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.
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
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.
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 dont 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
- The question violates your constitutional right to privacy.
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
- You cannot answer that question as it calls for an opinion you
are not competent to give.
- Attorney-client privilege.
- Physician-client privilege.
- Clergy-communicant privilege.
The question was derived from an illegal wiretap.
- The prosecutor is badgering
- 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 animal rights 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 prosecutors 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 jurys 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 dont know or I cant remember. You might
even ask to see a doctor. Dont be alarmed. This condition should pass after
you leave the grand jury room.