H.B. 222 Enrolled

SUBPOENA POWER AMENDMENTS
2000 GENERAL SESSION
STATE OF UTAH
Sponsor: Neal B. Hendrickson
AN ACT RELATING TO THE UTAH CODE OF CRIMINAL PROCEDURE; MODIFYING
THE SUBPOENA POWERS FOR AID OF CRIMINAL INVESTIGATION AND GRANTS OF
IMMUNITY; AMENDING CERTAIN PROVISIONS RELATING TO THE RIGHT TO
SUBPOENA WITNESSES; MODIFYING CERTAIN PROVISIONS GOVERNING
DISCLOSURE OF INFORMATION; AND MAKING TECHNICAL CORRECTIONS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
77-22-2, as last amended by Chapter 38, Laws of Utah 1993
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 77-22-2 is amended to read:
77-22-2. Investigations -- Right to subpoena witnesses and require production of
evidence -- Contents of subpoena -- Rights of witnesses -- Interrogation before closed court
-- Disclosure of information.
(1) As used in this section, "prosecutor" means the attorney general, county attorney, or
district attorney.
[(1)] (2) (a) In any matter involving the investigation of a crime or malfeasance in office,
or any criminal conspiracy or activity, the [attorney general, county attorney, or district attorney
as provided under Sections 17-18-1 and 17-18-1.7 ] prosecutor may, upon application and approval
of the district court and for good cause shown, conduct a criminal investigation.
(b) The application and statement of good cause shall state whether or not any other
investigative order related to the investigation at issue has been filed in another court.
[(2)] (3) (a) [The attorney general, county attorney, or district attorney] Subject to the
conditions established in Subsection (3)(b), the prosecutor may:
(i) subpoena witnesses[,];
(ii) compel their attendance and testimony under oath to be recorded by a suitable

electronic recording device or to be given before any certified court reporter[,]; and
(iii) require the production of books, papers, documents, recordings, and any other items that
constitute evidence or may be relevant to the investigation.
(b) The [attorney general, county attorney, or district attorney] prosecutor shall [first]:
(i) apply to the district court for each subpoena; and [shall]
(ii) show that the requested information is reasonably related to the criminal investigation
authorized by the court.
[(3)] (4) (a) The prosecutor shall state in each subpoena:
[(a)] (i) the time and place of the [interrogation] examination;
[(b)] (ii) that the subpoena is issued in aid of a criminal investigation; and
[(c)] (iii) the right of the person subpoenaed to have counsel present.
(b) The examination may be conducted anywhere within the jurisdiction of the prosecutor
issuing the subpoena.
(c) The subpoena need not disclose the names of possible defendants.
(d) Witness fees and expenses shall be paid as in a civil action.
[(4)] (5) (a) [The prosecutor shall also personally inform each witness at] At the beginning
of each compelled interrogation, the prosecutor shall personally inform each witness:
[(a)] (i) of the general subject matter of the investigation;
[(b)] (ii) of the privilege to, at any time during the proceeding [to], refuse to answer any
question or produce any evidence of a communicative nature that may result in self-incrimination;
[(c)] (iii) that any information provided may be used against the witness in a subsequent
criminal proceeding; and
[(d)] (iv) of the right to have counsel present.
[(5)] (b) If the [attorney general, county attorney, or district attorney] prosecutor has
substantial evidence that the subpoenaed witness has committed a crime that is under investigation,
[he] the prosecutor shall:
(i) inform [that] the witness in person [prior to] before interrogation of that witness's target
status; and

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(ii) inform the witness of the nature of the charges under consideration against [him] the
witness.
[(6) (a) The subpoena need not disclose the names of possible defendants but shall state the
time and place of the examination, which may be conducted anywhere within the jurisdiction of the
prosecutor issuing the subpoena.]
[(b) Witness fees and expenses shall be paid as in a civil action.]
[(7)] (6) (a) (i) The [attorney general, county attorney, or district attorney] prosecutor may
make written application to any district court showing a reasonable likelihood that publicly releasing
information about the identity of a witness or the substance of the evidence resulting from a subpoena
or interrogation would pose a threat of harm to a person or otherwise impede the investigation.
(ii) Upon a finding of reasonable likelihood, the court may order the:
[(i)] (A) interrogation of a witness be held in secret;
[(ii)] (B) occurrence of the interrogation and other subpoenaing of evidence, the identity of
the person subpoenaed, and the substance of the evidence obtained be kept secret; and
[(iii)] (C) record of testimony and other subpoenaed evidence be kept secret unless the court
for good cause otherwise orders.
(b) After application, the court may by order exclude from any investigative hearing or
proceeding any persons except:
(i) the attorneys representing the state[,] and members of their staffs[,];
(ii) persons who, in the judgment of the attorneys representing the state, are reasonably
necessary to assist in the investigative process[,];
(iii) the court reporter or operator of the electronic recording device[,]; and
(iv) the attorney for the witness.
(c) This chapter does not prevent attorneys representing the state or members of their staff
from disclosing information obtained pursuant to this chapter for the purpose of furthering any official
governmental investigation.
(d) (i) If a secrecy order has been granted by the court regarding the interrogation or
disclosure of evidence by a witness under this subsection, and if the court finds a further restriction

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on the witness is appropriate, the court may order the witness not to disclose the substance of the
witness's testimony or evidence given by the witness to others.
(ii) Any order to not disclose made under this subsection shall be served with the subpoena.
(iii) In an appropriate circumstance the court may order that the witness not disclose the
existence of the investigation to others.
(iv) Any order under this Subsection (6)(d) must be based upon a finding by the court that
one or more of the following risks exist:
[(i)] (A) disclosure by the witness would cause destruction of evidence;
[(ii)] (B) disclosure by the witness would taint the evidence provided by other witnesses;
[(iii)] (C) disclosure by the witness to a target of the investigation would result in flight or
other conduct to avoid prosecution;
[(iv)] (D) disclosure by the witness would damage a person's reputation; or
[(v)] (E) disclosure by the witness would cause a threat of harm to any person.
(e) (i) If the court imposes an order under Subsection (6)(d) authorizing an instruction to a
witness not to disclose the substance of testimony or evidence provided and the prosecuting agency
proves by a preponderance of the evidence that a witness has violated that order, the court may hold
the witness in contempt.
(ii) An order of secrecy imposed on a witness under this Subsection (6)(e) may not infringe
on the attorney-client relationship between the witness and his attorney or on any other legally
recognized privileged relationship.
[(8) If the state's application and good cause showing for the order authorizing the
investigation and the order itself contain the identities of witnesses and targets of the investigation,
the attorney general, county attorney, or district attorney]
(7) (a) (i) The prosecutor may submit [an application] to any district court [showing a
reasonable likelihood that publicly releasing information about those identities would pose a threat
of harm to a person or otherwise impede the investigation. The court may order that the application,
for good cause shown, and order for the entire investigation be kept secret unless the court for good
cause otherwise orders.] a separate written request that the application, statement of good cause, and

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the court's order authorizing the investigation be kept secret.
(ii) The request for secrecy is a public record under Title 63, Chapter 2, Government Records
Access and Management Act, but need not contain any information that would compromise any of
the interest listed in Subsection (7)(c).
(b) With the court's permission, the prosecutor may submit to the court, in camera, any
additional information to support the request for secrecy if necessary to avoid compromising the
interests listed in Subsection (7)(c).
(c) The court shall consider all information in the application and order authorizing the
investigation and any information received in camera and shall order that all information be placed
in the public file except information that, if disclosed, would pose:
(i) a substantial risk of harm to a person's safety;
(ii) a clearly unwarranted invasion of or harm to a person's reputation or privacy; or
(iii) a serious impediment to the investigation.
(d) Before granting an order keeping secret documents and other information received under
this section, the court shall narrow the secrecy order as much as reasonably possible in order to
preserve the openness of court records while protecting the interests listed in Subsection (7)(c).

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