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Connecticut’s Grand Jury
System
By Sally A. Roberts, Esq.
I. Introduction
A. Definition and Nature
B. Origin and History
C. Grand Jury takes root in
Connecticut
D. Criticism of the Grand Jury
II. Constitutional Grand Jury
A. Grand Jury Clause
of United States Constitution
B. Constitutional
Grand Jury in Connecticut
III. Common Law Investigatory
Grand Jury
IV. Statutory Investigatory
Inquiry (“One Man Grand Jury”)
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A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
O.
P.
Q.
R.
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Overview
Subpoena Powers
Right to be Present in the
Grand Jury Room
Presence of Counsel before
Grand Jury
Rules of Evidence
Alternate Jurors
Guidance from Federal Law
Immunity from Prosecution
Handwriting Exemplars
Secrecy of Proceedings
Testimony of Accused during
Grand Jury Proceedings
Transcript of Indicting
Grand Jury
Transcript of Investigatory
Grand Jury
Findings and Record of
Investigatory Grand Jury
Public Disclosure of
Investigatory Grand Jury
Findings
Access to Transcript of
Proceedings by State’s
Attorney
Access to Transcript of
Proceedings by Witness
Access to Transcript of
Proceedings by Defendant
Use of Defendant’s Testimony
from an Investigatory Grand
Jury |
Connecticut’s Grand Jury
System
By Sally A. Roberts,
Esq.
I. Introduction
A. Definition and
Nature
A
grand jury
is a body of qualified persons selected
and organized for the purpose of
inquiring into the commission of crimes
within the county or jurisdiction from
which its members are drawn, determining
the probability of a particular person’s
guilt, and finding indictments against
supposed offenders. It is an
inquisitorial or investigative body of
ancient origin, charged primarily with
the duty of investigating infractions of
the criminal law occurring within the
county or jurisdiction. It is not the
final arbiter of guilt or innocence. A
grand jury is a part of the machinery of
government, having for its object the
detection and punishment of crime. It is
an adjunct or appendage of the court
under whose supervision it is impaneled,
and it has no existence aside from that
court.
B.
Origin and History
Originally transported to
America from England by the early
colonists, the grand jury has
historically enjoyed considerable
affection in this country as a shield or
buffer against unfounded or unjust
prosecutions. As explained in 1884 by
the United States Supreme Court in
Hurtado v. California:
The
right of individual citizens to be
secure from an open and public
accusation of crime, and from the
trouble, expense, and anxiety of a
public trial before a probable cause is
established by the presentment and
indictment of a grand jury, in case of
high offences, is justly regarded as one
of the securities to the innocent
against hasty, malicious, and oppressive
public prosecutions, and as one of the
ancient immunities and privileges of
English liberty.
These sentiments have been
echoed by the Connecticut Supreme Court:
“The purpose of a requirement of an
indictment by a grand jury is, no doubt,
to prevent the harassment and suffering
of an innocent person by compelling him
to appear in court to respond to
malicious or unfounded charges.
Kennedy v. Walker, 135 Conn. 262,
260 (1948), aff’d, 337 U.S. 901,
reh’g denied, 337 U.S. 934
(1949). See also State v.
Menillo, 159 Conn. 264, 275 (1970).
The grand jury’s history as an Anglo
institution is believed to have
originated with a command of Henry II at
the Assize of Clarendon in 1166 for
twelve knights, or twelve “good and
lawful men” of every hundred and four
lawful men, to disclose under oath the
names of those in the community believed
guilty of criminal offenses.
Gradually grand jury accusations began
to be premised on information supplied
by others as the grand jurors took to
examining witnesses in private; by the
time its role as a shielding device was
first established in 17th
century England, the grand jury had been
operating in an investigatory capacity
for at least three hundred years.
C.
Grand Jury takes root in
Connecticut
In Connecticut, the grand jury
originated during the colonial period,
where it became the practice by custom
and later by statute for the court to
summon grand juries in all cases where
an accused was charged with a capital
crime. In this capacity, the grand jury
appears to have achieved great
popularity by ignoring technical guilt
and refusing to indict in the numerous
cases were (as was common in that
period) capital punishment was imposed
for relatively minor offenses.
In the preface to the first volume of
the Connecticut Reports, Thomas Day
wrote of the history of the grand jury
in Connecticut.
The earliest enactment in regard to
grand juries was passed in 1643, which
provided that a grand jury of twelve men
was required to assemble annually in
September “or as many & oft as the
Governor or Courte shall thinke meet” in
order to “make presentment” of any
crimes in their jurisdiction of which
they had knowledge.
The Superior Court was established as a
court of general jurisdiction in both
civil and criminal matters in 1711,
and in 1784,
the Superior Court and the County Courts
were authorized by statute to order a
grand jury of eighteen chosen from the
Grand Jurors of the respective towns “to
enquire after and present such criminal
offenses as should be cognizable by said
courts respectively, where there should
be occasion.”
Under this statute, which remains
essentially unchanged to this day,
the inquisitorial powers of the
common-law grand jury have been utilized
by state prosecutors to conduct
investigations not preceded by formal
charges into complex criminal schemes
involving public officials.
D.
Criticism of the Grand Jury
Despite its popularity, the grand jury
has been attacked as inefficient and
incompetent. In the late nineteenth
century, a movement toward abolition of
the grand jury took hold, which was
fueled in part by the United States
Supreme Court’s refusal to impose the
Fifth Amendment’s indictment requirement
on the states as a matter of fourteenth
amendment due process.
This movement culminated ultimately with
the abolishment of grand juries in Great
Britain.
Much of the criticism has centered on
the grand jury’s perceived role as a
“rubber stamp” for a prosecutor who
drafts the indictments, determines the
evidence to be reviewed, provides legal
advice, examines witnesses, and
otherwise controls the timing of a
proceeding, which takes place in secret
and ex parte and therefore without
benefit of the defendant’s input and
presence. In addition, the United States
Supreme Court’s refusal
to invalidate federal indictments based
entirely on hearsay evidence, and the
ensuing judicial reluctance to prescribe
the nature and quantity of evidence
required for grand jury accusation, has
been regarded as a severe impediment to
the quality of grand jury review. In its
place, many critics advocate use of a
preliminary hearing, conducted before a
single knowledgeable judicial official
in a public adversarial setting, as
simpler, cheaper, relatively impervious
to procedural attack, and much more
effective and reliable as a screening
device.
Proponents contend, on the other hand,
that the grand jury offers a more
independent and democratically desirable
screening alternative, since it invests
a panel of anonymous lay representatives
with authority to define the appropriate
exercise of prosecutorial power in light
of community notions of fairness, in a
setting insulated from public pressure
and criticism.
Many of the criticisms
outlined above have less impact when
applied to Connecticut, where the
independence and impartial character of
the grand jury is supported and
buttressed by many unique features.
The durability of the
Connecticut grand jury is highlighted by
the virtual absence, until recently, of
legislative enactments governing its
powers and operation, despite the fact
that grand juries have functioned in
Connecticut since the Colonial period.
With the exception of the relatively
recent statutes governing grand jury
transcripts and witness immunity, the
only sources of authority defining the
function of the grand jury prior to the
adoption of the Practice Book Rules in
1976 have been Conn. Gen. Stat. § 54-45
(enacted in 1784 and essentially
unchanged to this day), and the original
constitutional provision mandating
prosecution by indictment for capital
offenses.
II. Constitutional Grand Jury
A.
Grand Jury Clause of United States
Constitution
The Grand Jury Clause of the
Fifth Amendment to the United States
Constitution provides that, except in
certain military cases, “no person shall
be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a Grand
Jury.”
While the Fifth Amendment's grand jury
indictment clause imposes certain
constraints on prosecutions in federal
courts,
this provision of the Bill of Rights has
not been incorporated against the states
through the Fourteenth Amendment.
Lanfranco v. Murray, 313 F.3d 112,
118 (2d Cir. 2002); Branzburg v.
Hayes, 408 U.S. 665, 688 n.25 (1972)
(citing Hurtado v. California,
110 U.S. 516, 534-35 (1884));
Fields v. Soloff, 920 F.2d 1114,
1118 (2d Cir. 1990).
“The Hurtado case has been
followed or accepted as authoritative in
a long line of decisions of the United
States Supreme Court.” Kennedy v.
Walker, 135 Conn. 262, 273 (1948).
B. Constitutional Grand Jury in
Connecticut
When Connecticut’s
constitution was originally adopted in
1818, it required that prosecutions for
certain offenses be commenced by grand
jury indictment: “And no person shall be
holden to answer for any crime, the
punishment of which may be death or
imprisonment for life, unless on a
presentment or an indictment of a grand
jury; except in the land or naval
forces, or in the militia, when in
actual service, in time of war, or
public danger.” Conn. Const. art. 1, § 9
(1818).
From 1818 until 1982, that
provision remained substantially
unchanged.
All persons charged with a crime
punishable on conviction by death or
life imprisonment had a constitutional
right to a grand jury determination that
there was probable cause to believe the
charge before being required to stand
trial.
This requirement for grand
jury screening of capital charges was
eliminated from the Connecticut
Constitution in 1982, and replaced with
a requirement for a preliminary hearing
as a result of a state-wide voter
referendum.
The amendment provides in relevant part,
that: “Section 8 of article first of the
constitution is amended to read as
follows: .... No person shall be held to
answer for any crime, punishable by
death or life imprisonment, unless
upon probable cause shown at a hearing
in accordance with procedures prescribed
by law....” (Emphasis added.)
The Constitutional Amendment
contemplated a probable cause hearing
“in accordance with procedures
contemplated by law.” However, on
November 24, 1982, the date the
Amendment was certified by the Secretary
of State, there was neither statutory
nor Practice Book “procedures” in place
and the legislation establishing a
statutory right to grand jury
indictment, Conn. Gen. Stat. § 54-45,
had not yet been repealed.
The Supreme Court resolved the issues of
the effective dates of the new
legislation in State v. Sanabria,
192 Conn. 671 (1984), which held that
although amendment seventeen became a
part of the constitution on November 24,
1982, it did not take effect until
May26, 1983, the effective date of
enabling legislation, and that
defendants’ right to a probable cause
hearing did not vest until that date.
All defendants, therefore, who were
indicted before May 26, 1983, had no
right to any further pretrial
determination of probable cause.
The repeal of the grand jury provision
of article first, § 8 of the
constitution, however, did not
simultaneously nullify the statutory
grand jury provisions that complemented
the former article. See Conn.
Gen. Gen. Stat. § 54-45. It merely
substituted a constitutionally mandated
court determination of probable cause
for what had been a constitutionally
mandated grand jury indictment. The
legislature’s authority to enact a
statute providing for grand jury
indictment, as § 54-45 did, did not
depend on the repealed constitutional
provision. Subsequently, portions of
Conn. Gen. Stat. § 54-45
were repealed in 1983 and put in place
as Conn. Gen. Stat. § 54-46a, a
statutory provision establishing
procedures for a probable cause hearing
for persons charged with crimes
punishable by death or life
imprisonment.
III. Common Law Investigatory
Grand Jury
The grand jury is a creature of common
law and was adopted by statute in
Connecticut long before it was mandated
by the first constitution in 1818.
Grand jury procedure has been almost
entirely governed by the common law in
Connecticut.
Throughout this period, there also
existed a statutory right to a grand
jury indictment as a precondition to
trial for such offenses. Before the 1983
amendments, Conn. Gen. Stat. § 54-45 (b)
provided, in relevant part: “No person
shall be put to plea or held to trial
for any crime the punishment of which
may be death or imprisonment for life
unless an indictment has been found
against him for such crime by a grand
jury legally impaneled and sworn....”
IV.
Statutory Investigatory Inquiry
(“One Man Grand Jury”)
A.
Overview
In comparison to indicting
grand juries, which have long existed at
common law, the investigatory grand jury
is purely a creature of statute.
Originally enacted in 1941,
the legislature instituted far-reaching
procedural reforms in 1985.
Because the investigatory grand jury
has no common law power, its powers
necessarily are limited by the language
of the enabling statute which authorizes
its creation, now codified at Conn. Gen.
Stat. §§ 54-47a through 54-47i.
This statute provides for grand jury
inquiries by one or more judges of the
Superior Court, who sit as grand jurors
and exercise the same powers as the
common-law investigative grand jury,
except for the absence of authority to
return indictments. The One Man Grand
Jury has supplanted the common-law grand
jury because of its greater
attractiveness as a prosecutorial
investigatory tool. The statutory
procedure permits the prosecutor to
apply directly for the convening of the
grand jury; to attend the proceedings
accompanied by investigatory staff; to
question witnesses directly in the
absence of counsel; and to retain
control over the charging decision,
since grand jurors conducting a judicial
inquiry are without authority to make
formal accusations. The One Man Grand
Jury has enormous power to compel the
attendance of virtually any person or
object it deems relevant to the subject
it was convened to investigate at the
behest of the prosecutor and his
investigatory staff. Accordingly, it has
been hailed by prosecutors as an
important, even necessary tool for the
investigation of sophisticated, complex
criminal schemes when there is good
reason for believing that a crime has
been committed, but no apparent
demonstration that it has.
Supporters of the judicial inquiry
contend that it is a superior
alternative to the common-law
investigative grand jury, since the
judge-juror can be expected to exert
greater control over the proceedings,
and since its activities (most notably,
the decision to issue a report) are
subject to the supervision and review of
the Superior Court. On the other hand,
those critical of the inquiry stress
that judges, even appointed judges, are
more subject to political pressures than
a panel of anonymous laymen;
that in a non-inquisitorial system such
as ours, it is improper and ultimately
damaging to judicial prestige to cast
judges in an investigative rather than a
deliberative role; and that a grand jury
composed of professional jurists
sacrifices the vital democratic
characteristic of an institution
traditionally composed of ordinary
citizens. Despite repeated
constitutional challenges, neither the
state nor federal courts have
demonstrated any willingness to tamper
with the scope or conduct of a statutory
judicial inquiry.
An investigating grand jury is not
engaged in an adversary proceeding.
Neither is an indicting grand jury. The
distinction between the two is that
“[g]rand-juries [of the indicting type]
do not try, but enquire;
they do not condemn, but only
accuse....” State v. Wolcott,
21 Conn. 272, 280 (1851). Investigating
grand juries neither try nor
condemn nor accuse; they only
inquire and report.
B. Subpoena Powers
The attendance of witnesses and the
production of documents at such
investigation may be compelled by
subpoena. Conn. Gen. Stat. § 54-47f (b).
C.
Right to be Present in the Grand
Jury Room
The right to be present in the grand
jury room during the interrogation of
witnesses was first accorded a suspect
in Lung’s Case, 1 Conn. 428
(1815), and has been continued by the
“liberality of [the Connecticut]
practice’ State v. Fasset, 16
Conn. 457, 468 (1844), up to the present
time.
“While the accused is not, as a matter
of right, entitled to be present within
the grand jury room, in practice ... he
is allowed the privilege of being
present in the grand jury room during
the taking of evidence by the grand jury
although not during their
deliberations.”
D. Presence of Counsel before
Grand Jury
Conn. Gen. Stat. § 54-47f (d) presently
states: “At the hearing, the official
conducting the investigation shall
inform the witness that he has the right
to have counsel present and to consult
with such counsel.” However, there is no
reported decision indicating that the
witness has the right to counsel inside
the hearing room itself.
“It is well established that an accused
person has no constitutional right to
the presence of counsel before a grand
jury. ... This is ‘the settled law of
this state.’... Lung’s Case, 1
Conn. 428 (1815). Federal authorities
take the same view.” State v. Canady,
187 Conn. 281, 289-90 (1982) (Citations
omitted.)
“[T]he state’s attorney submits a list
of witnesses, but neither he nor any
counsel for the accused is in the grand
jury room.... The grand jury proceedings
... are conducted in secret.” State
v. Coffee, 56 Conn. 399, 410 (1888).
“Recently, we had occasion to examine
the grand jury procedure in this state,
in State v. Menillo, 159 Conn.
264, 274 (1970. In that case, we
reaffirmed that an accused has no right
to the presence of counsel during the
proceedings.” See State v.
Stallings, 154 Conn. 272, 282-83
(1966).”
Although the issue of the right to
counsel is a question of federal
constitutional law, the Connecticut
Supreme Court has held that the grand
jury is not a “critical stage” of a
criminal proceeding under Connecticut
law, nor does the suspect become “the
accused” until an indictment is returned
against him. Stallings,
id.
As
summarized by the Second Circuit: “If
....every suspect whose case is before
the grand jury, is granted the right to
be accompanied by his counsel while he
is in the grand jury room, it would
inevitably and speedily follow that the
State’s Attorney would also be granted
the right to be there to present the
State’s case. The Connecticut grand jury
would thereupon become an adversary
proceeding, and it would entirely lose
its character and purpose. We do not
find that there is any constitutional
mandated which requires or permits the
petitioner to have his attorney with him
when petitioner exercises his right to
be present in the jury room during the
questioning of witnesses by the
Connecticut grand jury.” Cobbs v.
Robinson, 528 F.2d 1331, 1340 (2d
Cir. 1975), cert. denied, 424
U.S. 947 (1976).
E. Rules of Evidence
The Connecticut Code of Evidence is
explicitly made inapplicable to an
investigatory grand jury.
Moreover, because such a jury seeks only
to find “probable cause,” its
proceedings are not governed by any
other “technical rules” of evidence.
F. Alternate Jurors
Several alternate jurors may be added to
the grand jury panel, in the discretion
of the court.
G.
Guidance from Federal Law
Connecticut courts have
traditionally sought guidance from
federal case law on issues involving
grand jury proceedings.
H. Immunity from Prosecution
Conn. Gen. Stat. § 54-47a
empowers a state’s attorney to grant
immunity from prosecution in order to
obtain testimony from a reluctant
witness. The protection from prosecution
is coextensive with the privilege of
immunity and completely fulfills all
federal constitutional requirements.
The immunity is intended to provide
witnesses compelled to testify in
criminal proceedings against others with
protection at least equivalent to that
available under the constitutional
privilege against self-incrimination.
The protection afforded by this
provision, like that inherent in the
privilege, is expressly restricted to
the immunized witness. Historically, the
statute has been used only for
prosecution witnesses, and courts have
routinely rejected claims that the
immunity should also be granted to a
defense witness.
I. Handwriting Exemplars
Neither the Fifth Amendment
for the Fourth Amendment protects a
witness before a grand jury from
submitting handwriting exemplars. In
re Fernandez, 31 Conn. Supp. 53
(1974).
J. Secrecy of Proceedings
As a matter of history,
grand jury proceedings have always been
presumptively secret.
The Connecticut Supreme Court has
stated: “We have not in the past
distinguished between investigating and
indicting grand juries in recognizing
the need to encourage citizen
cooperation which underlies the
expectation that grand juries normally
operate in secrecy. We decline to do so
now.”
The traditional secrecy of grand jury
proceedings is well entrenched in the
common law - “older than our Nation
itself.”
Historically, the only exceptions to
this rule of grand jury secrecy have
been in a trial for perjury committed by
a witness before the grand jury, or
impeachment of a witness at trial who
has testified differently from his grand
jury testimony. State v. Fasset,
16 Conn. 457, 467 (1844).
The secrecy of the testimony
obtained during proceedings before the
grand jury remain inviolate unless, in
the discretion of the court, it is
persuaded that statements made are
inconsistent with statements made at
trial, or that testimony is needed to
impeach a witness or to attack the
credibility of a witness.
In determining whether to pierce the
secrecy of grand jury proceedings in
cases where the testimony of a witness
at trial is different from his testimony
before the grand jury, the court may
consider the extent to which other
evidence can adequately provide the jury
with the theory that the introduction of
the grand jury testimony would provide.
Grand jury proceedings have
repeatedly been exempted from recently
expanded rights of public access to
public records and proceedings. Although
constitutional guarantees of freedom of
the press and freedom of speech provide
public access to many governmental
proceedings, these constitutional rights
do not apply to proceedings before grand
juries.
The constitution confers upon a
defendant in a criminal case the right
to a public trial, and hence affords
access to the public, but no such right
pertains to the inquiry of an
investigatory grand jury, which is not a
criminal proceeding.
The Freedom of Information Act, Conn.
Gen. Stat. § 1-7, et seq., expressly
exempts records that pertain to “the
detection or investigation of crime.”
Conn. Gen. Stat. § 1-19 (b) (3).
K. Testimony of Accused during
Grand Jury Proceedings
Since the grand jury does
not consider the guilt or innocence of
the accused but only determines whether
he or she should stand trial, the
accused is not allowed to testify or to
introduce evidence tending to prove his
innocence except insofar as his
questioning of the state’s witnesses may
disclose the weakness of the state’s
case.
L. Transcript of Indicting Grand
Jury
Conn. Gen. Stat. § 54-45a
(b), which governs indicting grand
juries, expressly prohibits subsequent
use of the witness’s testimony in the
state’s case-in-chief.
This section applies to grand jury
proceedings ordered pursuant to Conn.
Gen. Stat. § 54-45, which, while still
“on the books,” has been essentially
supplanted by the probable cause hearing
established by Conn. Gen. Stat. § 54-46a
(after the 1982 constitutional amendment
which provided for such a hearing in
lieu of grand jury indictment). Thus, by
its terms, § 54-45a (b) does not apply
to investigatory grand juries appointed
in accordance with § 54-47a,
et seq.
M. Transcript of Investigatory
Grand Jury
Conn. Gen. Stat. § 54-47g
governs the disclosure of and access to
the record of the investigation. A
hearing is required to determine whether
disclosure of the transcripts is in the
public interest.
Investigatory grand jury’s records are
open to the public unless the court
orders that all or a part of such
records not be disclosed. Even where
such nondisclosure order is entered,
witnesses may obtain the record of their
own testimony, unless the court finds
that the best interests of justice do
not permit it. The accused also has a
right to a record of his own testimony.
Any person aggrieved by an order of the
investigatory grand jury has an
immediate right to appeal such order to
the appellate court.
N. Findings and Record of
Investigatory Grand Jury
Within sixty days of the
conclusion of the investigation, the
investigatory grand jury is to file its
findings with the court. The findings
and record include the report of the
grand juror, the transcript and
documentation submitted to the grand
juror.
Conn. Gen. Stat. § 54-47g (a) authorizes
“any person” to file an application with
the grand jury panel for disclosure of
any part of the record and empowers the
panel to grant such application if,
after notice and a hearing, it
determines, by a majority vote, that
disclosure would be in the public
interest.
O. Public Disclosure of
Investigatory Grand Jury Findings
The legislative genealogy of
Conn. Gen. Stat. § 54-47g reveals a
distinct trend away from the policy of
rigid nondisclosure in grand jury
matters. Prior to the 1985 legislative
changes, the authority to release grand
jury reports was vested in the Superior
Court:
In 1985, a grand jury “panel”
was empowered, by majority vote, to
disclose the findings and record upon a
determination that such disclosure would
be in the “public interest.”
The standard for release prior to the
1985 amendment was “a particularized
need.”
In 1988, the legislature cut
back even further on the confidentiality
of the grand juror’s findings and
conclusions by establishing, in effect,
a rebuttable presumption of disclosure.
The amendment provided, in relevant
part, that “the finding of the
investigation shall be open to public
inspection and copying ... seven
calendar days after it has been filed,
unless within that period the chief
state’s attorney or a state’s attorney
... [requests] that a part or all of
such finding not be so disclosed. The
finding may include all or such part of
the record as the investigatory grand
jury may determine....”
P. Access to Transcript of
Proceedings by State’s Attorney
The state’s attorney may be
allowed to receive the record and
transcripts of the grand jury
proceedings upon request and without a
hearing. Conn. Gen. Stat. § 54-47g (a).
Q. Access to Transcript of
Proceedings by Witness
A witness may be allowed
access to the transcript of his own
testimony, regardless of whether there
has been an order of nondisclosure.
Conn. Gen. Stat. § 54-47g (f).
R. Access to Transcript of
Proceedings by Defendant
A defendant also has an
absolute right to obtain the transcript
of his own testimony, regardless of
whether there has been an order of
nondisclosure. Conn. Gen. Stat. § 54-47g
(g). However, a criminal defendant is
not entitled to the transcripts of
testimony of any and all grand jury
witnesses on demand. “ ‘A defendant has
no absolute right to inspect
investigative grand jury testimony for
the purpose of assisting him in
preparation of a defense.’ State v.
Waterman, 7 Conn. App. 326, 345,
cert. denied, 200 Conn. 807 (1986).”
State v. Rado, 14 Conn. App. 322,
331 (1987).
S. Use of Defendant’s Testimony
from an Investigatory Grand Jury
The State’s right of access
to the testimony of a grand jury witness
includes the right to use that testimony
in its case-in-chief in a subsequent
criminal prosecution of that witness.
Such use by the State of the defendant’s
testimony would not violate the
defendant’s Fifth Amendment right not to
be a witness against himself, where the
defendant was advised of his rights
immediately prior to testifying before
the grand jury, including his Fifth
Amendment privilege to refuse to answer
any question if doing so would have
tended to incriminate him.
The trial court is not required to find
that such disclosure is in the public
interest in a subsequent prosecution,
since the State has the absolute right
to obtain the grand jury testimony from
the clerk of the court. The State’s use
of the defendant’s testimony given in
such proceedings.
The unique features of the
Connecticut grand jury
procedures were outlined in
Cobbs v. Robinson, 528 F.2d
1331, 1338-41 (2d Cir. 1975):
(1) Neither the State’s
Attorney nor any counsel for the
prosecution is allowed to appear
before the grand jury. The
prosecutor remains outside the
grand jury room and sends the
State’s witnesses in one at a
time for examination by the
grand jury.
(2) There is a practicing
attorney among the membership of
the grand jury who usually acts
as the foreman. He leads off in
the examination of the
witnesses, exercises some
control to minimize the use of
evidence which would be
inadmissible at the trial
itself, see State v. Kemp,
126 Conn. 60, 71 (1939), and
seeks to protect both the
interests of the person charged
and the State.
(3) A person who is charged by
the State with having committed
a crime punishable by death or
life imprisonment and whose case
is being presented to a grand
jury is permitted at his own
election to be present in the
grand jury room while the
witnesses are being
interrogated. He himself may
question any or all of the
witnesses, though the grand
jurors may not question or
examine him. He may not call or
present witnesses to appear
before the grand jury.
See State v. Blasko,
202 Conn. 541 (1987). The 1985
act substituted, as authority
for the appointment of a grand
jury, the approval of a panel of
three Superior Court judges,
whereas under the prior law an
applicant could obtain the
requisite permission from the
Superior Court or from the chief
court administrator. Under the
new act, but not under the old,
an applicant requesting the
appointment of an investigatory
grand jury must demonstrate a
reasonable belief that there is
probable cause to believe that
crimes have been committed. The
new act further described in
detail the information that must
be furnished in the application,
including the identity of the
applicant and his authority to
make the application, the facts
and circumstances that justify
his reasonable belief that an
investigation will lead to a
finding of probable cause, and
any additional facts and
evidence the panel may require
to evaluate the application. The
act also limited the duration of
authorized grand juries to six
months, subject to express but
limited extension, to avoid the
continuation of protracted and
indefinite grand jury
investigations. A number of
substantive safeguards for
witnesses were also established,
which included the
constitutional right against
self-incrimination, and the
right to have counsel present
during grand jury proceedings.
Conn. Gen. Stat. §§ 54-47f (d)
and (e). Id. at 549 n.4
(1987).
The Freedom of Information Act,
Conn. Gen. Stat. § 1-210, et
seq., expressly exempts
records that “were compiled in
connection with the detection or
investigation of crime.” Conn.
Gen. Stat. § 1-210 (b) (3).
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