By Sean R. Day, Attorney at Law
The process begins with the service of a subpoena. It must be handed to you or, if you refuse to accept it, placed near you. A subpoena duces tecum directs you to appear and produce a physical object.
If you fail to appear as directed, you can be arrested and held until your testimony. Whether you actually get arrested will depend on how badly they want you, and how easy you are to find.
If served with a subpoena duces tecum, file a written motion to quash the subpoena, especially where it directs you to produce privileged material or is unduly burdensome or harassing.
When it is a regular subpoena, unless you are asked to travel, it may be best not to file a motion to quash, since at least one federal circuit court has decided that any objections not litigated in the motion to quash are waived. Besides, most, if not all, objections you have to testifying cannot be dealt with except on a question-by-question basis.
If you appear, you will be taken into the grand jury room, which will have one or more prosecutors, a court reporter, and 16-23 grand jurors. Do not be intimidated. Grand jurors are simply citizens who have been selected for (grand) jury duty.
Begin writing down every question. You will be given an oath and first asked your name and address. Thereafter, if you have an attorney, most courts follow the rule that you may consult with your attorney after every question (though a couple courts have said after every few questions), although the prosecutor or grand jury may try to scare you into believing otherwise. Beginning with the first question, and every question thereafter, state, “I invoke my Fifth Amendment privilege.” And while there is no court decision stating that any other objections not raised are waived, it may be a good idea to add, “ . . . and reserve all other objections, privileges, and immunities.” You don’t want to be the first victim of a conservative judge bent on setting a precedent on the issue.
After raising your Fifth Amendment privilege a few times, the prosecutor will probably ask you if you intend to invoke your Fifth Amendment privilege to all questions. You can either say, “yes,” or you can say that you cannot know if you will answer a question until you hear it.
At this stage, you may be excused. Or, the prosecutor may seek to give you immunity, which must be approved by a judge. (Immunity could have been granted before you even got to court.) You will be taken before a judge for an immunity hearing, and the judge will likely rubber- stamp the request.
Thereafter, you cannot invoke your Fifth Amendment privilege because it will be moot. Except, when they start asking about other people you know, try asserting your Fifth Amendment privilege on the basis that the granting of immunity cannot protect you, because if such persons are charged with some sort of conspiracy in another case, admitting you know those persons could lead to your getting named as a defendant in such case.
Other bases for either objecting and/or refusing to answer any individual question, despite having been given immunity, include but are not limited to the following:
The question violates your First Amendment right to privacy of association and belief.
The purpose of the question is to harass you on the basis of your protected political and moral beliefs.
The question violates your constitutional right to privacy.
The purpose of the question is to gather intelligence, not to investigate or indict a potential crime.
You cannot answer the question because the question is ambiguous, complex and/or confusing, and any answer you give would tend to be confusing or misleading.
You cannot answer the question, as the question makes assumptions that might appear to be admitted no matter how you answer the question.
You cannot answer that question as it calls for an opinion you are not competent to give.
The question was derived from an illegal wiretap.
The prosecutor is badgering you.
The question is argumentative.
You refuse to answer on the ground that the purpose of the proceedings is not to investigate or indict a potential crime, but to gather intelligence, to harass you, and to terrorize and fragment the (your cause here) community.
You might also add: “I request that the grand jury be instructed that they have the power to dismiss the subpoena, and that they do so.” Check the prosecutor’s reaction to that one.
If the prosecutor wants to compel an answer, he or she will first have to take you before a judge for a hearing. Argue initially that you need more time and/or you want to brief the issue. Assuming that request is denied and your objections are overruled, the judge will order you to answer the question(s), and you will be taken back to the grand jury room.
At this point you have to decide whether to answer. Failure to answer will result in contempt, and you can be held until the end of the grand jury’s term (up to18 mos., depending on when they started; a “special” grand jury can get up to three 6-mo. extensions). Periodically thereafter, you can file a Grumbles motion (named after a court case), arguing that you will never answer their questions, and therefore your incarceration has become punitive and you should be released. If you decide to answer questions, you may become so stressed and rattled that you may suffer stress-induced amnesia, such that your answer to most, if not all, questions will be, “I don’t know” or “I can’t remember.” You might even ask to see a doctor. Don’t be alarmed. This condition should pass after you leave the grand jury room.
Important resources for dealing with and understanding Grand Juries:
Links to groups monitoring and/or working to support victims of Grand Juries:
Following the example of the congressional investigating committees, prosecutors expanded the power of the grand jury to gather information against unpopular political activists and movements. The grand jurors were not being asked to review evidence already accumulated by the prosecution to determine whether such evidence was sufficient for an indictment -- the stated constitutional purpose of the grand jury. Rather, the primary purpose of these "investigative" grand juries was not to evaluate evidence but to discover it. Those subpoenaed before these "investigatory" grand juries were not witnesses to criminal activity but targets of the investigation and sources of political intelligence. . . .
Distressed by witnesses invoking this fundamental constitutional right of the fifth amendment, the government took steps to remove this obstruction. In 1954 Congress passed a special immunity law ("the Act"), which applied only to matters of internal security. Upon a grant of transactional immunity approved by the Attorney General, the Act compelled a witness to give testimony before a congressional committee or a grand jury. This was the first time that legislation provided for compulsory testimony in return for immunity in an area concerning political thought and activity. . . .
The blatant use of the grand jury for harassment of political activists and intelligence gathering reached its height under the Nixon Justice Department. Between 1970-1973, over one hundred grand juries were convened in 84 cities; they subpoenaed over 1,000 activists. A special section of the Justice Department, Internatl Security Division ("ISD"), which coordinated the various grand jury inquisitions, victimized all sectors of the anti-Vietnam war movement. Student activists, Vietnam veterans, the Catholic left, Weathermen, the anti-draft movement, and the academic community were all targets of grand juries. Other grand juries attacked the women's movement and the black nationalist movement. Armed with Title II of the Organized Crime Control Act of 1970, which allowed for the first time the conferring of "use immunity" to supplant a witness' fifth amendment right, the Justice Department was able to carry out wide ranging political intelligence gathering.