*What You Should Know About Grand Juries
*What a Grand Jury Does
*Being Served With a (Grand Jury) Subpoena
*Appearing Before a Grand Jury
*The Grand Jury as a Political Tool
*A Few Facts About Grand Juries
*What is a Grand Jury?
*Impact of Grand Juries on Political Movements
*How is a Grand Jury Different Than a Trial Jury?
*How Has the Grand Jury Been Misused?
Information came from the following:
Grand Jury Resistance Project :
1322 Webster Street, Suite 100, Oakland California 94612
Lauren Regan: Lauren is the founder and executive director of the Civil Liberties Defense Center where she serves as the staff attorney as well. She runs a public interest law firm specializing in environmental law, civil rights, landlord tenant matters and criminal defense. She is a founding board member and past president of the Cascadia Wildlands Project, she serves as a Lane County Teen Court judge, Oregon State Bar Leadership Fellow, National Lawyers Guild, Eugene cochair, and volunteers hundreds of hours a year to various progressive causes.
Katya Komisaruk- Former Political Prisoner, Activist, Attorney, Author of "Beat the Heat: How to Handle Encounters With Law Enforcement", Ms. Komisaruk represents criminal defendants, as well as victims of police misconduct. In addition, she provides educational workshops and materials. She began and works as part of the Just Cause Law Collective.
If you have been indicted, subpoenaed, or contacted by the federal government, call the National Lawyers Guild Hotline at 415-285-1041 or one of the above resources.
What You Should Know About Grand Juries
by Katya Komisaruk, 2005
What a Grand Jury Does
Grand juries are one of the good intentions paving the road to our current legal system. Unlike a trial jury, which decides whether a suspect is guilty, a grand jury merely decides whether there’s probable cause to prosecute a suspect on felony charges. The goal was to create a filter to catch unjustified felony cases and stop them at an early stage, so that the suspect wouldn’t be wrongfully prosecuted (and have to spend unnecessary time in jail and unnecessary money on lawyers).1 But it all went very wrong.
Grand juries are generally composed of six to twenty-three members, depending on the jurisdiction. In the federal system and in most states, grand jurors serve for eighteen months and judge many different cases (but they usually meet just once a week or even once a month). At a grand jury hearing, the only official is the prosecutor— there’s no judge and no defense attorney. The jurors sit there listening to witnesses and reviewing exhibits in a
prospective or pending felony case, and then vote on whom to prosecute.2 Once the grand jury decides there’s probable cause, the prosecutor can issue an indictment (ǐndīt ´mənt), a document specifying the felony charge(s) against a particular defendant.
The prosecutor selects all the witnesses and other materials, and then presents them to the grand jury. Defense attorneys aren’t even allowed in same room as the grand jury, let alone permitted to put on defense witnesses, question the prosecution witnesses, or make any
statements to the jurors. So grand juries nearly always just “rubber stamp” the cases brought before them. For example, in fiscal year 2000, federal grand juries voted to indict a total of 59,472 suspects3 and chose not to indict 29 suspects4—only one out of every 2,000 suspects was left un-indicted. An additional factor in grand juries’ unwholesome compliance with prosecutorial plans is the frequent lack of diversity among the jurors. Occasionally—but not often enough—this is brought to light by a case challenging the constitutionality of a grand jury that doesn’t reflect the demographics of its county or federal district.5 Some of the people who are called as witnesses at grand jury hearings are prosecuted afterward. If you’re ordered to
appear before a grand jury, immediately seek the advice of an attorney who has experience in grand jury matters. Unfortunately, as a grand jury witness, you’re not entitled to a court-appointed attorney, even if you’re low-income. Nonetheless, it’s really important to get a lawyer: you don’t want to gamble when the stakes are this high and the game is rigged.
Being Served With a Subpoena
A subpoena6 (sə-pē´nə) is an order requiring you to be present at a legal proceeding, such as a trial or a grand jury hearing. Usually you’re summoned to testify, but sometimes you’re required to bring documents or other items with you. A subpoena with an order that you bring something is a subpoena duces tecum (dū´səs tā´koom). If you don’t appear when you’re told (bringing any specified items), a judge can have you taken into custody and brought to the hearing from jail.
Once in a great while, a lawyer may be able to persuade a judge to “quash” a grand jury subpoena, but the subpoenas are nearly always upheld.
A subpoena must be served on you before you’re bound by it. Normally, grand jury subpoenas are delivered to you, in person, by a law enforcement officer, who can come and find you at your home, work, school, etc.
Appearing Before a Grand Jury
Although your lawyer can’t accompany you into the grand jury room, she can usually wait outside the door, ready to advise you. And you can go get legal advice before answering each and every question. For example, a person can write down the first question as soon as it’s asked, leave the room and talk to his lawyer, and then go back into the hearing room and give his response to that question. Then he would listen to the next question, write it down, go out and talk to his lawyer, and come back to give his response. Then he would write down the third question, go talk to his lawyer, and so on….
Once you’re in front of a grand jury, you can testify or you can “take the Fifth” (exercise your right to remain silent).
Warning: If you decide to testify, don’t expect to get away with evading any of the questions or saying, “I can’t remember” over and over. The person doing the questioning will be a prosecutor who’s used to squeezing details out of reluctant witnesses. Remember that if you’re
caught lying under oath, you can be prosecuted for the crime of perjury. And don’t imagine that your testimony might somehow help the person under investigation— remember that grand jurors issue indictments for over 99% of the suspects they review. This is not an opportunity to persuade or politicize the jurors.
If you take the Fifth, you won’t have to say so more than a few times. Once you’ve exercised your right to remain silent in response to several questions, and it’s clear that you’re not going to give any further answers, you’ll be excused. However, there’s a hitch. Sometimes, the prosecutor grants immunity to a witness who’s exercising her right to remain silent, to try to force her to testify. It doesn’t matter whether or not you’ve requested immunity. The prosecutor or judge can just impose immunity on you—and then you’re no longer entitled to
the protection of the Fifth Amendment (because if you’re immune, what you say can’t be used against you). However, there are two kinds of immunity. The good kind is called “transactional immunity” and it means that you can’t be prosecuted for the incident(s) you testify about. The bad kind is “use immunity” and it means that the prosecutor can’t use your own testimony against you— but he can use other people’s testimony and evidence against you. So if the prosecutor makes a bunch of people testify, they’ll likely end up providing enough evidence to
convict each other, like a circular firing squad. Naturally, grand jury witnesses are almost always given use immunity, not transactional immunity.
If you refuse to testify after being granted immunity, you’ll normally be held in contempt and locked up. Some people who’ve chosen not to comply have had to stay in custody until all the grand jury proceedings were ended7 or the case was over. This can take months or even years.
The Grand Jury as a Political Tool
Since their inception, both in England and in the United States, grand juries have been used against political dissidents, the jurors often being hand-picked to ensure indictment. A modern variation on this abuse of power relies on political activists’ reluctance to turn informant. Activists are subpoenaed with the expectation that they will refuse to testify, and thus end up in jail for lengthy periods. The person who was subpoenaed is thereby immobilized, while other
activists are deterred from further participation (because it’s risky even to go to meetings or put your name on a phone list, since that might result in your being subpoenaed, too).8
An activist who’s been subpoenaed by a grand jury needs and deserves community support. She or he must either betray friends or acquaintances, or face imprisonment. One subpoenaed activist framed it this way:
Temptations to communicate with those who are after us, hesitations about appearing overly militant and thus closing some doors which might otherwise remain open, begin to disappear. One principle takes precedent in all these situations: don't talk. Tell them nothing for it will all be used against you and your brothers and sisters. Don't talk—but what tactics should we use in facing the Grand Jury investigating the demonstrations at the Democratic national convention in 1968? We were reasonably sure that we would not face eventual indictment, for
Grand Juries do not customarily subpoena those they are considering for indictment. But we were worried that the most casual admission of the most innocent sounding fact would come up in court a month later as one piece in a pattern which spelled out inter-state conspiracy to riot.
[Witness before grand jury]: “Yes, I had dinner at some point in the last year with Mr. Davis.”
[Prosecutor at trial]: “Ladies and Gentlemen of the jury, I will seek to prove that Mr. Davis, did
informally and covertly meet with instigators of disruption in Boston, New York, Chicago, and
other cities in the months preceding . . .”9
It’s unnecessary for a subpoenaed activist to make a hasty decision or to deal with the matter in isolation. There’s time to consult friends and lawyers. In particular, those activists who’ve been subpoenaed by the same grand jury should meet and discuss what each of them intends to do…because that decision has to be lived with for the rest of one’s life.
1 Grand juries are mandated by the Fifth Amendment to the
U.S. Constitution, which also includes protection against
self incrimination, the right to due process, and other eroded liberties.
2 There are “special grand juries” that actively investigate crime
or corruption, but these are rarely instituted, compared to regular
3 Sourcebook of criminal justice statistics Online, “Grand jury
and grand juror utilization in U.S. District Courts,” Table 1.74,
October 16, 2003).
4 Bureau of Justice Statistics, U.S. Department of Justice,
Compendium of Federal Justice Statistics, 2000, “Basis for
declination of prosecution by U.S. Attorneys,” Table 2.4, 30,
October 16, 2003).
5 Racially biased grand juries are sufficiently frequent and
widespread that in 1977, the U.S. Supreme Court set forth specific
grounds for determining whether a grand jury has been improperly
composed (Castaneda v. Partida, 430 U.S. 482 (1977)).
6 Subpoena is a Medieval Latin word combining sub (under) + poena
(penalty); that is, “under penalty of law.”
7 Typically, a grand jury serves for 18 months, and then a new set
of jurors is chosen to take up where the old ones left off. You
can be subpoenaed to appear before this new grand jury, and if
you still refuse to testify, you can be jailed for contempt again.
8 For a comprehensive, yet stirring, article on the history and
corruption of grand juries, see Michael Deutsch, The Improper Use of
the Federal Grand Jury: An Instrument for the Internment of
Political Activists, 75 Journal of Criminal Law & Criminology 1159
(1984). This article is also on the Just Cause Law Collective website:
9 Kathy Boudin et al., The Bust Book: What to Do Till the Lawyer
Comes, rev. ed. (New York: Grove, 1969), 99–100.
A Few Facts About Grand Juries
What is a Grand Jury?
In the federal legal system, the grand jury is used to decide whether someone should be charged (“indicted”) for a serious crime. The grand jury hears evidence presented by the prosecutor: the U.S. Attorney. The grand jury uses subpoenas to gather this evidence. It can subpoena documents, physical evidence, and witnesses to testify. The “special” federal grand jury, created in 1970, can be used to investigate “possible” organized criminal activity rather than a specific crime.
The California legal system also has grand juries, but it is optional whether criminal prosecutions are initiated by grand jury indictment, or by a complaint by the District Attorney and preliminary hearing before a judge.
How is a Grand Jury Different Than a Trial Jury?
Unlike the “petit” jury, which is used to determine guilt in a trial, a grand jury consists of 16 to 23 jurors who are not screened for bias. The purpose of the grand jury is not to determine guilt or innocence, but to decide whether there is probable cause to prosecute someone for a felony crime. The grand jury operates in secrecy and the normal rules of evidence do not apply. The prosecutor runs the proceedings and no judge is present. Defense lawyers are not allowed to be present in the grand jury room and cannot present evidence, but may be available outside the room to consult with witnesses.
The prosecutor and the grand jury members may not reveal what occurred in the grand jury room and witnesses cannot obtain a transcript of their testimony.
How Has the Grand Jury Been Misused?
Because of their broad subpoena powers and secretive nature, grand juries have been used by the government to gather information on political movements and to disrupt those movements by causing fear and mistrust.
The grand jury lends itself to being used for improper political investigation due in part to the prosecutor’s ability to question witnesses without regard for rules that prohibit irrelevant, unreliable or unlawfully obtained evidence. Those called before the grand jury may be compelled to answer any question, even those relating to lawful personal and political activities. That information has been used by the government as a basis to conduct further surveillance and disruption of political dissent.
When used against political movements, the grand jury causes fear and mistrust because persons who refuse to answer questions about their First Amendment political activities, friends and associates may be jailed for the life of the grand jury: up to 18 months. If a witness asserts her Fifth Amendment right to remain silent, she may be forced to accept immunity or go to jail for contempt. Even a witness who attempts to cooperate can be jailed if minor inconsistencies are found in her testimony. Such a perjury charge may stand even when the grand jury fails to hand down any indictment for what it was ostensibly investigating.
Impact of Grand Juries on Political Movements
The Grand Jury was originally conceived of as a protection against overzealous federal prosecutors, but has been usedthroughout US history primarily by prosecutors to attack those with unpopular political views, from pre-Civil War abolitionists to current day anti-capitalists. Very few of the procedural protections guaranteed to defendants in criminal trials are available during grand jury proceedings. Indictments may be entirely based on hearsay evidence, and prosecutors have no obligation to present exculpatory evidence. The prosecution selects all the witnesses and other materials, and then presents them to the grand jury. Defense attorneys aren’t even allowed in the same room as the grand jury, let alone permitted to put on defense witnesses, question the prosecution witnesses, or make any statements to the jurors. So grand juries nearly always “rubber stamp” cases brought before them. In 2000, federal grand juries voted to indict a total of 59,472 suspects 1 and chose not to indict 29 suspects 2 —only one out of every two thousand suspects was left un-indicted. 3
Theodore Parker Anti-slavery
During one famous incident of the 1850's, a crowd of Bostonians, led by the abolitionist leader Theodore Parker, attempted to liberate Anthony Burns, an alleged fugitive slave from Virginia. When the case was brought before a grand jury, in spite of improper pressure from the judge, the grand jurors returned no indictments. However, several months later, prosecutors convened another grand jury and presented the case again. The pro-slavery judge reiterated his prior charge; this time, however, the grand jury was specifically packed with opponents of the abolitionists. Predictably, the grand jury indicted Parker for willfully obstructing a U.S. Marshal. 4
The United Nations Communism
Even the United Nations has not been spared from the grand jury/congressional witch-hunt. In 1951, a Southern District of New York grand jury investigating alleged communist influence and spying at the U.N., subpoenaed forty-seven past and present US employees of the United Nations. Many of those subpoenaed asserted their Fifth Amendment right to silence. Then-UN Secretary General Trygve Lee, under pressure from the US prosecutor, dismissed almost all those subpoenaed from their jobs, insisting that a pro-communist US citizen was an unrepresentative US citizen. Later, under countervailing pressure within the UN, Lee eventually condemned the use of the grand jury as a witch-hunt and refused to comply with his own subpoena to appear. 5
The Black Panther Party Civil Rights
The Black Panther Party (BPP) has been the target of political repression since the FBI’s illegal COINTELPRO program in the 1960’s. In 2005, a grand jury was convened in San Francisco to attempt to indict BPP members for the 1971 shooting of a police officer. Charges stemming from the 34-year old case have been thrown out of court several times due to statements being coerced with the use of torture. Five people were jailed for refusing to cooperate with the grand jury – two of whom had been tortured in the 1970’s. After the grand jury expired in October and returned no indictments, the five resisters were released. 6
Hamid and Umer Hayat Muslim Community
In June 2005, the FBI made international headlines by accusing Hamid Hayat and his father Umer, Pakistani-Americans living in Lodi, CA, of masterminding a domestic terror attack. After pleading not guilty, the son, a farmworker, was convicted on one count of providing material support to terrorists by attending a training camp in Pakistan and three counts of lying” about it to the FBI. Hamid faces up to 39 years in prison but maintains that he attended a religious school, not aterror camp. His attorneys have preliminary evidence that the jurors were prejudiced by outside influences, including the climate of fear drummed up by the FBI. The trial of Umer, a 48-year-old ice cream driver, ended in a mistrial after deadlocked jurors couldn’t agree on his guilt. Much of the Hayats’ cases rested on manufactured evidence from an informant paid hundreds of thousands of dollars by the FBI.
“Green Scare” Targets Earth and Animal Rights
The past year has seen federal and state grand juries in Seattle, Eugene, San Francisco, San Diego and Denver targeting the radical environmental and animal rights movement. These communities have been targets of increased government surveillance and harassment since the FBI listed them as the nation’s top domestic terrorist threat. Scores of people have been subpoenaed and harassed for their political beliefs as the government uses the grand juries to gather information and disrupt these movements. Some of the basis for investigations and indictments comes from paid FBI informants.
If you have been indicted, subpoenaed, or contacted by the federal government
call the National Lawyers Guild Hotline at 415-285-1041