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S.B. 143 Enrolled





Chief Sponsor: Daniel R. Liljenquist

House Sponsor: Paul Ray

             7      LONG TITLE
             8      General Description:
             9          This bill specifies instances when a grand jury may be called and adds municipal
             10      attorneys to the statute.
             11      Highlighted Provisions:
             12          This bill:
             13          .    specifies when a certification need not contain specific information; and
             14          .    adds municipal attorneys to the list of prosecutors.
             15      Monies Appropriated in this Bill:
             16          None
             17      Other Special Clauses:
             18          None
             19      Utah Code Sections Affected:
             20      AMENDS:
             21          77-10a-2, as last amended by Laws of Utah 1994, Chapter 218
             22          77-10a-12, as last amended by Laws of Utah 1993, Chapter 38
             24      Be it enacted by the Legislature of the state of Utah:
             25          Section 1. Section 77-10a-2 is amended to read:
             26           77-10a-2. Panel of judges -- Appointment -- Membership -- Ordering of grand
             27      jury.
             28          (1) (a) The presiding officer of the Judicial Council shall appoint a panel of five
             29      judges from the district courts of the state to hear in secret all persons claiming to have

             30      information that would justify the calling of a grand jury. The presiding officer may appoint
             31      senior status district court judges to the panel. The presiding officer shall designate one
             32      member of the panel as supervising judge to serve at the pleasure of the presiding officer. The
             33      panel has the authority of the district court.
             34          (b) To ensure geographical diversity on the panel one judge shall be appointed from
             35      the first or second district for a five-year term, one judge shall be appointed from the third
             36      district for a four-year term, one judge shall be appointed from the fourth district for a
             37      three-year term, one judge shall be appointed from the fifth, sixth, seventh, or eighth districts
             38      for a two-year term, and one judge shall be appointed from the third district for a one-year
             39      term. Following the first term, all terms on the panel are for five years.
             40          (c) The panel shall hold hearings in each judicial district at least once every three years
             41      and may meet at any location within the state. Three members of the panel constitute a
             42      quorum for the transaction of panel business. The panel shall act by the concurrence of a
             43      majority of members present and may act through the supervising judge or managing judge.
             44      The schedule for the hearings shall be set by the panel and published by the Office of the
             45      Court Administrator. Persons appearing before the panel shall be placed under oath and
             46      examined by the judges conducting the hearings. Hearsay evidence may be presented at the
             47      hearings only under the same provisions and limitations that apply to preliminary hearings.
             48          (2) (a) If the panel finds good cause to believe a grand jury is necessary, the panel
             49      shall make its findings in writing and may order a grand jury to be summoned.
             50          (b) The panel may refer a matter to the attorney general, county attorney, district
             51      attorney, or city attorney for investigation and prosecution. The referral shall contain as much
             52      of the information presented to the panel as the panel determines relevant. The attorney
             53      general, county attorney, district attorney, or city attorney shall report to the panel the results
             54      of any investigation and whether the matter will be prosecuted by a prosecutor's information.
             55      The report shall be filed with the panel within 120 days after the referral unless the panel
             56      provides for a different amount of time. If the panel is not satisfied with the action of the
             57      attorney general, county attorney, district attorney, or city attorney, the panel may order a

             58      grand jury to be summoned.
             59          (3) When the attorney general, a county attorney, a district attorney, municipal
             60      attorney, or a special prosecutor appointed under Section 77-10a-12 certifies in writing to the
             61      supervising judge that in his judgment a grand jury is necessary because of criminal activity in
             62      the state, the panel[, upon a determination of good cause,] shall order a grand jury to be
             63      summoned if the panel finds good cause exists.
             64          (4) In determining whether good cause exists under Subsection (3), the panel shall
             65      consider, among other factors, whether a grand jury is needed to help maintain public
             66      confidence in the impartiality of the criminal justice process.
             67          (5) A written certification under Subsection (3) shall contain a statement that in the
             68      prosecutor's judgement a grand jury is necessary, but the certification need not contain any
             69      information which if disclosed may create a risk of:
             70          (a) destruction or tainting of evidence;
             71          (b) flight or other conduct by the subject of the investigation to avoid prosecution;
             72          (c) damage to a person's reputation or privacy;
             73          (d) harm to any person; or
             74          (e) a serious impediment to the investigation.
             75          (6) A written certification under Subsection (3) shall be accompanied by a statement
             76      of facts in support of the need for a grand jury.
             77          (7) The supervising judge shall seal any written statement of facts submitted under
             78      Subsection (6).
             79          [(4)] (8) The supervising judge may at the time the grand jury is summoned:
             80          (a) order that it be drawn from the state at large as provided in this chapter or from any
             81      district within the state; and
             82          (b) retain authority to supervise the grand jury or delegate the supervision of the grand
             83      jury to any judge of any district court within the state.
             84          (9) If after the certification under Subsection (3) the panel does not order the
             85      summoning of a grand jury or the grand jury does not return an indictment regarding the

             86      subject matter of the certification, the prosecuting attorney may release to the public a copy of
             87      the written certification if in the prosecutor's judgment the release does not create a risk as
             88      described in Subsection (5).
             89          Section 2. Section 77-10a-12 is amended to read:
             90           77-10a-12. Representation of state -- Appointment and compensation of special
             91      prosecutor.
             92          (1) The state may be represented before any grand jury summoned in the state by:
             93          (a) the attorney general [and his assistants,] or any assistant attorney general;
             94          (b) a county attorney or any deputy county attorney;
             95          (c) a district attorney [and his deputies, and] or any deputy district attorney;
             96          (d) a municipal attorney or any deputy municipal attorney; and
             97          (e) special prosecutors appointed under this chapter and their assistants.
             98          (2) The supervising judge shall determine if a special prosecutor is necessary. [He
             99      may appoint a] A special prosecutor may be appointed only upon good cause shown and after
             100      [making] the supervising judge makes a written finding that a conflict of interest exists in the
             101      Office of the Attorney General [or], the office of the county attorney [or], district attorney, or
             102      municipal attorney who would otherwise represent the state before the grand jury.
             103          (3) In selecting a special prosecutor, the supervising judge shall give preference to the
             104      attorney general and [his assistants, and the county attorney or district attorney and his]
             105      assistant attorneys general, county attorneys, district attorneys, or municipal attorneys and
             106      their deputies.
             107          (4) (a) The compensation of a special prosecutor appointed under this chapter who is
             108      an employee of the Office of the Attorney General [or], the office of a county attorney [or],
             109      district attorney, or municipal attorney is only the current compensation [he receives] received
             110      in that office.
             111          (b) The compensation for an appointed special prosecutor who is not an employee of a
             112      prosecutorial office under Subsection (4)(a) shall be comparable to the compensation of a
             113      deputy or assistant attorney general having similar experience to that of the special prosecutor.

             114          (5) The attorney general, county attorney, district attorney, or municipal attorney may
             115      elect to have a special prosecutor appointed by the supervising judge at the expense of the
             116      governmental entity supporting the electing prosecutor. Upon receipt of written notice from
             117      the prosecutor of that election, the supervising judge shall appoint a special prosecutor in
             118      accordance with this section. The electing prosecutor's supporting governmental entity shall
             119      reimburse the state for expenses incurred in appointment and compensation of the special
             120      prosecutor.

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