TITLE: GRAND JURY DUE REFORM ACT

SUMMARY:

The purpose of this act is to provide greater transparency, accountability, and fairness for the accused during grand jury proceedings. States that still permit grand jury proceedings ought to have certain safeguards to preserve an accused’s due process protections.

SECTION 1. Legislative Purpose and Findings
a. The purpose of this act is to provide greater transparency, accountability, and fairness for the criminally accused during the grand jury proceedings.

b. It is found that the grand jury proceeding has traditionally been a means for the citizens of the United States to stand between the accused and an overzealous government.

c. It is also found, that as time has gone on, the grand jury system has slowly transformed into a proceeding that heavily favors the state, while affording few due process protections for the accused.

d. It is also found that many states have done away with the proceeding altogether in favor of a more open probable cause hearing before a magistrate.

e. It is found that a probable cause hearing likely provides greater protection to the accused than a traditional grand jury proceeding does. However, in states that still allow or require grand jury proceedings before a criminal proceeding can continue, certain safeguards, transparency, and accountability measures are necessary to preserve an accused’s due process protections.

SECTION 2. RECORDING OF GRAND JURY PROCEEDINGS
a. All statements made by the grand jury or the attorney representing the state, all questions propounded by the grand jury or the attorney representing the state to a witness, including a witness who is an accused or suspected person, and all testimony of a witness, including the accused or suspected person, shall be recorded either by a stenographer or by use of an electronic device capable of recording sound. Deliberations of the grand jury may not be recorded.

b. A motion to set aside an indictment due to an intentional failure to record all or part of the proceedings as required under this article must be filed in writing not later than the 45th day after the date the presentment of the indictment is entered in the record, unless the defendant demonstrates that the defendant did not have a previous opportunity to challenge the failure to record the grand jury proceedings.

c. The clerk of the court shall maintain possession of all records made and may not release any record of the proceedings except as authorized by Section 3.

SECTION 3. DISCLOSURE OF TRANSCRIPT OF GRAND JURY PROCEEDINGS.
a. If a criminal charge is brought in relation to the subject of the grand jury proceedings, either the defendant, or the attorney representing the state may request from the clerk of the court a copy of the entire grand jury transcript. The request shall be made not later than the 30th day after the date the presentment of the indictment is entered in the record unless good cause is shown for a late request.

b. At any time after a presentment of the indictment is entered in the record, any other grand jury witness in that proceeding may request from the clerk of a court a transcript of their own testimony.

c. When a transcript is requested, the first party to order it will pay the original transcript rate, and any subsequent requesters will pay a copy rate. The fee schedule should be posted in the court clerk’s office, on the court’s website, or otherwise made available. The court may waive or reduce the costs if they determine the requester is indigent or demonstrates an inability to pay.

d. Absent compelling circumstances, within 30 days of receiving a request under Subsection (a), the clerk of the court shall have the recording transcribed, file the transcript with the court, and make the transcript available to both parties.

e. It is the responsibility of the transcriber to redact all transcripts in accordance with the following guidelines:

1. Social Security numbers and taxpayer identification numbers may only reveal the last four digits;
2. Only the year of birth, not the date and year, may be used;
3. The names of all minor children should be redacted and replaced with the minor’s initials;
4. If a home address is included, only the city and state may be used;
5. Financial account information should only reveal the last four digits of the account number, the name or type of the account, and the financial institution where maintained; and
6. Any standing court order in a case, or any other state law, relating to the sealing, redaction, or
nondisclosure of specific information must also be observed.

f. Within 10 business days of the filing of the transcript, either party may electronically file a Notice of Intent to Redact. A Request to Redact specifying page and line number of the requested redaction(s), with supporting explanation, shall be filed within 21 days from the filing of the transcript. Any objection to A Request to Redact must be filed within 10 business days from the filing of the Request. On request of either party, the court shall conduct a hearing to determine whether any additional redactions are necessary or whether changes to the redactions should be made.

g. Either party may use or disclose the contents of a transcript of a grand jury proceeding obtained under this section during any criminal proceeding that relates to the grand jury proceeding, or in preparation thereof, unless otherwise ordered by a magistrate.

h. Except as otherwise authorized by Subsection (g), no one, including the clerk, the transcriber, the defendant, the attorney representing the defendant, the attorney representing the state, or an investigator, expert, consulting legal counsel, or other agent of either party may disclose to any unnecessary third party a transcript received under this section unless:
1. for good cause, a court orders the disclosure after notice and a hearing; or
2. the transcript has already otherwise been publicly disclosed.

i. A person who improperly discloses information covered by this section in a manner not authorized by law is subject to punishment for contempt.

SECTION 4. PRESENTING A SUBSEQUENT INVESTIGATION TO A GRAND JURY AFTER A NO BILL OF INDICTMENT.
a. Once a grand jury has returned a no true bill based upon a transaction or event or set of facts, a grand jury inquiry into the same transaction or event or common set of facts 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 and that it is otherwise in the interest of justice for the person to be investigated by a subsequent grand jury..

b. A motion to set aside an indictment due to a violation of this article must be filed in writing not later than the 45th day after the date the presentment of the indictment is entered in the record unless the defendant demonstrates that the defendant did not have a previous opportunity to challenge the grand jury investigation based on the violation of this article.

SECTION 5. ATTORNEY ENTITLED TO APPEAR.
a. A witness who testifies before a grand jury, including a witness who is an accused or suspected person, is entitled to have their attorney present while the grand jury is questioning the witness or while the witness is otherwise providing testimony to the grand jury.

b. An attorney representing a witness, including the accused or suspected person, may only speak to the person the attorney represents and may not speak to the grand jury regarding the grand jury investigation.

c. This section does not provide any witness who is not the accused a right to counsel.

d. In the event that a suspected person appears before a grand jury unrepresented, no testimony or other information provided to the grand jury, or information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, if they would otherwise have been represented by counsel if identified as an accused person prior to their grand jury appearance unless:
1. it is a prosecution for perjury; or
2. a prosecution for giving a false statement.

e. A witness may not unreasonably delay the grand jury proceedings solely because his or her attorney is not present while they are testifying.

SECTION 6. REASONABLE NOTICE TO ACCUSED OR WITNESS TO RETAIN COUNSEL.
a. Absent exigent circumstances, a person who is subpoenaed to appear as a witness before a grand jury, including the accused or suspected person, shall be given a reasonable opportunity, or no fewer than 72 hours before the date of their appearance not including weekends and holidays, to retain counsel and to consult with counsel before the person’s appearance.

b. The grand jury testimony of a witness who is not provided a reasonable opportunity to retain and consult with counsel may not be used by the state in a subsequent legal proceeding, unless:
1. the testimony is initially introduced by the defendant in the proceeding; or
2. the attorney representing the state proves by a preponderance of the evidence that exigent circumstances existed to prevent the witness from receiving a reasonable opportunity to retain and consult with counsel before the witness’s testimony.

SECTION 7. EXCULPATORY EVIDENCE INTRODUCED BY STATE.
a. The attorney representing the state shall present to a grand jury investigating an offense any information that may reasonably appear to be favorable to the accused or suspected person and is in the possession, custody, or control of the attorney representing the state, or the existence of which is known, or by the exercise of due diligence would have become known, to the attorney representing the state.

b. A motion to set aside an indictment based on a failure to present exculpatory evidence to the grand jury in violation of this article must be filed in writing as soon as is reasonably practicable upon the existence of the failure becoming known unless the defendant demonstrates that the defendant did not have a previous opportunity to challenge the failure to present the exculpatory evidence to the grand jury. If the motion is based on a prosecutor’s failure to exercise due diligence in identifying exculpatory evidence not known or in possession of the prosecutor at the time and not presenting such evidence to the grand jury, the motion may only be granted if no reasonable jury would have indicted had such evidence been presented.