State Grand Juries in Colorado: Understanding the Process and Attacking Indictments

• Publication year: 2005
• Pages: 63

34 Colo.Law. 63 Colorado Bar Journal 2005.

2005, April, Pg. 63. State Grand Juries in Colorado: Understanding the Process and Attacking Indictments

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63

Vol. 34, No. 4, Pg. 63

The Colorado Lawyer
April 2005
Vol. 34, No. 4 [Page 63]

Specialty Law Columns
Criminal Law Newsletter
State Grand Juries in Colorado: Understanding the Process and Attacking Indictments
by Barrett T. Weisz

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in
Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by Barrett T. Weisz, Denver, an attorney with Richilano and Ridley, P.C., practicing in criminal defense and civil litigation - (303) 893-8000, BWeisz@randrlaw.net.

This article reviews the process and requirements for obtaining an indictment from a state grand jury in Colorado. It also discusses potential attacks on the indictment and discovery necessary to pursue such attacks.

A criminal prosecution in Colorado state courts is initiated either by filing a criminal complaint or by an indictment issued by a grand jury. Although the vast majority of state criminal charges are brought by complaint, prosecutors will occasionally seek an indictment from a grand jury.

Grand juries give increased investigative powers to prosecutors, but also may generate extensive litigation concerning an indictment after it is returned. Thus, prosecutors must balance the benefits provided by the investigative powers of the grand jury - and its cloak of secrecy - against the fact that an indictment is subject to a variety of attacks not available against complaints. A successful attack on a grand jury indictment can result in the charges being dismissed.

This article examines different types of Colorado grand juries. It describes the process for empanelling grand juries and the powers of Colorado grand juries. The article also addresses potential attacks on an indictment after it is issued, along with providing a description of the discovery necessary to pursue such attacks.

Kinds of Grand Juries
in Colorado

There are three kinds of Colorado grand juries, which are defined by their jurisdictional reach as specified by statute. These are: (1) county grand juries; (2) judicial district grand juries; and (3) statewide grand juries.

County Grand Juries

County grand juries may be empanelled at any time, from the population of a given county, by the order of the court or on the motion of the district attorney for the judicial district in which the county lies.1 County grand juries have jurisdiction to investigate and return indictments concerning crimes allegedly committed within the county.

In counties with a population of 100,000 or more, a county grand jury must be empanelled each year, on term day.2 For example, due to this statutory requirement, the Denver county grand jury sometimes is called the "Denver county statutory grand jury."

Judicial District
Grand Juries

Judicial district grand juries may be empanelled at any time, from the population of an entire judicial district, by the chief judge of the district. This may occur on the motion of the district attorney for that district, on a finding by the chief judge that good cause exists for convening a grand jury with jurisdiction extending beyond the boundaries of a single county.3

Prospective jurors for judicial district grand juries need not be drawn from every county comprising the district. In fact, state statute specifically permits the state court administrator to draw the pool from counties "near" the county in which the chief judge presides.4 If a judicial district grand jury is empanelled, the statute specifically provides that the creation of the judicial district grand jury will dispense with the need to empanel a county grand jury in any of the counties within the district.5

Statewide Grand Juries

A statewide grand jury may be empanelled in any judicial district at the request of the state attorney general, but only upon a finding by the chief judge of the district that the matter cannot be effectively handled by a county or judicial district grand jury.6 As a matter of custom and convenience, the attorney general regularly requests that the statewide grand jury be convened in Denver. The Chief Judge of the Denver District Court, who regularly grants that request, presides over the statewide grand jury.

The statewide grand jury has jurisdiction to investigate and return indictments without regard to county or judicial district boundaries. The statewide grand jury may decide only 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."7

Analogous to the selection rules for judicial district grand juries, the statute specifically provides that the pool for the statewide grand jury need not include jurors from every county in the state. In addition, the state court administrator may draw the pool from counties "near" the county in which the chief judge requesting the lists presides - that is, near the Denver metro area.8 However, no more than one-fourth of the members who are actually selected for the statewide grand jury may be from any one county.9

The Grand Jury Process

All Colorado grand juries are empanelled for a term of eighteen months, although the presiding judge may extend the grand jury's term for up to an additional six months.10 All Colorado grand juries consist of either twelve or twenty-three members, at the option of the presiding judge.11 In the author's experience, it is typical for the grand jury to have twelve members. Regardless of the size, only nine grand jurors are needed for a quorum.12 The assent of only nine of the twelve grand jurors (or twelve of a twenty-

three-person grand jury) is necessary to return an indictment.13

Rules of Criminal Procedure

All grand juries empanelled 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,...