Criminal investigations and repeal of grand jury.

WORKING DRAFT
2008
STATE OF
WYOMING
08LSO-0193

HOUSE BILL
NO.
HB0024

Criminal investigations
and repeal of grand jury
.

Sponsored by:
Representative(s) Gingery

A BILL

for

AN ACT relating to
criminal procedure; providing for subpoena power by prosecutors during investigations; providing for disclosures to witnesses; providing for
undisclosed questioning
; authorizing the appointment of investigators hired by district attorneys as peace officers;
repealing grand jury authority;

and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.
W.S. 7
‑
1
‑
110 is created to read:

7
‑
1
‑
110.

Investigations; right to subpoena witnesses and require production of evidence; contents of subpoena; rights of witnesses;
questioning
before closed court; disclosure of information.

(
a
)

As used in this section, "
p
rosecutor" means the attorney general,
district attorney
or county and prosecuting attorney
.

(
b
)

In any matter involving the investigation of a crime
,
malfeasance in office or any criminal conspiracy the prosecutor may, upon application and approval of the district court and for good cause shown, conduc
t a criminal investigation.
The application and statement of good cause shall state whether or not any other investigative order related to the investigation at issue ha
s been filed in another court.

(
c
)

Subject to the conditions established in
s
ubsection (
d
)
of this section, the prosecutor may:

(i)

Subpoena witnesses;

(ii)

C
ompel their attendance and testimony under oath to be recorded by a suitable electronic recording device or to be given before any c
ertified court reporter; and

(iii)

R
equire the production of books, papers, documents, recordings and any other items that constitute evidence or may be rel
evant to the investigation.

(d)

In conducting an investigation under this section, t
he prosecutor shall:

(i)

A
pply to the district court for each subpoena; and

(ii)

S
how that the requested information is reasonably related to the criminal investig
ation authorized by the court.

(
e
)

The prosecutor shall
state in each subpoena:

(i)

T
he time and place of the examination;

(ii)

T
hat the subpoena is issued in aid of a criminal investigation; and

(iii)

T
he right of the person subpoena
ed to have counsel present.

(
f
)

An
examination
under this section
may be conducted anywhere within the jurisdiction of the prosecutor issuing the subpoena.

(
g
)

A
subpoena
issued under this section
need not disclose the names of possible defendants.

(
h
)

Witness fees and expenses shall be paid as in a civil action.

(
j
)

At the beginning of each compelled
questioning
under this section
, the prosecutor shall personally inform each witness:

(i)

O
f the general subject matter of the investigation;

(ii)

O
f the privilege to, at any time during the proceeding, refuse to answer any question or produce any evidence of a communicative nature that may result in self-incrimination;

(iii)

T
hat any information provided may be used against the witness in a subsequent criminal proceeding; and

(iv)

O
f the right to have counsel present.

(
k
)

If the prosecutor has substantial evidence that the subpoenaed witness has committed a crime that is under investigation, the prosecutor shall:

(i)

I
nform the witness in person before
questioning
of that witness's target status; and

(ii)

I
nform the witness of the nature of the charges under consideration against the witness.

(
m
)

The prosecutor may make written application to any district court showing a reasonable likelihood that publicly releasing information about the identity of a witness or the substance of the evidence resulting from a subpoena or
questioning
would pose a threat of harm to a person or otherwise impede the investigation.

Upon a finding of reasonable likelihood, the court may order the:

(
i
)

Questioning
of a witness be
undisclosed
;

(
ii
)

O
ccurrence of the
questioning
and other subpoenaing of evidence, the identity of the person subpoenaed, and the substance of the evidence obtained be kept
undisclosed
; and

(
iii
)

R
ecord of testimony and other subpoenaed evidence be kept
undisclosed
unless the court for good cause otherwise orders.

(
n
)

After application
under subsection (m) of this section
, the court may by order exclude from any investigative hearing or proceeding any persons except:

(i)

T
he attorneys representing the state and members of their staffs;

(ii)

P
ersons who, in the judgment of the attorneys representing the state, are reasonably necessary to assist in the investigative process;

(iii)

T
he court reporter or operator of the electronic recording device; and

(iv)

T
he attorney for the witness.

(
o
)

Nothing in this section shall be construed to prevent
attorneys representing the state or members of their staff from disclosing information obtained pursuant to this chapter for the purpose of furthering any official governmental investigation.

(
p
)

If a
nondisclosure
order has been granted by the court regarding the
questioning
or disclosure of evidence by a witness
pursuant
to subsection (
m
) of this section
, and if the court finds a further restriction on the witness is appropriate, the court may order the witness not to disclose the substance of the witness's testimony or evidence given by the witness to others.

Any order to not disclose made under this subsection shall be served with the subpoena.

In an appropriate circumstance the court may order that the witness not disclose the existence of the investigation to others.

Any order under this
s
ubsection
shall
be based upon a finding by the court that one
(1)
or more of the following risks exist:

(
i
)

D
isclosure by the witness would cause destruction of evidence;

(
ii
)

D
isclosure by the witness would taint the evidence provided by other witnesses;

(
iii
)

D
isclosure by the witness to a target of the investigation would result in flight or other conduct to avoid prosecution;

(
iv
)

D
isclosure by the witness would damage a person's reputation; or

(
v
)

D
isclosure by the witness would cause a threat of harm to any person.

(
q
)

If the court imposes an order under
s
ubsection (
p
)
of this section
authorizing an instruction to a witness not to disclose the substance of testimony or evidence provided and the prosecuting agency proves by a preponderance of the evidence that a witness has violated that order, the court may hold
the witness in contempt.

An order of
nondisclosure
imposed on a witness under
s
ubsection (
p
)
of this section

shall
not infringe on the attorney-client relationship between the witness and his attorney or on any other legally recognized privileged relationship.

(
r
)

The prosecutor may submit to any district court a separate written request that the appli
cation, statement of good cause
and the court's order authorizing the investigation be kept
undisclosed
.

The request for
nondisclosure
is a public record under
the Wyoming Public Records Act, W.S. 16
‑
4
‑
201 through 16
‑
4
‑
205
, but need not contain any information that would compromise any of the interest listed in
this subsection
.

With the court's permission, the prosecutor may submit to the court, in camera, any additional information to support the request for
nondisclosure
if necessary to avoid compromising the interests listed in
this s
ubsection
.
The court shall consider all information in the application and order authorizing the investigation and any information received in camera and shall order that all information be placed in the public file except information that, if disclosed, would pose:

(i)

A
substantial risk of harm to a person's safety;

(ii)

A
clearly unwarranted invasion of or harm to a person's reputation or privacy; or

(iii)

A
serious impediment to the investigation.

(
s
)

Before granting an order
pursuant to subsection (r) of this section
keeping documents and other information received

undisclosed
, the court shall narrow the
nondisclosure
order as much as reasonably possible in order to preserve the openness of court records while protecting the interests listed in
s
ubsection (
r
)
of this section
.

Section 2.
W.S. 6
‑
1
‑
104(a)(vi)
(P) and
by creating a new subparagraph (Q) and 7
‑
2
‑
101(a)(iv)
(N) and
by creating a new subparagraph (O) are amended to read:

6
‑
1
‑
104.

Definitions.

(a)

As used in W.S. 6
‑
1
‑
101 through 6
‑
10
‑
203 unless otherwise defined:

(vi)

"Peace officer" includes the following officers assigned to duty in the state of
Wyoming
:

(O)

The director and full-time staff instructors of the Wyoming law enforcement academy when duly appointed and acting pursuant to W.S. 9
‑
1
‑
633(b);
and

(P)

Any superintendent, assistant superintendent or full-time park ranger of any state park or historic site who has qualified pursuant to W.S. 9
‑
1
‑
701 through 9
‑
1
‑
707, when acting within the boundaries of the state park or historic site or when responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction
;
.

and

(Q)

Investigators employed by district attorney offices and qualified pursuant to W.S. 9
‑
1
‑
701 through 9
‑
1
‑
707, when engaged in the performance of duties assigned by the district attorney.

7
‑
2
‑
101.

Definitions.

(a)

As used in W.S. 7
‑
2
‑
101 through 7
‑
2
‑
107:

(iv)

"Peace officer" means:

(M)

Certified law enforcement officers of an adjoining state while responding to a request for assistance from a peace officer in this state pursuant to the "Law Enforcement Interstate Mutual Aid Act" or other lawful request;
and

(N)

The director and full-time staff instructors of the
Wyoming
law enforcement academy when duly appointed and acting pursuant to W.S. 9
‑
1
‑
633(b)
;
.

and

(O)

Investigators employed by district attorney offices and qualified pursuant to W.S. 9
‑
1
‑
701 through 9
‑
1
‑
707, when engaged in the performance of duties assigned by the district attorney.

Section 3.
W.S. 7
‑
5
‑
101
through 7
‑
5
‑
104, 7
‑
5
‑
201 through 7
‑
5
‑
209 and 7
‑
5
‑
301
through 7
‑
5
‑
309 are repealed.

Section
4
.
This act is effective July 1, 2008.

(END)

1
HB0024