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 the animals
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 animal rights, 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 animals; 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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.