Topic:
GRAND JURY; INDICTMENTS; CRIMINAL LAW;
Location:
JURIES;
Scope:
Court Cases; Connecticut laws/regulations;

OLR Research Report


January 18, 2002

 

2002-R-0088

THE EVOLUTION OF CONNECTICUT'S GRAND JURY SYSTEM

 

By: Jason K. Matthews, Legislative Fellow

You asked us to describe (1) the current law for Connecticut's grand jury system and (2) historical changes made to Connecticut's grand jury system.

SUMMARY

Under Connecticut law, crimes charged by the state on after May 26, 1983 are prosecuted by complaint or information, rather than grand jury indictment. By law, an investigatory grand jury can be empanelled to conduct investigations of (1) government corruption; (2) Medicaid vendor fraud; (3) racketeering; (4) election law violations; and (5) felonies punishable by more than five years imprisonment, for which the chief state's attorney can show that there is no other means of obtaining information as to whether a crime has been committed or the perpetrator's identity.

The investigatory grand jury is a judge, judge referee, or three-judge panel. The applicant must have a reasonable belief that the administration of justice requires an investigation to determine whether there is probable cause to believe a crime has been committed. If the applicant is the chief state's attorney or a state's attorney, he also must demonstrate that normal investigatory methods have failed, are likely to fail, or are too dangerous and state the reasons why he believes that a grand jury investigation will lead to a finding of probable cause that a crime was committed.

The grand jury and attorneys or state's attorneys who are asked to assist it may subpoena people to testify before it and produce documents. Witnesses must be informed of their right to have counsel present and, if they are targets, of their right to remain silent. At the conclusion of the investigation, the grand jury must file its finding of whether there is probable cause to believe a crime was committed with the court and the prosecutor, if any, who applied for the grand jury.

The legislature created the investigatory grand jury in 1941 giving it authority to investigate any crime. In 1985, the legislature restricted the scope of the investigation to crimes that concerned (1) state and local government corruption; (2) Medicaid vendor fraud; (3) organized crime; and (4) class A, B, or C felonies when the chief state's attorney can show he has no other means of obtaining information concerning whether a crime has been committed. In 1987, the legislature expanded this list to include (1) election law violations and (2) unclassified felonies punishable by more than five years imprisonment. Also, in 1985, the legislature changed the standard used to determine if an investigatory grand jury was necessary. Before 1985, the standard was whether it appeared that the administration of justice required an investigation to determine if there is probable cause to believe that a crime has been committed. After 1985, the applicant had to show that normal investigatory methods had failed, were likely to fail, or were too dangerous.

Until November 1982, Connecticut's Constitution required a grand jury indictment before someone could be prosecuted for a crime punishable by death or life imprisonment. A constitutional amendment eliminated this requirement because of perceived inequities in the grand jury process. These included (1) its secrecy and resulting inaccessibility, (2) the inability of prospective defendants and witnesses to present evidence on their own behalf, and (3) restrictions on the grand jury transcripts that effectively prevent courts from reviewing the evidentiary basis for the indictment (State v. Mitchell, 200 Conn. 323 (1986)). Although Connecticut abolished the constitutional grand jury, it retained the investigatory grand jury.

CURRENT CONNECTICUT GRAND JURY LAW

When Connecticut repealed the grand jury indictment requirement for crimes punishable by death or life imprisonment in 1983, it substituted a probable cause hearing requirement. It retained the investigatory grand jury, defined by statute as a judge, constitutional state referee, or three-judge panel appointed "to conduct an investigation into the commission of a crime or crimes" (CGS 54-47b).

Scope of Grand Jury Investigations

The legislature has narrowed the scope of the investigatory grand juries in recent years. Currently, it can investigate only (1) state and local government corruption; (2) Medicaid vendor fraud; (3) racketeering activity under CORA; (4) election law violations; and (5) class A, B, or C felonies or unclassified felonies punishable by more than five years imprisonment, for which the chief state's attorney or state's attorney can show that there is no other means of obtaining information as to whether a crime has been committed or the identity of the person or people who may have committed it (CGS 54-47b).

Application for Investigation

Superior, Appellate, or Supreme Court judges, the chief state's attorney, or a state's attorney may apply to a panel of three Superior Court judges specially designated by the chief justice of the Supreme Court, for a grand jury investigation. The applicant must have a reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe a crime has been committed. In addition, he must include in his application a statement of the facts and circumstances that justify this belief. If he is the chief state's attorney or a state's attorney, he also must include:

1. the status of the investigation and of the evidence collected by the application date,

2. why other normal investigative procedures that were tried failed or why normal procedures are unlikely to succeed or are too dangerous to use, and

3. the reasons for the applicant's belief that an investigatory grand jury and the investigative procedures it employs will lead to a finding of probable cause that a crime was committed (CGS 54-47c).

Panel May Approve Applications

The panel reviewing applications may approve them and order an investigation if it finds that:

1. the administration of justice requires an investigation to determine if there is probable cause to believe that a crime was committed;

2. for applications submitted by the chief state's attorney or a state's attorney, other normal investigative procedures have failed, reasonably appear to be likely to fail, or appear too dangerous to try; and

3. the investigative procedures that an investigative grand jury uses appear likely to succeed in determining if there is probable cause to believe that a crime was committed (CGS 54-47c).

The panel must specify its findings on these issues in its order for the investigation (CGS 54-47d). The panel that approves the appointment must designate a court location where motions to quash and contempt proceedings will be heard and investigation findings and records filed. The panel's order must specify a duration of up to six months for the investigation, and the investigation's scope. Subsequently, the panel may approve an extension in the duration or a change in the investigation's scope.

Disclosure to the Public

The panel's order and the application must be sealed, but the panel must submit to the chief court administrator a summary of the investigation's scope. This summary is available to the public unless a majority of the panel determines it should seal the summary to protect an individual's safety or the investigation itself, or to comply with other statutes or court rules.

The grand jury must conduct its investigation in private unless the panel, by majority vote, determines that disclosure is in the public interest (CGS 54-47e).

Attorney Assistance to Grand Jury; Grand Jury Subpoena Power

The grand jury may seek assistance with its investigation from the chief state's attorney or state's attorney who applied for the grand jury, or, if a judge was the applicant, from an attorney it appoints. It may subpoena people to testify before it and produce documents. If a summoned witness fails to comply, the grand jury may report this to the appropriate state's attorney or the chief state's attorney, who in turn may file a complaint in criminal court. After a show cause hearing, the court may punish the witness for contempt.

Rights to Counsel and Target Warnings

The grand jury or the assisting attorneys may question the witness, who must be informed that he has the right to have counsel present and to consult with counsel. The statutes require an official court stenographer or his assistant to record the testimony. The official conducting the investigation must let witnesses know whether they are targets, and advise targets of their federal and state constitutional rights not to be compelled to give evidence against themselves. In addition, attorneys appointed to assist in the investigation must disclose to the grand jury information they possess or control about targets that would tend to exonerate them (CGS 54-47f).

Investigation Findings

Within 60 days after the investigation ends, the grand jury must file its finding with the court, the panel of judges that receives applications for grand jury investigations, and the chief state's attorney or the state's attorney, if any, who applied for the grand jury. The finding must state whether there is probable cause to believe a crime was committed. It may include all or part of the investigation record. However, it may not disclose allegations that a person committed a crime unless the grand jury found probable cause that he committed it or he requests release of that part of the record.

The finding must be open to public inspection and copying at the court seven days after it is filed, unless, within that period, the chief state's attorney or the state's attorney with whom it was filed requests that the grand jury not disclose all or part of its finding (CGS 54-47g).

In addition, the stenographer must file the investigation record with the court and the panel. This record is available upon request, and without a hearing, to the chief state's attorney or the state's attorney, who applied for the grand jury.

HISTORY OF CONNECTICUT'S INVESTIGATORY GRAND JURY

The legislature enacted the investigative grand jury statute in 1941

( 889f. of the 1941 Suppl.) As originally enacted, it provided only for investigations by the Superior Court.

Prior to 1978, this law authorized the Superior Court for any county or judicial district to appoint one of its judges or referees (retired judges) to conduct an investigation whenever it appeared that the administration of justice required such an investigation to determine whether there is probable cause to believe that a crime or crimes had been committed within the county or judicial district (CGS 54-47 (1978)).

PA 85-611

In 1985, PA 85-611 restricted the scope of grand jury investigations to (1) state and local government corruption; (2) Medicaid vendor fraud; (3) organized crime; and (4) class A, B, or C felonies when the chief state's attorney can show he has no other means of obtaining information about whether a crime has been committed. Prior law permitted grand juries to investigate any type of criminal activity.

The act required the Connecticut Supreme Court's chief justice to appoint a panel of three superior court judges to receive and decide applications for grand jury investigations. Prior law required the chief court administrator or the superior court in any judicial district to order the investigations.

It specifically authorized Superior, Appellate and Supreme Court judges, as well as the chief state's attorney or a state's attorney, to apply for a grand jury investigation. Their applications had to include facts demonstrating that normal investigatory methods had failed, were likely to fail, or were too dangerous.

It specified that the matter under investigation, the investigation itself, and documents related to the investigation were all private and not available to the public unless the panel, by at least a two-thirds vote, authorized release of the information or documents in the public interest.

The act also added several protections to the investigatory grand jury procedures, such as (1) authorizing witnesses to consult with counsel, (2) requiring that witnesses who are targets of investigations be advised of their constitutional right not to testify or give self-incriminating evidence, and (3) requiring attorneys assisting in the investigation to disclose to the grand jury exculpatory evidence.

PA 87-350

In 1987, PA 87-350 expanded the scope of grand jury investigations to include election law violations and unclassified felonies punishable by more than five years' imprisonment. It authorized grand jury investigations of felonies when there was no other way of identifying who may have committed the crime, rather than only when there was no other way of demonstrating a crime has been committed. In addition, it authorized state's attorneys, rather than only the chief state's attorney, to make this determination.

The act also expanded the types of offenses for which individuals could be forced under a grant of immunity to testify or produce documents, to include (1) Medicaid vendor fraud; (2) state and local government corruption; (3) organized crime; (4) A, B, or C felonies or unclassified felonies punishable by more than five years' imprisonment when the chief state's attorney or a state's attorney can show there is no other means of finding out whether a crime has been committed or who has committed a crime. Prior law authorized compelling testimony or document production only in criminal proceedings involving narcotics, arson, bribery, gambling, election law violations, violent felonies, and certain environmental violations.

PA 88-345

In 1988, PA 88-345 made all investigatory grand jury findings available to the public unless the grand jury specifically stops disclosure. Findings could include portions of the record that the grand jury incorporated. Other parts of the record remained secret unless the panel found that its release was in the public interest. The act prohibited the panel from releasing portions of the record containing criminal allegations about a person when the grand jury did not find probable cause that the person committed a crime, but allowed that person to request disclosure.

The act allowed the chief state's attorney or the state's attorney who requested the investigation to ask the grand jury not to disclose all or part of the findings. Such a request stopped disclosure. The investigatory grand jury had to hold a hearing within 15 calendar days of the filing of the motion and render its decision within five days of the end of the hearing. It had to deny the motion unless it found a substantial

probability that one of the following interests would be harmed and there were no reasonable alternatives to nondisclosure:

1. a person's right to a fair trial,

2. prevention of a potential defendant's flight,

3. prevention of inducing perjury or tampering with a witness, or

4. protection of lives and reputations of innocent people.

The act required the three-judge panel that ordered a grand jury investigation to submit a summary of the scope of the investigation to the chief court administrator. It made this summary public unless a majority of the panel ordered it sealed to protect someone's safety, protect the investigation, or comply with other law prohibiting disclosure.

HISTORY OF CONNECTICUT'S INDICTING GRAND JURY

Before November 1982, Connecticut's constitution required a grand jury indictment as a prerequisite to the prosecution of anyone charged with a crime punishable by death or life imprisonment. This right to a grand jury determination of probable cause had its origin in our early statutory and common law and became part of our constitutional rights when the first state constitution was adopted in 1818 (Nahum & Schatz, “The Grand Jury in Connecticut,” 5 Conn. B.J. 111-21 (1931)). Although originally conceived as a shielding device to protect individuals from unfounded prosecutions, the grand jury system came to be widely criticized for its secret operation and its ex parte nature (“Connecticut Grand Juries: The Case for Reform,” 54 Conn. B.J. 8, 9-16 (1980)).

In Connecticut, an accused was permitted to attend the grand jury session and to question witnesses. However, he was not permitted to present evidence in his own behalf or to be represented by counsel. In addition, in order to preserve the secrecy of grand jury proceedings, the law carefully limited the use of the transcript of the session.

The statutory shield to the grand jury transcript meant that a person against whom an indictment had been returned was effectively precluded from obtaining court review of the evidentiary basis of the indictment. Under CGS 54-45a(b), the grand jury “may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness.” Such transcript may also be used as evidence in a prosecution for perjury committed by a witness while giving such testimony.

To try to correct these problems with the grand jury system and to provide more protections to an accused charged with a serious crime, the legislature in 1981 proposed a constitutional amendment to abolish the grand jury indictment system in Connecticut and to replace it with an open and adversarial probable cause hearing (Substitute House Joint Resolution No. 36 (1981)). The voters approved this proposed amendment on November 2, 1982. The secretary of the state certified it on November 24, 1982, as Amendment Seventeen to the Connecticut Constitution (State v. Sanabria, 192 Conn. 671 (1984)).

In 1983, PA 83-210 limited the statutory requirement of a grand jury indictment for crimes punishable by death or life imprisonment to make it applicable only to people charged with such crimes before May 26, 1983. It imposed the probable cause hearing requirement for people charged after May 25, 1983 (CGS 54-46 and 54-46a (1983)).

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