Bill 734

                    Current Status

Bill Number:               734
Ratification Number:       208
Act Number                 150
Introducing Body:          Senate
Subject:                   Juries and jurors, method for convening
                           and selecting a state grand jury

(A150, R208, S734)

AN ACT TO AMEND CHAPTER 7, TITLE 14, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO JURIES AND JURORS BY ADDING ARTICLE 15 SO AS TO ESTABLISH A METHOD FOR CONVENING AND SELECTING A STATE GRAND JURY, TO PROVIDE FOR ITS JURISDICTION, POWERS, DUTIES, AND OPERATIONS, TO PROVIDE CRIMINAL PENALTIES FOR VIOLATING THE SECRECY RULES OF THE STATE GRAND JURY PROCEEDINGS, TO PROVIDE FOR THE RECORDING AND TRANSCRIBING OF CERTAIN TESTIMONY AND PROCEEDINGS OF A COUNTY GRAND JURY, AND TO PROVIDE THIS ACT TAKES EFFECT UPON RATIFICATION OF AMENDMENTS TO THE CONSTITUTION OF THIS STATE PERMITTING SAME.

Be it enacted by the General Assembly of the State of South Carolina:

State grand jury

SECTION 1. Chapter 7 of Title 14 of the 1976 Code is amended by adding:

"Article 15

State Grand Jury

Section 14-7-1600. This article is known and cited as the 'State Grand Jury Act' and any state grand jury which may be convened as provided herein to be known as the 'State Grand Jury of South Carolina'.

Section 14-7-1610. It is the intent of the General Assembly to enhance the grand jury system and to improve the ability of the State to detect and eliminate criminal activity which transpires or has significance in more than one county of this State. Nothing herein limits in any way the authority of a county grand jury, solicitor, or other appropriate law enforcement personnel to investigate, indict, or prosecute offenses within the jurisdiction of the state grand jury.

Section 14-7-1620. There is established a state grand jury consisting of eighteen persons who shall meet in Columbia or at another suitable place in this State designated by the chief administrative judge of the judicial circuit in which the Attorney General seeks to impanel the state grand jury for a term hereinafter provided.

Twelve members of the state grand jury constitute a quorum.

Section 14-7-1630. (A) The jurisdiction of the state grand jury impaneled under this article extends throughout the State. The subject matter jurisdiction of the state grand jury in all cases is limited to crimes involving narcotics, dangerous drugs, or controlled substances and crimes involving obscenity or any attempt, solicitation, or conspiracy to commit any of the aforementioned crimes if the crimes are of a multi-county nature or have transpired or are transpiring or have significance in more than one county of this State.

(B) Whenever the Attorney General considers it necessary, he may petition in writing to the Chief Administrative Judge of the judicial circuit in which he seeks to impanel the state grand jury for an order impaneling a state grand jury. This judge is referred to in this article as the impaneling judge. The petition must allege the type of offenses to be inquired into and must allege that these offenses may be of a multi-county nature or have transpired or are transpiring or have significance in more than one county of the State. The petition also must specify that the public interest is served by the impanelment.

(C) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months. Upon petition by the Attorney General, the impaneling judge, by order, may extend the term of the state grand jury for a period of six months; provided that the term of the particular state grand jury, including any extension thereof, shall not exceed the period of two years.

(D) The Chief Administrative Judge of the circuit wherein the state grand jury is sitting shall preside over the state grand jury. This judge is referred to in this article as the presiding judge.

(E) The presiding judge may discharge the state grand jury prior to the end of its original term or any extension thereof, upon a determination that its business has been completed or upon the request of the Attorney General.

(F) If, at any time within the original term of any state grand jury or any extension thereof, the presiding judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the presiding judge may limit the investigation so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (E) shall not become effective less than ten days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as is otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal.

Section 14-7-1640. The state grand jury may return indictments irrespective of the county or judicial circuit where the offense is committed or triable. If an indictment is returned, it must be certified and transferred for prosecution to the county where the offense was committed in accordance with Section 14-7-1750. The powers and duties of and the law applicable to county grand juries applies to a state grand jury, except when these are inconsistent with the provisions of this article.

Section 14-7-1650. The Attorney General or his designee shall attend sessions of the state grand jury and shall serve as its legal advisor. The Attorney General or his designee shall examine witnesses and shall present evidence to the state grand jury.

?Section 14-7-1660. In the January following the effective date of this article and each January thereafter, the jury commissioners for each county shall proceed to draw at random from the jury box the name of one person for each one thousand residents or fraction thereof of the county as determined by the latest United States census; provided that following the effective date of this article, the impaneling judge may authorize an interim procedure for the selection of state grand jurors to constitute the first state grand jury established pursuant to this article. The jury commissioners shall not disqualify or excuse any individual whose name is drawn. When the list is compiled, the clerk of court shall forward the list to the person designated as the clerk of the state grand jury by the impaneling judge. Upon receipt of all the lists from the clerks of court, the clerk of the state grand jury shall draw therefrom at random a list of seven hundred eligible state grand jurors, this list to be known as the master list. The clerk of the state grand jury shall mail to every person whose name is drawn a juror qualification form, the form and the manner of qualifying potential state grand jurors to be determined by the Supreme Court. Based upon these inquiries, the clerk of the state grand jury shall determine solely on the basis of information provided in the state grand juror qualification form whether an individual is unqualified for, or exempt, or to be excused from jury service. The clerk of the state grand jury shall prepare annually a jury list of persons qualified to serve as state grand jurors, this list to be known as the qualified state grand jury list. No state grand juror may be excused or disqualified except in accordance with existing law.

Upon the impaneling judge ordering a term of the state grand jury on petition of the Attorney General, the clerk of the state grand jury shall, upon the random drawing of the names of sixty persons from the qualified jury list, summon these individuals to attend the jury selection process for the state grand jury. The jury selection process must be conducted by the presiding judge. The clerk of the state grand jury shall issue his writ of venire facias for these persons, requiring their attendance at the time designated. The writ of venire facias must be delivered immediately to the sheriff of the county where the person resides and served as provided by law. From the sixty persons so summoned, a state grand jury for that term of eighteen persons plus four alternates must be drawn in the same manner as jurors are drawn for service on the county grand jury. Jurors of the state grand jury must be paid the same per diem, mileage, and subsistence as are members of state boards, commissions, and committees.

Section 14-7-1670. The presiding judge shall appoint one of the jurors to be foreman and another to be deputy foreman. During the absence of the foreman, the deputy foreman shall act as foreman.

Section 14-7-1680. The clerk of the state grand jury shall, upon the request of the Attorney General or his designee, issue subpoenas or subpoenas duces tecum to compel individuals, documents, or other materials to be brought from anywhere in this State to the state grand jury. In addition, the state grand jury may proceed in the same manner as provided by the subpoena rules of the South Carolina Rules of Civil Procedure and Sections 19-9-10 through 19-9-130, except where either is inconsistent with the provisions of this article; provided the subpoena rules of the South Carolina Rules of Civil Procedure and Sections 19-9-10 through 19-9-130 are not considered a limitation upon this section, but supplemental thereto. The subpoenas and subpoenas duces tecum may be for investigative purposes and for the retention of documents or other materials so subpoenaed for proper criminal proceedings. Any law enforcement officer with appropriate jurisdiction is empowered to serve these subpoenas and subpoenas duces tecum and receive these documents and other materials for return to the state grand jury. Any person violating a subpoena or subpoena duces tecum issued pursuant to this article, or who fails to fully answer all questions put to him before proceedings of the state grand jury where the response thereto is not privileged or otherwise protected by law, including the granting of immunity as authorized by Section 14-7-1760, may be punished by the presiding judge for contempt. To this end, where the violation or failure to answer is alleged to have occurred, the Attorney General or his designee may petition the presiding judge to compel compliance by the person alleged to have committed the violation or who has failed to answer. If the presiding judge considers compliance is warranted, he may order this compliance and may punish the individual for contempt where the compliance does not occur.

Section 14-7-1690. Once the state grand jury has entered into a term, the petition and order establishing same may be amended as often as necessary and appropriate so as to expand the areas of inquiry authorized by the order or to add additional areas of inquiry thereto. The procedures for amending this authority are the same as those for filing the original petition and order.

Section 14-7-1700. A court reporter shall record, either stenographically or by use of an electronic recording device, all testimony from a fact witness testifying of his own knowledge about the matters upon which he is questioned. In addition, other proceedings of the state grand jury may also be recorded, except when the state grand jury is deliberating or voting, upon request of the Attorney General or his designee. A defendant shall have the right to review and/or reproduce the stenographically or electronically recorded materials. Transcripts of such recorded testimony or proceedings must be made when requested by the Attorney General or his designee. An unintentional failure of any recording to reproduce all or any portion of the testimony or proceedings does not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom and all books, papers, records, correspondence, or other documents produced before the state grand jury must remain in the custody and control of the Attorney General or his designee unless otherwise ordered by the court in a particular case.

Section 14-7-1710. The foreman shall administer an oath or affirmation in the manner prescribed by law to any witness who testifies before the state grand jury.

Section 14-7-1720. (A) State grand jury proceedings are secret, and a state grand juror shall not disclose the nature or substance of the deliberations or vote of the state grand jury. The only persons who may be present in the state grand jury room when the state grand jury is in session, except for deliberations and voting, are

the state grand jurors, the Attorney General or his designee, the court reporter, an interpreter if necessary, and the witness testifying. A state grand juror, the Attorney General or his designee, any interpreter used, or the court reporter may not disclose the testimony of a witness examined before the state grand jury or other evidence received by it except when directed by a court for the purpose of:

(1) ascertaining whether it is consistent with the testimony given by the witness before the court in any subsequent criminal proceeding;

(2) determining whether the witness is guilty of perjury;

(3) assisting local, state, other state or federal law enforcement or investigating agencies, including another grand jury, in investigating crimes under their investigative jurisdiction;

(4) complying with constitutional, statutory or other legal requirements or to further justice.

If the court orders disclosure of matters occurring before the state grand jury, the disclosure must be made in that manner, at that time, and under those conditions as the court directs.

(B) In addition, disclosure of testimony of a witness examined before the state grand jury or other evidence received by it may be made without being directed by a court to:

(1) the Attorney General or his designee for use in the performance of their duties; and

(2) those governmental personnel, including personnel of the State or its political subdivisions, as are considered necessary by the Attorney General or his designee to assist in the performance of their duties to enforce the criminal laws of the State; provided that any person to whom matters are disclosed under this item (2) shall not utilize that state grand jury material for purposes other than assisting the Attorney General or his designee in the performance of their duties to enforce the criminal laws of the State. The Attorney General or his designee shall promptly provide the presiding judge before whom was impaneled the state grand jury whose material has been disclosed, with the names of the persons to whom the disclosure has been made, and shall certify that he has advised these persons of their obligation of secrecy under this section.

(C) Nothing in this section affects the attorney-client relationship. A client has the right to communicate to his attorney any testimony given by the client to the state grand jury, any matters involving the client discussed in the client's presence before the state grand jury, and evidence involving the client received by or proffered to the state grand jury in the client's presence.

(D) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding five thousand dollars or by a term of imprisonment not exceeding one year, or both.

(E) State grand jurors, the Attorney General or his designee, the court reporter, any interpreter used, and the clerk of the state grand jury must be sworn to secrecy and may also be punished for criminal contempt for violations of this section.

Section 14-7-1730. Except for the prosecution of cases arising from indictments issued by the state grand jury, the presiding judge has jurisdiction to hear all matters arising from the proceedings of the state grand jury, including, but not limited to, matters relating to the impanelment or removal of state grand jurors, the quashing of subpoenas, and the punishment for contempt.

Section 14-7-1740. The Attorney General or his designee shall coordinate the scheduling of activities of the state grand jury.

Section 14-7-1750. In order to return a 'true bill' of indictment, twelve or more state grand jurors must find that probable cause exists for the indictment and vote in favor of it. Upon indictment by the state grand jury, the indictment must be returned to the presiding judge. If the presiding judge considers the indictment to be within the authority of the state grand jury and otherwise in accordance with the provisions of this article, he shall return the indictment to the county where venue is appropriate under South Carolina law for prosecution by the Attorney General or his designee. The presiding judge may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon, the clerk of the state grand jury shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.

Section 14-7-1760. If any person asks to be excused from testifying before the state grand jury or from producing any books, papers, records, correspondence, or other documents before the state grand jury on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to any penalty or forfeiture and is notwithstanding directed by the presiding judge to give the testimony or produce the evidence, he must comply with this direction, but he must not thereafter be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence pursuant thereto, and no testimony so given or evidence produced may be received against him in any criminal action, criminal investigation, or criminal proceeding. No individual testifying or producing evidence or documents is exempt from prosecution or punishment for any perjury committed by him while so testifying, and the testimony or evidence given or produced is admissible against him upon any criminal action, criminal investigation, or criminal proceeding concerning this perjury; provided that any individual may execute, acknowledge, and file a statement with the appropriate court expressly waiving immunity or privilege in respect to any transaction, matter, or thing specified in the statement and thereupon the testimony of the person or the evidence in relation to the transaction, matter, or thing may be received or produced before any judge or justice, court, tribunal, grand jury, or otherwise, and if so received or produced, the individual is not entitled to any immunity or privilege on account of any testimony he may give or evidence produced.

Section 14-7-1770. Records, orders, and subpoenas relating to state grand jury proceedings must be kept under seal to the extent and for that time as is necessary to prevent disclosure of matters occurring before a state grand jury.

Section 14-7-1780. The impaneling judge will make available suitable space for the state grand jury to meet. The State Law Enforcement Division shall also provide service as the state grand jury requires. The other costs associated with the state grand jury, including juror per diem, mileage, and subsistence must be paid from funds appropriated to the Judicial Department for this purpose by the General Assembly in the annual general appropriations act.

Section 14-7-1790. The state grand jury, whenever it considers necessary, may employ experts to assist it and to fix the amount of compensation or per diem to be paid therefor, upon the approval of the presiding judge as to the amount being given before any expert is employed and upon appropriation of sufficient funds therefor by the General Assembly as provided in Section 14-7-1780.

Section 14-7-1800. The Supreme Court may promulgate rules as are necessary for the operation of the state grand jury established herein.

Section 14-7-1810. If any part of this article is declared invalid, unenforceable or unconstitutional by a court of competent jurisdiction, it is hereby declared severable from the remaining portions of this article which portions shall remain in full force and effect as if the invalid, unenforceable or unconstitutional portion were omitted."

Recording of certain county grand jury matters

SECTION 2. The testimony from a fact witness testifying of his own knowledge about the matters upon which he is questioned before a county grand jury must be recorded in the same manner that fact testimony given before the state grand jury is recorded. In addition, other proceedings of the county grand jury may also be recorded, except when the county grand jury is deliberating or voting, upon request of the circuit solicitor.

Transcripts of such recorded testimony or proceedings must be made when requested by the circuit solicitor. An unintentional failure of any recording to reproduce all or any portion of the testimony or proceedings does not affect the validity of the prosecution. Such testimony or proceedings before the county grand jury or other evidence received by it may not be disclosed except under those conditions and for those purposes that disclosure of testimony, proceedings, or evidence given to the state grand jury is authorized. The functions and responsibilities of the Attorney General in regard to the above before the state grand jury must be performed by the circuit solicitor in regard to the county grand jury.

Time effective

SECTION 3. This act takes effect upon the ratification of amendments to Article 1 and Article V of the Constitution of this State, permitting the establishment of a state grand jury and indictments to be issued by same.