Appearing Before a Grand Jury

Although your lawyer can’t accompany you into the grand jury room, she can wait outside the door, ready to advise you. A grand jury witness is legally entitled to 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).

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.

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. 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 ended or the case was over. This can take months or even years.

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 inform on their comrades. Activists are subpoenaed with the expectation that they will refuse to testify, and thus end up in jail for lengthy periods (thereby immobilizing that activist and deterring others).1

1.  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).

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