Federal Grand Jury
Frequently Asked Questions [PDF Available for Download: Here]
- Why a Federal Grand Jury(FGJ) FAQ?
- What is the history of the FGJ?
- What is the size of a FGJ?
- How often does a FGJ meet?
- How long can a FGJ last?
- What is the difference between a regular and special FGJ?
- Do FGJ investigate civil matters?
- What can an FGJ subpoena?
- Who delivers the subpoena?
- Can I have my lawyer accept it for me?
- What does the FGJ subpoena look like?
- Can I publish the contents of subpoena?
- What if the information on the subpoena is wrong?
- If I know agents are looking for me to serve me a subpoena can I make myself unavailable?
- How long between when I get subpoena and when I will have to go to the grand jury?
- What if I can’t make my date?
- Does a FGJ meet in an open/regular courtroom?
- Is there a judge at a grand jury proceeding?
- Who can ask questions at a FGJ?
- What is the difference between being a subject/target and being a witness for FGJ?
- Will I know who the target of the FGJ is or what crime they are investigating if I am called to be a witness?
- Will anyone tell me when the FGJ started?
- If I am the target or subject of a Grand Jury do I have a right to be in the Grand Jury?
- Can I have a lawyer with me during a FGJ?
- Can I talk about the subpoena, Grand Jury testimony or anything else about the FGJ?
- Can I take notes during my appearance in front of a Grand Jury?
- Are you allowed to bring in notes for testimony?
- Can I be recalled to the same sitting FGJ after giving testimony?
- Who can be called as a witness before FGJ?
- If I am called as a witness or to provide physical evidence do I need a lawyer?
- Will I be provided a lawyer if I can’t afford one?
- What if I want a lawyer but cannot afford one?
- Can I not testify?
- Can I request a language translator?
- What is immunity in a FGJ?
- Why can’t I just say “I don’t know anything/I don’t remember?”
- What happens if you lie?
- Can you answer some questions and not others?
- Can I see the questions before I answer them?
- What is a quash motion for FGJ?
- What is the difference between criminal and civil contempt?
- How do I and my community resist FGJ abuses?
- I still have questions, where to go? (Additional Resources)
Why a Federal Grand Jury(FGJ) FAQ?
FGJs are so weighted against witnesses and subjects that they must be approached with much caution. You have almost no rights and everything is kept secret from you if you testify during a grand jury.
The federal prosecutor, or Assistant United States Attorney (“AUSA”), is the only government official interacting with the federal grand jury. The federal prosecutor leads all grand jury sessions, providing only evidence that supports their claims, including hearsay. As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor (98% of the time). This is the basis for Judge Saul Wachler’s famous saying that a prosecutor can get a grand jury to “indict a ham sandwich.” In conducting investigations, a federal grand jury can pretty much do what it wants, other than violating certain testimonial and constitutional privileges. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. Under the seminal Supreme Court case of United States v. R Enterprises, Inc., federal grand jury subpoenas are presumed to be reasonable and the burden of showing unreasonableness is on the recipient. A motion to quash a federal grand jury subpoena on relevancy grounds must be denied unless, “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” Obviously, testifying or providing documents to such a powerful body entails grave risks.
Not only can you harm yourself, but you can also put your friends and loved ones in danger. FGJ investigating political dissent often spread like a virus and the best method to stop it is containment. The below FAQ gives you the details of this misunderstood tool of government repression so you can make informed decisions. We have not gone into the political considerations and strategies in resisting a grand jury; these can be found in the resource section at the end of the FAQ.
What is the history of the FGJ?
The Grand Jury system actually predates the American Revolution. In the 1700’s GJs were used for criminal matters, civil matters, and even municipal management. The Fifth Amendment of the US Constitution (http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution) requires the federal legal system to use grand juries to bring charges, at least for certain offenses. The Fifth Amendment requires that charges for all capital and “infamous” crimes be brought by an indictment returned by a grand jury. The amendment has been interpreted to require that an indictment be used to charge federal felonies, unless a defendant waives his or her right to be indicted by a grand jury. The Supreme Court has held that this part of the Fifth Amendment is not binding on the states, so they can use grand juries or not, as they wish.
What is the size of a FGJ?
Federal grand juries are composed of between 16 and 23 randomly selected citizens. Sixteen is the minimum and 23 is the maximum number that can constitute a federal grand jury.
How often does a FGJ meet?
Federal grand juries meet regularly, but the frequency of their meetings varies from one federal judicial district to another. Several grand juries may be meeting at the same time in large urban areas. It is common for FGJs to meet once or twice a week and they may hear multiple cases in a single sitting. A sitting is usually 4-5 hours (excluding lunch and other breaks).
How long can a FGJ last?
Federal grand juries are of two types–regular and special. Regular grand juries sit for a basic term of 18 months, but that term can be extended up to another 6 months, which means their total possible term is 24 months. Special grand juries sit for 18 months, but their term can be extended for up to another 18 months; a court can extend a special grand jury’s term for 6 months, and can enter up to three such extensions. So theoretically a Special Grand Jury could last 36 months, but this is highly unusual.
What is the difference between a regular and special FGJ?
Regular federal grand juries tend to spend their time hearing evidence and considering indictments submitted to them by a prosecutor. They spend the bulk of their time deciding, therefore, whether probable cause exists to return a set of proposed charges called indictments. Special federal grand juries were created in 1970, specifically to investigate organized crime (http://www.law.cornell.edu/uscode/text/18/3331#a). They, too, consider whether indictments should be returned against certain persons, but special grand juries also devote a great deal of their time to investigating possible criminal activity. These can and have been used against political groups.
What can an FGJ subpoena?
Grand juries use subpoenas to gather the evidence they need to use in deciding whether crimes have been committed. They can subpoena documents and physical evidence (including videotapes, writings, etc.) and they can subpoena witnesses to testify.
Who delivers the subpoena?
The FGJ rules require federal agents (from any federal law enforcement agency) to deliver the subpoena. It’s usually done in person by 2 agents, mostly at place of work or home. They call your name and say something like “You have been served” and hand you a 2-3 page subpoena. You should not talk to these agents and they often don’t know anything about your case. If you talk to them it can be used against you. Even if you don’t take the subpoena it has still been served. It only needs to be acknowledged that you are the person named in the papers.
Can I have my lawyer accept it for me?
Yes. If you are represented by an attorney you can authorize them to take it for you. This is not always a good idea, but could save you the embarrassment of getting served at work or home.
What does the FGJ subpoena look like?
You can look at a subpoena example on the NLG website (http://anonlg.com/subpoena/). It has the following information: date; which federal district issued the subpoena; your name; and the US legal code of the charge the state is investigating (it doesn’t have to include all the charges, just one at least). It will also have the date you need to appear at the grand jury. It is usually 1-3 pages long and may have a cover sheet requesting you not to publicize the contents of the subpoena.
If I know agents are looking for me to serve me a subpoena can I make myself unavailable?
Yes. You are under no obligation to be available to be served. It is not a crime to not go to pre-grand jury interviews or not be around while they are trying to serve you.
What if I can’t make my date?
Contact your lawyer as soon as you know you will not be able to make it. If you have a good reason (e.g. medical issue) they will usually give you a postponement. If your lawyer can’t make it they can also ask for a postponement.
Who can ask questions at a FGJ?
If you are a witness almost all the questions will come from the prosecutor but the jurors themselves may also ask you or the prosecutor questions during the proceedings. Obviously you are not allowed to ask questions and because you have no lawyer present no one else is either.
What is the difference between being a subject/target and being a witness for FGJ?
According to the US Manual on Grand Juries: A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation. There is very little difference between target and subject. Both must be made aware by the prosecutor if they receive a subpoena that they are either the subject or target of a FGJ. They also cannot be given use immunity, so they can exercise their 5th amendment right (and thus choose not to testify).
A witness has none of these rights.
Will I know who the target of the FGJ is or what crime they are investigating if I am called to be a witness?
No. The prosecutor doesn’t have to tell you anything, ever. It is all secret and you have no right to know what the GJ is investigating.
If I am the target or subject of a Grand Jury do I have a right to be in the Grand Jury?
No. You may not even know there is a grand jury about you. It is secret and nothing is public before an indictment.
Can I have a lawyer with me during a FGJ?
You cannot have a lawyer in the grand jury chambers. You may have a lawyer outside in the hall (or sometimes a special waiting room). You can ask to see your lawyer at any time during the proceedings and you will go out and confer with them. Your lawyer is not allowed to make objections or otherwise protect you while testifying in a FGJ.
Can I talk about the subpoena, Grand Jury testimony or anything else about the FGJ?
Federal grand jurors, grand jury court reporters, and the prosecutors running the grand jury are under a strict duty to keep any “matter occurring before the grand jury” a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt charges against a prosecutor. But the rule of secrecy does not apply to federal grand jury witnesses. Some subpoenas comes with a cover letter saying that revealing the contents of the subpoena may “impede an investigation” or other such language. This is a request from the prosecutor and nothing but a request. You should have your lawyer write back saying, “Your cover letter requests non-disclosure of the subpoena (and/or the documents requested in the subpoena) and asks to be notified if there are problems with such non-disclosure. I am reluctant to have my client take on a formal affirmative obligation, regarding either non-disclosure of the subpoena or notification of problems with such non-disclosure, beyond the requirements, if any, found in Fed. R. Crim. P. 6(e) or in some other statutory or court authority you can point me to. Rest assured, however, that my client has absolutely no desire to compromise your investigation or to publicize the existence of either the subpoena or your investigation” to the prosecutor’s office and the serving agent.
Can I take notes during my appearance in front of a Grand Jury?
Yes. You are allowed to take notes and share them with your lawyer. The prosecutor may ask you to stop taking notes but this is just a request, they have no power to enforce this unreasonable request. You are not allowed to use any recording device (tape, video, film, etc.) in the grand jury room. The prosecutor also does not have to provide you with paper or pen, so bring your own.
Are you allowed to bring in notes for testimony?
Yes. There is no rule prohibiting bringing in notes. Again, the prosecutor may ask you not to look at or use notes but this is simply an unreasonable request that can be ignored.
Can I be recalled to the same sitting FGJ after giving testimony?
Yes. The only limit to the number of times you can be called is set by the term of FJG. They may do this to catch you lying (perjury).
Who can be called as a witness before FGJ?
According to the most recent US Attorney’s manual (http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm) “any person who may have any possible knowledge of the crime being investigated or related criminal activity.” This already vague definition has been stretched to include anyone, since it is possible any person might have some knowledge of the crime or a related crime.
If I am called as a witness or to provide physical evidence do I need a lawyer?
Yes! You have no idea what the FGJ is investigating and they can decide to investigate you based on testimony and/or evidence. You could also face other serious complications like contempt and perjury that could easily land you in federal prison.
What if I want a lawyer but cannot afford one?
Depending on the situation you may be able to contact one of the resources below in the Lawyers section. You may also get the state to provide a “stipend” for a private lawyer to represent you. The lawyer must fill out some paperwork with the Department of Justice. You can ask a lawyer if they would be willing to do so; many lawyers that have experience with FGJs will know how to do this.
Can I not testify?
You can choose not to talk at the grand jury, asserting your 1st, 4th, 5th and 6th amendment rights (talk to your lawyer about this). There are often consequences for this (see contempt questions). You don’t really have a right not to testify.
What is immunity in FGJ?
The prosecution may grant immunity in one of two forms. Transactional immunity (colloquially known as “blanket” or “total” immunity) completely protects the witness from future prosecution for crimes related to his or her testimony. “Use and derivative use” immunity prevents the prosecution only from using the witness’s own testimony or any evidence derived from the testimony against the witness. However, should the prosecutor acquire evidence substantiating the supposed crime—independently of the witness’s testimony—the witness may then be prosecuted for same. Transactional is almost never granted except in organized crime cases. Use immunity is very dangerous for the witness because it doesn’t protect them from being implicated in crimes, it just stops them from entering your words into evidence, but they can act on any information you give up. Use immunity can be applied for by the prosecutor through the Department of Justice. This is just a rubber-stamp and they get it more than 99% of the time. Witnesses compelled by subpoena to appear before a grand jury are entitled to receive immunity in exchange for their testimony. The grant of immunity impairs the witness’s right to invoke the Fifth Amendment protection against self-incrimination as a legal basis for refusing to testify. If a witness who has been granted immunity nevertheless refuses to offer testimony, he may be held in civil contempt of the court that issued the subpoena.
Why can’t I just say “I don’t know anything/I don’t remember”?
This is very dangerous since you can be caught up with pictures and other evidence. You are risking serious charges like: making false statements, obstruction of government administration and of course perjury. This is not a good strategy.
What happens if you lie?
You can be charged with a number of criminal offences including a felony for perjury. You could easily spend more time in prison than you would for simply not saying anything.
Can you answer some questions and not others?
Not really. Once you start answering questions and then refuse, you can easily get civil contempt without even the minimum protection of use immunity. If you start answering questions you will not get any type of immunity.
Can I see the questions before I answer them?
You should definitely ask your lawyer to ask the prosecution. This is a good way to see what they are investigating. There are no guidelines around this and the prosecutor does not have to honor such a request, but they have in the past.
What is a quash motion for FGJ?
You can challenge a subpoena in court by a motion to quash the subpoena. Quashing a subpoena means a court declares it null and void. A court will only grant a motion to quash if there is a sufficient legal basis, such as mis-identification; lack of jurisdiction; a protected privilege; or an unlawful basis of the proceedings.
Even if you cannot successfully quash a subpoena, litigating a motion to quash in court can buy you some time. Whatever time is spent litigating the motion to quash will save you the experience of spending that period in prison for civil contempt.
While there is little to lose by filing a motion to quash a subpoena duces tecum, the subpoenas that demand evidence, motions to quash subpoenas ad testificandum, which demand testimony, can present problems. At least one federal circuit court has ruled that you lose any objections that were not raised in the original motion to quash. You should not waive your objections.
What is the difference between criminal and civil contempt?
The difference between criminal and civil contempt is that the former is punitive while the latter is coercive. Criminal contempt is a “crime” in the ordinary sense, and the penalties for criminal contempt are intended as punishment for that crime. Persons charged with criminal contempt retain the same constitutional protections as any other defendant. Civil contempt, on the other hand, is meant to coerce a person into complying with a court order, like being ordered to testify in front of a grand jury. Incarceration for civil contempt is aimed purely at forcing one to comply with the court’s order, and ends if and when one has done so. Because civil contempt is not a crime, one does not have the right to a jury trial and the accusation does not need to be proven beyond a reasonable doubt.
In cases of refusal to testify in front of a grand jury, the maximum period of imprisonment is usually eighteen months, which is the duration of most grand juries. Once the grand jury has disbanded and you can no longer testify, the reason for keeping you confined has disappeared. Ironically, once a person has been imprisoned for civil contempt, the steadfastness of their refusal to testify may actually increase the chances of a speedier release. In the recent Pacific Northwest cases, for example, the judge concluded that Matt and KteeO were simply not going to comply and that no amount of imprisonment could convince them to do so. Since confinement without the possibility of coercing testimony is purely punitive, they were released. You can read the judge’s ruling here.
How do I and my community resist FGJ abuses?
Former Black Panthers, anarchists, environmental and animal liberation activists, and independent journalists have all successfully resisted FGJ by refusing to give any information. This has meant some activists being incarcerated for contempt, but has also discouraged the subpoenaing of further witnesses, and on some occasions, has resulted in the withdrawal of all subpoenas.
• If the FBI or police question you, refuse to answer any questions, even if they seem innocuous. You should ask the agent for a business card and say you will have your lawyer contact them. That is the end of the conversation. Do not allow them to make any searches without a warrant, or invite them into your home for any reason. DO NOT ASSUME that because you have “nothing to hide” and are telling the truth, you can’t cause great harm to yourself and others by giving agents any information. Lying to a federal officer is a federal offense.
• If you are aware that agents intend to subpoena you to a FGJ, you are under no obligation to make yourself available to receive the subpoena. Grand jury subpoenas may be served at any place within the United States.
• If an agent shows up and tries to serve you with a subpoena, you have no obligation to open the door for them. They must hand you the subpoena or throw it at your feet for it to be served. Do not answer any questions; do not consent to a search; and do not invite them into your home for any reason.
• If you have been served with a subpoena to a FGJ, it is possible to simply not appear at the courthouse. A failure to obey a subpoena without “adequate excuse” may be deemed contempt of court, however. Taking this approach may mean forsaking any delaying tactics, which are important as one can only be incarcerated for contempt for the duration of the FGJ. According to the Committee against Political Repression, Kerry Cunneen refused to “enter the grand jury room” at the current FGJ in Seattle on January 3, 2013, as required by their subpoena; as of this writing (May 8, 2013), no news of Cunneen’s arrest has appeared.
• If you are arrested, you have to give your name and address, but nothing more. You will gain nothing by talking to agents but may cause great harm to yourself and others.
• If you are subpoenaed to a FGJ, contact a lawyer. If you decide to appear, refuse to answer questions or testify about any events or people. Don’t provide names of other people you know, even if it seems harmless or trivial. Any answers you give will be used to harass and subpoena other activists.
• Invoke your right to freedom of speech and association (First Amendment), your right against unreasonable searches and warrants unsupported by probable cause (Fourth Amendment), and your right against abuses of government authority in legal procedures (Fifth Amendment).
• Motions to quash the subpoena (see above), or motions for discovery of electronic surveillance can be used to tie up the proceedings and force the government to give over information they would prefer to keep secret. Delaying tactics such as these are important, as again, the FGJ has a definite time limit beyond which you cannot be incarcerated for civil contempt.
• If a local activist has been subpoenaed, form a defense committee. It will be responsible for doing all of the support work listed below.
• Mobilize support and educate the public by communicating with media, organizing press conferences, holding support protests, and producing educational literature. Tell the story to the media and reveal the government’s secret proceedings and political motivations.
• Maintain a spirit of togetherness, determination and solidarity; work with the lawyers of the subpoenaed activists; provide courtroom support to subpoenaed individuals; and coordinate prison support should anyone be incarcerated.
• Raise funds for legal defense and livelihood.
• Write to prisoners.
Handbook for Federal Grand Jurors
http://www.nynd.uscourts.gov/juror.htm (requires Adobe Acrobat)
Handbook for Federal Grand Jury Forepersons
Federal prosecutors – this site provides access to every U.S. Attorney’s Office in the country. U.S. Attorneys are federal prosecutors; one is appointed for every federal judicial district in every state. The site gives you the information you need to contact a U.S. Attorney’s Office.
Federal courts – links to federal district courts and to the federal circuit courts of appeals (the district courts are the trial courts, the circuit courts are the intermediate appellate courts and the Supreme Court is the ultimate appellate court)
FAQ on Grand Juries available:
10 Tips for an Unwary Grand Jury Witness
National Lawyers Guild—Helping protestors for decades
Electronic Frontier Foundation—Lawyers helping people around computer criminal investigations
American Civil Liberties Union—They help people in regards to constitutional rights
Stop Anarchist Witch-hunts—A resource for anarchists facing Federal repression that has a referral list
Civil Liberties Defense Center
Center for Constitutional Rights
Committee against Political Repression
New York Anarchist Black Cross