Connecticut Seal

General Assembly

 

Raised Bill No. 6698

January Session, 2013

 

LCO No. 5504

 

*05504_______JUD*

Referred to Committee on JUDICIARY

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING GRAND JURY REFORM.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 54-47b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

For the purposes of sections 54-47a to 54-47h, inclusive:

(1) "Applicant" means [any judge of the Superior Court, Appellate Court or Supreme Court,] the Chief State's Attorney or a state's attorney who makes an application to a [panel of judges] presiding judge for an investigation into the commission of a crime or crimes.

(2) "Crime or crimes" means (A) any crime or crimes involving corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, (B) fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act Amendments of 1965, as amended, (C) any violation of chapter 949c, (D) any violation of the election laws of the state, (E) any felony involving the unlawful use or threatened use of physical force or violence committed with the intent to intimidate or coerce the civilian population or a unit of government, and (F) any other class A, B or C felony or any unclassified felony punishable by a term of imprisonment in excess of five years for which the Chief State's Attorney or state's attorney demonstrates that [he or she has no other means of obtaining sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime] the interests of justice require the use of an investigatory grand jury.

(3) "Investigatory grand jury" means a judge [,] or constitutional state referee [or any three judges of the Superior Court, other than a judge designated by the Chief Justice to serve on the panel, appointed by the Chief Court Administrator to conduct an investigation into the commission of a crime or crimes] assigned to the presiding judge's judicial district and designated by the presiding judge.

(4) ["Panel of judges" or "panel" means a panel of three Superior Court judges designated by the Chief Justice of the Supreme Court from time to time to receive applications for investigations into the commission of crimes in accordance with the provisions of sections 54-47a to 54-47h, inclusive, one of whom may be the Chief Court Administrator.] "Presiding judge" means the presiding judge of the criminal session of the superior court that handles capital felonies under the provisions of section 53a-54b in effect prior to April 25, 2012, class A felonies and unclassified felonies for which the sentence that may be imposed exceeds twenty years, for the judicial district where the crime or crimes are reasonably suspected to have been committed.

(5) "Target" means a person who is reasonably suspected of committing a crime or crimes and is the subject of the investigation.

Sec. 2. Section 54-47c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) [Any judge of the Superior Court, Appellate Court or Supreme Court, the] The Chief State's Attorney in consultation with the state's attorney or state's attorneys in the judicial district or districts where a crime or crimes are reasonably suspected of having been committed, or a state's attorney in consultation with the Chief State's Attorney, may make application to a [panel of judges] presiding judge for an investigation into the commission of a crime or crimes whenever such applicant [has reasonable belief] reasonably suspects that a crime or crimes have been committed and attests that the [administration] interests of justice requires that an investigation [to determine whether or not there is probable cause to believe that a] be conducted into said crime or crimes. [have been committed] The applicant or an attorney or attorneys designated by such applicant shall conduct the investigation.

(b) Each application for an investigation into the commission of a crime or crimes shall be made in writing upon oath or affirmation to [a panel of judges] the presiding judge. Each application shall include the following information: (1) The identity of the applicant and [his] such applicant's authority to make such application; (2) a full and complete statement of the facts and circumstances relied upon by the applicant to justify [his] such applicant's reasonable belief that the [investigation will lead to a finding of probable cause that a crime or crimes have been committed] interests of justice require the use of an investigatory grand jury, including the reasons why the ability to compel the attendance of witnesses and the production of documents and other tangible evidence will substantially aid the investigation; and (3) a full and complete statement of the facts concerning all previous applications known to the applicant, made to any [panel of judges] presiding judge, for investigation of any one or more of the same criminal offenses involving any of the same persons specified in the application, including the action taken by the [panel] presiding judge on each such application. The [panel of judges] presiding judge may require such additional testimony or documentary evidence in support of facts in the application as [it] such judge deems necessary. Such additional testimony shall be transcribed. The application shall also include a full and complete statement of the status of the investigation and of the evidence collected as of the date of such application.

[(c) If the application is made by the Chief State's Attorney or a state's attorney, it shall also include (1) a full and complete statement of the status of the investigation and of the evidence collected as of the date of such application, (2) if other normal investigative procedures have been tried with respect to the alleged crime, a full and complete statement specifying the other normal investigative procedures that have been tried and the reasons such procedures have failed or the specific nature of the alleged crime or the nature of the investigation that leads the applicant to reasonably conclude that the use of normal investigative procedures would not result in the obtaining of information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised, (3) if other normal investigative procedures have not been tried, a full and complete statement of the reasons such procedures reasonably appear to be unlikely to succeed if tried or be too dangerous to employ, and (4) a full and complete statement of the reasons for the applicant's belief that the appointment of an investigatory grand jury and the investigative procedures employed by such investigatory grand jury will lead to a finding of probable cause that a crime or crimes have been committed.]

[(d)] (c) The [panel] presiding judge may approve the application and order an investigation into the commission of a crime or crimes if [it] such judge finds that [(1) the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed, (2) if the application was made by the Chief State's Attorney or a state's attorney, other normal investigative procedures with respect to the alleged crime have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous to employ or, due to the specific nature of the alleged crime or the nature of the investigation, it is reasonable to conclude that the use of normal investigative procedures would not result in the obtaining of information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised, and (3) the investigative procedures employed by an investigatory grand jury appear likely to succeed in determining whether or not there is probable cause to believe that a crime or crimes have been committed] the interests of justice require the use of an investigatory grand jury and that allowing the applicant to compel the attendance of witnesses and the production of documents and other tangible evidence will substantially aid the investigation.

Sec. 3. Section 54-47d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) If the [panel] presiding judge approves the application and orders an investigation into the commission of a crime or crimes, the [Chief Court Administrator] presiding judge shall (1) appoint an investigatory grand jury [to conduct the investigation] before which sworn testimony may be taken and documents and other tangible evidence produced, and (2) designate the court location in the judicial district where any motions to quash and any contempt proceedings shall be heard and any findings and records of the investigation shall be filed. The location of the investigatory grand jury shall be in the judicial district where the crime or crimes being investigated are reasonably suspected of having been committed unless the presiding judge, because of the circumstances of the case, determines that it should be located in another judicial district and designates the court location in such judicial district.

(b) Each order authorizing the investigation into the commission of a crime or crimes by the [panel] presiding judge shall specify: (1) The date of issuance of the order, (2) the period of time within which the investigation is to be conducted, provided in no event shall the investigation be longer than [six] twelve months from the date the [Chief Court Administrator] presiding judge appoints the investigatory grand jury, [to conduct the investigation,] unless an application for an extension of time is filed and granted pursuant to subsection (c) of this section, (3) the scope of the investigation, and (4) the [panel's] presiding judge's reasons for finding that [(A) the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed, (B) if the application was made by the Chief State's Attorney or a state's attorney, other normal investigative procedures with respect to the alleged crime have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous to employ, or, due to the specific nature of the alleged crime or the nature of the investigation, it is reasonable to conclude that the use of normal investigative procedures would not result in the obtaining of information that would advance the investigation or would fail to secure and preserve evidence or testimony that might otherwise be compromised, and (C) the investigative procedures employed by the investigatory grand jury appear likely to succeed in determining whether or not there is probable cause to believe that a crime or crimes have been committed] the interests of justice require the use of an investigatory grand jury, including the reasons why the ability to compel the attendance of witnesses and the production of documents and other tangible evidence will substantially aid the investigation. The [panel] presiding judge shall retain a copy of the order and the original application and shall transmit to the investigatory grand jury, appointed pursuant to subsection (a) of this section, the original order and a copy of the application filed with the [panel] presiding judge.

(c) The investigatory grand jury may make an application to the [panel of judges] presiding judge for an extension of time within which to conduct [its] the investigation or for an amendment to the scope of [its] the investigation. The application for extension or amendment shall set forth the reasons for the [necessity of such] extension or amendment. No more than two extensions or amendments of an order may be granted by the [issuing panel] presiding judge. The period of any extension shall be no longer than the [panel] presiding judge deems necessary to achieve the purposes for which it was granted and in no event shall any extension be for a period longer than six months.

Sec. 4. Section 54-47e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

Any order authorizing the investigation into the commission of a crime or crimes and any application filed with [the panel] a presiding judge pursuant to section 54-47c, as amended by this act, or subsection (c) of section 54-47d, as amended by this act, shall be sealed. [The panel shall submit to the Chief Court Administrator a summary of the scope of the investigation, any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard and the finding and record of the investigation are to be filed. Such summary shall be public unless the panel determines, by majority vote, that such summary be sealed for purposes of (1) ensuring the public safety of any individual, (2) ensuring that the investigation would not be adversely affected, or (3) complying with other provisions of the general statutes or rules of court which prohibit disclosure of such information. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.]

Sec. 5. Section 54-47f of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

[(a) The investigatory grand jury, in conducting the investigation, may (1) seek the assistance of the Chief State's Attorney or state's attorney who filed the application, or his designee, (2) appoint an attorney to provide assistance if a judge of the Superior Court, Appellate Court or Supreme Court filed the application, or (3) appoint any other attorney to provide assistance when necessary in the interest of justice.]

[(b)] (a) The [attendance] appearance of witnesses and the production of documents [at such investigation] or other tangible evidence may be compelled by subpoena, signed by any official authorized to issue such process.

(1) No subpoena may be issued by the Chief State's Attorney or a state's attorney unless the investigatory grand jury approves the issuance of such subpoena. In determining whether to approve the issuance of such subpoena, the investigatory grand jury may consider whether the person to be summoned to appear and give testimony or produce documents or other tangible evidence has information relevant to the investigation. Any subpoena issued pursuant to this subdivision shall be served at least seventy-two hours before the date and time of appearance, not including holidays and weekends, and contain a notice advising the person summoned (A) whether such person is the target of the investigation, (B) that such person has the right to have counsel present while such person is being examined by the investigatory grand jury and to consult with such counsel, (C) that if such person is indigent, such person has the right to have counsel appointed to represent such person, and (D) that such person has the right not to be compelled to be a witness, or give evidence, against himself or herself.

(2) No person summoned to appear and give testimony or produce documents or other tangible evidence shall be required to testify or produce documents or other tangible evidence if (A) compliance with the subpoena by such person would be unduly burdensome, (B) the investigative grand jury determines that the primary purpose of the issuance of the subpoena is to harass the person subpoenaed, (C) such person has already been punished pursuant to subsection (c) of this section for such person's refusal to testify or produce documents or other tangible evidence before any investigatory grand jury related to the same crime or crimes, or (D) such person has not been advised of such person's rights as specified in subdivision (1) of this subsection.

(b) Any person summoned to appear and give testimony or produce documents or other tangible evidence pursuant to subsection (a) of this section may apply to the court of the judicial district designated by the presiding judge pursuant to subsection (a) of section 54-47d, as amended by this act, for the appointment of counsel to represent such person before the investigatory grand jury. Such person shall file with the court a sworn financial affidavit of indigency in such form as shall be prescribed by the Judicial Department. If the court determines that such person is indigent, it shall appoint counsel to represent such person. The Judicial Department shall maintain a list of trial counsel experienced in advising or defending defendants in criminal proceedings whom the court may appoint to represent persons summoned to appear and give testimony or produce documents or other tangible evidence before an investigatory grand jury. The cost for such counsel shall be established by, and paid from funds appropriated to, the Judicial Department.

(c) If any witness properly summoned fails to appear or to produce any documents or other tangible evidence included in the subpoena, or if [he] such witness fails to answer any proper question, the investigatory grand jury [conducting the investigation] may report the matter to the state's attorney for the judicial district [which] that has been designated [in] under subsection (a) of section 54-47d, as amended by this act, unless such state's attorney is the applicant, [or has been appointed to assist in such investigation,] in which case the investigatory grand jury shall report the matter to the Chief State's Attorney, and such state's attorney or Chief State's Attorney, as the case may be, may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before the court and show cause why [he] such witness should not be punished as for a contempt, and if, after hearing, the court finds that [he] such witness failed to appear without due cause or failed to produce any document or other tangible evidence properly to be presented to the investigatory grand jury or failed to answer any proper question in the course of the investigation, it may punish [him] such witness as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.

(d) Witnesses may be examined by the investigatory grand jury [conducting the investigation] or by any attorney or attorneys appointed by such investigatory grand jury [for such purpose] to conduct the investigation. At the hearing, the [official] attorney or attorneys conducting the investigation shall inform the witness that [he] such witness has the right to have counsel present and to consult with such counsel. A witness shall have the right to leave the investigatory grand jury room to consult with such witness's counsel at reasonable times and for a reasonable period of time upon the request of the witness.

(e) (1) The [official] attorney or attorneys conducting the investigation shall inform [any] a witness who is a target [of the investigation] that [he] such witness is a target and [shall advise him] that [he] such witness has the right under the Constitution of the United States and the Constitution of Connecticut not to be compelled to be a witness, or to give evidence, against himself or herself. Neither the Chief State's Attorney nor a state's attorney shall summon before an investigatory grand jury a target who has stated through such person's counsel that such person intends to invoke such person's privilege against self-incrimination.

(2) A target may testify before the investigatory grand jury. The attorney or attorneys conducting the investigation shall notify such target of such person's right to testify, unless such notification may result in such person's flight, endanger other persons or obstruct justice or unless such attorney or attorneys are unable to notify the target with reasonable diligence. A target may request, orally or in writing, the investigatory grand jury to cause a person identified by such target to be summoned as a witness in the investigation. The investigatory grand jury may summon such witness pursuant to subsection (a) of this section.

(f) Any attorney appointed to [assist in conducting] conduct the investigation shall disclose to the investigatory grand jury any exculpatory information or material in [his] such attorney's possession, custody or control concerning any person who is a target. [of the investigation.]

(g) An official stenographer of the Superior Court or [his] such stenographer's assistant shall record any testimony taken at the investigation.

Sec. 6. Section 54-47g of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) [Within] Not later than sixty days [of] after the conclusion of the investigation, [the investigatory grand jury conducting such investigation shall file its finding with the court of the judicial district designated by the Chief Court Administrator pursuant to subsection (a) of section 54-47d, and shall file a copy of its finding with the panel and with the Chief State's Attorney or a state's attorney if such Chief State's Attorney or state's attorney made application for the investigation. The] the stenographer shall file any record of the investigation with the court of the judicial district designated by the [Chief Court Administrator] presiding judge pursuant to subsection (a) of section 54-47d, as amended by this act. [and the panel and the Chief State's Attorney or a state's attorney, if such] The Chief State's Attorney or state's attorney who made application for the investigation [,] shall have access to such record upon request made to the clerk of the court without a hearing. [Such finding shall state whether or not there is probable cause to believe that a crime or crimes have been committed. Except as otherwise provided in this section, any part of the] The record of the investigation [not disclosed with the finding pursuant to subsection (b) of this section] shall be sealed, provided any person may file an application with the [panel] presiding judge for disclosure of any such part of the record. Upon receipt of such application, the [panel] presiding judge shall, after notice, hold a hearing and [the panel, by a majority vote,] may disclose any such part of the record when such disclosure is deemed by the [panel] presiding judge to be in the public interest, except that no part of the record shall be disclosed which contains allegations of the commission of a crime by an individual if the [investigatory grand jury failed to find probable cause] Chief State's Attorney or state's attorney has not obtained an arrest warrant that sets forth that there is probable cause to believe that such individual committed such crime unless such individual requests the release of such part of the record. Any person aggrieved by an order of the [panel] presiding judge shall have the right to appeal such order by filing a petition for review with the Appellate Court [within] not later than seventy-two hours [from] after the issuance of such order.

(b) The investigatory grand jury may issue a finding of the investigation if it finds such issuance to be in the public interest. The investigative grand jury shall file a copy of such finding, if issued, with the Chief State's Attorney or the state's attorney that made application for the investigation. Any such finding of the investigation shall be open to public inspection [and copying at the court where it has been filed] for seven calendar days after it has been [filed] issued, unless within that period the Chief State's Attorney or a state's attorney with whom the finding was filed files a motion with the investigatory grand jury requesting that a part or all of such finding not be so disclosed. The finding may include all or such part of the record as the investigatory grand jury may determine, except that no part of the record shall be disclosed which contains allegations of the commission of a crime by an individual if the [investigatory grand jury failed to find probable cause] Chief State's Attorney or state's attorney has not obtained an arrest warrant that sets forth that there is probable cause to believe that such individual committed such crime unless such individual requests the release of such part of the record. In such event as much of the finding as has not been sought to be withheld from disclosure shall be disclosed promptly upon the expiration of said seven-calendar-day period.

(c) [Within] Not later than fifteen calendar days [of] after the filing of such motion, the investigatory grand jury shall conduct a hearing. The investigatory grand jury shall give written notice of such hearing to the person filing such motion and any other person the investigatory grand jury deems to be an interested party to the proceedings, which may include, but not be limited to, persons who testified or were the subject of testimony before the investigatory grand jury. [Within] Not later than five calendar days [of] after the conclusion of the hearing, the investigatory grand jury shall render its decision, and shall send copies thereof to all those to whom it gave notice of the hearing. It shall deny any such motion unless it makes specific findings of fact on the record that there is a substantial probability that one of the following interests will be prejudiced by publicity that nondisclosure would prevent, and that reasonable alternatives to nondisclosure cannot adequately protect that interest: (1) The right of a person to a fair trial; (2) the prevention of potential defendants from fleeing; (3) the prevention of subornation of perjury or tampering with witnesses; or (4) the protection of the lives and reputations of innocent persons which would be significantly damaged by the release of uncorroborated information. Any order of nondisclosure shall be drawn to protect the interest so found.

(d) Any person aggrieved by an order of the investigatory grand jury shall have the right to appeal such order by filing a petition for review with the Appellate Court [within] not later than seventy-two hours [from] after the issuance of such order.

(e) The Appellate Court shall provide an expedited hearing on such petition in accordance with such rules as the judges of the Appellate Court may adopt, consistent with the rights of the petitioner and the parties.

(f) Notwithstanding the existence of an order of nondisclosure under this section, any witness may apply in writing to the presiding judge of the criminal session of the court of the judicial district wherein the record of the investigation has been filed, or [his] such judge's designee, for access to and a copy of the record of his own testimony. Any witness shall be allowed access, at all reasonable times, to the record of [his] such witness's own testimony and be allowed to obtain a copy of such record unless [said] such judge or [his] such judge's designee finds after a hearing and for good cause shown that it is not in the best interest of justice to allow the witness to have access to and a copy of the record of [his] such witness's testimony.

(g) Notwithstanding the existence of an order of nondisclosure under this section, the presiding judge [of the criminal session of the court of the judicial district wherein the record of the investigation has been filed,] or [his] such judge's designee [,] shall grant any written request of a person accused of a crime as a result of the investigation to have access, at all reasonable times, to the record of [his] such person's own testimony and to obtain a copy of such record.

Sec. 7. Section 54-47h of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

In January of each year, [the panel of judges appointed pursuant to section 54-47b] each presiding judge who received an application or applications for an investigation into the commission of a crime or crimes shall report to the Chief Court Administrator, who shall in turn report to the Chief Justice, Governor and General Assembly, the following information with respect to applications made during the preceding calendar year: (1) The number of applications for an investigation into the commission of a crime or crimes filed with the [panel] presiding judge; (2) the number of applications approved by the [panel] presiding judge; [and] (3) the number of applications approved for extensions of time or amendments to the order; and (4) the disposition of any criminal charges brought as a result of investigations conducted pursuant to such applications.

Sec. 8. Section 54-47a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) Whenever in the judgment of the Chief State's Attorney, a state's attorney or the deputy chief state's attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence, any violation which is an offense under the provisions of title 22a, corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act amendments of 1965, as amended, any violation of chapter 949c, or any other class A, B or C felony or unclassified felony punishable by a term of imprisonment in excess of five years for which the Chief State's Attorney or state's attorney demonstrates that [he] such attorney has no other means of obtaining sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime, before a court or grand jury of this state, or (2) in any investigation conducted by [an investigatory grand jury] the Chief State's Attorney or a state's attorney or their designees as provided in sections 54-47b to 54-47g, inclusive, as amended by this act, is necessary to the public interest, the Chief State's Attorney, the state's attorney, or the deputy chief state's attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.

(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of [him] such witness may tend to incriminate [him] such witness or subject [him] such witness to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which [he] such witness is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against [him] such witness in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2013

54-47b

Sec. 2

October 1, 2013

54-47c

Sec. 3

October 1, 2013

54-47d

Sec. 4

October 1, 2013

54-47e

Sec. 5

October 1, 2013

54-47f

Sec. 6

October 1, 2013

54-47g

Sec. 7

October 1, 2013

54-47h

Sec. 8

October 1, 2013

54-47a

Statement of Purpose:

To revise the investigatory grand jury procedure.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]