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Colorado State Grand Juries - Are You A Target? Colorado State Grand Juries – Are You A Target?

By H. Michael Steinberg – Colorado Criminal Defense Lawyer –  Email The Author hmsteinberg@hotmail.com

Colorado State Grand Juries – Are You A Target? This article explores the nature of Colorado Grand Juries including how they form – how they function and how they can impact your life when or if you receive a subpoena to appear as a target, a witness, or to produce records and evidence before Colorado State Grand Jury.

What Is A Colorado Grand Jury – What Does It Do?

A grand jury convened under Colorado laws – is a group of 12 to 23 citizens “summonsed” together to investigate suspected criminal wrong-doing. The “Grand” Jury differs from the more familiar “Petit Jury” of 6 or 12 persons – who are selected to to decide a defendant’s guilt or innocence.

A Colorado State grand jury proceeding is convened by a prosecutor seeking to indict someone he or she believes committed a Colorado criminal offense.

The Grand Jury is usually convened following a police investigation into a report of a crime.  The prosecutor of a specific jurisdiction assembles a Grand Jury to develop new evidence in a case –  thereby expanding the investigation of that case and/or to present evidence already developed to the Grand Jury toward the ultimate goal of a successful indictment against the “target” of the investigation. The kind of evidence developed by the Grand Jury may take the form of documents, physical evidence, or, most commonly, witness testimony. 

The Grand Jury permits the prosecutor to go where the police may have been unsuccessful without this investigative tool. When the grand jury is used as an investigative tool, it can issue subpoenas for witnesses who have yet to be interviewed, and develop new evidence that has yet to be collected. 

Absolute Power and Control Over the Grand Jury

The Grand Jury is run by the prosecutor. He or she sits alone – in complete secrecy. The Grand Jury prosecutor not only controls the process – but the jurors more than “defer” to the prosecutor’s control. When compared to criminal trials – defense attorneys or supervising judges in the Grand Jury have little or no control over the prosecutor’s near absolute power and discretion to in any way challenge his or her actions. The control and power prosecutors have to influence the outcome of the proceedings is legendary and practically guarantees their ability to secure indictments in almost all cases.

What Is An Indictment?

A grand jury has the authority to return an indictment (also known as a “true bill.”) It also may decline to issue an indictment (“no true bill”). Under certain circumstances, a grand jury may also issue an investigative report. (Section 16-5-205.5 C.R.S.)

A district attorney can petition the court to order any indictment to sealed and no person may thereafter may disclose the existence of the indictment until the defendant is in custody or has been admitted to bail except when necessary for the issuance or execution of a warrant or summons. (Section 12-72-109, C.R.S.)

A Grand Jury Prosecutor will typically subpoena witnesses to appear before a grand jury because that prosecutor:

…believes that a witness has information about a crime committed by a third party, and wants to elicit that information to secure an indictment against the third party, or

…regards a potential witness as a target (a person suspected of crime) and wants to develop evidence against the witness.

Colorado State Grand Juries — Are You A Target? – Early Contact Between The Grand Jury And The Witness

It is critically important to retain a knowledgeable Colorado Grand Jury Defense Lawyer after receiving a grand jury subpoena. Unless there is a clearly written  “target letter” that accompanies the subpoena – there is no way to know if you are the intended target of the grand jury proceeding or “someone of interest” who may have knowledge or information related to the underlying investigation. 

If you are approached by law enforcement or an investigator from a state prosecutor, the Attorney General or the United State’s Attorney Office and they have a Grand Jury subpoena for you, they may mislead you and tell you that you are not in trouble or that the Grand Jury investigation is not directed… or simply – that your cooperation is needed.

The dangers of either intentionally or unknowingly testifying before the Grand Jury where it is inferred that you have no exposure may eactually xpose you to criminal liability if you appear before the Grand Jury, testify regarding your own conduct, and open “new doors” that can result in your being charged with other crimes. . 

Retaining a lawyer early after receiving a grand jury subpoena and truthfully disclosing to that lawyer from all knowledge and information you have related to the Grand Jury investigation will enable your lawyer to analyze your potential criminal liability and then take appropriate actions to protect your rights.

Who Calls Witnesses And Presents Evidence When The Grand Jury Meets?

Unlike a jury trial – only the prosecution can call witnesses when a Grand Jury is convened. There are few fundamental rights when compared to criminal court hearings and trials. A  defendant does not have the right to present evidence to the Grand Jury or to cross-examine the witnesses against him or her. 

One study about Grand Juries found that 95% of all cases brought to the Grand Jury resulted in indictments against the targets.

Testifying Before The Grand Jury – The Role Of The 5th Amendment

HMS When and if you are called to testify before a grand jury – you will be placed under oath and will be asked to respond to questions posed by the prosecutor. Grand jurors are also allowed ask you questions during your testimony.  Your responses to all questions are under oath.

Do You Swear (Affirm), under Penalty of Perjury, That the Testimony You Are to Give Is the Truth, the Whole Truth, and Nothing but the Truth, and That You Will Keep Your Testimony Secret, Except to Discuss it with Your Attorney, or the Prosecutor, until and Unless an Indictment or Report Is Issued?

If you testify – and you testify falsely – you expose yourself to perjury charges or providing a false statement while under oath. To repeat – ff you must testify you must tell the truth. If you are asked a question that could subject you to criminal prosecution – rather than testify falsely you may be entitled to invoke your constitutional protection against self-incrimination. 

The 5th Amendment to the U.S. and the Colorado Constitution protects you against self incrimination if you are wise enough to use it properly. The most important of your Constitutional rights provides that no person may be compelled to testify against himself.

The Right To Remain Silent

If you are subpoenaed to testify before a grand jury and you are asked under oath a question to which the answer may incriminate you or subject you to criminal liability, you may claim – then and there – your 5th Amendment right to avoid testifying. 

Should You Testify if You Have Exposure?

You may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. This is true even if you are not a target of the investigation. The right to invoke the Privilege against Self-Incrimination is much broader than most witnesses and attorneys realize.

The Blanket Exercise Of The 5th Amendment Right To Remain Silent – vs – A “Question by Question” Invocation Of The Right

Your attorney can help you decide whether you should assert the privilege in a blanket fashion before appearing before the grand jury Prosecutors – place on notice by the target witness – will usually excuse the witness from having to appear at all.

Claims of privilege, as compared to the right to remain silent under the 5th Amendment may not be asserted in a similar blanket fashion. Under certain circumstances it may be necessary for the witness to invoke an available privilege on a “question by- question” basis.

The decision to assert “the 5th“is assertion is difficult and very fact-dependent. A lawyer needs to be exceedingly careful in this situation. For example – if a claim of privilege is made as to documents – as in the case of lawyer generated communications, the decision to refuse to supply the documents to the Grand Jury – is a complex and difficult decision. 

When to claim your right against self-incrimination – even when you may not have directly committed the crime or crimes being investigated by the grand jury could potentially result in YOU being prosecuted in a separate criminal case.  

What Happens AFTER You Assert Your Right To Remain Silent Under The 5th?

The Grant Of Immunity – A Closer Look

Immunity is a promise by the government that if you testify truthfully before the grand jury and answer all questions posed to you, your answers cannot be used against you.

If you are granted immunity, the 5th Amendment privilege to avoid testifying, is lost  – you must testify truthfully. A grant of immunity means that self-incrimination is no longer possible.

Immunity – A Complex Subject

Immunity issues in the Grand Jury process can be very complex. Analyzing these issues without a criminal defense lawyer can be very risky. There are multiple types of immunity. Each type of immunity is different. Each provides different protections against criminal prosecution.

Immunity in one jurisdiction such as a state court does not provide you with the same immunity in another jurisdiction such as Federal Court. Only the prosecutor in charge of the Grand Jury has the authority to grant you immunity against prosecution for your specific testimony in that specific jurisdiction. Depending on the grant of immunity offered – it can be limited and insufficient to protect you against prosecution in another jurisdiction. 

If you do not have blanket inter-jurisdiction immunity  and you have exposure in other jurisdictions – you may be forced to invoke your 5th Amendment privilege to protect yourself from criminal liability in those other jurisdictions.

The Types of Immunity from Prosecution

A Grand Jury prosecutor can immediately grant a witness “immunity” in response to a legal and proper refusal to testify based on the Fifth Amendment. In the alternative – the parties – anticipating the legitimate exercise of a 5th Amendment claim – may work out an agreement in advance of the testimony.

There are two forms of immunity, depending on factors such as the seriousness of the immunized witness’s own criminal conduct:

Transactional immunity means that the person given immunity cannot be prosecuted for any crimes related to the subject matter of the testimony.

Use immunity means that the witness given immunity may in the future be prosecuted for a crime related to the topic discussed in this witness’s testimony, but the immunized testimony itself cannot be used in the future prosecution.

Give Your Lawyer Warning Before – Or At A Minimum – During – The Grand Jury Proceeding

If you know that you will likely need to claim your right to remain silent during a grand jury proceeding, your lawyer should communicate this fact early to the prosecutor.  This will likely facilitate you receiving a grant of immunity in advance of the proceeding, should the prosecutor still seek your testimony.  This will avoid a situation where you have to actually appear before the grand jury twice: first to invoke your 5th Amendment privilege, and second to testify truthfully after receiving a grant of immunity.

 Big Fish – Small Fish

Going after the “Big Fish” by granting immunity to the “Small Fish” is a common strategy used by prosecutors. If you are granted immunity after asserting your right to remain silent – and continue to refuse to testify after being given immunity – you can be held in contempt of court by a judge and jailed.

How Can The Colorado Grand Jury Criminal Defense Lawyer Assist You?

A Colorado Grand Jury criminal defense lawyer can help:

      • Prepare you for your testimony before the Grand Jury.
      • You become knowledgeable about your right to remain silent or against self-incrimination. 
      • Explain what types of immunity may be are available to you. 
      • You avoid a felony indictment or other serious criminal prosecution that could alter your life forever.
      • Maintain an ongoing dialogue with the Government – (the experienced lawyer understands the advantage of any opportunity to obtain information from the prosecutor that can help shed light on this specific Grand Jury.)

Preparing The Client To Testify Before A Grand Jury – The Testifying Witness

The damage done in a Grand Jury hearing for the unprepared witness can be significant. Preparation covers tow broad areas, a comprehensive review of the facts and a thorough instruction on the foreign environment of the grand jury chamber.

Your lawyer should review every facet of the factual evidence and information with their client, In addition – how the grand jury functions such as the nature of the questioning that will occur and the right of the witness to confer with counsel while testifying and the specific mechanics of that – are important.

The grand jury is unlike anything most people – especially those with limited interaction with the Colorado criminal judicial system – will ever experience.

Explaining the process removes uncertainties and reduces stress. The overarching theme? “Tell the truth.” If a truthful answer will tend to incriminate the witness, then the proper invocation of the right to remain silent under the 5th Amendment should be thoroughly understood. Always invoke and never lie under these circumstances.

Testifying falsely before the grand jury compounds the serious problems that can occur in the grand jury setting. The ramifications of a witness testifying falsely are great. Because lawyers cannot actively participate in the grand jury process to “protect” their clients with objections and strategies to persuade a jury to the defense in a case such as in a jury trial – preparation at this stage takes on even greater importance.

The Colorado Grand Jury And Secrecy – Statutory Reasons For Grand Jury Secrecy In Colorado

All persons associated with the grand jury, and this includes witnesses and their counsel, are subject to secrecy requirements that continue until an indictment is returned or a report issued.

In the grand jury context, Colorado law, as laid out below, considers secrecy paramount. The secrecy is said to be necessary to:

•  Prevent the escape of those whose indictment may be contemplated

•  Ensure the utmost freedom to the grand jury in its deliberations and prevent persons subject to indictment or their friends from importuning the grand jurors

•  Prevent subornation of perjury or tampering with witnesses who may testify before the grand jury and later appear at the trial of those it indicts

•  Encourage free and untrammeled disclosures by persons who have information regarding the commission of crimes

•  Protect innocent persons who are exonerated from disclosure of the fact that they have been under investigation.

The secrecy of these proceedings is so great that if you ask a clerk of the court about the Grand Jury presently empaneled – you will receive a response, “I can neither confirm or deny the information you are seeking.”

The Colorado Rules of Criminal Procedure And Grand Jury Proceedings

All grand juries empaneled in Colorado are subject to the rules of criminal procedure, ten of which are specific to grand juries: Colorado Rules of Criminal Procedure (“C.R.Crim.P.”) 6, 6.1 through 6.9, and 7. These rules cover details of the empanelment process, issuing of subpoenas, secrecy, oaths, reporting, appointment of investigators, presentment and sealing of the indictment, reports, amending of the indictment, release of grand jury testimony, and requisites for the indictment.

The Different Types Of Colorado Grand Juries

Three kinds of Colorado grand juries exist under Colorado

Judicial District Grand Juries

A Colorado judicial district grand jury has the same powers and duties and functions in the same manner as a county grand jury except that its jurisdiction extends throughout the judicial district. Generally the same laws that are applicable to county grand juries also apply to judicial district grand juries.

Statewide Grand Juries

Typically Colorado state grand juries are used by the Colorado Attorney General to conduct investigations into and prosecute crimes without regard to county or judicial district boundaries. These cases involve alleged criminal activity in more than one judicial district. The statewide grand juries decide cases involving: (1) organized crime; (2) criminal activity in more than one judicial district; and (3) “unusual difficulties in the investigation or adjudication of a matter or cases in which the attorney general has authority to prosecute.”

The Indictment As An Alternative To Filing A Felony Complaint And Information

 A criminal case is created in the Colorado state criminal courts by the filing of a criminal complaint OR by an indictment issued by a grand jury. The largest number of Colorado criminal cases results from the complaint and information process. But indictments arising out of a grand jury, while still rare in Colorado, are being filed with more and more frequency.

The Players At The Grand Jury Hearing

The Judge – The Role of the Grand Jury Judge – A Different Kind Of Judge

One judge in each judicial district is responsible for summoning grand juries but the judge’s involvement is very limited.

The “presiding” grand jury judge – as compared to a trial judge – is not even present during Colorado grand jury proceedings.

The Judge’s role is limited to: (1) the selection of the grand jury; (2) ruling on motions; (3) issuance of subpoenas; (4) issuance of search warrants; (5) ruling on witness immunity issues; (6) issuance of grand jury reports; and (7) discovery – release of grand jury materials.

The presiding grand jury judge – following an indictment – also issues arrest warrants and in judicial district grand juries and statewide grand juries, the judge decides what county a returned indictment will be tried.

The Defense Lawyer’s Limited Role – The Role Of Your Lawyer In A Grand Jury Hearing – The Right To A Lawyer

A Grand Jury subpoena has the same force and effect as a court order. ANYONE can be subpoenaed to testify before a grand jury and that includes targets – suspects of the crimes under investigation – and ANY other related witness. While the witness does not have the right to refuse to testify – he or she IS permitted to have their lawyer present during testimony.

The lawyer serves many important functions, before, during and after the grand jury process. The lawyer is retained to, not only protect his client’s rights, but to vigorously and zealously attempt to limit or prevent exposure to criminal liability.

The Court Reporter

All grand jury proceedings are transcribed by a certified court reporter.

Criminal Defense Tactics During The Colorado Grand Jury Process

Do Not Agree to Pre-Grand Jury Interviews.

It is critical that you understand that you are under no legal obligation to talk to ANY government agents before the grand jury process begins. If a prosecutor or United States Attorney tries to convince you into an interview prior to the beginning of the grand jury session, ressist such an interview. This kind of interview are dangerous and the government has no authority to compel such an interview. You could make a harmful admission during one of these interviews that can used against you in a later prosecution.

Let Your Attorney Accept Service of the Subpoena.

Your Colorado criminal defense lawyer should take the reigns and agree to accept service of the Grand Jury subpoena on your behalf.  The reasons for this are many. If your lawyer accepts service – you will not be embarrassed by being personally served at your home or in the workplace.

If you are personally served with a subpoena  – then you should politely accept service- then tell the agents that you have an attorney. Most importantly decline to answer any and all substantive questions about the case referring all questions to your lawyer. You are under no obligation to do anything more than  accepting service of the subpoena. If you agree to an interview – you might make dangerous admissions of fact that may be used against you in a later proceeding.

The Difference Between Types of Grand Jury Subpoenas.

Grand Jury typically fit three types. Subpoenas may be for :

(a) testimony (ad testificandum);

(b) documents or objects (duces tecum);

or

(c) both.

The subpoena itself informs you of the type of subpoena you receive.

You May Not Be A Target – The “Target Letter”

Receiving a summons to testify before a grand jury does not mean the witness is a criminal. When you receive a subpoena to appear it does not “target” or “criminalize” You may just be a perceiving witness

Upon receiving the summons you ALWAYS have all of your Fifth Amendment rights against self-incrimination and can invoke them at ANY time, if you feel that the answer to a question might incriminate you. If you are a TARGET of the investigation – you have the right – and this should be in writing, to invoke your Fifth Amendment rights in blanket fashion.

As noted – if your testimony is critical to the governments case they have the option to grant you immunity. Note that so called primary “targets” rarely receive “witness subpoenas and also rarely testify before the grand jury. 

Some individuals, on the other hand, who actually are targets may ASK to testify before the grand jury IF they believe they possess exculpatory (innocence pointing) evidence

Retaining a dialogue with the prosecutor should be used to determine how the government views the “spectrum of culpability.”  Parties fall into one of three groups: target, subject or witness.

A “target” is “a person as to whom the prosecutor or the grand jury has substantial evidence linking them to the actual commission of a crime. A “subject” is “person whose conduct is within the scope of the grand jury’s investigation” and a “witness” – while not typically defined – is a person who has knowledge of facts relevant to the investigation, but who is not believed or  likely to have criminal liability.

Potential Attacks On A Grand Jury Indictment

To Attack The Indictment You Must Make “Discovery” Of The Grand Jury Proceedings

Attacking the grand jury indictment is very fact specific. Speedy and thorough discovery of the grand jury proceedings takes on much greater importance than in other kinds of cases.

Under the Colorado Rules of Criminal Procedure, the defendant is entitled to limited discovery, including transcripts of the grand jury proceedings and all tangible evidence presented to the grand jury.

The prosecution is required to provide the transcripts as soon as practicable, but not more than thirty days after indictment.

The tangible evidence must be disclosed thirty days prior to trial and these provisions are self-executing and do not require a motion from the defense.

All other discovery requires a specific request by the defense. The disclosure of this other information is within the discretion of the trial court. Among this “optionally disclosed” discovery are what are called transcripts of the “colloquy.”  A colloquy includes everything that occurs and is reported in a grand jury session other than testimony. Such as the discussions between the grand jurors and the prosecutor or prosecutor’s investigator. Transcripts of grand jury proceedings provided pursuant to C.R.Crim.P. 16 usually ONLY include the testimony of witnesses.

Your lawyer should also demand the disclosure of all notes, memoranda, and correspondence in the possession of the prosecutor that relate to the grand jury proceedings.

The Post – Indictment Attack – Challenging  The Grand Jury Indictment – Overview

The grand jury is the most perfect machine there is for building a one-sided case. The proceedings are secret – non-adversarial and do not permit a defense lawyer to defend their client – with the exception of the strategic use of the 5th Amendment

But post indictment there is room to maneuver – typical attacks on a grand jury indictment are:

(1) facial deficiency of the indictment;

(2) lack of probable cause supporting the indictment;

(3) prosecutorial misconduct during the grand jury proceedings;

(4) secrecy violations;

and

(5) conflict of interest on the part of the prosecutor.

Contacting an aggressive Denver, Colorado criminal defense lawyer in the early stages of a Grand Jury investigation is critical to protecting your rights and your reputation against an overzealous and unfair prosecutor.

Colorado State Grand Juries — Are You A Target?

Having a lawyer to assist you with these issues early on is the best approach for protecting yourself from possible criminal exposure and securing the right forms of protection, or immunity, so that you may testify truthfully.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author  – A Denver Colorado Criminal Defense Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

H. Michael Steinberg - Over 30 Years MedallionH. Michael Steinberg is an aggressive Colorado criminal defense lawyer with over 30 years of Colorado Criminal Law experience. He is not looking to negotiate a plea in every case. He is looking for the best possible outcome, based on all the facts and evidence, so that you can get on with your life.

“I believe that I can help people who are in need and deliver the kind of quality legal service to clients they expect.” – H. Michael Steinberg

Please call H. Michael if you have any questions about the topic in this case - Colorado State Grand Juries — Are You A Target?


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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