Colorado § 16-5-204 - Witnesses before a grand jury - procedure.

§ 16-5-204. Witnesses before a grand jury - procedure.

(1) (a) Whenever a witness in any proceeding before any grand jury refuses, without just cause shown, to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the prosecuting attorney may submit an application to the court for an order directing the witness to show why the witness should not be held in contempt. After submission of such application and a hearing at which the witness may be represented by counsel, the court may, if the court finds that such refusal was without just cause, hold the witness in contempt and order the witness to be confined. Such confinement shall continue until such time as the witness is willing to give such testimony or provide such information; however, the court may release the witness from confinement if the court determines that further confinement will not cause the witness to give such testimony or provide such information. No period of such confinement shall exceed the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, and in no event shall such confinement exceed six months.

(b) If a witness has been confined in accordance with paragraph (a) of this subsection (1), he or she may, upon petition filed with the court, request a hearing to be held within fourteen days to review the contempt order at which hearing he or she shall have the right to be represented by counsel. The court, at the hearing, may rescind, modify, or affirm the order.

(c) In any proceeding conducted under this section, counsel may be appointed for a person financially unable to obtain adequate assistance.

(1.5) (a) Upon verified application of the prosecuting attorney stating that a witness was lawfully served with a subpoena to appear and testify before the grand jury and that the witness failed to appear in accordance with such subpoena, the court shall issue a warrant commanding any peace officer to bring the witness without unnecessary delay before the court for a hearing on the matters set forth in the application and to determine whether the witness should be held in contempt pursuant to subsection (1) of this section.

(b) Upon issuance of the warrant, the court may fix an appropriate bond and direct, as a condition of the bond, that the witness appear on a date and at a time certain for the hearing.

(2) No person who has been imprisoned or fined by a court for refusal to testify or provide other information concerning any criminal incident or incidents in any proceeding before a grand jury impaneled before any district court shall again be imprisoned or fined for a subsequent refusal to testify or provide other information concerning the same criminal incident or incidents before any grand jury.

(3) Upon impanelment of each grand jury, the court shall give to such grand jury adequate and reasonable written notice of and shall assure that the grand jury reasonably understands the nature of:

(a) Its duty to inquire into offenses against the criminal laws of the state of Colorado alleged to have been committed;

(b) Its right to call and interrogate witnesses;

(c) Its right to request the production of documents or other evidence;

(d) The subject matter of the investigation and the criminal statutes or other statutes involved, if these are known at the time the grand jury is impaneled;

(e) The duty of the grand jury by an affirmative vote of nine or more members of the grand jury to determine, based on the evidence presented before it, whether or not there is probable cause for finding indictments and to determine the violations to be included in any such indictments; and

(f) The requirement that the grand jury may not find an indictment in cases of perjury unless at least two witnesses to the same fact present evidence establishing probable cause to find such an indictment.

(4) (a) At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following advisement prominently displayed on the front of the subpoena:

NOTICE

(I) You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.

(II) Anything you say to the grand jury may be used against you in a court of law.

(III) You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.

(IV) If you cannot afford or obtain an attorney, you may request the court to appoint an attorney to consult with or represent you.

(b) Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.

(c) Repealed.

(d) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.

(e) Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.

(f) An authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. The reporter's notes and any transcripts which may be prepared shall be preserved, sealed, and filed with the court. No release or destruction of the notes or transcripts shall occur without prior court approval.

(g) Upon application by the prosecutor, or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his own grand jury testimony, or minutes, reports, or exhibits relating to them.

(h) Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness's written approval, shall be entitled, prior to testifying, to examine and copy at the witness's expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made to any law enforcement or prosecution official or under an oath required by law that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he shall be furnished, upon request, a copy of such transcript and shall not pay a fee.

(i) No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in this section, for his failure to so testify or produce such objects if, upon filing a motion and upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:

(I) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;

(II) Compliance with a subpoena would be unreasonable or oppressive;

(III) A primary purpose of the issuance of the subpoena is to harass the witness;

(IV) The witness has already been confined, imprisoned, or fined under this section for his refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or

(V) The witness has not been advised of his rights as specified in paragraph (a) of this subsection (4).

(j) Any grand jury may indict a person for an offense when the evidence before such grand jury provides probable cause to believe that such person committed such offense.

(k) The district court before which the indicted defendant is to be tried shall dismiss any indictment of the grand jury if such district court finds, upon the filing of a motion by the indicted defendant based upon the grand jury record without argument or further evidence, that the grand jury finding of probable cause is not supported by the record.

(l) Any person may approach the prosecuting attorney or the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. The prosecuting attorney or the grand jury shall keep a record of all denials of such requests to that prosecuting attorney or grand jury, including the reasons for not allowing such person to testify or appear. If the person making such request is dissatisfied with the decision of the prosecuting attorney or the grand jury, such person may petition the court for hearing on the denial by the prosecuting attorney or the grand jury. If the court grants the hearing, then the court may permit the person to testify or appear before the grand jury, if the court finds that such testimony or appearance would serve the interests of justice.

(m) The foreman, or acting foreman when designated by the court, of the grand jury may swear or affirm all witnesses who come before the grand jury.

(n) Any other motions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.

Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-204. L. 77: Entire section R&RE, p. 853, § 1, effective June 21. L. 81: (4)(c) repealed, p. 926, § 2, effective July 1. L. 82: (4)(f) amended, p. 623, § 15, effective April 2. L. 2000: (4)(h) amended, p. 428, § 1, effective April 14. L. 2002: (1.5) added, p. 759, § 6, effective July 1. L. 2012: (4)(a) amended, (HB-1310), ch. 268, p. 1393, § 6, effective June 7; (1)(b) amended, (SB 12-175), ch. 208, p. 849, § 71, effective July 1.

ANNOTATION

Law reviews. For article, "State Grand Juries in Colorado: Understanding the Process and Attacking Indictments", see 34 Colo. Law. 63 (Apr. 2005).

Annotator's note. Since § 16-5-204 is similar to repealed CSA, C. 48, § 448, relevant cases construing that provision have been included in the annotations to this section.

Compliance need not appear on face of indictment. Compliance with the provisions of this section need not appear on the face of the indictment because the presumption of regularity pertains. People v. Swanson, 109 Colo. 371, 125 P.2d 637 (1942).

This section does not prohibit grand jury from questioning persons suspected of crimes. People v. McPhail, 118 Colo. 478, 197 P.2d 315 (1948).

Even if issuance of subpoena was abuse of grand jury's powers, defendant must show that the abuse prejudiced him before he is entitled to have the fruits of the subpoena suppressed. People v. Vesely, 41 Colo. App. 325, 587 P.2d 802 (1978).

Where subpoena produces only evidence otherwise discoverable, defendant is in no way prejudiced by its issuance, even though erroneous, and any impropriety in the grand jury process is harmless. People v. Vesely, 41 Colo. App. 325, 587 P.2d 802 (1978).

Order suppressing intercepted communications is "just cause". An order suppressing intercepted communications pursuant to § 16-15-102 (10) would constitute a showing of "just cause" within the meaning of subsection (1)(a). In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).

Attorney may not represent more than one witness. To preserve the secrecy and effectiveness of the grand jury process, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission, and this is a constitutionally permissible limitation of the right to counsel. People ex rel. Lasavio v. J.L., 195 Colo. 494, 580 P.2d 23 (1978).

Legislative intent as to right to counsel. Close scrutiny of this section reveals that the general assembly intended to abolish the established practice of permitting grand jury witnesses to consult with an attorney outside the grand jury room only, and substitute a system which expands the protections afforded grand jury witnesses while insuring continued efficacy of the grand jury process. People ex rel. Lasavio v. J.L., 195 Colo. 494, 580 P.2d 23 (1978).

Equal protection not violated. Subsection (4)(d) does not create a classification subject to challenge under the equal protection clause. People ex rel. Lasavio v. J.L., 195 Colo. 494, 580 P.2d 23 (1978).

Oral advisement of rights in presence of grand jury does not meet requirements of this section and does not afford the witness the protection intended by this section that he be permitted to exercise his privilege against self-incrimination outside the presence of the grand jury without having to appear and do so in the presence of the grand jury. People ex rel. Gallagher v. District Court, 198 Colo. 468, 601 P. 2d 1380 (1979).

Inappropriate conduct by district attorney merits court's release of grand jury transcripts to defense. Only in case where clear examples of inappropriate conduct by the district attorney may affect the validity of the defendant's indictment, or the determination of probable cause, should the trial court sacrifice the confidentiality of the grand jury proceedings and release a transcript of the grand jury colloquy to defense counsel. People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980).

Indictment is culmination of probable cause screening process of grand jury and that procedure functions as a constitutionally adequate substitute for a preliminary hearing. People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980).

When indictment properly dismissed. Where trial judge, with probable cause as the criteria for determining the sufficiency of the record to support the indictment, concluded that the record was insufficient to support the charges contained in the indictment, the indictment was properly dismissed. People v. Laughlin, 621 P.2d 1388 (Colo. 1981).

Court to evaluate finding of probable cause. The duty of the trial court under subsection (4)(k) is to evaluate the sufficiency of the evidence presented to the grand jury to establish probable cause. People v. Luttrell, 636 P.2d 712 (Colo. 1981).

Standards for review of determination of probable cause. The district court function in conducting a review of the grand jury record, as authorized by subsection (4)(k), is much like the role of the court at a preliminary hearing and the same rule applies in determining the existence or absence of probable cause. The court must draw all inferences in favor of the prosecution, and when there is a conflict in the testimony a question of fact exists for determination at trial. People v. Summers, 197 Colo. 445, 593 P.2d 969 (1979); People v. Luttrell, 636 P.2d 712 (Colo. 1981).

Subsection (4)(k) unambiguously requires a district court to dismiss "any indictment" from a grand jury that lacks probable cause, including an indictment count that is a sentence enhancer. A proceeding under this section is different from a preliminary hearing in which the court's authority is limited to dismissing "an offense" that lacks probable cause. People v. Soto-Campos, 2018 COA 118, 436 P.3d 566.

In determining whether compliance with subpoena duces tecum will be "unreasonable or oppressive", the court must balance the competing interests of the individual's right to keep his personal affairs confidential with the grand jury's right to investigate criminal activity. Losavio v. Robb, 195 Colo. 533, 579 P.2d 1152 (1978).

When evidentiary phase of contempt hearing may be closed to public. The evidentiary phase of a grand jury witness's contempt hearing may be closed to the public and press only upon express findings by the court that: (1) A public hearing would create a clear and present danger to the investigation of matters presently pending before the grand jury; and (2) the prejudicial effect of such information on presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than closure. In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).

As to procedures at indirect contempt hearing, see In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).

Grand jury subpoenas not bona fide where obtained by unauthorized persons. Subpoenas for toll records of a telephone subscriber were not bona fide grand jury subpoenas where they were obtained by investigators of strike force who had no authority to represent the state grand jury, and therefore toll records so obtained were properly suppressed. People v. Corr, 682 P.2d 20 (Colo. 1984).

Disclosure of grand jury materials to federal prosecutors without prior court approval, in violation of this section, did not violate federal constitutional or statutory rights. United States v. Pignatiello, 628 F. Supp. 68 (D. Colo. 1986).

A writ to transport an inmate to a grand jury hearing is not the functional equivalent of a subpoena to testify at the hearing. As such, an advisement of rights under subsection (4) is not required. People v. Seader, 2012 COA 184, 292 P.3d 1193.

Written advisement requirement of subsection (4) does not apply to non-subpoenaed, voluntary witnesses. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

Term "any witness", as used in subsection (4)(b), means any subpoenaed witness who did not receive a written advisement upon the subpoena. It does not include a voluntary witness. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

The right to service of a subpoena bearing an advance written advisement is a statutory right subject to voluntary waiver. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

Violation of procedures may warrant dismissal of indictment if behavior of government agents is so outrageous as to violate fundamental fairness and shock the universal sense of justice. People v. Auld, 815 P.2d 956 (Colo. App. 1991); People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

Alleged prosecutorial misconduct held not sufficient to warrant dismissal where evidence against defendant was strong, unauthorized changes to transcript after return of indictment were minor, and review of records and affidavits supported trial court's determination that grand jury discharged its duty without malice, ill will, fear, or favoritism. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

No right to evidentiary hearing on issue of off-the-record prosecutorial misconduct where evidence presented during recorded proceedings was more than sufficient to support the indictment. Although grand jury secrecy is not absolute, breach of that security should be countenanced only upon compelling need. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).

Applied in Lindsay v. People, 119 Colo. 483, 204 P.2d 878 (1949); People v. DeJesus, 184 Colo. 230, 519 P.2d 944 (1974); Thomas v. County Court, 198 Colo. 87, 596 P.2d 768 (1979); People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 (Colo. 1982); People v. Armstrong, 664 P.2d 713 (Colo. App. 1982); People v. Moyer, 670 P.2d 785 (Colo. 1983).