt proceeding, or face loss of liberty. . . .

  • See Local Rules for the U.S. District Court for the Eastern District of California, Criminal Justice Act Plan IV(A)(2), http://www.caed.uscourts.gov/.

The plan also lets judges appoint counsel for someone who has been advised by the United States Attorney that he or she is the target of a grand jury investigation.

  • See Local Rules for the U.S. District Court for the Eastern District of California,
    Criminal Justice Act Plan IV(A)(2).

Other districts follow the same practice.

See, e.g., U.S. District Court for the Central District of California, General Order 98-6, 
U.S. District Court of the District of Idaho Order 134,
U.S. District Court for the Western District of New York, Local Criminal and Civil Rules Appendices, Appendix G
U. S. District Court for the Eastern District of Texas, Local Court Rules – Appendices, Appendix G,
U.S. District Court for the Western District of Virginia, Criminal Justice Act Plan;
U.S. District Court for the Eastern District of Washington, Criminal Justice Act Plan, http://www.waed.uscourts.gov/.

Someone who has been subpoenaed by a federal grand jury and who thinks he or she needs an attorney but cannot afford to hire one should contact the federal district court which supervises the grand jury and inquire into the possibility of having counsel appointed under a rule or plan similar to these.

  • State grand juries

The availability of appointed counsel for grand jury witnesses, and the process of having counsel appointed for such witnesses, varies from state to state. Some state statutes specifically allow courts to appoint counsel for indigent persons who have been subpoenaed by a grand jury.

Others allow the appointment of counsel for the target of a grand jury investigation.

  • See, e.g., Illinois Compiled Statutes Annotated chapter 725 § 5/112-4;

  • Indiana Code Annotated § 35-34-2-5;

  • South Dakota Codified Laws § 23A-5-13;

  • Vernon’s Annotated Texas Code of Criminal Procedure Art. 20.17. 

See, e.g., Colorado Revised Statutes Annotated § 16-5-204(4)(d);

Kansas Statutes Annotated § 22-3009,

Nebraska Revised Statutes § 29-1411;

22 Oklahoma Statutes Annotated § 355;

2 Pennsylvania Consolidated Statutes Annotated § 4549;

Washington Statutes §10.52.040.

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