Colorado § 16-5-205.5 - Grand jury reports.

§ 16-5-205.5. Grand jury reports.

(1) In any case in which a grand jury does not return an indictment, the grand jury may prepare or ask to be prepared a report of its findings if the grand jury determines that preparation and release of a report would be in the public interest, as described in subsection (5) of this section. The determination to prepare and release a report pursuant to this section must be made by an affirmative vote of at least the number of jurors that would have been required to return an indictment. The report shall be accompanied by certification that the grand jury has determined that release of the report is in the public interest, as described in subsection (5) of this section.

(2) The provisions of this section shall not apply in any instance in which the prosecuting attorney chooses to file charges against the person or business that was the subject of the grand jury investigation.

(3) Within fourteen days after receiving a report of the grand jury prepared pursuant to subsection (1) of this section, the prosecuting attorney shall notify in writing all persons and businesses named in the grand jury report to give such persons and businesses an opportunity to review the grand jury report and prepare a response to be submitted to the court with the grand jury report. Such notice shall be by personal service or by certified mail return receipt requested. Any responses shall be submitted to the prosecuting attorney within fourteen days after notification.

(4) Upon completion of the time for submitting responses, the prosecuting attorney shall submit the grand jury report to the court, together with the certification of public interest and any responses that may have been submitted. The court shall examine the report and make an order accepting and filing the report, including the certification and any responses that the respondent, by written notice to the prosecuting attorney and the court, has agreed to release, as a public record only if the court is satisfied that:

(a) The grand jury and the prosecuting attorney were acting within the statutory jurisdiction of such persons in convening the grand jury; and

(b) The grand jury foreman and the prosecuting attorney have verified on the record that:

(I) The certification of public interest by the grand jury complies with the provisions of subsection (5) of this section; and

(II) The report is based on facts revealed in the course of the grand jury investigation and is supported by a preponderance of the evidence; and

(III) The report does not contain material the sole effect of which is to ridicule or abuse a person or business or to subject such person or business to public disgrace or embarrassment; and

(IV) The report does not contain material that is personal in nature that does not relate to any lawful inquiry; and

(V) No confidentiality agreement will be violated and the identity of no confidential informant will be disclosed in making such grand jury report public; and

(VI) The filing of such report as a public record does not prejudice the fair consideration of a criminal matter.

(5) Release of a grand jury report pursuant to this section may be deemed to be in the public interest only if the report addresses one or more of the following:

(a) Allegations of the misuse or misapplication of public funds;

(b) Allegations of abuse of authority by a public servant, as defined in section 18-1-901 (3)(o), C.R.S., or a peace officer, as described in section 16-2.5-101;

(c) Allegations of misfeasance or malfeasance with regard to a governmental function, as defined in section 18-1-901 (3)(j), C.R.S.;

(d) Allegations of commission of a class 1, class 2, or class 3 felony.

Source: L. 97: Entire section added, p. 313, § 1, effective October 1. L. 2003: (5)(b) amended, p. 1614, § 8, effective August 6. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 849, § 72, effective July 1.

ANNOTATION

Grand jury had discretion to release a report under this statute even though it did not choose to issue an indictment and trial court was correct in approving the release of the grand jury report in this instance. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).

Term "case" in the statute means any matter that has become the object of investigation arising out of the subject matter of inquiry. If a single, comprehensive investigation by a grand jury led to an indictment, this section prohibits the release of a grand jury report on another issue of the investigation unrelated to the indictment. In re 2003-2004 Term of the State Grand Jury, 148 P.3d 440 (Colo. App. 2006).

Trial court's role in reviewing the grand jury proceedings is limited. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).

Statute's legislative history evidences intent of general assembly that the court should have limited discretion in determining whether a grand jury report should be released. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).

Because the general assembly did not provide in statute for disclosure of grand jury reports and limited the court's role in reviewing grand jury reports, it intended that persons named respond only to the information contained in the report. Open-ended discovery of the grand jury proceedings is not an option. In re 2000-2001 Dist. Grand Jury, 77 P.3d 779 (Colo. App. 2003), aff'd, 97 P.3d 921 (Colo. 2004).

Party to grand jury report failed to demonstrate that this section affects a cognizable due process interest, and, thus, federal due process concerns are not implicated. In re 2000-2001 Dist. Grand Jury, 97 P.3d 921 (Colo. 2004).

Role of a trial court reviewing a grand jury report for the purpose of determining whether it should be released or not is to review the report independently to determine whether, on its face, the report satisfies the requirement that it concern matters of public interest, as defined by the statute, and to measure the certification of the grand jury foreperson and the prosecuting attorney against the facts contained in the report. Trial court had obligation to verify that the report comports with the certification and in this instance the trial court did not err in permitting the release of a report. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).

Purpose of subsection (4) is to prevent the grand jury process from being used as a subterfuge to obtain information for use in other proceedings. Charnes v. Lilly, 197 Colo. 460, 593 P.2d 967 (1979) (decided under repealed § 16-5-205 (4)).

Word "report" in subsection (4) is all-inclusive and includes transcripts. Charnes v. Lilly, 197 Colo. 460, 593 P.2d 967 (1979) (decided under repealed § 16-5-205 (4)).

"Report" also includes corporate records used in grand jury proceedings. People v. Tynan, 701 P.2d 80 (Colo. App. 1984) (decided under repealed § 16-5-205 (4)).

"Misfeasance" defined as conduct that is not simply bad public policy but an illegal, wrongful, or corrupt exercise of government power. In re 2010 Denver County Grand Jury, 2012 COA 45, 296 P.3d 168.