POLITICAL CORRUPTION; ETHICS CODE; CRIME;

CRIME AND CRIMINALS;

You asked why the federal government instead of the state is prosecuting so many of the current high profile political corruption cases.

According to the chief state’s attorney’s office, which prosecutes cases on the state’s behalf, the major reasons that federal, instead of state, prosecutors are prosecuting the current high profile corruption cases are that (1) state prosecutors do not have the legal authority to serve investigative subpoenas and (2) in most cases, it is extremely difficult to meet the probable cause standard for convening a grand jury, which can issue them.

In Connecticut, most people are charged with crimes based on a prosecutor’s affidavit and a judge’s determination that there is probable cause to issue an arrest warrant. Investigative subpoenas are usually issued prior to the filing of any criminal charge allowing prosecutors to gather information before deciding whether to charge someone with a crime. Generally, they require people to submit to an interview and answer a prosecutor’s questions, provide documentary material, or both. Prosecutors argue that their inability to serve investigative subpoenas makes it more difficult for them to gather facts they need to show probable cause.

Under state law, prosecutors applying for a grand jury investigation must have a reasonable belief that the administration of justice requires an investigation to determine whether there is probable cause to believe that a crime was committed, and they must include in their applications a statement of the facts and circumstances that justify this belief. The law allows courts to approve a prosecutor’s application only if they find that (1) the probable cause standard is met; (2) normal investigative procedures have failed, are unlikely to succeed, or are too dangerous; and (3) the grand jury’s investigative procedures appear likely to succeed in determining probable cause that a crime was committed (CGS § 54-47c). Prosecutors contend that they (1) are often unable to meet the law's probable cause standard for convening a grand jury and (2) lack the tools, such as investigative subpoenas, that could help them get information to meet the standard. Further, they argue that if they could meet the standard, they would be able to make an arrest without the need for a grand jury investigation.

In contrast, under federal law, grand juries (1) screen evidence to determine whether to indict and (2) conduct investigations to determine whether a crime has been committed. They can investigate based merely on a suspicion that the law has been violated or even seek assurance that it has not. They conduct their proceedings ex parte and without any judicial officer in attendance. Investigations are primarily controlled by federal prosecutors who typically decide which witnesses should appear, draft the subpoena, and conduct the primary questioning of the witnesses. Subpoenas are issued under the court's authority in the grand jury's name, but the prosecutor is given wide discretion and supervision is minimal.

Federal grand juries have wide discretion and may investigate with no particular defendant or criminal charge in mind. Their function is to inquire into all information that might concern their investigation until they identify an offense or determine that none has occurred. They generally are not required to abide by evidentiary and procedural rules that apply to criminal trials, and may consider information obtained in violation of the Fourth Amendment exclusionary rule (United States v. R. Enterprises, Inc. , 498 U. S. 292 (1991)). Although the rules of evidence do not apply, Federal Rule of Evidence 1101(d)(2) requires that evidentiary privileges be observed.

2003 CHANGES TO GRAND JURY INVESTIGATION LAWS

sHB 6700, which the legislature passed in June but the governor has not yet signed, makes a change to the criteria for approving grand jury investigations. Under existing law, the state's attorney must state that other normal investigative procedures have failed, are unlikely to succeed, or are too dangerous when applying for a grand jury. The panel of judges must make a finding on this criteria before granting a grand jury application. sHB 6700 adds an option to allow the state's attorney to state the specific nature of the alleged crime or investigation that leads him to reasonably conclude that normal investigative procedures would not advance the investigation or would fail to secure and preserve evidence or testimony that might be compromised. The bill allows the panel of judges to approve a grand jury on this basis.

We have attached OLR reports (1) 98-R-0346, which describes federal prosecutors’ investigative subpoenas; (2) 98-R-1101, which describes Connecticut grand juries; and (3) 96-R-1085, which summarizes the state and federal grand jury laws.

VR: eh