February 21, 2001
By: Susan Price-Livingston, Associate Attorney
You asked about states that permit law enforcement officials to use investigative subpoenas to gather information in criminal investigations.
At least 12 states, but not Connecticut, permit prosecutors to serve investigative subpoenas on targets, witnesses, and record keepers before they charge a person with a crime. Bills have been introduced in recent General Assembly sessions that would authorize Connecticut's state's attorneys to serve them. The current version of the bill, which the Judiciary Committee has raised, is SB 1115 (copy enclosed).
Wide variations in statutory language, state constitutional provisions, and court-imposed requirements make it difficult to compare other states' laws with SB 1115. Moreover, with one exception, in all of the other states the investigatory subpoena is one component of a criminal procedure that includes investigation and indictment by grand jury. In Connecticut, however, the grand jury's authority is limited. 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. Prosecutors argue that their inability to serve investigative subpoenas and the limited availability of grand jury investigations makes it more difficult for them to gather facts they need to show probable cause.
Investigative subpoenas are usually issued prior to the filing of any criminal charge, allowing prosecutors to gather information before making a decision whether to charge someone with a crime. Generally, they require people to submit to an interview and answer a prosecutor's questions, provide documentary materials, or both. States with statutes authorizing their use are: Arkansas (Ark. Code Ann. § 16-43-212), Delaware (Del. Code Ann., Tit. 29 § 2508), Florida (Fl. Stat. Ann. § 2704), Hawaii (Haw. Rev. Stat. § 28.2.5), Indiana (Ind. Code § 33.14.1-3), Iowa (Iowa Code Ann. § 813.2, Rule 5, subd. 6), Kansas (Kan. Stat. Ann. § 22-3101), Louisiana (La. Code. Crim. Proc. Ann, Art. 66), Michigan (Mich. Comp. Laws Ann. § 767A), Missouri (Mo. Stat. Ann. § 56.085), Montana (Mont. Code Ann. § 46-4-301), Oregon (Or. Rev. Stat. § 180.073), and Utah (Ut. Code Ann. § 77-22-2). We have enclosed copies of these statutes.
A witness appearing in response to an investigative subpoena may assert his Fifth Amendment right against self-incrimination in the same way that a grand jury witness can. He may also file a court motion to quash (void) or modify the subpoena. Grounds for objecting include relevance, overbreadth, burdensomeness, and that compliance would force the person being questioned to disclose information that is protected by a statutory privilege (such as attorney-client or physician-patient communications).
SB 1115 would allow a prosecuting official, after authorization by a Superior Court judge, to subpoena a person to testify or produce property necessary and relevant to an investigation into the possible commission of a class A or B felony, including whether a raised defense is valid.
The bill includes provisions for:
1. subpoena applications;
2. advising a person of certain information and rights;
3. quashing a subpoena;
4. enforcing a subpoena after a person fails to appear, produce documents, or answer questions; and
5. granting immunity to a person, the state calls or intends to call as a witness.
The bill defines a “prosecuting official” as the chief state's attorney, deputy chief state's attorney, state's attorney, assistant state's attorney, or special assistant state's attorney designated by the chief state's attorney. “Property” includes documents, books, papers, records, films, recordings, and other things.
Application for Subpoena
The bill requires a prosecuting official to apply to a Superior Court judge for a subpoena. The judge can authorize the use of a subpoena if satisfied with the application. The application must include the official's sworn affidavit stating the basis for his reasonable belief that:
1. a class A or B felony has been committed or a defense to such a crime has been raised;
2. the person summoned has necessary and relevant information for the investigation of it; and
3. the testimony of the person or production of the property will not occur without a subpoena.
The official must also state that reasonable efforts to secure the testimony or property without a subpoena were unsuccessful.
The bill requires the subpoena to (1) compel the appearance of a witness or the production of property relevant and necessary to the investigation, (2) specify any property to be produced, and (3) require production of documents or records covering a reasonable period of time.
The subpoena can compel attendance or production of property before a judge at a specific location in a courthouse in the judicial district where the underlying incidents occurred or where the prosecuting official is.
The subpoena must be served at least five working days before the date scheduled for the witness's appearance. A Superior Court judge in the judicial district where compliance is required can order otherwise for good cause.
The bill requires the subpoena to advise the person:
1. of the purpose of the investigation;
2. whether he is the target or possible target of the investigation;
3. of his right not to give evidence against himself;
4. of his right to have counsel present, to consult counsel, and to have counsel appointed for him if he is indigent; and
5. of his right to file a motion to quash or modify the subpoena.
Notice to Judge
The bill requires the prosecuting official to notify in writing the presiding judge for criminal matters in the courthouse where compliance with the subpoena is required within 48 hours of serving the subpoena (excluding weekends and holidays). The notice must include the identity of the person and a description of any property requested. The judge must assign a Superior Court judge to preside. The failure to notify does not invalidate the subpoena. The notice and assignment of a judge are confidential and cannot be disclosed. The proceedings are not public.
Appearance of Witness
The bill requires the prosecuting official to advise a witness before questioning:
1. of the purpose of the investigation;
2. whether he is the target or possible target of the investigation'
3. of his right to have counsel present, to consult counsel, and to have counsel appointed for him if he is indigent; and
4. of his right to file a motion to quash or modify the subpoena.
The presiding judge must insure that these rights are not infringed.
The bill allows a public defender to represent an indigent witness summoned by a subpoena and authorizes him to represent the person until the court appoints counsel.
It requires a court reporter or assistant court reporter to make a record of the proceeding. The record must be sealed and cannot be disclosed except that a witness has access to his testimony at any reasonable time and has the right to a copy of the transcript.
Quashing a Subpoena
The bill allows a person summoned to appear or produce property to file a motion to quash a subpoena with the chief clerk of the court in the judicial district where appearance is required. There are no fees or costs for the motion. The motion is sealed. The presiding criminal judge of the court hears the motion or assigns it to another judge for a hearing. The motion must be expeditiously assigned and heard. The clerk consults with the judge to set the date and time of the hearing and gives notice to the parties. Unless the judge orders otherwise, the hearing is conducted in private and the file is sealed.
The bill allows a judge to quash or modify a subpoena if:
1. the witness does not have information relevant and necessary to the investigation;
2. the testimony sought is protected by the attorney-client privilege or a statutory or constitutional privilege;
3. producing the requested property is unreasonable or oppressive or the property is an attorney-client work product; or
4. the judge otherwise finds just cause.
Failure to Appear
If a witness fails to appear, produce property, or answer proper questions, the bill allows a prosecuting official to apply to a Superior Court judge in the appropriate judicial district for an order requiring the witness to appear. The judge, after a hearing, must order the witness to comply with the subpoena if the person does not show cause why he should not answer questions or produce the property. Failing to obey the order is punishable as contempt. The prosecuting official's application and the court order are sealed and cannot be disclosed. The hearing is not open to the public.
The bill allows a state's attorney or the chief state's attorney (at the request of a special assistant state's attorney) to apply to a Superior Court judge for a grant of immunity from prosecution for a person the state calls or intends to call as a witness if the testimony is necessary to investigate the case. The immunity can protect against prosecution, penalties, or forfeiture for (1) testimony or evidence produced by the person, (2) evidence discovered or derived from the person's testimony or evidence, or (3) any transaction or thing that the person testifies or provides evidence about. The person is not immune from prosecution for perjury or contempt committed while giving the testimony or producing the property.
The bill provides that a person properly subpoenaed and given immunity is not excused from testifying or producing property before a prosecuting official because it may tend to convict the person of a crime or subject him to a penalty or forfeiture.
The bill makes all information or property obtained by a prosecuting official under a subpoena confidential and prohibits disclosure except as the official decides in the performance of his duties.
The bill requires property that is not involved in a criminal prosecution to be returned to the person who produced it or otherwise disposed of according to law.