What is a Federal Grand Jury?
Federal grand juries are secret investigative bodies of citizens convened by the federal district courts to investigate violations of federal law. The grand jury was originally developed to make sure people only got charged with crimes based on evidence of unlawful conduct, and not because the king was in a bad mood. In fact, the Constitution guarantees that nobody can be charged with a felony until a grand jury has determined that there is enough evidence to proceed with a prosecution. The grand jury can authorize a US Attorney to bring an indictment, which is the document that starts a prosecution, by notifying the accused that they are being charged with specific federal offenses.
Most grand juries are convened to investigate known violations of federal law. But the “special” federal grand jury, created in 1970, can be used to investigate “possible” organized criminal activity rather than a specific crime. Both kinds of grand juries, instead of acting as a shield against unfounded charges, are now commonly put to use by curious prosecutors and law enforcement to fish for information that they would not otherwise be able to lawfully access.
How A Grand Jury Works
Grand jurors, just like a trial jury, are regular people who have been selected for jury duty. There are more people on a grand jury than on a trial jury, and unlike a trial jury, grand jurors are not screened for bias. And while a trial jury hears only certain kinds of trustworthy evidence to determine whether someone is guilty beyond a reasonable doubt, a grand jury can base their decision to indict someone based on unsubstantiated rumors, or materials found during an illegal search.
If the grand jurors decide there is evidence that someone may have engaged in crime, they issue an indictment. Rarely, they decline to issue an indictment. This is because the prosecutor (whose job is to get indictments) controls the evidence that the grand jurors get to see. The grand jury actually has a lot of power, but it is generally the prosecutor who compels the production of documents and physical evidence, and the testimony of witnesses, using the grand jury’s power to issue documents called subpoenas.
Witnesses under subpoena must appear before the grand jury, and they may only respond to questions directly asked by the prosecutor. There is no judge or defense attorney in the grand jury room. Whereas questioning of witnesses in a criminal trial must be relevant to the crime charged, during a grand jury, the prosecutors may question witnesses about things that are totally unrelated to the alleged crime. That means prosecutors can gather intelligence about lawful activities and innocent people, and it can also help them to cast the target of their investigation in an unflattering light. This enormous control over what the grand jury hears (and does not hear) vastly increases the likelihood that the grand jurors will return a true bill, authorizing the prosecutor to proceed with a prosecution.1
Grand Jury Secrecy
Historically, courts enforced grand jury secrecy to protect the reputation of the accused. However, over the last century, the government has used this secrecy to conceal information-gathering on dissident communities. The nature of the documents subpoenaed, the identities of witnesses, and even often the existence of the investigation, are unknown. The prosecutor and the grand jury members may not reveal what occurred in the grand jury room. Even a witness cannot obtain a transcript of their own testimony. Grand jury secrecy thus creates an environment in which rumor and suspicion thrive. Communities can be torn apart by the rumors of a grand jury, wondering whether one of their number has been subpoenaed, whether someone who has been subpoenaed has cooperated, and who may have been put at risk.
Fortunately, a subpoenaed witness is completely free to disclose any information that they wish to disclose about the investigation or questioning that took place. A subpoenaed witness can put fears to rest by taking a clear, transparent, and public stand against the grand jury. Refusing to cooperate works to keep all community members safe, and increases the capacity of the community to support a witness through what can be a stressful time. Unfortunately, refusing to cooperate with a grand jury can be time consuming, legally complicated, and may have negative consequences. On the other hand, cooperating with a grand jury carries substantially the same risks, with the added risks of social exclusion and causing lasting harm to your community.
Grand Jury Process
An individual may be subpoenaed to appear as a witness before a grand jury only by a federal agent or US marshal personally serving the subpoena. That means that the agent or marshal either hands the witness the subpoena, or places it near them, if the witness refuses to accept it. The agent cannot leave the subpoena with anyone other than the person for which it has been issued. You, your family and your roommates have the right to not answer your door if the feds come knocking. A subpoena is NOT a warrant; a subpoena does not allow a federal agent to enter your residence without your consent. YOU NEVER EVER HAVE TO TALK TO LAW ENFORCEMENT.2
A witness under subpoena may not refuse to appear and answer questions without just cause. Only a few things constitute “just cause” under the law. If a witness can show that the subpoena, the questions asked in the grand jury, or the investigation itself are violating certain of the witness’s rights, then they may be excused from testifying. These rights include the First Amendment rights to expression, religion, or association; their Fifth Amendment right against compelled self-incrimination; their Sixth Amendment right to counsel; or the statutory prohibition against unlawful electronic surveillance by the state. Not surprisingly, it can be very difficult to convince a judge that just cause exists to excuse a witness from their testimonial obligation.
It is critical that anyone issued a subpoena find an experienced grand jury lawyer immediately. If you are subpoenaed, it is possible, though unlawful, to go underground or refuse to appear before the grand jury. More commonly, witnesses who wish to resist a grand jury do plan to appear, but work with their lawyers to quash the subpoena, so that the judge orders the prosecutor to withdraw the subpoena altogether. It is almost unheard of to be excused prior to making an appearance before the grand jury. Most witnesses appear before the grand jury, but adopt a strategy designed to acquire information about the investigation, without giving any information to the state.
This means the witness must write down each question asked in the grand jury room, and then leave the room to consult with their attorney, which is the witness’s right. When they consult with their attorney, she will advise them on how each question implicates the different rights mentioned above, and when they return to the grand jury room, the witness can refuse to answer questions by invoking those rights. Some witnesses may also give a prepared statement in an attempt to educate the grand jurors.
Immunity, Contempt, and the Legal and Social Benefits of Resistance
A prosecutor may remove a witness’s Fifth Amendment right to silence by granting the witness immunity, so anything the witness says to the grand jury cannot be used against them at trial. Immunity cannot literally force a witness to speak, however, and testifying with immunity not only puts others at risk, it also increases risks to the witness, like creating a case against themselves, or perjury. Even with immunity, the legal outcomes of collaboration are often worse than the consequences of resistance.
If a witness refuses to testify without showing just cause, the judge may hold them in contempt of court. A finding of civil contempt can lead to a witness being incarcerated until the grand jury expires: up to 18 months. But the process of trying to demonstrate just cause prior to the first grand jury appearance can take place over many months. One benefit of this legal strategy is to use up as much of the life of the grand jury as possible prior to incarceration.
The result of a finding of civil contempt is so-called civil confinement, which is different from criminal confinement only in that it is intended to coerce the testimony of the witness, rather than to punish them. The state promised to release the witness from prison if they agree to appear and testify. In this way, a so-called recalcitrant witness holds the keys to their own cell.
Less often, a judge may make a finding of criminal contempt. A person who is found guilty of criminal contempt may be incarcerated beyond the term of the grand jury, but if they are to be confined for more than 6 months, they must have due process, which means they get a more robust hearing, and a jury. A criminal contemnor cannot win release prior to completion of their sentence by testifying before the grand jury.
It is important for a subpoenaed witness to make extremely clear that they will not collaborate with the grand jury under any circumstances. Apart from being the righteous thing to do, it is legally most effective. A civilly confined witness can file a Grumbles motion, which argues that since there is no chance that confinement can successfully coerce their testimony, their incarceration has been converted to a criminal punishment without due process. If the Grumbles motion succeeds, the witness is released!
People who do time to protect their communities are supported by their communities, during their incarceration and beyond. Those who snitch not only lose their integrity and social support, they often also end up getting indicted too! People who cooperate with federal grand juries often end up doing more time than people who are jailed for contempt.
If you have been indicted, subpoenaed, or contacted by the federal government call the Water Protectors Legal Collective Hotline at 605.519.8180
The North Dakota legal system also has grand juries, but state prosecutors may proceed with criminal prosecutions with either grand jury indictment, or by a complaint by the States Attorney and preliminary hearing before a judge. State grand juries tend not to be used to conduct politically-retaliatory investigations, just to keep the machinery of the prison-industrial complex rolling along as usual. ↩
For more on this, see “If an Agent Knocks” by the Center for Constitutional Rights ↩