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First Substitute H.B. 222
Representative Neal B. Hendrickson proposes to substitute the following bill:
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SUBPOENA POWER AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Neal B. Hendrickson
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AN ACT RELATING TO THE UTAH CODE OF CRIMINAL PROCEDURE; MODIFYING
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THE SUBPOENA POWERS FOR AID OF CRIMINAL INVESTIGATION AND GRANTS OF
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IMMUNITY; AMENDING CERTAIN PROVISIONS RELATING TO THE RIGHT TO
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SUBPOENA WITNESSES; MODIFYING CERTAIN PROVISIONS GOVERNING
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DISCLOSURE OF INFORMATION; AND MAKING TECHNICAL CORRECTIONS.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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77-22-2, as last amended by Chapter 38, Laws of Utah 1993
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
77-22-2
is amended to read:
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77-22-2. Investigations -- Right to subpoena witnesses and require production of
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evidence -- Contents of subpoena -- Rights of witnesses -- Interrogation before closed court
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-- Disclosure of information.
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(1) As used in this section, "prosecutor" means the attorney general, county attorney, or
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district attorney.
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[(1)] (2) (a) In any matter involving the investigation of a crime or malfeasance in office,
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or any criminal conspiracy or activity, the [attorney general, county attorney, or district attorney
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as provided under Sections
17-18-1
and
17-18-1.7
] prosecutor may, upon application and approval
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of the district court and for good cause shown, conduct a criminal investigation.
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(b) The application and statement of good cause shall state whether or not any other
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investigative order related to the investigation at issue has been filed in another court.
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[(2)] (3) (a) [The attorney general, county attorney, or district attorney] Subject to the
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conditions established in Subsection (3)(b), the prosecutor may:
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(i) subpoena witnesses[,];
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(ii) compel their attendance and testimony under oath to be recorded by a suitable
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electronic recording device or to be given before any certified court reporter[,]; and
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(iii) require the production of books, papers, documents, recordings, and any other items
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that constitute evidence or may be relevant to the investigation.
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(b) The [attorney general, county attorney, or district attorney] prosecutor shall [first]:
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(i) apply to the district court for each subpoena; and [shall]
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(ii) show that the requested information is reasonably related to the criminal investigation
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authorized by the court.
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[(3)] (4) (a) The prosecutor shall state in each subpoena:
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[(a)] (i) the time and place of the [interrogation] examination;
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[(b)] (ii) that the subpoena is issued in aid of a criminal investigation; and
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[(c)] (iii) the right of the person subpoenaed to have counsel present.
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(b) The examination may be conducted anywhere within the jurisdiction of the prosecutor
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issuing the subpoena.
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(c) The subpoena need not disclose the names of possible defendants.
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(d) Witness fees and expenses shall be paid as in a civil action.
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[(4)] (5) (a) [The prosecutor shall also personally inform each witness at] At the beginning
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of each compelled interrogation, the prosecutor shall personally inform each witness:
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[(a)] (i) of the general subject matter of the investigation;
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[(b)] (ii) of the privilege to, at any time during the proceeding [to], refuse to answer any
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question or produce any evidence of a communicative nature that may result in self-incrimination;
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[(c)] (iii) that any information provided may be used against the witness in a subsequent
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criminal proceeding; and
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[(d)] (iv) of the right to have counsel present.
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[(5)] (b) If the [attorney general, county attorney, or district attorney] prosecutor has
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substantial evidence that the subpoenaed witness has committed a crime that is under investigation,
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[he] the prosecutor shall:
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(i) inform [that] the witness in person [prior to] before interrogation of that witness's target
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status; and
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(ii) inform the witness of the nature of the charges under consideration against [him] the
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witness.
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[(6) (a) The subpoena need not disclose the names of possible defendants but shall state
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the time and place of the examination, which may be conducted anywhere within the jurisdiction
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of the prosecutor issuing the subpoena.]
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[(b) Witness fees and expenses shall be paid as in a civil action.]
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[(7)] (6) (a) (i) The [attorney general, county attorney, or district attorney] prosecutor may
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make written application to any district court showing a reasonable likelihood that publicly
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releasing information about the identity of a witness or the substance of the evidence resulting
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from a subpoena or interrogation would pose a threat of harm to a person or otherwise impede the
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investigation.
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(ii) Upon a finding of reasonable likelihood, the court may order the:
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[(i)] (A) interrogation of a witness be held in secret;
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[(ii)] (B) occurrence of the interrogation and other subpoenaing of evidence, the identity
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of the person subpoenaed, and the substance of the evidence obtained be kept secret; and
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[(iii)] (C) record of testimony and other subpoenaed evidence be kept secret unless the
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court for good cause otherwise orders.
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(b) After application, the court may by order exclude from any investigative hearing or
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proceeding any persons except:
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(i) the attorneys representing the state[,] and members of their staffs[,];
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(ii) persons who, in the judgment of the attorneys representing the state, are reasonably
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necessary to assist in the investigative process[,];
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(iii) the court reporter or operator of the electronic recording device[,]; and
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(iv) the attorney for the witness.
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(c) This chapter does not prevent attorneys representing the state or members of their staff
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from disclosing information obtained pursuant to this chapter for the purpose of furthering any
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official governmental investigation.
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(d) (i) If a secrecy order has been granted by the court regarding the interrogation or
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disclosure of evidence by a witness under this subsection, and if the court finds a further restriction
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on the witness is appropriate, the court may order the witness not to disclose the substance of the
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witness's testimony or evidence given by the witness to others.
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(ii) Any order to not disclose made under this subsection shall be served with the
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subpoena.
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(iii) In an appropriate circumstance the court may order that the witness not disclose the
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existence of the investigation to others.
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(iv) Any order under this Subsection (6)(d) must be based upon a finding by the court that
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one or more of the following risks exist:
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[(i)] (A) disclosure by the witness would cause destruction of evidence;
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[(ii)] (B) disclosure by the witness would taint the evidence provided by other witnesses;
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[(iii)] (C) disclosure by the witness to a target of the investigation would result in flight
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or other conduct to avoid prosecution;
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[(iv)] (D) disclosure by the witness would damage a person's reputation; or
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[(v)] (E) disclosure by the witness would cause a threat of harm to any person.
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(e) (i) If the court imposes an order under Subsection (6)(d) authorizing an instruction to
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a witness not to disclose the substance of testimony or evidence provided and the prosecuting
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agency proves by a preponderance of the evidence that a witness has violated that order, the court
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may hold the witness in contempt.
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(ii) An order of secrecy imposed on a witness under this Subsection (6)(e) may not infringe
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on the attorney-client relationship between the witness and his attorney or on any other legally
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recognized privileged relationship.
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[(8) If the state's application and good cause showing for the order authorizing the
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investigation and the order itself contain the identities of witnesses and targets of the investigation,
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the attorney general, county attorney, or district attorney]
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(7) (a) (i) The prosecutor may submit [an application] to any district court [showing a
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reasonable likelihood that publicly releasing information about those identities would pose a threat
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of harm to a person or otherwise impede the investigation. The court may order that the
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application, for good cause shown, and order for the entire investigation be kept secret unless the
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court for good cause otherwise orders.] a separate written request that the application, statement
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of good cause, and the court's order authorizing the investigation be kept secret.
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(ii) The request for secrecy is a public record under Title 63, Chapter 2, Government
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Records Access and Management Act, but need not contain any information that would
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compromise any of the interest listed in Subsection (7)(c).
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(b) With the court's permission, the prosecutor may submit to the court, in camera, any
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additional information to support the request for secrecy if necessary to avoid compromising the
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interests listed in Subsection (7)(c).
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(c) The court shall consider all information in the application and order authorizing the
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investigation and any information received in camera and shall order that all information be placed
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in the public file except information that, if disclosed, would pose:
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(i) a substantial risk of harm to a person's safety;
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(ii) a clearly unwarranted invasion of or harm to a person's reputation or privacy; or
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(iii) a serious impediment to the investigation.
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(d) Before granting an order keeping secret documents and other information received
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under this section, the court shall narrow the secrecy order as much as reasonably possible in order
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to preserve the openness of court records while protecting the interests listed in Subsection (7)(c).
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