77-10a-13 - Location -- Who may be present -- Witnesses -- Witnesses who are subjects -- Evidence -- Contempt -- Notice -- Record of proceedings -- Disclosure.
77-10a-13. Location -- Who may be present -- Witnesses -- Witnesses who aresubjects -- Evidence -- Contempt -- Notice -- Record of proceedings -- Disclosure.
(1) The managing judge shall designate the place where the grand jury meets. The grandjury may, upon request and with the permission of the managing judge, meet and conductbusiness any place within the state. Subject to the approval of the managing judge the grand juryshall determine the times at which it meets.
(2) (a) Attorneys representing the state, special prosecutors appointed under Section77-10a-12, the witness under examination, interpreters when needed, counsel for a witness, and acourt reporter or operator of a recording device to record the proceedings may be present whilethe grand jury is in session.
(b) No person other than the jurors may be present while the grand jury is deliberating.
(3) (a) The attorneys representing the state and the special prosecutors may subpoenawitnesses to appear before the grand jury and may subpoena evidence in the name of the grandjury without the prior approval or consent of the grand jury or the court. The jury may requestthat other witnesses or evidence be subpoenaed.
(b) Subpoenas may be issued in the name of the grand jury to any person located withinthe state and for any evidence located within the state or as otherwise provided by law.
(c) The managing judge may enter any order necessary to secure compliance with anysubpoena issued in the name of the grand jury.
(4) (a) Any witness who appears before the grand jury shall be advised, by the attorneyfor the state or the special prosecutor, of his right to be represented by counsel.
(b) A witness who is also a subject as defined in Section 77-10a-1 shall at the time heappears as a witness be advised:
(i) of his right to be represented by counsel;
(ii) that he is a subject;
(iii) that he may claim his privilege against self-incrimination; and
(iv) of the general scope of the grand jury's investigation.
(c) A witness who is also a target as defined in Section 77-10a-1 shall at the time heappears as a witness, be advised:
(i) of his right to be represented by counsel;
(ii) that he is a target;
(iii) that he may claim his privilege against self-incrimination;
(iv) that the attorney for the state, the special prosecutor, or the grand jury is inpossession of substantial evidence linking him to the commission of a crime for which he couldbe charged; and
(v) of the general nature of that charge and of the evidence that would support the charge.
(d) This subsection does not require the attorney for the state, the special prosecutor, orthe grand jury to disclose to any subject or target the names or identities of witnesses, sources ofinformation, or informants, or disclose information in detail or in a fashion that would jeopardizeor compromise any ongoing criminal investigation or endanger any person or the community.
(5) (a) The grand jury shall receive evidence without regard for the formal rules ofevidence, except the grand jury may receive hearsay evidence only under the same provisions andlimitations that apply to preliminary hearings.
(b) Any person, including a witness who has previously testified or produced books,records, documents, or other evidence, may present exculpatory evidence to the attorney
representing the state or the special prosecutor and request that it be presented to the grand jury,or request to appear personally before the grand jury to testify or present evidence to that body. The attorney for the state or the special prosecutor shall forward the request to the grand jury.
(c) When the attorney for the state or the special prosecutor is personally aware ofsubstantial and competent evidence negating the guilt of a subject or target that might reasonablybe expected to lead the grand jury not to indict, he shall present or otherwise disclose theevidence to the grand jury before the grand jury is asked to indict that person.
(6) (a) The managing judge has the contempt power and authority inherent in the courtover which he presides and as provided by statute.
(b) When a witness in any proceeding before or ancillary to any grand jury appearancerefuses to comply with an order from the managing judge to testify or provide other information,including any book, paper, document, record, recording, or other material without having arecognized privilege, the attorney for the state or special prosecutor may apply to the managingjudge for an order directing the witness to show cause why he should not be held in contempt.
(c) After submission of the application and a hearing at which the witness is entitled to berepresented by counsel, the managing judge may hold the witness in contempt and order that hebe confined, upon a finding that the refusal was not privileged.
(d) A hearing may not be held under this part unless 72 hours notice is given to thewitness who has refused to comply with the order to testify or provide other information, except awitness may be given a shorter notice if the managing judge upon a showing of special need soorders.
(e) Any confinement for refusal to comply with an order to testify or produce otherinformation shall continue until the witness is willing to give the testimony or provide theinformation. A period of confinement may not exceed the term of the grand jury, includingextensions, before which the refusal to comply with the order occurred. In any event theconfinement may not exceed one year.
(f) A person confined under this subsection for refusal to testify or provide otherinformation concerning any transaction, set of transactions, event, or events may not be againconfined under this subsection or for criminal contempt for a subsequent refusal to testify orprovide other information concerning the same transaction, set of transactions, event, or events.
(g) Any person confined under this section may be admitted to bail or released inaccordance with local procedures pending the determination of an appeal taken by him from theorder of his confinement unless the appeal affirmatively appears to be frivolous or taken fordelay. Any appeal from an order of confinement under this section shall be disposed of as soonas practicable, pursuant to an expedited schedule and in no event more than 30 days from thefiling of the appeal.
(7) (a) All proceedings, except when the grand jury is deliberating or voting, shall berecorded stenographically or by an electronic recording device. An unintentional failure of anyrecording to reproduce all or any portion of a proceeding does not affect the validity of anyprosecution or indictment. The recording or reporter's notes or any transcript prepared from themshall remain in the custody or control of the attorney for the state or the special prosecutor unlessotherwise ordered by the managing judge in a particular case.
(b) A grand juror, an interpreter, a court reporter, an operator of a recording device, atypist who transcribes recorded testimony, an attorney for the state or special prosecutor, or anyperson to whom disclosure is made under the provisions of this section may not disclose matters
occurring before the grand jury except as otherwise provided in this section. A knowing violationof this provision may be punished as a contempt of court.
(c) Disclosure otherwise prohibited by this section of matters occurring before the grandjury, other than its deliberations and the vote of any grand juror, may be made to:
(i) an attorney for the state or a special prosecutor for use in the performance of thatattorney's duty; and
(ii) government personnel, including those of state, local, and federal entities andagencies, as are considered necessary by the attorney for the state or special prosecutor to assisthim in the performance of his duty to enforce the state's criminal laws.
(d) Any person to whom matters are disclosed under this section may not utilize thatgrand jury material for any purpose other than assisting the attorney for the state or the specialprosecutor in performance of that attorney's duty to enforce the state's criminal laws. An attorneyfor the state or the special prosecutor shall promptly provide the managing judge with the namesof the persons to whom the disclosure has been made and shall certify that the attorney hasadvised the person of his obligation of secrecy under this section.
(e) Disclosure otherwise prohibited by this section of matters occurring before the grandjury may also be made when:
(i) directed by the managing judge or by any court before which the indictment thatinvolves matters occurring before the grand jury that are subject to disclosure is to be tried,preliminary to or in connection with a judicial proceeding;
(ii) permitted by the managing judge at the request of the defendant, upon a showing thatgrounds may exist for a motion to dismiss the indictment because of matters occurring before thegrand jury;
(iii) the disclosure is made by an attorney for the state or the special prosecutor to anotherstate or local grand jury or a federal grand jury;
(iv) permitted by the managing judge at the request of an attorney for the state or thespecial prosecutor, upon a showing that the matters may disclose a violation of federal criminallaw, to an appropriate official of the federal government for the purpose of enforcing federal law;or
(v) showing of special need is made and the managing judge is satisfied that disclosure ofthe information or matters is essential for the preparation of a defense.
(f) When the matters are transcripts of testimony given by witnesses, the state or specialprosecutor intends to call in the state's case in chief in any trial upon an indictment returned by thegrand jury before which the witnesses testified, the attorney for the state or the special prosecutorshall, no later than 30 days before trial, provide the defendant with access to the transcripts. Theattorney for the state or the special prosecutor shall at the same time provide the defendant withaccess to all exculpatory evidence presented to the grand jury prior to indictment.
(g) When the managing judge orders disclosure of matters occurring before the grandjury, disclosure shall be made in a manner, at a time, and under conditions the managing judgedirects.
(h) A petition for disclosure made under Subsection (7)(e)(ii) shall be filed with themanaging judge. Unless the hearing is ex parte, the petitioner shall serve written notice upon theattorney for the state or the special prosecutor, the parties to the judicial proceeding if disclosureis sought in connection with the proceeding, and other persons as the managing judge directs. The managing judge shall afford those persons a reasonable opportunity to appear and be heard.
(8) Records, orders, and subpoenas relating to grand jury proceedings shall be kept underseal to the extent and so long as necessary to prevent disclosure of matters occurring before thegrand jury other than as provided in this section.
(9) Subject to any right to an open hearing in contempt proceedings, the managing judgeshall order a hearing on matters affecting a grand jury proceeding to be closed to the extentnecessary to prevent disclosure of matters occurring before a grand jury.
Amended by Chapter 372, 1997 General Session