HOUSE BILL 971009
BY REPRESENTATIVES Kaufman, George, Mace, and Nichol;
also SENATORS Perlmutter, J. Johnson, Mutzebaugh,
and Rizzuto.
CONCERNING RELEASE OF GRAND JURY REPORTS IN WHICH
NO INDICTMENT IS RETURNED.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. Part
2 of article 5 of title 16, Colorado Revised Statutes, 1986 Repl.
Vol., as amended, is amended BY THE ADDITION OF A NEW SECTION
to read:
165205.5. 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 TEN 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 TEN 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 181901
(3) (o), C.R.S., OR A PEACE OFFICER, AS DEFINED IN SECTION 181901
(3) (l), C.R.S.;
(c) ALLEGATIONS OF MISFEASANCE OR MALFEASANCE
WITH REGARD TO A GOVERNMENTAL FUNCTION, AS DEFINED IN SECTION
181901 (3) (j), C.R.S.;
(d) ALLEGATIONS OF COMMISSION OF A CLASS
1, CLASS 2, OR CLASS 3 FELONY.
SECTION 2. 165205
(4), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is
repealed as follows:
165205. Informations
authority to file indictments warrants and summons.
(4) The court to which
a grand jury report is made in which no "true bill"
is found shall examine such report and make an order accepting
and filing such report as a public record only if the court is
satisfied that the grand jury and the district attorney or attorney
general were acting within the statutory jurisdiction of such
persons in convening such grand jury and that the court is satisfied
of the following:
(a) That the report is based upon
facts revealed in the course of a grand jury investigation and
is supported by a preponderance of the evidence; and
(b) That the report does not contain
material the sole effect of which is to ridicule or abuse a person
or to subject such person to public disgrace or embarrassment;
and
(c) That the report does not contain
material which is personal in nature that does not relate to any
lawful inquiry; and
(d) That the report does not accuse
a named or unnamed person directly or by innuendo, imputation,
or otherwise of any act that, if true, constitutes an indictable
offense unless the report is accompanied by a presentment or an
indictment of the person for the offense mentioned in the report;
and
(e) That no confidentiality agreement
will be violated and the identity of no confidential informant
will be disclosed in making such grand jury report public; and
(f) That the court finds that
the filing of such report as a public record does not prejudice
the fair consideration of a criminal matter.
SECTION 3. Effective
date applicability. This act shall take effect October
1, 1997, and shall apply to reports submitted by grand juries
convened on or after said date.
SECTION 4. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Joan M. Albi
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE OF COLORADO