Court Cases; Connecticut laws/regulations;

OLR Research Report

March 3, 1998 98-R-0346

FROM: Christopher Reinhart, Research Attorney

RE: Federal Prosecutor's Investigative Subpoenas

You asked for a description of the investigative subpoena powers of federal prosecutors and the checks on their use of that power. You also asked how these powers differ from civil and agency subpoena powers.


The function of the federal grand jury is to screen evidence to determine whether to indict and to conduct investigations to determine whether a federal crime has been committed. Investigations are primarily controlled by federal prosecutors who typically decide which witnesses should appear, draft the subpoena, and conduct the primary questioning of the witnesses. Subpoenas are issued under the court's authority in the grand jury's name, but the prosecutor is given wide discretion and supervision is minimal.

Many Connecticut agencies have an investigative subpoena power, but these powers vary and the scope of an agency's authority to investigate is based on the specific statute involved. Like a grand jury subpoena, agency subpoenas are presumed valid by courts but enforcement by agencies requires greater supervision by the courts. In civil cases, the courts play a role in issuing and enforcing subpoenas.


The federal grand jury has nationwide subpoena power under Criminal Procedure Rule 17. It “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” It has wide discretion and may investigate with no particular defendant or criminal charge in mind. Its function is to inquire into all information that might concern its investigation until it identifies an offense or determines that none has occurred. It generally is not required to abide by evidentiary and procedural rules that apply to criminal trials, and may consider information obtained in violation of the Fourth Amendment exclusionary rule (United States v. R. Enterprises, Inc., 498 U.S. 292 (1991)). Although the rules of evidence do not apply, Federal Rule of Evidence 1101(d)(2) requires that evidentiary privileges be observed.


Federal prosecutors have wide discretion in the use of the grand jury subpoena but using this power subjects their conduct to the court's authority and supervision. There is no need for the prosecutor to obtain the prior approval of the grand jury or the court when issuing a subpoena because a presumption of regularity attaches to his actions when acting on behalf of the grand jury. The government need not justify a subpoena by presenting evidence that demonstrates probable cause and courts uphold subpoenas as long as it is fairly clear that they further the grand jury's investigation and not the prosecutor's separate interest. Prosecutors may not engage in arbitrary fishing expeditions or select targets out of malice or with intent to harass (United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991)). Subpoenas that serve little purpose and could be considered “shams” have been criticized by some courts but are usually upheld with this high presumption of regularity (United States v. Hammond, 858 F2d 834 (2d. Cir) critical of sham subpoenas, United States v. Infelise, 773 Fed.Supp. 93 (N.D.Ill) upheld subpoena).

Challenges to a subpoena based on irrelevance, redundancy, bad faith, or improper purpose are difficult to win. The burden is on the subpoenaed party to show that a subpoena is unreasonable or oppressive. The Supreme Court has stated that a party challenging the relevancy of a subpoena for documents must meet the high standard of showing that there is no reasonable possibility that the category of materials sought will produce information relevant to the general subject of the grand jury investigation (United States v. R. Enterprises, Inc., 498 U.S. 292 (1991)).


Grand jury witnesses may invoke their Fifth Amendment right to remain silent in response to potentially incriminating questions but are not entitled to Miranda warnings even if they are targets of the investigation. There is no constitutional requirement that a witness be informed that he is a target and there is no right to be accompanied by counsel during a grand jury appearance since the Sixth Amendment right to counsel does not attach until adversarial judicial proceedings are begun. Most lower courts recognize a right to leave the grand jury room to consult with counsel before answering potentially incriminating questions. Although it may not be a matter of constitutional law, the Department of Justice's policy for U.S. Attorneys requires them to advise “suspects” or “targets” at the time they receive a subpoena of the federal criminal laws that are the general subject of the inquiry, the right to remain silent, and the opportunity to consult with retained counsel outside the grand jury room (U.S. Attorney's Manual).


It is fairly common for a federal prosecutor to direct a subpoenaed witness to appear in the prosecutor's office before a grand jury proceeding to prepare or debrief the witness. This amounts to an “office subpoena.” Since the function of the grand jury is to act as an investigative body rather than an adjudicative one, prosecutors are not required to present all subpoenaed evidence and they are not required to present exculpatory evidence (U.S. v. Williams, 504 U.S. 36 (1992)). The “office subpoena” allows the prosecutor to decide whether to have the witness testify or not. Courts have generally allowed these interviews to occur as long as it is optional and the witness is given a choice, but some have been very critical of the practice (Beale and Bryson, Federal Grand Jury Law and Practice).


If an individual under subpoena fails to appear or refuses to testify, the court has the power to compel attendance and to compel testimony. District courts have the inherent power to prevent abuse of its process. It is the duty of an individual to obey a subpoena unless excused by the court or the prosecutor, even if the party has announced in advance that he intends to invoke the Fifth Amendment (Re Grand Jury Witness, 835 F2d 437 (2nd Cir 1987)).


Statutes give subpoena power to a variety of state agencies and officers for investigative and quasi-judicial functions. The specific powers and procedures involved vary from statute to statute. Most agencies can issue subpoenas on their own but a few statutes require the agency to apply to the Superior Court. The agency is generally allowed to make the initial determination of whether a party falls under its investigatory power but enforcement of a subpoena generally requires an application to the Superior Court. Violation of a court ordered subpoena is punishable as contempt.


Agency subpoena powers vary. Many agencies have investigative subpoena powers but statutes and circumstances prescribe the nature of this power. In some situations, an agency may only be authorized to act in response to a complaint or grievance. The Board of Mediation and Arbitration (CGS 31-95 to 42-99), for example, is authorized to issue subpoenas when investigating labor grievances and disputes and the Board of Labor Relations can issue subpoenas as part of its investigation when it receives an unfair labor practices complaint (CGS 10-153e(f)).

In most instances, the agency can issue subpoenas under its own authority. The Secretary of the Office of Policy and Management when acting under certain statutes is an exception. The secretary must apply to the court and provide an opportunity for both sides to be heard. The court must find that the requested information is reasonably necessary to carry out the statute's purpose and that the secretary has made reasonable efforts to obtain the information before it will issue a subpoena (CGS 16a-5).

An agency's investigatory powers are used to enforce their statutes and regulations and, similar to the federal prosecutor, the agency can be given broad discretion to investigate potential violations. The purpose of the investigative subpoena is generally to allow the agency to make a determination whether there has been a violation of the law. Like the federal grand jury, it may not be clear at that stage precisely what conduct may be in violation of the law. When a statute grants investigative power, the courts have held that substantial discretion is vested in the agency “to engage in pretrial discovery to gather evidence in advance of the filing of specific charges.”

Several statutes specifically state that a subpoenaed party will not be excused from providing evidence that might be self-incriminating. The Board of Labor Relations, Social Services, and the State Bar Examining Committee have this power. But these statutes also provide that none of this evidence will be used against the individual in a criminal trial.


The mere grant of the power to issue subpoenas does not carry an implied power of enforcement (Board or Selectmen of Town of Fairfield v. Kellis, 35 Conn. Sup. 668 (1979)). Almost all of the statutes allowing agencies to issue subpoenas do include provisions for enforcement. In most cases, the agency must obtain a court order and then a further refusal by the subpoenaed party will lead to contempt proceedings. Subpoenas issued under several statutes have a limit on the penalty that can be imposed of a maximum of 60 days in a community correction center. Specific and severe penalties can be imposed by the court for a refusal to comply with a subpoena from the Department of Consumer Protection when investigating possible violations of the unfair trade practices statutes. These penalties include injunctions against advertising or sale of a commodity and vacating or suspending a corporate charter or license involved with the allegedly illegal practice until the person complies with the subpoena (CGS 42-110k).

In a few situations, penalties for disobeying a subpoena can be imposed directly by an agency. The State-Wide Grievance Committee may commit a person for contempt for up to 30 days for refusal to comply with a subpoena (CGS 51-91). The labor commissioner or minimum wage director may fine any employer $25-$40 for each day of noncompliance for hindering their efforts to investigate complaints of nonpayment of wages (CGS 31-76a). The claims commissioner can issue a capias to the sheriff to arrest an individual who has ignored a subpoena and have that person brought to the commissioner. If the person still does not comply, the commissioner can certify the case to the attorney general who then applies to the court for enforcement (CGS 4-151).

“Both state and federal courts reviewing investigatory subpoenas in the context of enforcement proceedings have traditionally refused to adjudicate questions of coverage; that is, whether activities under investigation are subject to regulation by the administrative body conducting the investigation” (Shulansky v. Cambridge-Newport Financial Services Corporation, 42 Conn. Sup. 439 (1992), citing to Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 514-515 (1983), among other cases)). Courts may inquire into questions of legality but usually will not inquire into the probable coverage of the statute under which the agency is acting. “[T]he initial determination of whether a particular person or entity comes within the coverage of a regulatory statute is made by the agency, not by the court” (Shulansky at 442). The burden is on the subpoenaed party to prove by independent evidence that there was an improper purpose—to harass or punish rather than to gain information relevant to the investigation. Unless the inquiry is plainly irrelevant, the party may not challenge the applicability of the regulatory statute to the conduct under investigation.


The banking commissioner provides an example of the investigative subpoena powers in a state agency. The commissioner is granted broad discretion to investigate possible violations of the Connecticut Uniform Securities Act (CGS 36b-2 to 36b-33). The commissioner may make investigations to determine whether any person has violated any provision or regulation. The commissioner may also begin an investigation if it will aid in the agency's enforcement duties or in prescribing rules and forms. As part of this process, the commissioner can issue investigative subpoenas which can be enforced by seeking a court order.

On application for a court order to enforce a subpoena, the commissioner must show that the subpoena: (1) was issued in the course of an investigation that the agency is legally authorized to conduct; (2) seeks production of documents, records, or materials that are relevant to the investigation; and (3) is specific and otherwise not unduly burdensome. The subpoenaed party must then comply unless he can prove by independent evidence that the purpose was to harass or punish (Shulansky v. Rodriguez, 44 Conn. Sup. 72 (1994), aff'd 235 Conn. 465 (1995)).


Subpoenas may be issued in civil litigation to compel the appearance of a witness for a deposition. A judge, court clerk, notary public, justice of the peace, or commissioner of the Superior Court may issue a subpoena for a disclosure that is within the scope of discovery (CGS 52-148e). If the disclosure sought would be of assistance in the action, the item sought can be provided with substantially greater facility by the subpoenaed individual, and the information sought appears reasonably calculated to lead to the discovery of admissible evidence then it is within the scope of discovery.

The individual receiving the subpoena may file a written objection to a request for documents and a court order would then be required to proceed. The court may quash of modify the subpoena if it is unreasonable and oppressive or it is not within the scope of discovery. The court may also condition the enforcement of a subpoena for the production of documents on the payment of reasonable costs to the subpoenaed party. If an individual does not comply, the court may issue a capias to have him brought before the court and a continued refusal can lead to imprisonment until the individual complies with the subpoena (Connecticut Practice Book 218, 243, 245). It is in the discretion of the court whether to issue a capias and the appellate courts won't disturb that decision unless the trial court has acted unreasonably and clearly abused its discretion (State v. Payne, 40 Conn. App. 1, cert. Granted in part 236 Conn. 911). A court will not compel an individual to incriminate himself unless otherwise provided by statute and that evidence will not be used against him.