Halos Heaven

He said he

eyespy - September 8, 2007 reply

Slightest idea?

In truth, the government has been using the façade of the "grand jury process" to subvert the Bill of Rights--especially the Fourth Amendment's ban on unreasonable seizures of private papers and the Fifth Amendment's ban on compulsory examination under oath. Policymakers who care about the Bill of Rights and civil liberties must roll back the powers of the grand jury until the protections set forth in the Fourth and Fifth Amendments are restored. [...]

The Fifth Amendment prohibits compulsory self-incrimination. In criminal prosecutions, the accused cannot be compelled to take the witness chair and forced to answer questions posed by the prosecutor. And the Supreme Court has repeatedly noted that citizens are under no legal obligation to speak with police officers.61 For example, FBI agents may stop you on the street or knock on the door of your home and request an interview, but you are perfectly free to decline. Because police and prosecutors spend their time and attention on trying to detect and punish lawbreakers, they often come to view constitutional principles as "problems" and "obstacles" to be overcome. The primary method by which the federal government gets around the Fifth Amendment's prohibition on self-incrimination and the principle of voluntary cooperation with law enforcement is the grand jury subpoena.62

Although citizens can decline an invitation to go "downtown to police headquarters to answer a few questions," they are not free to decline a subpoena to appear before a grand jury.63 And it is an open secret that it is fairly easy for an FBI agent or federal prosecutor to obtain a grand jury subpoena for just about any person. (In a telling twist, executive branch personnel sometimes claim that they are beyond the reach of grand juries!)64 Like subpoenas for documents, the subpoena to testify is issued in blank by the clerk of the court to the prosecutor, who will then fill in the name of the person before service. 65 The prosecutor does not have to seek the approval of a judge or the grand jurors themselves to summon a witness.66 Once the subpoena is served upon a person, his constitutional right to remain silent essentially evaporates. Consider the legal minefield that awaits a grand jury witness:

• It is a federal crime for a person who has been served with a subpoena to decline to appear before the grand jury. In fact, this is a crime for which a person can be punished "summarily," which means a judge can mete out a jail sentence without a jury trial, bench trial, or any trial at all.67
  
• Once a federal grand jury witness makes an appearance, he must answer the questions that are posed by the prosecutor. Most laypeople are shocked to discover that there is essentially no limit to the types of questions that can be put to witnesses. To take one prominent example, during the scandalplagued Clinton administration, federal prosecutors demanded that Marcia Lewis reveal to a grand jury any information about sexual liaisons that her daughter, Monica Lewinsky, had confided to her. Of course, most cases receive no publicity whatsoever, but it is not uncommon for prosecutors to demand that parents and siblings reveal information about close relatives. Any witness who appears before the grand jury but declines to answer questions may be summarily jailed without a trial if a judge determines that a valid claim of privilege does not apply.68 [...]
  
• Witnesses usually have some general familiarity with their right to invoke the Fifth Amendment and to refuse to answer questions that might incriminate them. However, the law does not permit the witness to determine what is a valid invocation of his constitutional right. The prosecutor has the power to drag a witness from the grand jury room to a regular courtroom to see a judge. The judge has the power to overrule the witness and compel him to answer the prosecutor's questions. If the witness declines, he can be summarily jailed.70
  
• Witnesses are also expected to know precisely the right moment during compulsory examination to invoke their right against self-incrimination. If a witness is too cooperative and answers a few questions on a particular topic, but then chooses to invoke his constitutional right against self-incrimination, the prosecutor can argue that the "door has already been opened" and that the witness has "waived" his right to maintain silence. If the witness declines to answer additional questions in such circumstances, he can be summarily jailed. This explains why some attorneys advise their clients to invoke the Fifth Amendment in response to every single question. Witnesses who do not have the benefit of legal counsel in such situations will be bewildered by this "sorry, you just gave up your rights" procedure and will likely find themselves indicted--either for their silence or for their judicially mandated "confession."71
  
• Federal prosecutors have the power to separate witnesses from their attorneys, which, of course, makes the legal minefield even more treacherous. It is standard practice to prevent grand jury witnesses from consulting with attorneys during the compulsory examination. Unlike witnesses who appear before legislative committees, or depositions in civil litigation, witnesses are not allowed to have their attorneys accompany them into the grand jury room and give cautionary advice as questions are posed.

mattwelch - September 8, 2007 reply