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How does a grand jury get evidence?

Clerk Room        Grand juries can use the court's power to subpoena evidence.  A court can issue a document known as a subpoena (a word which translates, essentially, as "subject to sanction") which commands someone to do something.  The subpoenas are actually issued by the court clerk's office.

The prosecutor will go to the court clerk's office and obtain blank subpoenas.   The prosecutor then fills them in, putting in the name of the person or corporation that is being subpoenaed, and telling them what they have to do (testify or produce documents) and when they have to do it.  The prosecutor then has someone--often a police officer or federal marshal--serve the subpoena on the person or corporation.

        There are two kinds of subpoenas: A grand jury uses a subpoena ad testificandum to bring people to testify before it; it uses a subpoena duces tecum to have evidence (documents, tape recordings, photographs, test results, guns, etc.) brought to it.  Someone who receives a subpoena from a grand jury has three choices:  comply with the subpoena; convince a court that he or she does not have to comply with it; or refuse to comply and be held in contempt.


Prosecutor and Witness        You comply with a grand jury subpoena by doing what it tells you to do. If it says you are to show up before the grand jury at a given time on a specified date and testify, you do that; if it says you are to show up at that date and time and produce documents or other evidence for the grand jury to review, you do that.  This police officer, for example, is testifying before a grand jury:


        If you think you shouldn't have to comply because, for example, you're a lawyer and the subpoena is asking you to testify about secrets your client confided in you, then you have to file a motion to quash (not squash) the subpoena.  Quashing the subpoena means the court declares it null and void, so you don't have to comply with it.    A court would, for example, quash a subpoena if you could show that making you comply with it would violate your constitutional rights under the First Amendment.

        But to persuade a court to quash a subpoena, you have to convince the court that, if you're claiming a privilege, the privilege actually applies to what the grand jury wants from you, so that there's no way you can do what it asks without violating the privilege.  If you can answer some questions without getting into information that is covered by the privilege, the court will probably modify the subpoena, ordering you to answer about non-privilege information but also ordering that you not be asked about privileged information.  (Of course, if you've answered any questions before the grand jury you've probably waived the privilege, and given up that objection, but that's another whole issue.)

       Aside from privilege, you can ask a court to quash or modify a subpoena because what it asks you to do is "unreasonable or oppressive."   This request is usually made as to subpoenas that order someone to produce lots of records to a grand jury.  If the court agrees with you and   modifies the subpoena, you will have to do what the modified subpoena tells you to do.  If, for example, a subpoena ordered you to produce 100,000 pages of documents in 2 days, you could probably convince a court this request was unreasonable and persuade the court to modify it, so that you had, say, a month to comply.

        If you simply refuse to do what the subpoena orders you to do, the prosecutor, acting on behalf of the grand jury, will ask the court to hold you in CIVIL contempt.  Unless you have a very good reason for not complying, the court will do so. 

Prisoners        This happened to Susan McDougal:  She was subpoenaed to testify before a Whitewater grand jury, and refused to testify.   She was held in civil contempt.  Civil contempt is not a crime (unlike CRIMINAL contempt, which is discussed above, in connection with grand jury secrecy).   It is, instead, a way the court coerces you into doing what the grand jury wants you to do.  Once you're held in civil contempt, you will be locked up until you agree to comply with the subpoena or until the grand jury's term ends, whichever comes first.   Susan McDougal was locked up for approximately eighteen months, which is when the grand jury's term ended.  Once the grand jury has been dissolved, the subpoena is no longer valid and you can't be held in contempt.  Of course, a prosecutor can re-subpoena somebody like Susan McDougal to testify before a new grand jury.  If she refuses, she can be held in civil contempt and locked up until that grand jury's term ends, which could be another year and a half or even two.


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