1     
GRAND JURY PROCESS REVISIONS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Merrill F. Nelson

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to grand juries.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions;
13          ▸     replaces a single panel of judges with the appointment of a panel of judges in each
14     judicial district to consider requests for a grand jury within the district;
15          ▸     outlines the duties of a managing judge;
16          ▸     provides circumstances that qualify as good cause to summon a grand jury;
17          ▸     addresses the requirement of a prosecutor to provide an indicted defendant with a
18     transcript of testimony to the grand jury;
19          ▸     requires a county or municipality to pay the expenses of a grand jury when one is
20     summoned at the request of a county attorney, district attorney, or municipal
21     attorney; and
22          ▸     makes technical changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          77-10a-1, as enacted by Laws of Utah 1990, Chapter 318
30          77-10a-2, as last amended by Laws of Utah 2018, Chapter 25
31          77-10a-10, as enacted by Laws of Utah 1990, Chapter 318
32          77-10a-12, as last amended by Laws of Utah 2015, Chapter 258
33          77-10a-13, as last amended by Laws of Utah 2018, Chapter 281
34          77-10a-17, as enacted by Laws of Utah 1990, Chapter 318
35          77-10a-20, as last amended by Laws of Utah 1997, Chapter 372
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 77-10a-1 is amended to read:
39          77-10a-1. Definitions.
40          As used in this chapter:
41          [(1) "Clerk of the court" means the state court administrator or his designee.]
42          (1) "Appointed judge" means a district court judge appointed by the chief judge of the
43     district to be on a three-judge panel that:
44          (a) evaluates a request to summon a grand jury; and
45          (b) summons a grand jury upon good cause.
46          (2) "Managing judge" means [the supervising judge when he retains authority to
47     manage a grand jury, or] the district court judge to whom the [supervising] chief judge of the
48     district delegates management of a grand jury.
49          [(3) "Presiding officer" means the presiding officer of the Judicial Council.]
50          (3) "Panel" means a three-judge panel appointed under Section 77-10a-2.
51          (4) "Subject" means a person whose conduct is within the scope of [the grand jury's
52     investigation] a request to summon a grand jury, and that conduct exposes the person to
53     possible criminal prosecution.
54          (5) "Supervising judge" means the district court judge appointed by the [presiding
55     officer] chief judge of the district to supervise [the five-judge] a three-judge grand jury panel.
56          (6) "Target" means a person regarding whom the attorney for the state, the special
57     prosecutor, or the grand jury has substantial evidence that links that person to the commission
58     of a crime and who could be indicted or charged with that crime.
59          (7) "Witness" means a person who appears before the grand jury either voluntarily or
60     [pursuant to] in accordance with a subpoena for the purpose of providing testimony or evidence
61     for the grand jury's use in discharging [its] the grand jury's responsibilities.
62          Section 2. Section 77-10a-2 is amended to read:
63          77-10a-2. Appointment of panel of judges -- Ordering of grand jury.
64          (1) (a) The [presiding officer of the Judicial Council] chief judge of a judicial district
65     shall appoint a panel of [five] three judges from the district [courts of the state to hear in secret
66     all persons] to hear an individual claiming to have information that would justify the [calling]
67     summoning of a grand jury. The [presiding officer] chief judge of a district may appoint a
68     senior status district court [judges] judge to the panel. The [presiding officer] chief judge of
69     the district shall designate one member of the panel as supervising judge to serve at the
70     pleasure of the [presiding officer] chief judge of the district. [The] A panel has the authority of
71     the district court.
72          [(b) To ensure geographical diversity on the panel one judge shall be appointed from
73     the first or second district for a five-year term, one judge shall be appointed from the third
74     district for a four-year term, one judge shall be appointed from the fourth district for a
75     three-year term, one judge shall be appointed from the fifth, sixth, seventh, or eighth districts
76     for a two-year term, and one judge shall be appointed from the third district for a one-year
77     term. Following the first term, all terms on the panel are for five years.]
78          [(c) The panel shall schedule hearings in each judicial district at least once every three
79     years and may meet at any location within the state. Three]
80          (b) (i) Two members of the panel constitute a quorum for the transaction of panel
81     business. [The panel shall act by the concurrence of a majority of members present and may
82     act through the supervising judge or managing judge. The schedule for the hearings shall be
83     set by the panel and published by the Administrative Office of the Courts. Persons who desire
84     to appear before the panel shall schedule an appointment with the Administrative Office of the
85     Courts at least 10 days in advance. If no appointments are scheduled, the hearing may be
86     canceled. Persons appearing before the panel shall be placed under oath and examined by the
87     judges conducting the hearings. Hearsay evidence may be presented at the hearings only under
88     the same provisions and limitations that apply to preliminary hearings.]
89          (ii) A panel may act through the supervising judge and a panel shall act:
90          (A) by concurrence of a majority when three members are present; or
91          (B) by unanimity when two members are present.
92          (c) The chief judge of a district shall appoint a panel on an ad hoc basis to evaluate a
93     request for a grand jury.
94          (2) (a) An individual claiming to have information that would justify the summoning of
95     a grand jury shall certify a request in writing to the chief judge of the judicial district where the
96     criminal conduct is believed to have occurred.
97          (b) A written certification shall:
98          (i) contain a statement of facts in support of the need for a grand jury;
99          (ii) indicate whether the matter has been screened and declined by the attorney general,
100     county attorney, district attorney, or municipal attorney and, if so, include a copy of the
101     declination letter; and
102          (iii) include a confirmation that in the individual's judgment a grand jury is necessary.
103          (c) The chief judge shall promptly forward the written certification to the three-judge
104     panel that shall:
105          (i) schedule a closed hearing on the written certification to summon a grand jury; or
106          (ii) deny the granting of a hearing in writing, and provide a copy of the denial to the
107     individual who submitted the written certification, if the panel finds that:
108          (A) a panel has already ruled on a prior written certification based on the same subject
109     matter;
110          (B) the matter was screened and declined by the attorney general, county attorney,
111     district attorney, or municipal attorney and, based on information in the declination letter, the
112     matter was properly screened; or
113          (C) the written certification is frivolous or without merit on its face.
114          (d) (i) In a closed hearing, the panel shall place under oath an individual who will be
115     examined by the panel at the hearing.
116          (ii) A party may present hearsay evidence at the hearing only under the same provisions
117     and limitations that apply to a preliminary hearing.
118          (iii) For matters that were previously screened and declined by the attorney general,
119     county attorney, district attorney, or municipal attorney, the panel may summon the prosecuting
120     agency to the closed hearing to explain the screening process and reason for declination.
121          (3) The closed hearing shall be recorded and the record shall remain sealed unless and
122     until a grand jury is impaneled and returns an indictment on the matter.
123          (4) Within 30 days after the day on which the closed hearing is held, the panel shall
124     make one of the findings described in this Subsection (4) in writing.
125          [(2)] (a) If [the] a panel finds good cause to believe a grand jury is necessary, the panel
126     [shall make its findings in writing and may] shall order a grand jury to be summoned.
127          (b) (i) [The] A panel may refer a matter to the attorney general, county attorney, district
128     attorney, or [city] municipal attorney for investigation and prosecution unless the matter was
129     brought to the panel by the attorney general, county attorney, district attorney, or municipal
130     attorney. The referral shall contain as much of the information presented to the panel as the
131     panel determines relevant.
132          (ii) The attorney general, county attorney, district attorney, or [city] municipal attorney
133     shall report to the panel the results of any investigation and whether the matter will be
134     prosecuted by a prosecutor's information. The report shall be filed with the panel within 120
135     days after the referral unless the panel provides for a different amount of time. If the panel is
136     not satisfied with the action of the attorney general, county attorney, district attorney, or [city]
137     municipal attorney, the panel may order a grand jury to be summoned.
138          (c) If a panel finds that there is not good cause to believe a grand jury is necessary, the
139     panel shall notify the individual who requested a grand jury and explain the factors considered
140     by the panel.
141          [(3) When the attorney general, a county attorney, a district attorney, municipal
142     attorney, or a special prosecutor appointed under Section 77-10a-12 certifies in writing to the
143     supervising judge that in his judgment a grand jury is necessary because of criminal activity in
144     the state, the panel shall order a grand jury to be summoned if the panel finds good cause
145     exists.]
146          [(4)] (5) In determining whether good cause exists under Subsection [(3)] (4)(a), [the] a
147     panel shall consider, among other factors, whether a grand jury is needed to help maintain
148     public confidence in the impartiality of the criminal justice process.
149          (6) Notwithstanding Subsection (5), if a written certification is filed under Subsection
150     (2), the following circumstances may constitute good cause for a panel to order a grand jury to
151     be summoned unless the panel determines the matter was properly screened and declined by
152     the prosecuting agency or a criminal prosecution has already commenced against the subject
153     for the conduct:
154          (a) the subject is or was a peace officer who, in the course of employment, caused
155     death or serious bodily injury to an individual;
156          (b) the subject is or was a public employee who, in the course of public employment,
157     engaged in criminal activity;
158          (c) the subject is or was a public official who, in the role of the appointed or elected
159     position, engaged in criminal activity;
160          (d) commencing a prosecution by information would likely threaten a victim's right to
161     justice and due process considering the victim's vulnerability, the nature of how the person was
162     victimized, the number of subjects, or the characteristics of a subject;
163          (e) evidence indicates a violent felony, as defined in Section 76-3-203.5, has occurred
164     and the secrecy or the subpoena power of a grand jury is necessary to successfully complete the
165     investigation;
166          (f) the suspected criminal activity includes a pattern of unlawful activity in violation of
167     Section 76-10-1603; or
168          (g) any similar circumstance that the panel determines is good cause for a grand jury to
169     be summoned.
170          [(5)] (7) A written certification under Subsection [(3) shall contain a statement that in
171     the prosecutor's judgement a grand jury is necessary, but the certification] (2) need not contain
172     any information [which] that if disclosed may create a risk of:
173          (a) destruction or tainting of evidence;
174          (b) flight or other conduct by the subject of the investigation to avoid prosecution;
175          (c) damage to a person's reputation or privacy;
176          (d) harm to any person; or
177          (e) a serious impediment to the investigation.
178          [(6) A written certification under Subsection (3) shall be accompanied by a statement
179     of facts in support of the need for a grand jury.]
180          [(7)] (8) The supervising judge shall seal any written statement of facts submitted
181     under Subsection [(6)] (2).
182          [(8)] (9) The [supervising] chief judge [may] of the district shall, at the time the grand
183     jury is summoned[:], delegate the supervision of the grand jury to any judge within the district.
184          [(a) order that it be drawn from the state at large as provided in this chapter or from any
185     district within the state; and]
186          [(b) retain authority to supervise the grand jury or delegate the supervision of the grand
187     jury to any judge of any district court within the state.]
188          [(9)] (10) If, after the written certification [under Subsection (3) the panel] described in
189     Subsection (2) is submitted to a panel, the panel does not [order the summoning of] summon a
190     grand jury or the grand jury does not return an indictment regarding the subject matter of the
191     written certification, the prosecuting attorney may release to the public a copy of the written
192     certification if in the prosecutor's judgment the release does not create a risk [as] described in
193     Subsection [(5)] (7).
194          Section 3. Section 77-10a-10 is amended to read:
195          77-10a-10. Charge of grand jury -- Rights and duties.
196          Upon impanelment of each grand jury, the [judge managing] managing judge for the
197     grand jury shall charge the grand jury and inform [it] the grand jury of:
198          (1) [its] the grand jury's duty to inquire into offenses against the criminal laws alleged
199     to have been committed within the jurisdiction;
200          (2) [its] the grand jury's independent right to call and interrogate [witnesses] a witness;
201          (3) [its] the grand jury's right to request the production of documents or other evidence,
202     including exculpatory evidence;
203          (4) the necessity of finding credible evidence of each material element of any crime
204     charged before returning an indictment;
205          (5) the need to be satisfied that clear and convincing evidence exists that tends to show
206     [that] a crime was committed by the person or persons accused before returning an indictment;
207          (6) [its] the grand jury's right to have the prosecutor present [it] the grand jury with
208     draft indictments for less serious charges than those originally requested by the prosecutor;
209          (7) the obligation of secrecy; and
210          (8) other duties and rights as the [court] managing judge finds advisable.
211          Section 4. Section 77-10a-12 is amended to read:
212          77-10a-12. Representation of state -- Appointment and compensation of special
213     prosecutor.
214          (1) The state may be represented before any grand jury summoned in the state by:
215          (a) the attorney general or any assistant attorney general;
216          (b) a county attorney or any deputy county attorney;
217          (c) a district attorney or any deputy district attorney;
218          (d) a municipal attorney or any deputy municipal attorney; or
219          (e) a special [prosecutors] prosecutor appointed under this chapter [and their assistants]
220     or the special prosecutor's assistant.
221          [(2) The supervising judge shall determine if a special prosecutor is necessary. A
222     special prosecutor may be appointed]
223          (2) When a grand jury is summoned based on a written certification submitted in
224     accordance with Subsection 77-10a-2(2) by the office of the attorney general, county attorney,
225     district attorney, or municipal attorney, an attorney from the certifying office shall represent the
226     state.
227          (3) (a) When the grand jury is summoned based on a written certification under
228     Subsection 77-10a-2(2) by a person not listed in Subsection (2), a panel shall determine
229     whether the state is to be represented by one of the attorneys identified in Subsection (2) or if a
230     special prosecutor is necessary.
231          (b) Except as provided in Subsection (3)(c), the panel shall appoint the attorney who
232     would otherwise represent the state if the prosecution had commenced by information.
233          (c) A panel may appoint a special prosecutor only upon good cause shown and after the
234     supervising judge makes a written finding that a conflict of interest exists in the Office of the
235     Attorney General, the office of the county attorney, district attorney, or municipal attorney who
236     would otherwise represent the state before the grand jury.
237          [(3) In selecting a special prosecutor, the supervising judge shall give preference to the
238     attorney general and assistant attorneys general, county attorneys, district attorneys, or
239     municipal attorneys and their deputies.]
240          (4) In selecting a special prosecutor, the supervising judge shall give preference to:
241          (a) the attorney general or an assistant attorney general;
242          (b) a county attorney, district attorney, or municipal attorney; or
243          (c) a deputy of an attorney described in Subsection (4)(b).
244          [(4)] (5) (a) The compensation of a special prosecutor appointed under this chapter
245     who is an employee of the Office of the Attorney General, the office of a county attorney,
246     district attorney, or municipal attorney is only the current compensation received in that office.
247          (b) The compensation for an appointed special prosecutor who is not an employee of a
248     prosecutorial office under Subsection [(4)] (5)(a) shall be comparable to the compensation of a
249     deputy or assistant attorney general having similar experience to that of the special prosecutor.
250          [(5)] (6) The attorney general, county attorney, district attorney, or municipal attorney
251     may elect to have a special prosecutor appointed by the supervising judge at the expense of the
252     governmental entity supporting the electing prosecutor. Upon receipt of written notice from
253     the prosecutor of that election, the supervising judge shall appoint a special prosecutor in
254     accordance with this section. The electing prosecutor's supporting governmental entity shall
255     reimburse the state for expenses incurred in appointment and compensation of the special
256     prosecutor.
257          Section 5. Section 77-10a-13 is amended to read:
258          77-10a-13. Location -- Who may be present -- Witnesses -- Witnesses who are
259     subjects -- Evidence -- Contempt -- Notice -- Record of proceedings -- Disclosure.
260          (1) The managing judge shall designate the place where the grand jury meets. The
261     grand jury may, upon request and with the permission of the managing judge, meet and conduct
262     business any place within the [state] judicial district. Subject to the approval of the managing
263     judge, the grand jury shall determine the times at which [it] the grand jury meets.
264          (2) (a) Attorneys representing the state, special prosecutors appointed under Section
265     77-10a-12, the witness under examination, interpreters when needed, counsel for a witness, and
266     a court reporter or operator of a recording device to record the proceedings may be present
267     while the grand jury is in session.
268          (b) [No] A person other than the jurors may not be present while the grand jury is
269     deliberating.
270          (3) (a) [The attorneys] An attorney representing the state and [the] a special
271     [prosecutors] prosecutor may subpoena [witnesses] a witness to appear before the grand jury
272     and may subpoena evidence in the name of the grand jury without the prior approval or consent
273     of the grand jury or the court. The jury may request that other witnesses or evidence be
274     subpoenaed.
275          (b) [Subpoenas] A subpoena may be issued in the name of the grand jury to any person
276     located within the state and for any evidence located within the state or as otherwise provided
277     by law.
278          (c) Except as provided in Subsection (3)(d), a subpoena requiring a minor, who is a
279     victim of a crime, to testify before a grand jury may not be served less than 72 hours before the
280     victim is required to testify.
281          (d) A subpoena may be served upon a minor less than 72 hours before the minor is
282     required to testify if the managing judge makes a factual finding that the minor was
283     intentionally concealed to prevent service or that a shorter period is reasonably necessary to
284     prevent:
285          (i) a risk to the minor's safety;
286          (ii) the concealment or removal of the minor from the jurisdiction;
287          (iii) intimidation or coercion of the minor or a family member of the minor; or
288          (iv) undue influence on the minor regarding the minor's testimony.
289          (e) The service requirement in Subsection (3)(c) may be asserted only by or on behalf
290     of the minor and is not a basis for invalidation of the minor's testimony or any indictment
291     issued by the grand jury.
292          (f) The service requirement of Subsection (3)(d) may be asserted by a parent or legal
293     guardian of the minor on the minor's behalf.
294          (g) If the managing judge finds it necessary to prevent any of the actions enumerated in
295     Subsections (3)(d)(i) through (iv) or to otherwise protect the minor, the judge may appoint a
296     guardian ad litem to receive service on behalf of the minor, to represent the minor, and to
297     protect the interests of the minor.
298          (h) If the minor served under Subsection (3)(d) has no parent, legal guardian, or
299     guardian ad litem with whom to confer [prior to] before the grand jury hearing, the managing
300     judge shall appoint legal counsel to represent the minor at the hearing.
301          (i) For any minor served with a subpoena under this section, [attorneys] an attorney
302     representing the state, or a special [prosecutors] prosecutor appointed under Section 77-10a-12,
303     shall interview and prepare the minor in the presence of the minor's parent or legal guardian
304     and their attorney, or a guardian ad litem at least 24 hours [prior to] before the time the minor
305     is required to testify. The provisions of this [subsection] Subsection (3)(i) requiring the
306     presence of the minor's parent do not apply if:
307          (i) the parent is the subject of the grand jury investigation; or
308          (ii) the parent is engaged in frustrating, or conspires with another to frustrate, the
309     protections and purposes of Subsection (3)(d).
310          (j) The managing judge may enter any order necessary to secure compliance with any
311     subpoena issued in the name of the grand jury.
312          (4) (a) Any witness who appears before the grand jury shall be advised, by the attorney
313     for the state or the special prosecutor, of [his] the right to be represented by counsel.
314          (b) A witness who is also a subject as defined in Section 77-10a-1 shall, at the time of
315     appearance as a witness, be advised:
316          (i) of [his] the right to be represented by counsel;
317          (ii) that [he] the witness is a subject;
318          (iii) that [he] the witness may claim [his] a privilege against self-incrimination; and
319          (iv) of the general scope of the grand jury's investigation.
320          (c) A witness who is also a target as defined in Section 77-10a-1 shall, at the time of
321     appearance as a witness, be advised:
322          (i) of [his] the right to be represented by counsel;
323          (ii) that [he] the witness is a target;
324          (iii) that [he] the witness may claim [his] a privilege against self-incrimination;
325          (iv) that the attorney for the state, the special prosecutor, or the grand jury is in
326     possession of substantial evidence linking [him] the witness to the commission of a crime for
327     which [he] the witness could be charged; and
328          (v) of the general nature of that charge and of the evidence that would support the
329     charge.
330          (d) This Subsection (4) does not require the attorney for the state, the special
331     prosecutor, or the grand jury to disclose to any subject or target:
332          (i) the names or identities of witnesses, sources of information, or informants[, or
333     disclose]; or
334          (ii) information in detail or in a fashion that would jeopardize or compromise any
335     ongoing criminal investigation or endanger any person or the community.
336          (5) (a) The grand jury shall receive evidence without regard for the formal rules of
337     evidence, except the grand jury may receive hearsay evidence only under the same provisions
338     and limitations that apply to preliminary hearings.
339          (b) Any person, including a witness who has previously testified or produced books,
340     records, documents, or other evidence, may present exculpatory evidence to the attorney
341     representing the state or the special prosecutor and request that it be presented to the grand
342     jury, or request to appear personally before the grand jury to testify or present evidence to that
343     body. The attorney for the state or the special prosecutor shall forward the request to the grand
344     jury.
345          (c) When the attorney for the state or the special prosecutor is personally aware of
346     substantial and competent evidence negating the guilt of a subject or target that might
347     reasonably be expected to lead the grand jury not to indict, the attorney or special prosecutor
348     shall present or otherwise disclose the evidence to the grand jury before the grand jury is asked
349     to indict that person.
350          (6) (a) The managing judge has the contempt power and authority inherent in the court
351     over which the managing judge presides and as provided by statute.
352          (b) When a witness in any proceeding before or ancillary to any grand jury appearance
353     refuses to comply with an order from the managing judge to testify or provide other
354     information, including any book, paper, document, record, recording, or other material without
355     having a recognized privilege, the attorney for the state or special prosecutor may apply to the
356     managing judge for an order directing the witness to show cause why the witness should not be
357     held in contempt.
358          (c) After submission of the application and a hearing at which the witness is entitled to
359     be represented by counsel, the managing judge may hold the witness in contempt and order that
360     the witness be confined, upon a finding that the refusal was not privileged.
361          (d) A hearing may not be held under this part unless 72 hours' notice is given to the
362     witness who has refused to comply with the order to testify or provide other information,
363     except a witness may be given a shorter notice if the managing judge upon a showing of special
364     need so orders.
365          (e) Any confinement for refusal to comply with an order to testify or produce other
366     information shall continue until the witness is willing to give the testimony or provide the
367     information. A period of confinement may not exceed the term of the grand jury, including
368     extensions, before which the refusal to comply with the order occurred. In any event, the
369     confinement may not exceed one year.
370          (f) A person confined under this Subsection (6) for refusal to testify or provide other
371     information concerning any transaction, set of transactions, event, or events may not be again
372     confined under this Subsection (6) or for criminal contempt for a subsequent refusal to testify
373     or provide other information concerning the same transaction, set of transactions, event, or
374     events.
375          (g) Any person confined under this section may be admitted to bail or released in
376     accordance with local procedures pending the determination of an appeal taken by the person
377     from the order of the person's confinement unless the appeal affirmatively appears to be
378     frivolous or taken for delay. Any appeal from an order of confinement under this section shall
379     be disposed of as soon as practicable, pursuant to an expedited schedule and in no event more
380     than 30 days from the filing of the appeal.
381          (7) (a) [All proceedings] A proceeding, except when the grand jury is deliberating or
382     voting, shall be recorded stenographically or by an electronic recording device. An
383     unintentional failure of any recording to reproduce all or any portion of a proceeding does not
384     affect the validity of any prosecution or indictment. The recording or reporter's notes or any
385     transcript prepared from them shall remain in the custody or control of the attorney for the state
386     or the special prosecutor unless otherwise ordered by the managing judge in a particular case.
387          (b) A grand juror, an interpreter, a court reporter, an operator of a recording device, a
388     typist who transcribes recorded testimony, an attorney for the state or special prosecutor, or any
389     person to whom disclosure is made under the provisions of this section may not disclose
390     matters occurring before the grand jury except as otherwise provided in this section. A
391     knowing violation of this provision may be punished as a contempt of court.
392          (c) Disclosure otherwise prohibited by this section of matters occurring before the
393     grand jury, other than its deliberations and the vote of any grand juror, may be made to:
394          (i) an attorney for the state or a special prosecutor for use in the performance of that
395     attorney's duty; and
396          (ii) government personnel, including those of state, local, and federal entities and
397     agencies, as are considered necessary by the attorney for the state or special prosecutor to assist
398     the attorney in the performance of the attorney's duty to enforce the state's criminal laws.
399          (d) [Any person] An individual to whom matters are disclosed under this section may
400     not [utilize] use that grand jury material for any purpose other than assisting the attorney for the
401     state or the special prosecutor in performance of that attorney's duty to enforce the state's
402     criminal laws. An attorney for the state or the special prosecutor shall promptly provide the
403     managing judge with the [names of the persons] names of each individual to whom the
404     disclosure [has been] is made and shall certify that the attorney has advised the [person of the
405     person's] individual of the individual's obligation of secrecy under this section.
406          (e) Disclosure otherwise prohibited by this section of matters occurring before the
407     grand jury may also be made when:
408          (i) directed by the managing judge or by any court before which the indictment that
409     involves matters occurring before the grand jury that are subject to disclosure is to be tried,
410     preliminary to or in connection with a judicial proceeding;
411          (ii) permitted by the managing judge at the request of the defendant, upon a showing
412     that grounds may exist for a motion to dismiss the indictment because of matters occurring
413     before the grand jury;
414          (iii) the disclosure is made by an attorney for the state or the special prosecutor to
415     another state or local grand jury or a federal grand jury;
416          (iv) permitted by the managing judge at the request of an attorney for the state or the
417     special prosecutor, upon a showing that the matters may disclose a violation of federal criminal
418     law, to an appropriate official of the federal government for the purpose of enforcing federal
419     law; or
420          (v) showing of special need is made and the managing judge is satisfied that disclosure
421     of the information or matters is essential for the preparation of a defense.
422          (f) When the matters are transcripts of testimony given by witnesses [the state or
423     special prosecutor intends to call in the state's case in chief in any trial upon an indictment
424     returned by the grand jury before which the witnesses testified], the attorney for the state or the
425     special prosecutor shall, [no later than 30 days before trial] as soon as practicable following
426     indictment and before the defendant is required to plead, provide the defendant with access to
427     the transcripts. The attorney for the state or the special prosecutor shall at the same time
428     provide the defendant with access to all exculpatory evidence presented to the grand jury prior
429     to indictment.
430          (g) When the managing judge orders disclosure of matters occurring before the grand
431     jury, disclosure shall be made in a manner, at a time, and under conditions the managing judge
432     directs.
433          (h) A petition for disclosure made under Subsection (7)(e)(ii) shall be filed with the
434     managing judge. Unless the hearing is ex parte, the petitioner shall serve written notice upon
435     the attorney for the state or the special prosecutor, the parties to the judicial proceeding if
436     disclosure is sought in connection with the proceeding, and other persons as the managing
437     judge directs. The managing judge shall afford those persons a reasonable opportunity to
438     appear and be heard.
439          (8) [Records, orders, and subpoenas] A record, order, or subpoena relating to grand
440     jury proceedings shall be kept under seal to the extent and so long as necessary to prevent
441     disclosure of matters occurring before the grand jury other than as provided in this section.
442          (9) Subject to any right to an open hearing in contempt proceedings, the managing
443     judge shall order a hearing on matters affecting a grand jury proceeding to be closed to the
444     extent necessary to prevent disclosure of matters occurring before a grand jury.
445          Section 6. Section 77-10a-17 is amended to read:
446          77-10a-17. Grand jury report on noncriminal misconduct -- Action on the report.
447          (1) A grand jury may upon completion of [its] the grand jury's original term or each
448     extension, with the concurrence of a majority of [its] the grand jury's members, submit to the
449     managing judge a report concerning noncriminal misconduct, malfeasance, or misfeasance in
450     office as a basis for a recommendation of removal or disciplinary action against a public officer
451     or employee.
452          (2) The managing judge to whom the report is submitted shall examine [it] the report
453     and the minutes of the grand jury. The managing judge shall make an order accepting and
454     filing the report as a public record, but only if the managing judge is satisfied that [it] the report
455     complies with Subsection (1) and:
456          (a) the report is based on facts revealed during the grand jury's investigation and is
457     supported by a preponderance of evidence; and
458          (b) each [person] individual named and any reasonable number of witnesses on [his]
459     the individual's behalf as designated by [him] the individual to the foreman of the grand jury
460     were afforded an opportunity to testify before the grand jury [prior to] before the filing of the
461     report.
462          (3) An order accepting a report made under this section and the report itself shall be
463     sealed by the managing judge and may not be filed as a public record or be subject to subpoena
464     or otherwise made public until:
465          (a) at least 31 days after a copy of the order and report are served on each public officer
466     or employee named and an answer has been filed;
467          (b) the time for filing an answer has expired; or
468          (c) an appeal is taken or until all rights of review of the public officer or employee
469     named have expired or terminated in an order accepting the report.
470          (4) (a) An order accepting the report may not be entered until 30 days after the delivery
471     of the report to the public officer or body having jurisdiction, responsibility, or authority over
472     each public officer or employee named in the report.
473          (b) The managing judge may issue [orders it] an order the managing judge finds
474     necessary and appropriate to prevent unauthorized publication of a report. Unauthorized
475     publication of a report may be punished as contempt of court.
476          (5) (a) A public officer or employee named in a report may file with the clerk a verified
477     answer to the report not later than 20 days after service of the order and report upon [him] the
478     public officer or employee. Upon a showing of good cause, the managing judge may grant the
479     public officer or employee an extension of time to file an answer and may authorize limited
480     publication of the report as necessary to prepare an answer.
481          (b) The answer shall plainly and concisely state the facts and law constituting the
482     defense of the public officer or employee to the charges in the report. Except for those parts
483     the managing judge determines have been inserted scandalously, prejudiciously, or
484     unnecessarily, the answer becomes an appendix to the report.
485          (6) Upon the submission of a report made under this section the managing judge shall
486     order the report sealed if [he] the managing judge finds the filing of the report as a public
487     record may prejudice fair consideration of a pending criminal matter. The report may not be
488     subject to subpoena or public inspection during the pendency of the criminal matter except
489     upon order of the managing judge.
490          (7) (a) When the managing judge to whom a report is submitted is not satisfied that the
491     report complies with [the provisions of] this section, [he] the managing judge may direct that
492     additional testimony be taken before the same grand jury or [he] the managing judge shall
493     make an order sealing the report.
494          (b) If the report is sealed, it may not be filed as a public record or be subject to
495     subpoena or otherwise made public until the provisions of this section are met.
496          (8) A grand jury's term may be extended by the managing judge so additional
497     testimony may be taken or the provisions of this section met.
498          Section 7. Section 77-10a-20 is amended to read:
499          77-10a-20. Expenses of grand jury -- Appropriation -- Payment by state or
500     county.
501          (1) (a) The expenses of operation of a grand jury summoned under this chapter shall be
502     paid by the Judicial Council, except under Subsection (2).
503          (b) Expenses include grand juror fees, rental of a facility, cost of transcripts, payment
504     for a court reporter or electronic recording device, secretarial services, and investigation and
505     recorder staff.
506          (c) For this purpose, an appropriation of $25,000 is made from the General Fund to the
507     Judicial Council as a separate line item in the budget of the Judicial Council.
508          (d) Any amount of this appropriation remaining at the end of the fiscal year lapses into
509     the General Fund.
510          (2) (a) When a grand jury is summoned to investigate an allegation that is determined
511     to be primarily a county-related issue, the expenses of the grand jury shall be paid by the
512     county or counties involved.
513          (b) When a grand jury is summoned upon request of a county attorney, district
514     attorney, or municipal attorney, the expenses of the grand jury shall be paid by the respective
515     county or municipality.
516          [(b)] (c) The supervising judge shall determine before the grand jury is called if the
517     allegations involve primarily the state or a county or counties and whether the request to
518     summon is from a county attorney, district attorney, or municipal attorney for purposes of
519     determining payment of expenses under this section.
520          (3) The expenses of any grand jury and the compensation for any special prosecutor
521     appointed under this chapter shall be reviewed and approved or disapproved by the clerk of the
522     court under the direction of the managing judge.