This resource contains legal information and is not intended to form an attorney client privileged relationship. Consult a lawyer for personal legal advice. 

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testimony, they have been used as tools to target and suppress political resistance movements, aka “witch hunts.”

Like a regular trial jury (known as a “petit” jury), grand juries are made up of ordinary citizens who are selected at random and receive a summons to serve. Federal grand juries are made up of 16-23 people. Grand juries do not decide if someone is guilty or not guilty. Only 12 of the 23 jurors are required to vote in favor to indict someone, so they do not need to be unanimous. Jurors are also not screened for bias like a trial jury is. The government can also call “special grand juries” which are used to investigate “possible” future organized criminal activity.  Only the U.S. and Liberia still use grand juries as part of criminal procedures because they are flawed and unjust.

Secrecy: Grand jury proceedings take place in secrecy. When you testify in front of a grand jury, there is no defense attorney present, nor is a judge present. It is just the prosecution (a U.S. Attorney), a court reporter, the grand jury, and the witness. The witness is the only person who has a first amendment right to publicly speak or write about their experience in the grand jury room.

Evidence controlled by government: Because there is no defense attorney in the grand jury room, the evidence presented to the grand jury is entirely controlled by the government. The usual rules of evidence do not apply. The government can ask a witness anything they want, regardless of how “relevant” to a particular investigation and often focuses on movement ideology, associational relationships, etc. They can also introduce hearsay evidence that would normally not be permitted at trial, and an indictment can even be based entirely on hearsay evidence. The grand jurors themselves are often invited to ask any questions that come to their minds as well, further invading privacy and constitutional rights of individuals forced to testify.

Because prosecutors have so much control over the grand jury process, it is notoriously easy to get a grand jury to indict someone, leading one judge to famously declare that “a grand jury would indict a ham sandwich.” This is one of the reasons that countries don’t use grand jury proceedings any more.

Subpoena power: Grand juries have broad power to use subpoenas to compel witnesses to testify in front of them. They can subpoena anyone for any reason, and generally do not need to prove that they have a legitimate reason to believe someone may have information, or that the information they seek from someone is relevant to the investigation.

A subpoena ad testificandum compels verbal testimony of a witness (answer questions) before the grand jury.

A grand jury can also issue a subpoena duces tecum, which compels the production of physical evidence to a grand jury, such as hair, fingerprints, handwriting samples, documents, photos, videos, test results, etc.

The government must pay for any witness travel expenses required to attend the grand jury proceeding.

Because of their secrecy, subpoena power, and the wide breadth of questions that can be asked by prosecutors and grand jurors, grand juries are powerful tools used by the government to target, suppress and disrupt political movements. Even if no one is indicted, grand juries can effectively be used as fishing expeditions for information about political movements, associations, and generally to sow distrust and concern among communities. Grand juries harass and intimidate activists, and even jail them for contempt if they refuse to comply (discussed more below). Grand juries have been used to target anti-slavery abolitionists, members of the Black Panther party, communists during the red scare, environmental activists during the green scare, animal rights activists, anarchists, members of the Puerto Rico independence movement, Standing Rock water protectors, whistleblowers, and may generally be wielded against anyone whose political opinions the government deems threatening. Historically, when movements are targeted with grand jury subpoenas, those who have asserted their constitutional rights and stood together in solidarity and non-cooperation, the breadth and severity of the repression have been minimized.  When the government gains cooperation from political activists and weakness is exposed, more harm generally results in those communities.

Getting served a subpoena: what to expect and what to do

Grand jury subpoenas must be delivered to a witness in person by an FBI agent or US Marshall. A subpoena is not a warrant and the federal agent cannot enter your residence without consent. You do not have to talk to law enforcement (and you should not!).

You should call a lawyer immediately after being served. A lawyer can help you:

• Know your rights and what to expect throughout the grand jury process
• Review your subpoena for defects like missing names, dates, and signatures
• May negotiate and/or file court papers to postpone your appearance date
• May file “Motions to Quash” (motion to throw out) your subpoena for constitutional or procedural reasons.
• Advise you during the grand jury and/or contempt process

You or your attorney should request the Court Clerk to divulge the following important information that you are entitled to: when the grand jury was impaneled and will thus likely terminate, and whether you as witness are a target, suspect, or witness of the investigation. Targets and suspects are entitled to court appointed lawyers if forced to testify because the government wants to make them a defendant by having them snitch on themselves. A witness may not have a right to a court appointed lawyer because at the time they are subpoenaed, the government does not believe they committed a crime, but only has information about a crime (that can change at any time however). The government can change it’s mind at any time regarding whether you are a target, suspect or witness.

Challenging a subpoena

Subpoenas may be quashed under Federal Rule of Criminal Procedure 17(c) if compliance would be “unreasonable or oppressive.” Common arguments made in Motions to Quash a subpoena are:

• That a privilege exists (for example, if a subpoena required a witness to divulge communications protected by attorney-client privilege, husband-wife privilege or other privileged relationships)
• That the purpose of the grand jury is unlawful
  • Grand juries must investigate crimes or seek information about the location of “fugitives.” The government cannot legally use grand juries as trial preparation. For example, if they already have enough information to indict whoever they are investigating, but use a grand jury subpoena to preview what a potential trial witness’s testimony might be, or to lock them into testimony (for example, if you say something different at trial, they can use your grand jury testimony to impeach (discredit) you at trial), that is an improper use of the grand jury process.
• That the subpoena is overbroad, overly burdensome, or the information sought is irrelevant to the investigation.
• Grand juries may not hear evidence based on illegally intercepted electronic communications.

Constitutional Protections

• You may raise your Fifth Amendment privilege against self-incrimination and refuse to testify. However, if the government grants you immunity from prosecution (which they usually do), then you can be ordered to testify anyway.
  • Immunity means that your statements cannot be used against YOU in a federal criminal proceeding regarding that same matter. Normally US Attorneys must seek approval from Department of Justice before imposing immunity on a subpoenaed person, in part, because of the seriousness of stripping a person of their constitutional rights.
  • Immunity does not protect you from a perjury trap—where prosecutors trick you into providing a contradictory statement that they can then use to prosecute you for the crime of perjury (lying under oath).
  • The Fifth Amendment does not apply to the compelled production of physical evidence, and does not cover business or other public documents created prior to the subpoena. See CLDC Document hygiene info.
• A grand jury cannot legally subpoena you for organizational membership records, associations or budgets under the First Amendment.
• Witnesses cannot object to being questioned about evidence seized in violation of the Fourth Amendment, which protects against unreasonable search and seizure.

What to expect at an appearance

• If the grand jury appearance is out of town, the government must pay for your transportation, food, and lodging.
• Although you cannot have an attorney in the room with you at your grand jury appearance, you can and should have an attorney with you who waits outside the room, and you may ask to leave the room to consult with them after any question.
  • Bring a pen and notebook to take notes on everything that happens in your appearance. Write “Attorney-Client Privileged” at the top of the notebook.
  • Write down any questions asked of you. Ask to leave to consult with your attorney before answering any question beyond your name. Your ability to talk publicly about what happened to you during a grand jury proceeding is an important check on the secrecy of the grand juries.
• You will not be able to pick and choose which questions to answer. If you answer any questions beyond your name, you may waive your right to assert your constitutional rights not to answer questions. Any refusal will likely result in contempt of court proceedings. Whether or not you testify to a grand jury is an all or nothing decision.

Civil Contempt

If you refuse to comply with a grand jury subpoena, the prosecutor will take you before a judge for a contempt of court hearing. The judge will likely order you to be held in civil contempt. This normally means you will be sent to jail with the goal of coercing you to testify, but you could also be ordered to pay a fine. There is a saying that you hold the keys to your jail cell because if you agree to cooperate, your contempt is “purged” and you are released from jail after you testify. However, you can only be held in jail for contempt until the current grand jury expires, or for 18 months – whichever comes first. Grand jury terms are normally 18 months, but they can be extended for up to 36 months—but you cannot be held for longer than 18 months in any event. The statute that controls civil contempt for refusing to testify is 28 U.S.C. § 1826.

If you are already serving a prison sentence, you can be subpoenaed to testify before a grand jury about the matter you are already imprisoned for, or any other matter they think you may have information about. If you are held in civil contempt, you remain in custody but will not earn credit towards your existing prison sentence (your clock freezes until the contempt is purged or resolved).

You are entitled to notice and a hearing before being held in civil contempt. You are entitled to have an attorney at this proceeding, and if you are facing incarceration, you may be entitled to a court-appointed attorney. An order for civil contempt is immediately appealable (while you sit in jail). The appeal must be filed within 60 days, and according to statute, the appeal must be expedited and decided within 30 days from being filed if the contemnor is being held in jail.

Grumbles Motions

If you are jailed for civil contempt, the only legitimate purpose for your incarceration is to coerce you to testify. It is legally not considered punitive, or a “punishment.” Therefore, if you can successfully argue that your confinement for civil contempt is serving no coercive purpose and is therefore punitive, you may be able to win your release from civil contempt.

A Grumbles motion seeks to prove that because you are resolved to never comply with a grand jury subpoena, your confinement has become punitive rather than coercive. It is named after the case of antiwar activists Patricia and Donald Grumbles, which was one of the first cases where this theory was successfully argued. You must prove that there is no realistic possibility that you will ever comply with the subpoena, and therefore continuing to hold you in contempt will serve no coercive purpose.

These motions are generally more successful when you have spent at least a few months in contempt jail already without complying. They are usually supplemented by declarations of the witness and by friends, family, or community members attesting to the fact that you will never comply with a grand jury subpoena, and that doing so would lead to a loss of support and reputation among your community. Public support and statements regarding your intent to resist a subpoena are also therefore persuasive. However, as we discuss below, this testimony is the exact evidence the government may use if they charge you with criminal contempt.

Courts typically refuse to release political dissidents from contempt based on these motions, but there are instances where they have been successful. For example, anarchist Jerry Koch was released based on a Grumbles motion.

Criminal Contempt

Although it is much less common, you can also be charged with criminal contempt for refusing to comply with a grand jury subpoena. Criminal contempt is a separate criminal charge that is prosecuted, tried to a jury, and if convicted, results in a federal sentence.  This punishment for failing to comply with a court order, is charged under 18 U.S.C. § 401(3). Like civil contempt, you will be entitled to notice and a hearing, and you are entitled to a court-appointed lawyer. You are entitled to a jury trial before being sentenced to over 6 months of incarceration, but the court can sentence you to up to 6 months without a jury trial. There is no maximum sentence for criminal contempt, and unlike civil contempt, you cannot earn your release by complying with the court order. Although there is no maximum, a sentence can be challenged as excessive on appeal.

You can be held in civil contempt or charged with criminal contempt, but you can also be charged with both civil contempt and criminal contempt consecutively. The government can indict you with criminal contempt after you have already served a term of civil contempt for the same act of refusal. Legally, the court is supposed to consider civil contempt before criminal contempt, but the decision on whether to apply civil or criminal contempt or both is still generally within its discretion. Animal rights grand jury resister Jordan Halliday was released from civil contempt after 4 months in jail and then prosecuted for criminal contempt in Utah. He was sentenced to 10 months in federal prison.

Because civil contempt is technically considered coercive rather than punitive, it is not considered double jeopardy to be jailed for civil contempt and also charged with criminal contempt. A notice of appeal from a judgment of criminal contempt must be filed within 14 days from the entry of judgment.

Why resist?

Historically, non-cooperation against State repression that seeks to take power from the people has been a central moral principle within political movements. Answering questions that seem harmless gives the government more tools and information that it will use to target your comrades and suppress your social movements, it sows distrust in your community, and may waive your right to object to further questioning (once deemed a weak link by the government, cooperators are often repeatedly targeted for additional cooperation). In the grand jury context, the government often tries to set “perjury traps” in order to further coerce you into cooperating and to create a crime to prosecute and jail you for when they don’t have anything legit.  Refusing to testify is the only certain way to avoid a perjury trap concocted by the feds during a political witch hunt. Resisting a grand jury subpoena can be uncertain and frightening, but you have an opportunity to garner broad community support and educate the public about the repressive power of grand juries. Support can be organized to raise public awareness, hold demonstrations at hearings and appearance dates, write letters to grand jury resistors being held as political prisoners, and raise money for legal expenses and support of resistors’ children, pets, and life responsibilities in general.

If you or a loved one receives a grand jury subpoena related to political activity, contact the CLDC. We’ve got your back and can help connect you to the support you need. 

More resources and materials:

• CLDC Grand Jury Webinar
• Example of Federal Grand Jury Subpoena
• Example of Fed Grand Jury Subpoena Duces Tecum
• Example of a Summons for Grand Jury Service
• Federal Grand Jury Handbook
• JH Criminal Contempt Indictment 

Sample letter to send to the Clerk of Court requesting information after receiving a grand jury subpoena.

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