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S.B. 279

             1     

GRAND JURY MODIFICATIONS

             2     
2011 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Margaret Dayton

             5     
House Sponsor: LaVar Christensen

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill requires a grand jury subpoena to be issued a certain amount of time before the
             10      person is required to testify.
             11      Highlighted Provisions:
             12          This bill:
             13          .    requires a grand jury subpoena to be issued to a:
             14              .    victim of crime at least 72 hours before the victim is required to testify; and
             15              .    witness to testify at least 48 hours before the witness is required to testify; and
             16          .    makes technical corrections.
             17      Money Appropriated in this Bill:
             18          None
             19      Other Special Clauses:
             20          None
             21      Utah Code Sections Affected:
             22      AMENDS:
             23          77-10a-13, as last amended by Laws of Utah 1997, Chapter 372
             24     
             25      Be it enacted by the Legislature of the state of Utah:
             26          Section 1. Section 77-10a-13 is amended to read:
             27           77-10a-13. Location -- Who may be present -- Witnesses -- Witnesses who are


             28      subjects -- Evidence -- Contempt -- Notice -- Record of proceedings -- Disclosure.
             29          (1) The managing judge shall designate the place where the grand jury meets. The
             30      grand jury may, upon request and with the permission of the managing judge, meet and conduct
             31      business any place within the state. Subject to the approval of the managing judge the grand
             32      jury shall determine the times at which it meets.
             33          (2) (a) Attorneys representing the state, special prosecutors appointed under Section
             34      77-10a-12 , the witness under examination, interpreters when needed, counsel for a witness, and
             35      a court reporter or operator of a recording device to record the proceedings may be present
             36      while the grand jury is in session.
             37          (b) No person other than the jurors may be present while the grand jury is deliberating.
             38          (3) (a) The attorneys representing the state and the special prosecutors may subpoena
             39      witnesses to appear before the grand jury and may subpoena evidence in the name of the grand
             40      jury without the prior approval or consent of the grand jury or the court. The jury may request
             41      that other witnesses or evidence be subpoenaed.
             42          (b) Subpoenas may be issued in the name of the grand jury to any person located within
             43      the state and for any evidence located within the state or as otherwise provided by law.
             44          (i) A subpoena requiring a victim of a crime to testify before a grand jury may not be
             45      served less than 72 hours before the victim is required to testify.
             46          (ii) A subpoena requiring a witness to testify before a grand jury may not be served less
             47      than 48 hours before the witness is required to testify.
             48          (c) The managing judge may enter any order necessary to secure compliance with any
             49      subpoena issued in the name of the grand jury.
             50          (4) (a) Any witness who appears before the grand jury shall be advised, by the attorney
             51      for the state or the special prosecutor, of his right to be represented by counsel.
             52          (b) A witness who is also a subject as defined in Section 77-10a-1 shall at the time he
             53      appears as a witness be advised:
             54          (i) of his right to be represented by counsel;
             55          (ii) that he is a subject;
             56          (iii) that he may claim his privilege against self-incrimination; and
             57          (iv) of the general scope of the grand jury's investigation.
             58          (c) A witness who is also a target as defined in Section 77-10a-1 shall at the time he


             59      appears as a witness, be advised:
             60          (i) of his right to be represented by counsel;
             61          (ii) that he is a target;
             62          (iii) that he may claim his privilege against self-incrimination;
             63          (iv) that the attorney for the state, the special prosecutor, or the grand jury is in
             64      possession of substantial evidence linking him to the commission of a crime for which he could
             65      be charged; and
             66          (v) of the general nature of that charge and of the evidence that would support the
             67      charge.
             68          (d) This Subsection (4) does not require the attorney for the state, the special
             69      prosecutor, or the grand jury to disclose to any subject or target the names or identities of
             70      witnesses, sources of information, or informants, or disclose information in detail or in a
             71      fashion that would jeopardize or compromise any ongoing criminal investigation or endanger
             72      any person or the community.
             73          (5) (a) The grand jury shall receive evidence without regard for the formal rules of
             74      evidence, except the grand jury may receive hearsay evidence only under the same provisions
             75      and limitations that apply to preliminary hearings.
             76          (b) Any person, including a witness who has previously testified or produced books,
             77      records, documents, or other evidence, may present exculpatory evidence to the attorney
             78      representing the state or the special prosecutor and request that it be presented to the grand
             79      jury, or request to appear personally before the grand jury to testify or present evidence to that
             80      body. The attorney for the state or the special prosecutor shall forward the request to the grand
             81      jury.
             82          (c) When the attorney for the state or the special prosecutor is personally aware of
             83      substantial and competent evidence negating the guilt of a subject or target that might
             84      reasonably be expected to lead the grand jury not to indict, he shall present or otherwise
             85      disclose the evidence to the grand jury before the grand jury is asked to indict that person.
             86          (6) (a) The managing judge has the contempt power and authority inherent in the court
             87      over which he presides and as provided by statute.
             88          (b) When a witness in any proceeding before or ancillary to any grand jury appearance
             89      refuses to comply with an order from the managing judge to testify or provide other


             90      information, including any book, paper, document, record, recording, or other material without
             91      having a recognized privilege, the attorney for the state or special prosecutor may apply to the
             92      managing judge for an order directing the witness to show cause why he should not be held in
             93      contempt.
             94          (c) After submission of the application and a hearing at which the witness is entitled to
             95      be represented by counsel, the managing judge may hold the witness in contempt and order that
             96      he be confined, upon a finding that the refusal was not privileged.
             97          (d) A hearing may not be held under this part unless 72 hours notice is given to the
             98      witness who has refused to comply with the order to testify or provide other information,
             99      except a witness may be given a shorter notice if the managing judge upon a showing of special
             100      need so orders.
             101          (e) Any confinement for refusal to comply with an order to testify or produce other
             102      information shall continue until the witness is willing to give the testimony or provide the
             103      information. A period of confinement may not exceed the term of the grand jury, including
             104      extensions, before which the refusal to comply with the order occurred. In any event the
             105      confinement may not exceed one year.
             106          (f) A person confined under this Subsection (6) for refusal to testify or provide other
             107      information concerning any transaction, set of transactions, event, or events may not be again
             108      confined under this Subsection (6) or for criminal contempt for a subsequent refusal to testify
             109      or provide other information concerning the same transaction, set of transactions, event, or
             110      events.
             111          (g) Any person confined under this section may be admitted to bail or released in
             112      accordance with local procedures pending the determination of an appeal taken by him from
             113      the order of his confinement unless the appeal affirmatively appears to be frivolous or taken for
             114      delay. Any appeal from an order of confinement under this section shall be disposed of as soon
             115      as practicable, pursuant to an expedited schedule and in no event more than 30 days from the
             116      filing of the appeal.
             117          (7) (a) All proceedings, except when the grand jury is deliberating or voting, shall be
             118      recorded stenographically or by an electronic recording device. An unintentional failure of any
             119      recording to reproduce all or any portion of a proceeding does not affect the validity of any
             120      prosecution or indictment. The recording or reporter's notes or any transcript prepared from


             121      them shall remain in the custody or control of the attorney for the state or the special prosecutor
             122      unless otherwise ordered by the managing judge in a particular case.
             123          (b) A grand juror, an interpreter, a court reporter, an operator of a recording device, a
             124      typist who transcribes recorded testimony, an attorney for the state or special prosecutor, or any
             125      person to whom disclosure is made under the provisions of this section may not disclose
             126      matters occurring before the grand jury except as otherwise provided in this section. A
             127      knowing violation of this provision may be punished as a contempt of court.
             128          (c) Disclosure otherwise prohibited by this section of matters occurring before the
             129      grand jury, other than its deliberations and the vote of any grand juror, may be made to:
             130          (i) an attorney for the state or a special prosecutor for use in the performance of that
             131      attorney's duty; and
             132          (ii) government personnel, including those of state, local, and federal entities and
             133      agencies, as are considered necessary by the attorney for the state or special prosecutor to assist
             134      him in the performance of his duty to enforce the state's criminal laws.
             135          (d) Any person to whom matters are disclosed under this section may not utilize that
             136      grand jury material for any purpose other than assisting the attorney for the state or the special
             137      prosecutor in performance of that attorney's duty to enforce the state's criminal laws. An
             138      attorney for the state or the special prosecutor shall promptly provide the managing judge with
             139      the names of the persons to whom the disclosure has been made and shall certify that the
             140      attorney has advised the person of his obligation of secrecy under this section.
             141          (e) Disclosure otherwise prohibited by this section of matters occurring before the
             142      grand jury may also be made when:
             143          (i) directed by the managing judge or by any court before which the indictment that
             144      involves matters occurring before the grand jury that are subject to disclosure is to be tried,
             145      preliminary to or in connection with a judicial proceeding;
             146          (ii) permitted by the managing judge at the request of the defendant, upon a showing
             147      that grounds may exist for a motion to dismiss the indictment because of matters occurring
             148      before the grand jury;
             149          (iii) the disclosure is made by an attorney for the state or the special prosecutor to
             150      another state or local grand jury or a federal grand jury;
             151          (iv) permitted by the managing judge at the request of an attorney for the state or the


             152      special prosecutor, upon a showing that the matters may disclose a violation of federal criminal
             153      law, to an appropriate official of the federal government for the purpose of enforcing federal
             154      law; or
             155          (v) showing of special need is made and the managing judge is satisfied that disclosure
             156      of the information or matters is essential for the preparation of a defense.
             157          (f) When the matters are transcripts of testimony given by witnesses, the state or
             158      special prosecutor intends to call in the state's case in chief in any trial upon an indictment
             159      returned by the grand jury before which the witnesses testified, the attorney for the state or the
             160      special prosecutor shall, no later than 30 days before trial, provide the defendant with access to
             161      the transcripts. The attorney for the state or the special prosecutor shall at the same time
             162      provide the defendant with access to all exculpatory evidence presented to the grand jury prior
             163      to indictment.
             164          (g) When the managing judge orders disclosure of matters occurring before the grand
             165      jury, disclosure shall be made in a manner, at a time, and under conditions the managing judge
             166      directs.
             167          (h) A petition for disclosure made under Subsection (7)(e)(ii) shall be filed with the
             168      managing judge. Unless the hearing is ex parte, the petitioner shall serve written notice upon
             169      the attorney for the state or the special prosecutor, the parties to the judicial proceeding if
             170      disclosure is sought in connection with the proceeding, and other persons as the managing
             171      judge directs. The managing judge shall afford those persons a reasonable opportunity to
             172      appear and be heard.
             173          (8) Records, orders, and subpoenas relating to grand jury proceedings shall be kept
             174      under seal to the extent and so long as necessary to prevent disclosure of matters occurring
             175      before the grand jury other than as provided in this section.
             176          (9) Subject to any right to an open hearing in contempt proceedings, the managing
             177      judge shall order a hearing on matters affecting a grand jury proceeding to be closed to the
             178      extent necessary to prevent disclosure of matters occurring before a grand jury.





Legislative Review Note
    as of 2-22-11 12:44 PM


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