|Offense||Classification||Maximum Incarceration & Fine|
|New York||Disorderly Conduct||Violation||15 days/$250|
|Resisting Arrest||Misdemeanor||12 months/$1,000|
|California||Disorderly Conduct||Misdemeanor||90 days/$400|
|Resisting Arrest||Class A Misdemeanor||12 months/$1,000|
|Pennsylvania||Disorderly Conduct||3rd Degree Misdemeanor||1 year/$2,500|
|Trespass||3rd Degree Misdemeanor||1 year/$2,500|
|Resisting Arrest||2d Degree Misdemeanor||2 years/$5,000|
Demonstrators or civil disobedients are commonly charged with disorderly conduct, trespass or resisting arrest. Occasionally protestors are charged with more serious crimes which can include assault and riot.
Using New York as our example once again, the elements of these offenses can be summarized as follows:
Racketeering is usually associated with crimes committed by organized crime, with the connotations of extortion, fraud, money laundering and such activities. A person who is fighting for issues of social justice may be confused as to how such charges could possibly relate to her activities, but a recent Supreme Court case has raised the specter of racketeering charges in contexts where they would not previously have been anticipated. Racketeering charges would add additional severe penalties for civil disobedients who can be shown to have established a pattern of racketeering activity. In response to this case, and because the definition of racketeering is very broad, any plan for civil disobedience should be studied by a lawyer familiar with racketeering laws before being implemented.
Because it was perceived that traditional law concerning conspiracy was proving inadequate to address increasingly sophisticated criminal enterprises, Congress passed the Racketeer Influenced and Corrupt Organizations Act ["RICO"] in 1970. The Act includes within the definition of "racketeering activity", "any act or threat involving murder, kidnapping, gambling, arson, robbery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs," as well as payments to labor unions, fraud in the sale of securities, and interstate transportation of wagering paraphernalia. A racketeering "enterprise" is "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity" that engages in a pattern of racketeering through at least two acts defined as racketeering activities under the statute, within ten years of each other.
The RICO statute is one of the most controversial provisions of the federal criminal law. Prosecutors seek RICO convictions because the resulting penalties are much higher than could be imposed for the predicate criminal acts that supposedly form the pattern of racketeering. The statute can also compel forfeiture of assets derived from racketeering. Moreover, RICO allows individuals to seek redress for harm caused to them by racketeering in a civil suit, in which awards of treble damages are permitted. The expansive interpretation of the elements of RICO violations, together with the stiff criminal penalties and high civil damage awards have made RICO attractive to prosecutors and civil litigants in situations far removed from the traditional organized crime racketeering scenario.
RICO has not until recently been of much concern to the person planning to engage in social justice activities, because RICO had been interpreted to require that the racketeering enterprise have a commercial purpose. In 1994, however, the Supreme Court determined that there was no requirement under the RICO statute that the enterprise have a profit-generating purpose.
The case, National Organization for Women, Inc. v. Scheidler, concerned the allegation of the National Organization for Women ["NOW"] that anti-abortion groups were part of a nationwide conspiracy to shut down abortion clinics. NOW alleged that these groups had engaged in threats of force and violence that constituted a pattern of racketeering. The trial court had held that an allegation of a RICO violation had to contain an economic motive and profit-generating purpose. As the "income" in this case came from voluntary donations from the public rather than the pattern of threats of force or violence, the trial court held that anti-abortion groups were not involved in racketeering. The Supreme Court disagreed, and held that a political organization, rather than only a commercial enterprise, could violate RICO by its concerted acts.
This case is of grave importance to any person considering political protest, because it brings political opponents who are pursuing political goals into the racketeering arena that was previously thought reserved for commercial competitors.
A RICO suit could be filed or threatened against many protestors who use civil disobedience to affect change. Organizations that do not have or intend an economic affect by their actions, including those groups that are organized solely for the purpose of changing laws, will have to raise the defense that their activities were protected expression under the First Amendment, and have the situation examined on a case-by-case basis. However, it is important to note that the NOW opinion did not address the possible chilling effect this decision could have on free speech. In its opinion, the Court explicitly stated that the First Amendment implications of its decision were unclear and would have to be decided in a later proceeding. Because federal RICO violations involve the federal law-enforcement system, and threaten the award of triple damages, this decision may deter activists from engaging in protected activities.
It is important to note that the NOW case alleged threats of violence and extortion. It is likely that courts will continue to consider that threats, intimidation, assault and even excessive and repeated noise disruptions may be proscribed, but that the charged and agitated atmosphere caused by demonstrators by the simple fact of their protest is protected under the First Amendment. In another case concerning abortion demonstrations, a federal court stated:
Attempts to persuade another to action are clearly within the scope of the First Amendment. The fact that the defendants' speech was intended to persuade patients to forego their abortions or employees to leave their employment at an abortion-providing clinic does not, in itself, corrupt the speech or diminish its protection under the Constitution. ... Such pure speech cannot support a claim of extortion. Similarly, peaceful picketing, leafletting, and demonstrating enjoy the same freedom of expression. ... That this expression was designed to have an "offensive" or "coercive" effect is of little significance provided that the means of expression retained its peaceful nature.
The First Amendment will not, however, offer sanctuary for violence.
This is an instance where the rapid and significant developments in the law
underscore the importance of consulting a competent attorney.
Demonstrations and civil disobedience account for very few of the arrests that occur in this county, but the fact that demonstrators and civil disobedients are not the "standard" offenders does not affect their right to the protections of the Fourth Amendment, which include prohibitions and limitations on the police's power to engage in "searches and seizures."
The Fourth Amendment to the Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This means that the police may not, with limited exceptions, search a place or arrest a person (arrest is a seizure for Fourth Amendment purposes) without probable cause.
Unfortunately, there is no clear definition of "probable cause," and the Supreme Court has shown increasing willingness to interpret more and more police policies as reasonable. Probable cause, as the name implies, deals with probabilities; factual and practical considerations of everyday life on which reasonable and prudent individuals act. The standard of proof is accordingly correlative to what must be proved. Consequently, there are as many definitions of probable cause as there are situations in which crime may be committed.
In the case where police witness civil disobedience and arrest civil disobedients, the probable cause element will be fulfilled. In a case where there is some doubt whether the police are arresting the correct person, or making a lawful arrest at all (as when they make an on-the-spot warrantless arrest for an incident they did not actually witness), there may be a argument that probable cause was lacking and the police acted outside the scope of their authority.
Unfortunately, it is not uncommon for police officers to exceed their
constitutionally proscribed authority. If an attorney successfully raises the
defense that the arrest was not based upon probable cause, the case will be
When considering expressing views through demonstrations or civil disobedience, you must decide whether to risk arrest. Usually, but not necessarily always, the police give several warnings before they actually begin arresting demonstrators. This gives the warned individuals an opportunity to leave the area before arrests are made. Individuals who are on probation, or who are the subject of bench warrants must be particularly careful to avoid arrest and should not participate in a demonstration or civil disobedience action.
There are two main ways that the police process an arrest. The police may issue an appearance ticket and thereafter release the arrestee, or the police may put the arrestee through the central booking process.
The basic appearance ticket is a piece of paper containing a statement of the charges and directions specifying when and where the arrestee is to come to court. These may resemble parking and traffic summonses.
The second sort of arrest is substantially more complicated. In all jurisdictions, the police have the option of detaining an arrestee until she appears before a judge. If you are detained in this manner, you should contact a lawyer immediately.
Because police have discretion over the initial charge to allege, it is impossible to predict with certainty what penalty a demonstrator or civil disobedient will initially face. This underscores the importance of discussing such matters with a competent attorney. As always, it is imperative that you discover exactly what the law states in your jurisdiction.
Generally speaking, your Fifth Amendment rights protect you against self-incrimination; no one can force you to discuss or confess any action that you have taken and no one can force you to testify against yourself in court. Additionally, since the Supreme Court's decision in Miranda v. Arizona, the police must adequately and effectively apprise you of your rights before subjecting you to interrogation. In particular:
Although the Supreme Court has mandated that the "Miranda Rights" must be read to everyone before interrogation, these rights do not just become effective upon their recitation to you by the police. These are constitutional rights and can be exercised at any time. No matter what the police tell you, you are not required to respond to any questioning beyond providing your identity. In fact, it is almost always best to remain silent.
The police are under no obligation, however, to stop you from confessing. A statement not preceded by Miranda warnings will be admissible if, for example, you walk into a police station and confess or blurt out an admission when approached by an officer at or near a crime scene. More important, a statement may qualify as "volunteered" in some circumstances even though made when you are in custody and have previously asserted your right to silence, or have previously requested counsel.
Before the police question you after arrest, they must inform you of your rights. Immediately after they have informed you of these rights, tell the police that you wish to speak to an attorney. The police must cease questioning once you have asked for an attorney and cannot resume questioning until you are allowed to speak with an attorney.
If, for some reason, you voluntarily talk to police, you have waived your right to remain silent; anything you say can and will be used against you and anyone else you mention. If you decide to talk and are presented with a question that makes you uncomfortable, do not answer it. You have the right to terminate the conversation at any time; this can be done by simply saying "I've decided to exercise my right to remain silent," or by asserting or reiterating your request for an attorney.
Although police must honor a refusal to answer questions and must discontinue any interrogation, Miranda permits police to resume questioning if subsequent warnings are given and there is no police coercion. Some states provide additional protection. In New York, for example, a defendant who requests counsel after being informed of her Miranda rights may not be questioned any further in the absence of counsel.
Post-arrest police conduct is governed by the clause of the Fourth Amendment that allows us to be secure "against unreasonable searches and seizures." This includes post-arrest searches.
Upon arrest, you can expect a "pat down" search. This is to ascertain if you are carrying any weapons or contraband. A more thorough search will be conducted once you are transported to the police station or other detention center. This second search supposedly has several aims: to safeguard the detention facility by preventing introduction of weapons or contraband; to ascertain or verify your identity after arrest; to protect your property while you are in jail; to protect the police from claims that they have not adequately safeguarded your property.
Although post-arrest procedure varies from state to state, common features exist. You will be taken to a police station and "booked," which entails being fingerprinted, photographed and processed into the system. At this time, the police will contact state headquarters to find out if there are any outstanding warrants against you. You cannot refuse to be booked or searched and you do not have the right to have an attorney present for this process.
It is strongly advised that you be accompanied by an attorney starting with the first appearance (explained below) and continuing throughout the rest of the process. Although the Sixth Amendment guarantees you the right to an attorney at certain stages of the process and for certain offenses, you can be assured of legal representation only if you retain your own lawyer. The practices differ on a state-by-state basis, but you always have the right to retain your own attorney. If you do not consult an attorney who is familiar with criminal procedure, you may fail to raise defenses that are available to you. Although the court may be lenient if you are not represented, you cannot count on it. A missed defense or a defense improperly raised can lead to the imposition of unnecessary penalties and the inability to raise arguments on appeal that were not raised at trial.
After the booking procedure, you will be brought before a judge or magistrate for a "first appearance." This may also be called "arraignment on the warrant," or "initial presentment." If you have been released by police on a citation, the first appearance will not be scheduled until several days after the arrest. If, however, you are still in custody, the law requires that you be brought before the court without unnecessary delay. Ordinarily, the time consumed in booking, transportation and reviewing the decision to charge makes it unlikely that you will be presented before the magistrate until at least several hours after your arrest. Thus, if the magistrate court does not have an evening session, a person arrested in the afternoon or evening will not be presented before the magistrate until the next day. Many jurisdictions do not allow much longer detention than this, as they impose a 24 hour limit on pre-appearance detention. Others, desiring to limit weekend sessions of the court, allow up to 48 hours of pre-appearance detention.
The first appearance is often a quite brief proceeding. Initially, the magistrate will make certain that you are the person accused of the crime. The magistrate will then inform you of the charge and will note various rights that you may have in following proceedings. These rights will vary from one jurisdiction to another. Commonly, the magistrate will again inform you of your Miranda rights.
Other aspects of the first appearance are likely to depend upon whether you are charged with a felony or misdemeanor. In the felony case, the magistrate will advise you of the next step in the process, the preliminary hearing, and will set a date for that hearing. If you are charged with a misdemeanor, you will not be entitled to a preliminary hearing. For a misdemeanor, the first appearance also usually becomes the arraignment, where you are brought before the court, informed of the charges against you, and asked to enter a plea of guilty or not guilty.
How to plead after performing an act of civil disobedience is a personal yet controversial discussion. Some argue that a civil disobedient should never plead guilty. If the law being challenged is proven to be unconstitutional then the conviction will be reversed. It is important to note, though, that this occurs in only a very small percentage of cases and if the law is ultimately upheld (which almost all are), the defendant could face a prolonged prison term and a fine, not to mention the potentially high costs of a legal defense. Other civil disobedients choose to pay the fine first offered by the police and then regroup to plan their next action of protest. Which course you take must be your personal decision. However, before you enter a plea it is imperative to speak with a lawyer to learn the full implications of your decision.
The final function of the magistrate at the first appearance is to set bail, which sets the conditions under which you can obtain your release from custody pending the final disposition of the case. If you obtained your release previously by posting stationhouse bail, the magistrate will merely review that bail. In a felony case, you usually will still be in custody and the magistrate will be making the initial decision on bail. At one time, bail was limited almost entirely to the posting of cash or a secured bond, purchased from a professional bondsman. Today, you may also be able to obtain your release by depositing with the court cash equal to ten percent of the amount of the bond set by the magistrate. In addition, courts today frequently authorize release upon the defendant's unsecured promise to appear, which is commonly called "release on personal recognizance".
If you expect to be arrested, there are several practical but important things to keep in mind.
First, you should carry valid identification, such as a driver's license. This will help convince the police that you have some roots in the community and can be trusted to appear in court on the appropriate date. Without identification, you may be kept in police custody until you are brought before a judge to determine your release. For this reason, local identification is better than out-of-town identification.
You should not carry large sums of money, credit cards, social security cards, or any other item you do not want the police to confiscate. Although confiscated items will probably be returned at some point, you should consider whether you want the police to have access to any of the information on credit cards or other items. An address book could provide the police with information concerning other activists. A general rule is that if you do not want the police to see something, do not bring it.
Likewise, be very cautious in talking with other persons who have been arrested, even if you know them personally. You do not know who may be listening to the conversation, and you also do not know if the other person is an informant. The police have often engaged cell-mates and arrestees to act as informants. Do not talk about the specific circumstances of your arrest. Do not talk about your organizational or political ties and activities. Do not talk about your personal life.
You should also remember to bring change so you can make phone calls after arrest. Determine, in advance, who you will call, and if possible, warn that person to be prepared. Remember, the police will take note of any phone number you call from jail.
Finally, you should discover, in advance, the possible violations for which you will be arrested and the penalties for each. It is a good idea to arrange for bail money to be available, in advance of the planned action.
Be cautious when speaking on the telephone. Federal investigative agencies have been known to "bug" telephone wires to monitor and record conversations, even without a valid warrant. Also be careful about the information you send through the mail. Items sent by private companies such as United Parcel Service and Federal Express may be opened without a warrant. Although you might not be committing any crime, selected portions of a conversation or pieces of a letter could seem (or be) incriminating. Exercise caution in what you say, to whom you say it, and how you say it.
A grand jury is an impaneled group of citizens that fulfills two functions: it investigates and determines whether to indict. In a grand jury's investigative function, it examines situations to determine whether crimes have been committed and, if so, by whom. The grand jury does this by uncovering evidence not previously available to the prosecution. A grand jury's indicting function comes into play after the prosecution has made a definite accusation against an individual. In this capacity, the grand jury will determine whether there is enough evidence to justify holding the accused individual for trial, and if so, on which charges.
In this discussion, we will focus on the investigative role of the grand jury. We will focus on federal grand juries rather than state grand juries. The federal government is required to procure a criminal indictment from a grand jury. Some states, such as California, have replaced the grand jury with a preliminary hearing before a judge.
Before we begin this discussion, the following must be emphasized: the government frequently engages in "witch hunts" concerning persons holding controversial or dissenting views. If you are called before a grand jury to testify, the first thing you need to do is promptly obtain a competent local attorney. You should choose an attorney who is well-versed in the grand jury laws of the state in which you have been called to testify.
The decision to call someone before the grand jury usually plays out as follows:
The government, in the course of an investigation, will come to learn of your possible or alleged involvement in the matter being probed. Exercising your rights under the law, you have refused to voluntarily furnish information to the police.
Investigative agencies such as the Federal Bureau of Investigation may nevertheless attempt to question you. Do not let such agents convince you that you must answer their questions; as discussed at length previously, you have a right to remain silent. The mere fact that an agent rather than a police officer is questioning you does not change this. Similarly, you have a right not to answer any questions until you have an attorney present. If an investigative agent comes to visit and asks to question you, you should politely request the agent's business card. You should then advise the agent that you decline to speak with her in the absence of an attorney.
You must remember that investigative agents are trained experts in the field of obtaining information from individuals. To this end, an agent may be friendly, sympathetic, charming, rude, persistent or intimidating. Despite what they will try to make you believe, refusing to answer questions does not make you a bad citizen, an immoral person or a criminal. You are simply exercising your rights.
Conversely, you must resist the temptation to talk to an investigator in order to try to obtain information or to give false information to "throw them off the track."
The Justice Department -- the main federal prosecuting agency -- may or may not be seeking to subpoena you, but investigative agents may imply that if you refuse to talk, a subpoena will be issued. Investigative agencies such as the FBI have no subpoena power; subpoenas can only be issued by a court.
If you have not provided the information that the government seeks, the government may call you before the grand jury. When faced with this threat, many people undergo a change of heart and provide the grand jury the desired information. This is what the government is hoping you will do. Once you are fully informed of the facts and the consequences of your choices, you will be better able to make that decision.
The grand jury will utilize the subpoena process to compel your appearance and testimony. As mentioned, subpoenas can only issue under the authority of a court. A subpoena is a document which compels you to do one of two things: a "subpoena duces tecum" requires a witness who has in her possession or control a document or paper pertinent to a pending investigation or controversy, to produce that material before the grand jury or at trial. This evidence requested will be specifically named in the subpoena. A "subpoena ad testificandum" requires your oral testimony at a given time. A federal subpoena must be served on you personally.
The subpoena might include a letter instructing you to telephone the prosecutor's office prior to your scheduled appearance to confirm your attendance. You should make this call from your attorney's office. You may ignore any instruction which demands that you report to the prosecutor's office rather than the grand jury room; prosecutors do not have the power to require this of you.
A subpoena duces tecum may state that satisfaction can be had once you bring the requested documents or items to the office of any agency such as the FBI. Such a requirement is probably valid.
The letter may or may not advise you of the violation or offense that is the subject of the grand jury investigation. The federal prosecutor is not required by law to provide this information.
The subpoena ad testificandum is usually accompanied by a notification of the following:
The federal prosecutor is not required by law to provide you with this information, but that does not change the fact that these are your rights. If you are unclear about any of these rights, ask your attorney to clarify them for you.
Do not be alarmed if the subpoena calls for you to testify very soon after you have been served. You or your attorney may request a continuance.
It is imperative that you consult an attorney before appearing before a grand jury. The description of the procedures below is provided only to give you some familiarity with the legal process. It is not sufficient to form the basis of a decision concerning refusing to testify or accepting immunity before the grand jury.
On the day scheduled for your appearance before the grand jury, you will go to the courtroom of the judge supervising grand jury matters if your attorney has filed a preliminary motion, such as a motion to "quash" your subpoena, that is, have it declared vacated or void by a judge. If your attorney has not filed any motions, you will report to the hallway outside the grand jury room: you may report to the federal prosecutor's office, although you are not required to do so. When you have been summoned into the grand jury room, you will find anywhere from sixteen to twenty-three grand jurors, at least one prosecuting attorney, and a court reporter. There will not be a judge. As mentioned previously, your attorney will not be allowed in the grand jury room with you if you are testifying before a federal grand jury: state practice may vary. Direct your attorney to write down the exact time you go into the grand jury room.
You will be sworn in and asked questions. Bring a pen and notebook with you and write down verbatim the questions asked and the gist of your response. This is for your own protection. After each question, or at least after each question that causes you concern, you should leave the room to consult with your attorney before answering. Your attorney should write down the time you leave the grand jury room and the time you go back in. This is to rebut any accusations of purposeful delay.
The prosecuting attorney may try to prevent you from taking notes. If she does this, you should inform her that you have been advised to take notes on all questions asked so that your attorney can counsel you properly on how to answer them. If the prosecuting attorney persists in making an issue of your note-taking, you should refuse to answer any further questions. The government will usually back down on this issue rather than litigate it. You will not automatically be held in contempt for refusing to stop taking notes. The issue must first go before the judge and the judge will decide whether you should be permitted to take notes.
Similarly, if the prosecuting attorney attempts to prevent you from leaving the room to consult with your attorney, you should insist upon your right to do this. You need not answer further questions until you are permitted to consult with your attorney. You need not entertain such questions as "why do you need to discuss such a simple question with your attorney?"
If this issue goes before a judge, she may place some limitations on you, such as only consulting with your attorney after groups of two or three questions. If the judge denies you access to your attorney, you and your attorney should decide whether to appeal.
When you are answering questions in front of the grand jury, you should
answer ONLY what is asked. You are not required to volunteer information that
has not been requested. For example, if you are asked, "Do you know anyone who
steals animals from laboratories?" and you do not personally know anyone who has
participated in such activities, you are not required to answer "I've heard
rumors about Ms. X stealing animals." This is unnecessary and unsupported
information. You are not lying if you simply answer "no." Likewise, if you are
asked "Does Ms. X steal animals?," you are not required to volunteer information
such as "No, but Mr. Z does." We are not suggesting that you withhold
information for which the prosecutor asks, or that you perjure yourself;
however, you are compelled to answer no more than the question presented to you,
given its most narrow reasonable interpretation.
You may decide that you will not testify before the grand jury. Please discuss this option with your attorney so that she can advise you about penalties, possible imprisonment and your rights in each circumstance.
Your attorney may ask the judge to modify the subpoena to the point where its requirements are acceptable to you. She may also try to relieve you of the responsibility of appearance before the grand jury. First, she may attempt to quash the subpoena. There are various grounds on which a motion to quash will be granted. Your attorney will advise you on all applicable grounds upon which a motion to quash may be granted. Second, she may assert an applicable legal excuse for not testifying, such as one of the privileges described below. For example, you cannot be punished for refusing to testify about a confidential communication between you and your spouse, providing the communication was not shared with or overheard by a third party. Your attorney should be able to explain to you any other applicable exceptions.
If your testimony does not fit into one of the recognized exemptions, and you still refuse to answer the questions put to you, you will be held in contempt of court. The prosecutor will file a motion with the court directing that you show why you should not be held in contempt. In the "contempt hearing" that follows, your attorney will argue why you should not be held in contempt of court. If the judge does not find your attorney's arguments persuasive, the judge will order you to testify. Further noncompliance with this order will result in your being held in contempt.
If you are held in contempt, the judge will sentence you immediately. Ordinarily, grand jury witnesses are held in civil contempt rather than criminal contempt. The maximum sentence for civil contempt is eighteen months imprisonment, or the duration of the grand jury investigation, whichever is shorter. The maximum sentence of criminal contempt, without a jury trial, is no more than six months. If you are to be sentenced for longer than six months, you must be formally charged and offered the opportunity for a jury trial. There is no statutory limit to the length of the contempt sentence which results from such a trial.
The law does not consider your confinement for your failure to testify to be
punishment. Rather, this denial of your liberty is seen as coercive, a method of
forcing you to comply and testify. It has been said that "you carry the keys to
your cell in your own pocket;" all you need to do is give them the information
demanded. If it is determined that you do not intend to testify, and that
further confinement will not have the effect of coercing your testimony, you
must be released as your testimony has become punishment, rather than coercion.
Another way the grand jury process attempts to compel testimony, is by the offer of "immunity." It is again imperative that your attorney explain the different sorts of immunity that may be offered to you, and the consequences of your choices.
Courts have the power to compel testimony because of the rights of the accused to obtain and confront witnesses that are secured by the Sixth Amendment to the United States Constitution. The rights of the accused must, however, be reconciled with the witness' Fifth Amendment privilege against compelled self-incrimination. These rights are reconciled by a judicially recognized grant of immunity: the prosecutor's request to immunize a witness is granted by the court.
A grant of immunity is only appropriate where the witness' Fifth Amendment privilege is properly invoked, as only testimony that is compelled is immune from the threat of prosecution. A witness may only claim the Fifth Amendment privilege in response to an individual question. A witness who states a general refusal to answer a group of questions may be charged with criminal contempt.
There are basically two types of witness immunity: transactional immunity and use immunity.
From 1893 to 1964 the government only granted transactional immunity. The Compulsory Testimony Act of 1893 stated that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise."
Transactional immunity bars prosecution for any transaction about which a witness testifies. Once the witness has testified about an offense or transaction, the witness is immune from prosecution concerning those events, regardless of whether the prosecution secures evidence from other sources and regardless of the manner in which the other evidence becomes available to the prosecution. This broad protection was considered, until 1964, to be required by the protection granted to witnesses by the Fifth Amendment.
In 1964, the Supreme Court concluded that a more narrow grant of immunity would satisfy the guarantee against compelled self-incrimination of the Fifth Amendment. The Court decided that it was permissible to grant "use" and "derivative use" immunity. This immunity protects the witness from having any of the compelled testimony, or any evidence derived from the compelled testimony, used against her. However, if the prosecution can produce evidence from a legitimate source that is wholly independent of the witness' compelled testimony, the witness can then be prosecuted for the offense or transaction about which she was compelled to testify. The Court decided that use immunity was coextensive with the protections of the Fifth Amendment as both allow the government to use evidence secured from legitimate independent sources as a basis for prosecution.
Use immunity is also more narrow than transactional immunity in that a specific grant of immunity is probably required for each proceeding at which the witness testifies. Grand jury testimony that is compelled by the grant of use immunity is not immunized with respect to any other proceeding unless another grant of immunity is requested by the prosecutor and ordered by the court. Similarly, however, a witness to whom use immunity was previously granted may refuse to testify on Fifth Amendment grounds in a subsequent proceeding, as long as the threat of prosecution is a realistic possibility.
Use immunity is considered to leave the witness and the federal government in substantially the same position as if the witness had invoked the Fifth Amendment privilege. It is therefore thought to give the degree of protection required by the Constitution, rather than the grant of complete immunity which is provided by transactional immunity.
A witness who is granted use immunity should, however, heed the concerns voiced by Justice Marshall -- a former prosecutor -- who dissented in the case, Kastigar v. United States, that established the propriety of use immunity. Information that a witness offers a prosecutor in exchange for immunity during negotiations may not ordinarily be used against the witness. Marshall recognized that immunized information may, however, influence a prosecutor's thought processes or trial strategy, even if the prosecutor can point to independent sources for the evidence used. For such reasons, Justice Marshall was probably correct in his belief that only transactional immunity could guarantee that the witness who was compelled to testify was in the same position as if he had not testified.
A witness should also be aware that immunity law does not protect against the other consequences of testimony, such as public disapproval, loss of employment or even civil liability. A witness who is compelled to testify may request a protective order.
It should be remembered that while immunity granted before a federal grand jury is now use immunity, state grand jury immunity may still be transactional immunity. As there may be some discrepancy between what a state considers transactional immunity and what the federal courts consider transactional immunity, it is important to stress that these matters must be considered with the advice of a competent attorney.
While a prosecutor's promise not to prosecute is sometimes termed immunity, the protections that are thereby secured vary considerably. A witness must understand exactly what the prosecutor is promising not to prosecute, the prosecutor's authority to make such a promise and whether local law will enforce such a promise. It must also be remembered that a local police officer's promise that no prosecution will be based on a witness' testimony may not be enforced by a court as the police officer has no power to bind the prosecutor. Nevertheless a court may consider promises not to prosecute equivalent to immunity for the purpose of determining whether a statement was compelled, on the grounds that a confession induced by such a promise not to prosecute is not a voluntary statement. This is an area in which a witness or must exercise extreme caution and rely on the advice of counsel.
The First Amendment may limit a court's power to compel testimony from an immunized witness. The possibility that a grant of immunity will have a significant chilling effect on First Amendment rights may cause a court to excuse an immunized witness from answering a question that implicates First Amendment rights. This was dramatically illustrated when a federal Court of Appeals refused to require that Sherrie Bursey, who worked on the Black Panther newspaper, answer certain questions posed before a grand jury investigating threats made on the life of President Nixon by the Panther's chief of staff. Bursey was not required to reveal information about the identities and activities of members of the Black Panther party who worked on the paper or its sources of funding. The Bursey court required the government to show that it had a compelling state interest in the subject matter of the investigation. The court additionally required that once the First Amendment is invoked in such cases, the government must lay an adequate foundation to show that there is a substantial possibility that the information sought from the immunized witness will expose criminal activity that is within the subject matter of the investigation in which the state has a compelling interest. It should be noted that a court will probably find a compelling state interest just from the fact that the grand jury is investigating alleged criminal activities.
The Supreme Court has ruled, on the other hand, that the protections of the First Amendment will not permit a newspaper reporter to refuse to even appear before a grand jury. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court rejected a newspaper reporter's claim that even appearing before the grand jury would have a chilling effect on his confidential sources.
A witness may invoke testimonial privileges, such as the attorney-client privilege or the marital privileges, despite being given immunity. This is the case in federal proceedings, and before state grand juries.
The attorney-client privilege prevents the disclosure of confidential matters discussed between the attorney and client or revealed to the attorney by the client. Either the client or the attorney may assert the attorney-client privilege. Only the client may waive the privilege.
It must be stressed that the privilege only attaches to confidential communications between the attorney and client and is limited in significant ways. Partial or inadvertent disclosure of privileged material can result in a limited or even total waiver of the privilege. Matter that has been discussed with people other than the attorney does not become somehow privileged against disclosure by the attorney or any other person just by discussing the matter within the attorney-client relationship. Moreover, if the discussion with the attorney was not intended to be confidential or was not for the purpose of legal advice, then the communication is not privileged. For an attorney's records to be privileged, the records must be legal in nature and not just held for the client, even if transferred to the attorney in the course of the client's seeking legal advice.
The witness must show that an attorney-client relationship exists with respect to the communication in question and that the communication was made in confidence and for the purpose of seeking legal advice from that attorney. This privilege attaches to confidential discussions of past matters: it does not apply where the communication was for the purpose of assisting the client in perpetrating a crime or fraud in the future. The privilege is also limited by the fact that an attorney who has represented a client in the past may not prevent a prosecutor from requiring that the attorney testify concerning new and separate issues.
There is a presumption that all marital communications are confidential. There are two distinct marital privileges: the "adverse testimony" privilege. and the "confidential communications testimony" privilege. The marital privilege cannot generally be used to quash a subpoena, but it may be invoked in response to specific questions.
The adverse testimony privilege may only be asserted by the witness-spouse and it allows her to refuse to testify against her spouse. This privilege is only available to a witness during a marriage: it may not be asserted after a marriage is dissolved.
The confidential communications privilege may be asserted by the witness spouse or the spouse against whom she is asked to testify. It may only be asserted with respect to confidential communications made during a valid marriage, but, unlike the adverse testimony privilege, there is no requirement that the parties be then married. A court may look beyond the legal validity of the marriage to see if the marriage is sham in which case it will not recognize the privilege. The confidential communications privilege will also not protect a witness from testifying about non-communicative actions of a spouse, which would be privileged under the broader protections of the adverse testimony privilege.
This booklet has set out in practical terms important issues concerning the rights of activists to demonstrate and seek redress for injustice. It has stressed caution, the need to make informed decisions, and the importance of consulting a competent and sympathetic attorney.
Far from attempting to dissuade activists from exercising their
constitutional rights, it is hoped that, armed with information about what to
expect from the police and courts, activists will continue to raise their voices
in defense of the voiceless.