The investigative subpoena: because who needs probable cause?


[This is the second in a two-parter today on the State pushing the boundaries of their power and seeking to perform their law enforcement function without the constraints of the Constitution. The first post, on their desire to be free from the Fourth Amendment, is here.]

Prosecutors want the power to subpoena witnesses under threat of contempt penalty to secret proceedings without probable cause.

For many years now – maybe over a decade – the prosecutors in Connecticut have asked every session of the state legislature to “reform” the grand jury process here. By “reform” they merely mean completely revamp and retool it, giving themselves vast powers to subpoena any manner of things with minimal judicial oversight.

But first, to understand the scope of this request, we must understand that Connecticut is not an indicting grand jury state; not typically, at least. Almost all of our charging is done via the information: the grand jury indictment was abolished in the 80s. This OLR report has all the background and information you’ll ever need on the grand jury in Connecticut.

What this means is that the decision to arrest people of crimes and to charge them with crimes is made based on probable cause – that requirement enshrined in both the United States and State constitutions. Either you get an arrest warrant signed by a neutral judge, based on probable cause, or you arrest someone and then a neutral judge makes a finding that there is probable cause to believe that the person arrested committed the crime.

Out of the 50 states, only half actually use grand juries and out of those, only 22 require their use. [Here is an informative ABA article on grand juries.] Most of these grand juries investigate the commission of crimes and are composed of lay people, but some states have other types of juries like civil grand juries, which aren’t involved in the criminal investigative process.

The indicting grand jury as you imagine it – held in secret, where a ham sandwich can get indicted – was abolished precisely because it was so secretive and its ex parte nature. Several amendments to the statutes and the State Constitution established our current system. The vast majority of criminal cases are brought by employing the method I’ve described above and a very, very small class of crimes are still via grand jury:

(2) “Crime or crimes” means (A) any crime or crimes involving corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, (B) fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act Amendments of 1965, as amended, (C) any violation of chapter 949c, (D) any violation of the election laws of the state, (E) any felony involving the unlawful use or threatened use of physical force or violence committed with the intent to intimidate or coerce the civilian population or a unit of government, and (F) any other class A, B or C felony or any unclassified felony punishable by a term of imprisonment in excess of five years for which the Chief State’s Attorney or state’s attorney demonstrates that he or she has no other means of obtaining sufficient information as to whether a crime has been committed or the identity of the person or persons who may have committed a crime.

That last bit there? Apparently that’s the problem. So the State has proposed a bill which would make it very easy for them to investigate and solve crimes. You know how? By forcing anyone who they think had anything to do with it to come and testify in secret in front of a judge.

Under the current system, the “grand jury” is a 3-judge panel. The new bill would make it one judge. But that’s just the beginning. The proposal centralizes power in the hands of the State’s Attorneys by removing the ability of a judge to convene a grand jury. It also removes the requirement that a prosecutor show that all the normal avenues of investigating crimes have been exhausted and instead is replaced with the latest vague term to enter the legal lexicon: “the interests of justice”.

I have no idea what that means. I suspect the prosecutors will say that it means whatever they say it means. In fact, if you go to the bill, hit Control+F (the find function) and search for “probable cause”, you will see that every instance of that phrase comes up in portions they want deleted.

Now, probable cause isn’t much of a standard, but it’s something. It’s a low standard, but there is 200 years worth of jurisprudence about it. It may mean as much as a ham sandwich, but at least there’s an expectation and and understanding of what it is, decided by judges, not prosecutors.

Interests of justice? I shudder to think what that means or who it might apply to.

The big part of this investigative subpoena power is that which is suggested by the name: the authority to subpoena people to secret hearings in which they can be asked all sorts of questions. They can also be subpoenaed to bring documents and tangible evidence. All without anyone making a finding of probable cause. In the interests of justice.

Apparently, when police are going out onto the streets and asking people to talk to them or co-operate with them in investigations, the people are telling the police to get lost. [Now, the prosecutors testifying in support of this bill make it seem like a massive problem, but only one look at a courthouse on any day of your choosing should dispel that notion immediately. There is plenty of criminal business in the courts of Connecticut.] And it just infuriates them that by gosh a citizen of this State might choose to not cooperate with them. So we will force you to.

The State wants to force a citizen to testify – not in front of a jury at a trial – but just to themselves and a local judge about what they saw or what they have in their possession. They want to conduct an investigation by force under the threat of a finding of contempt.

You can’t have a lawyer come with you to this “hearing” and maybe if they get around to it they’ll tell you if you’re the target of the investigation, but most of the time? They want to be able to force you to talk and turn over property and documents. In the interests of justice because apparently now probable cause is too hard a burden to meet.

This bill is nothing more than an attempt to circumvent the requirements of the Fourth Amendment to the Constitution of the United States and Article 1, Section 7 of the Connecticut Constitution.

The price of living in a free society is that sometimes people tell the police to go shove it1. That we have to have a judge decide whose rights can be infringed upon and whose can’t. We don’t force people to answer police questions under threat of jail time. What do you think this is, Soviet Amerika?

[For more, read the submitted testimony from various parties. In particular, I’d point out the comprehensive testimony [PDF] of Moira Buckley, CCDLA president.]

¹[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, supra, at 210, n. 12; Terry v. Ohio, 392 U. S., at 31, 32-33 (Harlan, J., concurring); id., at 34 (WHITE, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U. S. 544, 555 (1980) (opinion of Stewart, J.). The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U. S., at 32-33 (Harlan, J., concurring); id., at 34 (WHITE, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 556 (opinion of Stewart, J.). If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.

Florida v. Royer, 460 U.S. 491 (1983)

Image from this Forbes article.

11 thoughts on “The investigative subpoena: because who needs probable cause?

    1. Gideon Post author

      If only: this is a concerted effort to undermine the Constitutional protections. Their endgame is that they want the ability to subpoena witnesses and civilians to their offices and force them to cooperate in police investigations.

  1. WyrdWyrd

    I agree this has Abuse of Power written all over it. But also, it strikes me as awfully inefficient. If I have to tell-all, I’d like to do it once and be done with it. But suppose instead I have to go before the judge and divulge then do it again later in open court.

    You know if they get this power, it won’t be invoked every single time. The judges are busy. For most of the cases that come through that seem boringly normal to them, they won’t bother with all this. But suppose instead something comes up that seems extra “juicy” or that might have a political dimension to it with lots of potential for conflict of interest. Now all of a sudden the judge is demanding people to show up all over.

    And what if the meeting isn’t recorded and in the end it’s just your word against the judge’s? Or more likely, what if I show up but I don’t turn over what the judge expects me to turn over? I suppose then the judge could find me in contempt or something? What if I’m later shown to have been telling the truth? Will I get an apology? Will I have grounds for a lawsuit?

    Furry cows moo and decompress.

    1. Gideon Post author

      I think, as I said above, the endgame isn’t that the judges want this power, but that prosecutors do. They want to be able to force people to come into their offices and give up information under threat of jail time.

      The penalty for not complying, as you suggest, is being held in contempt for up to 6 months in jail for every instance of contempt.

      These are absolutely secret proceedings that aren’t recorded and can’t be opened up later on. You get no lawyer and must answer every question posed to you.

      Might as well give us all uniforms and tell us how to stand and line up.

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