(Reprinted from “Walking through a Grand Jury” by Larry Weiss)
In this article Attorney Larry Weiss walks us through a typical grand jury proceeding for an activist. He shows how easily a committed activist who puts their cause first can be jailed at a grand jury. His article is quite scary. Think about it, when they start asking you about your friends, their beliefs in direct action, your significant other, your involvement with radical groups, who you associate with, and other personal questions, are you going answer them?
If you do, you can bet the people you mention will also be harassed; they will have more information to use against you, your friends, and the movement; and mistrust and fear will spread within the movement because no one knows what you said about them (the public is not allowed and grand jury hearings). In a grand jury, there are no innocent questions, and there is no such thing as a harmless answer. Cooperating with a special grand jury is selling out the movement.
But if you don’t answer their personal, sometimes intimate questions, you face up to 18 months in jail without even a trial.
The following is a summary of what you might expect to encounter if you are subpoenaed to appear before a federal grand jury.
1. Your subpoena will be served on you by law enforcement personnel or FBI agents. Do not attempt to talk to the person who serves the subpoena, or explain why you should not be involved. They will only use your statements against you.
2. Don’t panic. There are organizations that deal with just such situations. Don’t be afraid to get in touch with such organizations or with an attorney who is experienced in grand jury matters. Tell them about your subpoena. The worst thing that you can do is isolate yourself or give up hope.
3. You will have to go to the building (probably a courthouse) where the grand jury is located on the day and time mentioned on your subpoena. Take friends and/or an attorney with you. Again, do not isolate yourself. The FBI would like nothing better than for you to feel alone and helpless.
4. After you arrive at the courthouse you will probably have to sit and wait for one or several hours. Then you will go into the grand jury room. Your attorney and your friends will not be allowed to go in with you. Although your attorney can not come into the grand jury room, he or she may wait outside the room. You may go out of the room to consult with your attorney as often as you like.
Simply tell the U.S. Attorney, “I need to talk with my attorney”. You may want to go out after each question (and before answering) to talk with your attorney. That is your right and, if the U.S. Attorney will not let you go, then simply refuse to say anything until you are allowed to talk with your attorney.
5. You will be asked your name, followed by a short series of innocent-sounding questions. Finally, the real inquisition will begin. You will be asked about people you may or may not know, who they are and what their political views are. You may be asked to identify pictures of people, or whether you attended meetings or demonstrations with them. There is no “right to remain silent” in front of a grand jury. Most people will want to take the Fifth Amendment to avoid testifying. If you decide that you want to take the Fifth Amendment, you should do so as soon as you have given your name. People often think that they can outsmart the government attorney who is asking the questions, but this is not wise. If you have already answered some questions on the same subject that you now want to refuse to answer, you may end up waiving your right to take the Fifth Amendment.
6. To take the Fifth Amendment you simply say “I refuse to answer on the ground that it may tend to incriminate me” or you can simply say “I take the Fifth Amendment on this question.” Then you simply repeat that for each question.
7. After you have taken the Fifth Amendment for one or several questions, the U.S. Attorney may ask you to go in front of a judge. When he/she mentions this, and if you are not represented by an attorney, you should ask for a public defender to represent you.
You will then go before a U.S. District Court judge. This hearing, where you are given immunity despite all of your objections, is called the immunity hearing. If you have not been given a public defender, tell the judge that you want a public defender and that you have already asked the U.S. attorney for one. The judge may or may not comply with your request for a public defender.
The judge will ask you if you have taken the Fifth Amendment and you reply “yes”. The U.S. Attorney may then offer you “immunity”. This means that anything you say in front of the grand jury cannot be used against you in court in a criminal case. However, you must understand that your answers to questions can be used against other people in court and anything that they say may be used against you. So you still could face criminal charges on the same subject that you are being asked about.
Also, you need to understand that the immunity you are given will not protect you against civil cases, loss of job, deportation or any other penalties. So don’t be fooled into thinking that you are getting something great when they give you “immunity”. They are just giving it to you so that you won’t be able to take the Fifth Amendment anymore, because the grant of immunity neutralizes your ability to take the Fifth Amendment.
8. Even if you don’t want to accept the immunity, and tell that to the judge (which it is probably wise to do, so that you can prove later that you didn’t want the immunity), you don’t really have a choice. They can give you immunity whether you want it or not. The judge will now explain to you that you must answer the questions asked by the U.S. attorney and, in fact, will order you to answer the questions.
9. You will be taken back before the grand jury and asked the same questions again. You can now answer them or refuse to answer them. If you answer the questions falsely, you may be charged with perjury, which is a serious federal felony. If you still refuse to answer the questions, you will be charged with contempt. This is the most critical moment of the whole proceeding, so you should think about this before you even go into the grand jury and decide on your course of action.
10. Let’s assume that you still refuse to answer the questions. You will be taken back before the judge, probably the same judge who saw you before and charged with contempt. This procedure is called the contempt hearing. The first thing to do is to ask to have an attorney (a public defender) appointed for you. You have a right to an attorney at the contempt hearing and the government has to appoint one for you if you cannot afford one. So insist on your right to an attorney, and ask for a continuance to talk to your attorney if one comes in that you have never seen before.
The court, however, will probably want to proceed then and there. Your public defender is supposed to help you at this hearing. You will be asked if you have in fact refused to answer the questions. If you say “yes”, the court may now hold you in civil contempt. You don’t have the right to a trial or a jury, or anything like that. So don’t expect to have any of the procedural protections that are given to people accused of crimes. In the eyes of the law, civil contempt is not a crime, though it will feel that way to you.
11. After you are held in contempt, the judge will probably order you handcuffed and taken away to jail right away. So you should be prepared when you come to the initial grand jury session to go to jail that day, and have all of your personal business in order. Before you are taken to jail, you (or your attorney) should ask the judge to let you out on bail and to “stay” the jail time. This is for the record, because the judge will probably refuse your motions and have you taken to jail anyway.
If you know about the jails in your area, you can ask the judge to have you taken to one facility that is closer to your friends or family, rather than to another one which is farther away. Explain your reasons for wanting to go to a certain facility to the judge. Again, the judge will probably refuse your requests, however reasonable they are, but you need to make these motions anyway in order to get the fact that you made them into the transcript. This may help you later. If you have a lawyer, she/he will make many of these motions for you. If you are not represented or your public defender doesn’t do anything, then you may have to make them yourself.
12. During all of these proceedings (which may only take one day), do not be afraid to discuss your case with your friends and supporters. Tell them what happened in the grand jury room. You have a right to talk about what went on before the grand jury. Do not let yourself get isolated. You may even want to talk to the press, though you should think about what you are going to say before you do this.
13. Now you have been held in contempt and taken to a local jail. Your first question will be, how long can they keep me? The answer is that they can keep you for a maximum of 18 months or until that grand jury completes its term, whichever comes first. Therefore, it is important to find out when the grand jury began its term and when it will finish its term. The grand Jury term is usually 18 months, though this is subject to an extension in some instances.
If you are held in contempt toward the end of the grand jury term, that is better for you, since that means there is less potential time for you to sit in jail. This is one reason to contest everything that the U.S. attorney does, because the court will have to hear your motions., and that decreases the time until the end of the grand jury term.
14. Another way you can get out of jail is by going back before the grand jury and answering their questions. This is called “purging the contempt.” You will certainly dislike jail and there will be a temptation to do this. Remember, however, that you went to jail because you believed in a principle, and that principle has not changed.
15. While in jail you can file motions to get out. The law says that the jailing cannot be to punish you but rather to get you to talk to the grand jury. In legal terminology, this means that the intent of the jailing must be coercive rather than punitive. This distinction matters very little when you are actually in jail. However, it is important legally because your lawyer(s) can file motions to get you out of jail early based on the fact that the jailing has now become punishment. Though it may sound strange, the firmer you are in your resolve not to talk, the stronger your case becomes for an early release, because your lawyer(s) can then argue that the jailing is having no coercive effect.
16. If you are a vegetarian or a vegan, request the kind of food that you can eat. Put your request in writing. Many jails now provide vegetarian meals.
17. Be prepared to be harassed by the guards or other prisoners. Someone may try to befriend you, but that person may be working for the FBI. So beware of talking to people that you didn’t know from before.
18. Most importantly: while in jail, remember why you took this stand in the first place. You are doing a brave act. You are there because you believe in a cause, and you have not been forgotten. Many people are working to get you out, so stay strong.