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Limitations on the grand juries subpoena power

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  • Legalbear
    From Losavio v. Honorable Richard D. Robb, 1978.CO.40284 ¶ ; 579 P.2d 1152 (Colo. 1978): [18] There are other important
    Message 1 of 1 , Oct 6, 2010

      From Losavio v. Honorable Richard D. Robb, 1978.CO.40284 <http://www.versuslaw.com>¶ ; 579 P.2d 1152 (Colo. 1978):


      [18]    There are other important limitations upon the grand jury's power to compel the production of books, papers, and documents. A grand jury may not violate a person's Fifth Amendment privilege against selfincrimination by compelling him to produce books, papers, and documents which would incriminate him. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L.Ed2d 561.*fn4 A grand jury may not invade a person's Fourth Amendment rights by attempting to compel production of documents by a subpoena that is so broad that it constitutes an unreasonable search and seizure. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L.Ed 614; A v. District Court, 191 Colo. 10, 550 P.2d 315.*fn5 Finally, a grand jury may not compel the production of documents that are protected by Colorado testimonial privileges. Losavio v. District Court, 188 Colo. 127, 533 P.2d 32. If a grand jury subpoena duces tecum does invade a constitutional right or a testimonial privilege, the court may quash it.*fn6

      [19]    Once the trial court has determined that the grand jury is not interfering with constitutional rights or statutory privileges, it must decide whether to order compliance with the subpoena duces tecum. The general assembly has recently enacted legislation guiding the trial court in making this decision. The pertinent section provides:

      [20]    "(i) No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in this section, for his failure to so testify or produce such objects, if upon filing a motion and, upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:

      [21]    "(I) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;

      [22]    "(II) Compliance with a subpoena would be unreasonable or oppressive :

      [23]    "(III) A primary purpose of the issuance of the subpoena is to harass the witness;

      [24]    (IV) The witness has already been confined, imprisoned, or fined under this section for his refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or

      [25]    "(V) The witness has not been advised of his rights as specified in paragraph (a) of this subsection (4)." (Emphasis added.) Section 16-5-204(4)(i), C.R.S. 1973 (1977 Supp.).

      [26]    In many situations, we anticipate that the court's decision on whether to order compliance with the subpoena duces tecum will be based on the subsection (i) (II) test of whether compliance would be "unreasonable or oppressive." The court must balance the competing interests of the individual's right to keep his personal affairs confidential with the grand jury's right to investigate criminal activity. Losavio v. District Court, 188 Colo. 127, 533 P.2d 32. The trial judge is in the best position to weigh these competing interests on a case-by-case basis. Of course, this discretionary authority is not absolute.


      Legalbear’s thought: If a grand jury cannot do these things, can the IRS?


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