Grand Juries Revisited

*Information in this post comes from the Civil Liberties Defense Center’s training: Resisting Grand Juries: What You Need to Know

The purpose of a grand jury is to investigate a crime or find the whereabouts of a fugitive. Only a grand jury can charge someone with a federal felony and can issue multiple indictments or felony charges. The prosecutor decides who testifies. Normally 16-23 people are on a grand jury but  only 12 people on the jury need to vote on an indictment. Grand jury proceedings are secret and cannot be talked about by the jury, judge, or prosecutor.

There are two types of grand juries: regular and special

*Regular grand juries issue indictments for specific crimes. They cannot investigate “possible” crimes. There is an 18 month time frame for one grand jury, with a possible 6mo extension. 

*Special grand juries can investigate “possible” crimes or potential for future crimes so it can investigate rumors or call anyone who might be related to a possible crime.  It can be empaneled for 18 months and then extended up to 18 more months. 

Steps of a Grand Jury:

  1. In order to be served a subpoena by the FBI or US marshal, you have to physically receive it. A subpoena is NOT a warrant, so don’t have to let them into your house. They will typically try to catch you while you are getting in your car or some other time you are not at home. They can’t go into private places.
  2. Get a lawyer, ideally with a good political background and experience with federal cases. You are the boss of your lawyer, and you ultimately are responsible for your choices. Lawyers will review the subpoena, and always try to push for more time before the court date. 
    1. If you are the target of the investigation defendant, you are entitled to a court appointed lawyer and you may plead the 5th. 
    2. If you are a suspect, you are also  entitled to court appointed lawyer and have more strongly protected 5th amendment rights. 
    3. Witness: No court appointed lawyer, less rights. They just want information out of you
  3. Quash is a motion filed by a lawyer to throw out the subpoena. To win, you must convince the court that privilege exists, that the grand jury is unreasonable and oppressive, or unlawful. The court may have illegally obtained information (wiretapping, etc).
  4. At the grand jury, no one is allowed in the grand jury but the witness and the prosecutor. They have to pay for your food and lodging if you are coming from out of town. You can take notes about what is said in the grand jury and you can share it publicly but the prosecutor and jury is not allowed to share information about it.
  5. A witness will be questioned by the prosecutor. 
  6. If a witness refuses to answer questions, they can be given immunity. Immunity takes away your 5th amendment rights to remain silence by protecting you from future charges for your testimony.
  7. If after being granted immunity the witness till refused to testify, they will be held in contempt of court *Civil contempt of court is used to coerce a witness into answering questions at the grand jury. It can be financial penalties, passport surrender, jail time. The benefit of being held in civil contempt is that once the grand jury expires(18 months) then you can be released!
    1. Criminal contempt can be a misdemeanor or felony charge.
    2. You can face both criminal and civil contempt.

How to Resist Grand Juries:

  • Avoid being subpoenaed:
    • Don’t answer your door if you don’t know who is at the door
    • Move away from people who you do not know if they approach you
  • If you are subpoenaed, contact a lawyer and assert your rights
  • Find out information about where and when the grand jury is and what charges it is indicting people on
  • Create a defendant committee with yourself, your comrades, other people subpoenaed or targeted by the grand jury, lawyers and community supporters.
  • Make a plan together for how people want to resist the subpoenas:
    • Raise money for lawyers or rent, take can of dependents, mow someone’s lawn, the little things baby. *If someone feels like they have too many obligations in life, they may fold on the case.
    • Support the people who are resisting emotionally and help them make plans for what needs to be done in their life when they go to jail
    • Educate the public! It is up the community to educate the public as to why someone would be in jail for ethical or political reasons
    • Put together actions, events, and a media strategy to get the word out about what is happening and build broader support for the resisters
  • You have three options if you have been served a suppoena:
    • You can do nothing and the US attorney will send out an arrest warrant and hold you in contempt. You still don’t have to answer questions about your comrades
    • You can appear at the grand jury and plead the 5th and refuse to answer questions. You will most likely be given immunity. You continue to refuse to answer. Then you will likely be jailed for contempt of court.
    • You and your comrades can agree on a list of topics or ideas that you can talk about in the grand jury or you can claim that you do not recall any of the information. This technique is VERY RISKY because we tend to make mistakes and give more information than we intend. Also if you aren’t answering questions the way they want, they can still immunize you and later hold in you in contempt.  You can also be charged with perjury or lying if you give false or inaccurate information.  Once, you start answering questions, you have waived your 5th amendment right as well. You are also potentially collaborating with the state as well if you do this.
  • If you decide to appear, bring a pen, notebook and your lawyer. On the notebook, write attorney client privilege on it! Write a question in the notebook for your lawyer, then have your lawyer write down the answer so you can have a record of each question and answer. This provides accountability for your community and wastes the prosecutor’s time. You may state your name first, but then immediately use your 5th amendment rights. You don’t get to pick and choose what information you give out. Don’t give out any information! Make sure after your appearance that your support committee publishes your notes so the community can see what happened.
  • If you appear and refuse to testify, after being given immunity, you will be held in contempt and jailed. Make sure you have a plan in place with your support committee about what needs to be covered in your life including having people write you letters in prison.
  • Once you are jailed in contempt of court and 6 months have elapsed, your lawyer can file a Grumbles motion. A grumbles motion is a motion stating that this person will never ever testify and that the coercion won’t work. The person can be released because no amount of time in jail will make them talk. You can win the grumbles motion and be released, but then be charged with criminal contempt. 
    • The defense committee can support a grumbles motion by being witnesses,  writing letters and producing documents such as media stories as to why this person would never ever comply with the state. A strong media strategy in which this person states publicly that they would never talk can be helpful in making the case for a Grumbles motion