Practical Issues > Things To Do > Activism

Demonstrating and Civil Disobedience: A Legal Guide for Activists
Gary L. Francione & Anna E. Charlton

This guide is dedicated to the memory of remarkable companions: Bandit, George, Molly Brown and Robbie.

Table of Contents




      Your Constitutional Right to Demonstrate

      Planning a Demonstration

    Civil Disobedience

      Legal Consequences of Civil Disobedience

      A Warning Concerning Racketeering

    Your Rights upon Arrest

      The Fourth Amendment and Probable Cause to Arrest

      The Arrest

    Your Rights During Detention

      Post-Arrest Procedure

      A Caution

    The Grand Jury

      The Subpoena Process

      Your Appearance Before the Grand Jury

      Choosing not to Testify

      Witness Immunity

        Transactional Immunity

        Use Immunity

        Promises not to Prosecute and Informal Immunity

      Grounds for Refusing to Testify Despite Immunity

        First Amendment Concerns

        The Attorney-Client Privilege

        The Marital Privileges



This booklet is designed to explain some of the basic rights afforded under the law to political activists, primarily concerning the right to protest. It is not intended to substitute for the advice of an attorney nor is it intended to encourage you to break the law. It was compiled to inform you of your rights and to encourage you to exercise them prudently to effect political change.

There is, however, no assurance that your rights will be respected or ultimately vindicated and no assurance that the law will not change rapidly in some areas. Nevertheless, every citizen should exercise the constitutional rights of speech, of the press, petition, assembly and religion, even though the government may attempt to suppress such activities.


Every citizen of this country is entitled to the protections and privileges contained in the United States Constitution and its amendments. Likewise, every citizen of each state is entitled to any broader or additional protections and privileges offered by that state. State constitutions may grant rights more liberal than the federal Constitution, but may not undercut or limit federal constitutional rights.

Citizenship is defined in section one of the Fourteenth Amendment to the Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Non-citizens, including resident aliens, do not receive the protections of constitutional provisions that are expressly granted to "citizens." They are, nevertheless, entitled to constitutional protections afforded to "persons" in the Constitution, including the protections of the Bill of Rights that are central to this discussion.

The constitutional principles most important to those considering demonstrating or civil disobedience are:

  • the First Amendment right of freedom of speech and assembly;
  • the Fourth Amendment right of freedom from unreasonable searches and seizures;
  • the Fifth Amendment right against compelled self-incrimination;
  • the Sixth Amendment rights (right to assistance of counsel, right to speedy and public trial by an impartial jury, notice of the "nature and cause of the accusation," right to confront opposing witnesses and the right to compulsory process for obtaining favorable witnesses); and
  • the Eighth Amendment prohibitions against excessive bail or fines and against cruel and unusual punishment.

The nature and scope of these constitutional rights will be discussed throughout this pamphlet.

When an individual is a participant in a civil case or is charged in a criminal matter, the case can be heard in either state or federal court. Although the majority of cases are brought in state courts, there are limited circumstances when a case may be brought in federal court. These circumstances include when there is a question about the interpretation of the federal Constitution, when the crime was committed on federal property or involves an issue that is predominantly federal law, or after all state appeals processes have been exhausted.

Prosecutors representing the various branches of government, from the United States Attorney's office to the local city or county prosecutor's office, prosecute violations of criminal law, including acts of civil disobedience. Generally, a charge stemming from an act of civil disobedience falls under the jurisdiction of a state court and consequently, this pamphlet focuses primarily on the state court system.

In a state criminal process, the governing principles are provided by (in order of importance) the federal Constitution, federal laws and regulations, the state constitution and state laws and regulations. Whenever a state constitution or state law clashes with the federal Constitution or federal laws, the federal standard will prevail. This means that state governments and courts and the people who act on their behalf are bound by the principles and guarantees set out in federal law.

This protection for individuals has been codified into the laws of the United States at Section 1983 of Title 42 of the United States Code, which provides: "Every person who, under color of any . . . [law] . . . of any State or Territory, subjects . . . any citizen of the United States or other person within the jurisdiction . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Stated simply, any "state actor" who violates the federally protected rights of a citizen, is answerable for such actions in court. This provision covers and is usually used against police; law enforcement officers act "under color" of state law.


Your Constitutional Right to Demonstrate

A demonstration can be an effective way for an individual or group to communicate a belief that a certain law, or corporate or government action is unacceptable. Generally speaking, you have a fundamental right guaranteed by the First Amendment to engage in non-violent speech and assembly, even if your activities and views are unpopular or controversial. The Supreme Court has noted:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

However, your First Amendment rights to free speech and assembly, including your right to engage in a demonstration, are not absolute. Defamation, obscenity, and fighting words have long been excluded from First Amendment protection by the Supreme Court. Fighting words, the most germane exceptions for this pamphlet, have been conceptualized by the Court as words "likely to provoke the average person to retaliation, and thereby cause a breach of the peace."

Although defamation, obscenity and fighting words are not protected by the First Amendment, it is important to understand that the government may not restrain even these types of speech. The government may not stop you from uttering defamation or fighting words: to do so would constitute a "prior restraint" on speech, which is prohibited except in the very limited case of speech affecting national security. What is meant is that if you are sued for engaging in defamation, or if you are arrested for engaging in verbal behavior that the court finds constitutes "fighting words," the fact that speech is involved will not help you because the First Amendment does not protect defamation or fighting words.

More important in the context of demonstrations is the fact that the government can impose reasonable time, place and manner restrictions on permissible types of speech. Here again, the Supreme Court has been careful to delineate strict requirements. Any proscriptions of free speech, including your right to demonstrate, are only valid so long as the limitations are:

  1. content neutral;
  2. narrowly tailored to serve a compelling government interest; and
  3. broad enough to provide ample alternative channels of communication.

This means that for a restriction to be permissible it must not hinge on the content of the message, must be no more limiting than absolutely necessary, and must leave sufficient opportunities for individuals to communicate their message.

The following are examples of acceptable time, place and manner restrictions:

  1. A local government has passed an ordinance that prohibits any protest within 1,000 feet of a hospital.
  2. A state government has created a "no-protest zone" around the entrance of abortion clinics; protesters -- no matter what their message -- are allowed no closer than 50 feet from the door.
  3. A municipal ordinance restricts the use of sound amplification systems to between 12.30 p.m. and 1.30 p.m. and between 5.00 p.m. and 7.00 p.m.

The following are impermissible restrictions:

  1. A city passes a law that states that the mayor will have discretion to decide which groups will be granted a demonstration permit. (Places too much discretion in a governmental figure.)
  2. A town passes a law that prohibits displays of signs advertising political events or viewpoints for more than ten days before or three days after a political event, while permitting the display of any other sign within thirty days of the event it concerned. (Content-based restriction on expression.)
  3. A municipal ordinance prohibits door-to-door solicitation or canvassing after 5 p.m., on the grounds that this will deter crime and protect against intrusion on citizens' hours of rest. (Does not leave open ample channels of communication and is not narrowly tailored to serve the governmental interest.)
  4. A city passes a law that states that no one may hand out literature on the street, in order to prevent unsightly litter on the sidewalks. (Governmental purpose not sufficient to justify severe restriction on expression.)

The rights of free speech and assembly may not be abridged simply because government officials fear that such speech or assembly will provoke a disorderly reaction in an audience of the public at large. There is no so-called "heckler's veto." The Supreme Court has considered this matter on many occasions, and in almost every instance has decided that it is impermissible to place a prior restraint on a speaker who wishes to exercise her constitutional rights because her action is likely to provoke resentment, disorderliness or hostility in others. Only when a speaker "passes the bounds of argument or persuasion and undertakes incitement to riot" can she be arrested for disorderly conduct.

Planning A Demonstration

If you are planning a demonstration, you should first check to see if a permit is required as there are certain forums in which it is necessary to obtain permission before a demonstration may be held. For example, demonstrations on a university's property usually require permission from the university administration. Many municipalities also require a permit if a protest will use sound amplification equipment. Unless the element of surprise is extremely important, there is little point in not complying with a permit requirement. Presumably you are planning to demonstrate concerning an injustice, rather than against the requirement that you obtain a permit. If you are required to obtain a permit and do not, you are violating proper procedure and will probably be asked to disband. Further perseverance may result in arrest. Furthermore, a violation may occur if proper permits are obtained but permit restrictions are violated by, for example, exceeding noise levels or crossing boundaries.

Your right to demonstrate may be affected by whether you plan to assemble on a public area or on private property. The discussion above concerning the state's ability to regulate speech and expressive conduct pertained to demonstrations on public property. Private landowners and businesses have much greater power to restrict activities on their property. The degree to which the analysis of demonstrators' rights will vary depending upon whether the demonstrators are on public or private property varies from state to state, depending on the protections that the state constitution is interpreted to afford. State constitutions may provide greater protection of individual liberties than those guaranteed by the federal Constitution. For example, a state constitution may give you the right to distribute pamphlets in a privately-owned shopping center, although no such right would be provided under the federal Constitution. Similarly, a state constitution may protect your right to speak on the campus of a private university, whereas the federal Constitution would not guarantee that right.. Educating yourself on your rights in your jurisdiction will enable you to organize the most effective demonstration while avoiding unnecessary interference from the police or the risk of the imposition of penalties.

You should consult an attorney as to the possible penalties that may result from activities that you plan as part of your demonstration, or from possible situations that may arise during the event. Penalties may include arrest, fines and incarceration. Find out what behavior would constitute an offense in your jurisdiction. For example, going limp upon arrest constitutes "resisting arrest" in some jurisdictions, but not in others.

There should always be at least one non-demonstrating attorney present at the scene of the demonstration. At least one person at the demonstration (usually the attorney) should be in charge of keeping a list of, and keeping track of, the individuals who may be arrested. This will facilitate obtaining information about those individuals from the police if they are arrested. Ideally, the demonstration should be videotaped by more than one person, to document individuals and incidents.

The state may act to prevent lawlessness or imminent violence resulting from a clash between demonstrators and the onlooking crowd. If such a clash occurs, however, the police must first try to disperse the crowd. If this fails, the demonstrators may be arrested. If the marchers have exceeded the bounds of persuasion and have begun to incite imminent lawlessness, the state can punish them.

It is important to realize that, as a general matter, demonstrators must obey the orders of the police, whether or not the demonstrators believe that they have a right to be in a particular location or engage in a particular activity or form of speech, or whether or not the demonstrators believe that the police are unduly solicitous of the feelings or reaction of onlookers or the target of the demonstration.

You are required to obey the instructions of the police, and also to submit to arrest, even if you believe that you have done nothing wrong. For example, if the police characterize your behavior as disorderly conduct and decide to arrest you, and you do not cooperate with the arrest, you may be separately charged with resisting arrest, in addition to the charge of disorderly conduct. Even if it is later determined that your actions did not constitute disorderly conduct, you may still face charges for and be convicted of the offense of resisting arrest.

Similarly, you may not disobey the order of a court restraining your activity, even if you believe that the order of the court is wrong. This was vividly illustrated during the civil rights marches in the South, where courts treated violations of court orders constituting a prior restraint on speech and expressive conduct as a more serious offense than refusal to abide by the same statute. The City of Birmingham, Alabama, had an ordinance that denied permission for a license to hold a protest march if "the public welfare, peace, safety, health, decency, good order, morals or convenience" would be jeopardized. The Supreme Court determined that the licensing restriction was unconstitutional and held that "a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of free expression for which the law purports to require a license." The Supreme Court, however, had upheld the conviction of civil rights protesters who had violated the same statute after the words of the statute had been incorporated verbatim into an injunction forbidding their march. The marchers proceeded with their protest and did not seek court review of the injunction in the two days between its issuance and their march. The Court emphasized that courts are more likely to punish contempt of their orders than violations of criminal statutes when it held that "[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question. But the way to raise that question was to apply to the Alabama courts to have the injunction modified or resolved."

The assistance of a non-demonstrating attorney at a demonstration can frequently prevent a disagreement with the police from escalating into arrests and associated charges. The attorney may be able to intercede to defuse a clash with law enforcement officials, so that demonstrators can communicate their message effectively while the police fears of a breach of the peace may be allayed.

Civil Disobedience

Civil disobedience, as opposed to demonstrating, is the purposeful violation of a law to communicate the protester's belief that the law is unconstitutional or morally defective. Although some people think that violent action can constitute civil disobedience, the tradition of civil disobedience in this country is non-violent. Civil disobedience is used in many different arenas and for many different reasons. The usual goal of civil disobedience is to create public support and pressure to force a change in the law in question.

Although civil disobedience has a long history in the United States, from the Boston Tea Party to some of the most important moments of the civil rights movement, there is no constitutional right to engage in civil disobedience. Therefore, a person who engages in civil disobedience must expect to be exposed to the maximum penalties of the law, which may include a fine and imprisonment. If the law under which the person is charged is subsequently proven to be unconstitutional, however, the disobedient will be acquitted. On the other hand, if the purpose is to highlight the immorality of an otherwise valid law, rather than its unconstitutionality, the individual must expect to be prosecuted to be fullest extent of the law's penalties.

The following examples illustrate instances of civil disobedience:

  1. A state has a "hunter harassment" law that specifically prevents protesters from demonstrating within 400 feet of any designated hunting area. An animal rights activist from that state consults an attorney to see if the law is constitutional. The attorney advises her that he thinks the law violates the free speech and equal protection guarantees of the federal Constitution, and may also violate similar provisions of the state constitution. The activist and her attorney discuss the ramifications of violating the law. She decides to violate the law by carrying a sign saying "Stop Killing Animals" within 400 feet of a designated hunting area. This is civil disobedience.
  2. A town has an ordinance that states that a residential property owner or renter may not have more than three animals on her property. A residential property owner in that town has three animals and wants to take in several strays. She believes that the ordinance is morally wrong and wants to call attention to that belief. She consults an attorney and learns that the penalty for violating the ordinance is $500.00. The attorney correctly advises her that the ordinance does not violate the federal or state constitution and does not violate state or federal statutes or regulations. Nonetheless, the resident purposefully violates the ordinance, then calls the authorities to inform them of her "crime." She is fined $500.00, which she pays. Subsequently, she tells a local television program about the event, explaining why she believes the ordinance is unfair and should be struck down. This is civil disobedience.

It is important to have at least one non-participating attorney at the scene of the civil disobedience if possible. Again, that attorney should be notified of and keep a list of those participants who plan on being arrested, so that the attorney can inquire about police actions concerning those individuals. It is also again highly advisable that the action be videotaped, by at least two persons, to document the course of events and establish the nature of the action and the police response.

Legal Consequences of Civil Disobedience

You should also consult with an attorney so that you understand the possible consequences of whatever nonviolent action you may undertake. The attorney will be able to determine the classification of offenses and advise you whether the act likely to be committed is a disorderly persons offense, misdemeanor or felony, as well as warn you of maximum periods of incarceration and fines. Such classifications and penalties vary from state to state and from municipality to municipality.

For example, criminal offenses are usually divided into various "levels." The categorization of crimes will vary from state to state. In New York, for example, there are felonies, misdemeanors and violations. Felonies and misdemeanors are crimes, conviction of which results in a criminal record. Violations are not crimes and are on the same level as moving traffic violations. Felony offenses have a minimum potential incarceration period of at least one year and/or a maximum fine of $5,000, and can include such crimes as grand larceny, serious assault, narcotics sales and homicide. Misdemeanors are less serious crimes, and are punishable by no more than one year incarceration and/or a maximum fine of $1,000. Examples of misdemeanors include petit larceny, resisting arrest, simple assault and some levels of trespass. Violations are punishable by a maximum sentence of 15 days in jail and/or a fine of up to $250, and can include disorderly conduct, harassment and simple trespass. Again, you must ascertain what the law states in your jurisdiction.

The following chart illustrates the contrast among three jurisdictions:

Offense Classification Maximum Incarceration & Fine
New York Disorderly Conduct Violation 15 days/$250
Trespass Violation 15 days/$250
Resisting Arrest Misdemeanor 12 months/$1,000
California Disorderly Conduct Misdemeanor 90 days/$400
Trespass Misdemeanor 12 months/$1,000
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:

Disorderly Conduct:
unreasonable noise, disturbing a lawful assembly, obstructing pedestrian or vehicular traffic, refusing a police order to disperse, or a more general act such as "creating a physically offensive condition by any act which serves no legitimate purpose." Clearly, almost any act can be considered disorderly conduct by a police officer or a judge.
knowing presence on property without the permission of the owner.
Resisting Arrest:
intentionally attempting to prevent an arrest. Courts have interpreted this to include causing the police to use force to make an arrest, such as when the person arrested goes limp and makes the police carry her away.
causing another to be in fear of imminent bodily harm or death. In New York, the crime of assault in the second degree (a felony crime) is defined as causing injury to a police officer with the intent of preventing the officer from performing her duties. There are frequent claims that police officers charge this when they injure someone, so as to lay the foundation for their own defense in case the arrestee makes a complaint.
violent and tumultuous conduct which causes public unrest or alarm.

A Warning Concerning Racketeering

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.

Your Rights upon Arrest

The Fourth Amendment and Probable Cause to Arrest

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 dismissed.

The Arrest

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.

Your Rights During Detention

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:

  1. you must first be informed in clear and unequivocal terms of your right to remain silent,
  2. the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against you in court,
  3. if you are held for interrogation, you must be clearly informed that you have the right to consult with a lawyer and to have the lawyer with you during interrogation and
  4. the warning of your right to consult with an attorney must be accompanied by the explanation that if you are indigent, a lawyer will be appointed to represent you.

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 Procedure

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.

A Caution

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.

The Grand Jury

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 Subpoena Process

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:

  1. your right to remain silent if a truthful answer would tend to be incriminating;
  2. the warning that, if you have not been granted immunity, anything you say may be used against you by the grand jury or in a subsequent legal proceeding;
  3. that if you have retained an attorney, you will be permitted a reasonable opportunity to step outside the grand jury room to consult with your attorney. (Unlike a regular court appearance, you do not have the right to have your attorney present during your testimony before a federal grand jury. Whether you have a right to an attorney with you before a state grand jury varies from state to state.)

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.

Your Appearance Before The Grand Jury

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.

Choosing not to Testify

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.

Witness Immunity

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.

Transactional 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.

Use Immunity

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.

Promises not to Prosecute and Informal Immunity

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.

Grounds for Refusing to Testify Despite Immunity

First Amendment Concerns

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.

The Attorney-Client Privilege

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.

The Marital Privileges

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.