by a Federal Grand Jury
from No Compromise Issue 22
By Sean R. Day, Attorney at Law
The 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.
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 or harassing.
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.
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.
writing 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 don’t want to be the first victim of a conservative
judge bent on setting a precedent on the issue.
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.
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.
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.
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:
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 moral beliefs.
The question violates your constitutional right to
The 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 question.
You cannot answer that question as it calls for an
opinion you are not competent to give.
The question was derived from an illegal wiretap.
The prosecutor is badgering you.
The question is argumentative.
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
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
prosecutor’s reaction to that one.
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.
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 jury’s 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 don’t know”
or “I can’t remember.” You might
even ask to see a doctor. Don’t be alarmed.
This condition should pass after you leave the grand
resources for dealing with and understanding Grand
to groups monitoring and/or working to support victims
of Grand Juries: