General Assembly Raised Bill No. 5503
February Session, 2010 LCO No. 2316
*02316_______JUD*
Referred to Committee on Judiciary
Introduced by:
(JUD)
General Assembly
Raised Bill No. 5503
February Session, 2010
LCO No. 2316
*02316_______JUD*
Referred to Committee on Judiciary
Introduced by:
(JUD)
AN ACT CONCERNING SUBPOENAS FOR PROPERTY.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. (NEW) (Effective October 1, 2010) For the purposes of this section and sections 2 to 7, inclusive, of this act:
(1) "Crime" means a violation of chapter 949c or section 36b-4, 36b-6, 36b-16, 53-153, 53-451, 53a-122, 53a-123, 53a-129b, 53a-129c, 53a-129d, 53a-129e, 53a-138, 53a-147, 53a-148, 53a-149, 53a-150, 53a-152, 53a-153, 53a-154, 53a-158, 53a-159, 53a-160, 53a-161, 53a-161a, 53a-161c, 53a-161d, 53a-215, 53a-252, 53a-253, 53a-276, 53a-277, 53a-291, 53a-292 or 53a-293 of the general statutes;
(2) "Person" means any individual, firm, partnership, limited partnership, limited liability partnership, limited liability company, trust, syndicate, estate, association, corporation, custodian, nominee, municipality, agency or political or administrative subdivision of the state, or other legal entity of any kind;
(3) "Property" includes, but is not limited to, documents, books, papers, records, films, recordings and other tangible things; and
(4) "Prosecuting official" means the Chief State's Attorney, a deputy Chief State's Attorney or a state's attorney.
Sec. 2. (NEW) (Effective October 1, 2010) In the investigation of conduct that would constitute the commission of a crime, a prosecuting official, in the performance of such official's duties during such investigation, may issue a subpoena to compel the production of property relevant to the matter under investigation.
Sec. 3. (NEW) (Effective October 1, 2010) (a) Any subpoena issued pursuant to section 2 of this act shall compel the person to produce the property at the office of the prosecuting official.
(b) Any subpoena issued pursuant to section 2 of this act shall (1) compel only the production of property relevant to the investigation being conducted, (2) specify with reasonable particularity the property to be produced, (3) allow a reasonable period of time for compliance, and (4) require only the production of property covering a reasonable period of time.
Sec. 4. (NEW) (Effective October 1, 2010) (a) In complying with any subpoena issued pursuant to section 2 of this act, the person to whom the subpoena has been issued shall designate a custodian who is authorized to authenticate the property and affirm full compliance with the subpoena by swearing, under oath, in a notarized affidavit that: (1) He or she is the duly authorized property custodian of the person to whom the subpoena has been issued, (2) he or she has conducted, or has caused to be conducted, a thorough search for all property responsive to the subpoena within the care, custody or control of the person to whom the subpoena has been issued, (3) he or she avers to the authenticity of any property produced in response to the subpoena, and (4) the property produced in response to the subpoena constitutes, to the best of his or her knowledge, all responsive property in the possession of the person to whom the subpoena has been issued at the time the subpoena was served.
(b) If any person to whom a subpoena has been issued pursuant to section 2 of this act fails to designate a custodian in accordance with subsection (a) of this section, or if any such custodian fails to supply a sworn, notarized affidavit in accordance with said subsection, the prosecuting official may submit an application to a judge of the Superior Court for the issuance of a subpoena ad testificandum by the prosecuting official to be directed to any owner, director, officer or agent for service of the person to whom the subpoena has been issued, or to such custodian. Such application shall include an affidavit sworn to by the prosecuting official stating that:
(1) The official reasonably suspects that a crime has been committed;
(2) The official reasonably suspects that the property sought is relevant to the investigation concerning the alleged commission of a crime;
(3) The official has issued a subpoena for the production of property pursuant to section 2 of this act; and
(4) The person to whom the subpoena has been issued has failed to designate a custodian or the custodian has failed to supply a sworn, notarized affidavit in accordance with subsection (a) of this section.
(c) If the judge finds that the provisions of subsection (b) of this section have been satisfied, such judge may grant the application for the issuance of a subpoena ad testificandum by the prosecuting official.
(d) Testimony taken pursuant to such subpoena ad testificandum shall be limited to determining: (1) Whether the person has conducted, or has caused to be conducted, a thorough search for all property responsive to the subpoena within the care, custody or control of such person, (2) the authenticity of any property produced in response to the subpoena, and (3) whether the property produced in response to the subpoena constitutes, to the best of the witness' knowledge, all responsive property in the possession of the person at the time the subpoena was served.
(e) A court reporter, assistant court reporter or monitor shall make a record of the proceeding in which testimony is taken. The record of the proceeding shall be sealed and not subject to disclosure, except that any witness who appeared and testified shall be allowed access, at all reasonable times, to the record of such witness' own testimony and shall have the right to receive a copy of the transcript of the record of such testimony.
Sec. 5. (NEW) (Effective October 1, 2010) (a) In conducting any investigation in which a subpoena is issued pursuant to sections 1 to 7, inclusive, of this act, a prosecuting official may apply to a judge of the Superior Court for an order granting immunity from prosecution to any person whom the state calls or intends to call as a witness to authenticate property or to establish full compliance with the subpoena. Such immunity may provide that the person will not be prosecuted or subjected to any penalty or forfeiture (1) for or on account of any testimony given or property produced by such person, or for or on account of any evidence discovered as a result of or otherwise derived from testimony given or property produced by such person, or (2) for or on account of any transaction, matter or thing concerning which such person gives testimony or produces property. A person who receives immunity under this subsection shall not be immune from prosecution for perjury or contempt committed while giving such testimony or producing such property.
(b) No person who has been properly served with a subpoena pursuant to sections 1 to 7, inclusive, of this act and receives immunity under subsection (a) of this section shall be excused from appearing and testifying or producing any property before the prosecuting official concerning an investigation on the ground or for the reason that the testimony or property required may tend to incriminate such person or subject such person to a penalty or forfeiture.
Sec. 6. (NEW) (Effective October 1, 2010) If any subpoena is issued pursuant to section 2 of this act for the production of the medical records, including psychiatric and substance abuse treatment records, of a person, the prosecuting official shall give written notice of the issuance of such subpoena to such person. Such person shall have standing to file a motion to quash the subpoena in accordance with section 7 of this act.
Sec. 7. (NEW) (Effective October 1, 2010) (a) Whenever a subpoena has been issued to compel the production of property pursuant to section 2 of this act or to compel testimony pursuant to section 4 of this act, the person summoned may file a motion to quash the subpoena. No fees or costs shall be assessed.
(b) The party filing the motion to quash shall be designated as the plaintiff and shall be described as "John Doe", "Jane Doe" or some other alias, and the prosecuting official shall be designated as the defendant.
(c) The motion, upon its filing, shall be sealed as to the public. The motion shall be referred to the presiding criminal judge of the court for hearing or for assignment to another judge for hearing. Unless otherwise ordered by the judge conducting the hearing, the hearing shall be conducted in camera and the file on the motion shall be sealed as to the public, subject to further order of the court.
(d) The motion shall be expeditiously assigned and heard. The date and time of the hearing shall be established by the clerk after consultation with the judge assigned to conduct the hearing. The clerk shall give notice to the parties of the hearing so scheduled.
(e) A judge may quash or modify any subpoena issued pursuant to sections 1 to 6, inclusive, of this act for just cause or in recognition of any privilege established under law.
This act shall take effect as follows and shall amend the following sections:
Section 1 October 1, 2010 New section
Sec. 2 October 1, 2010 New section
Sec. 3 October 1, 2010 New section
Sec. 4 October 1, 2010 New section
Sec. 5 October 1, 2010 New section
Sec. 6 October 1, 2010 New section
Sec. 7 October 1, 2010 New section
This act shall take effect as follows and shall amend the following sections:
Section 1
October 1, 2010
New section
Sec. 2
October 1, 2010
New section
Sec. 3
October 1, 2010
New section
Sec. 4
October 1, 2010
New section
Sec. 5
October 1, 2010
New section
Sec. 6
October 1, 2010
New section
Sec. 7
October 1, 2010
New section
Statement of Purpose:
To give state prosecutors the tools necessary to protect state residents and government funds and programs from fraud.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]