Colo. R. Crim. P. 6.2

As amended through Rule Change 2024(7), effective April 4, 2024

Rule 6.2 - Secrecy of Proceedings-Witness Privacy-Representation by Counsel

(a) All persons associated with a grand jury and its investigations or functions should at all times be aware that a grand jury is an investigative body, the proceedings of which shall be secret. Witnesses or persons under investigation should be dealt with privately to insure fairness. The oath of secrecy shall continue until such time as an indictment is made public, if an indictment is returned, or until a grand jury report dealing with the investigation is issued and made public as provided by law. Nothing in this rule shall prevent a disclosure of the general purpose of the grand jury's investigation by the prosecutor.

(b) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of said grand jury. If the witness desires legal assistance during his testimony, counsel must be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.

Colo. R. Crim. P. 6.2

Source: a amended, effective 11/8/1990.

Annotation Law reviews. For comment, "Reporter's Privilege: Pankratz v. District Court", see 58 Den. L.J. 681 (1981). Grand jury secrecy remains important to safeguard a number of different interests to preserve its proper functioning. Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003). Justifications for grand jury secrecy are several: (1) To prevent the escape of those whose indictment may be contemplated; (2) to prevent disclosure of derogatory information presented to the grand jury against someone who has not been indicted; (3) to encourage witnesses to come before the grand jury and speak freely with respect to a commission of crimes; (4) to encourage grand jurors in uninhibited investigation of and deliberation on suspected criminal activity. In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981). Colorado secrecy rules do not violate the first amendment by prohibiting the disclosure of matters a witness learned from her participation in the grand jury process, at least so long as the potential remains for another grand jury to be called to investigate an unsolved murder. Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003). Disclosure of grand jury materials to federal prosecutors without prior approval, in violation of § 16-5-204 , did not violate federal constitutional or statutory rights. United States v. Pignatiello, 628 F. Supp. 68 (D. Colo. 1986). Disclosure that testimony of other grand jury witnesses contradicted current witness' testimony did not violate grand jury secrecy rule where identities of witnesses were not disclosed. People v. Rickard, 761 P.2d 188 (Colo. 1988). A line should be drawn between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process. Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003). Disclosure of information the witness already had independently of the grand jury process does not violate this rule. Drawing the line here protects the witness's first amendment right to speak while preserving the state's interest in grand jury secrecy. Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003). Breach of secrecy by prosecution does not warrant dismissal of indictment absent factual findings that defendant is prejudiced. People v. Rickard, 761 P.2d (Colo. 1988). Jurors and witnesses should be protected vigorously from outside influences. People v. Zupancic, 192 Colo. 231, 557 P.2d 1195 (1976). Any effort to tamper is reprehensible. Any effort to tamper with or obstruct the due administration of a grand jury's function is reprehensible. People v. Zupancic, 192 Colo. 231, 557 P.2d 1195 (1976). The jury tampering statute, section 18-8-609 , is implemented by this rule. People v. Zupancic, 192 Colo. 231, 557 P.2d 1195 (1976). Despite defendant's contention that unauthorized persons were allowed in grand jury room and proceedings were not kept secret, the alleged violations did not affect defendant's substantial rights. Petit jury's subsequent guilty verdict made alleged error in grand jury proceeding harmless beyond a reasonable doubt. People v. Cerrone, 867 P.2d 143 (Colo. App. 1993), aff'd on other grounds, 900 P.2d 45 (Colo. 1995). Applied in People ex rel. Losavio v. J.L., 195 Colo. 494, 580 P.2d 23 (1978); Pankratz v. District Court, 199 Colo. 411, 609 P.2d 1101 (1980).