The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
September 18, 1996 96-R-1085
FROM: Pamela Lucas, Research Attorney
RE: Grand Juries and Investigative Subpoena Powers
You asked (1) for a summary of Connecticut and federal grand jury law, and RB 669, “An Act Granting Investigative Subpoena Powers”; (2) whether other states have investigative grand juries, and (3) whether any state or the federal government grants prosecutors the power to subpoena evidence or testimony independent of a grand jury's participation and before a crime has been charged.
Under Connecticut law, crimes charged by the state on or after May 26, 1983 are prosecuted by complaint or information, rather than grand jury indictment. The grand jury's function is limited to conducting investigations of governmental corruption, Medicaid vendor fraud, racketeering, election law violations, and felonies punishable by more than five years imprisonment, for which the chief state's attorney or a state's attorney can show that there is no other means of obtaining information as to whether a crime has been committed or the perpetrator's identity.
In Connecticut, the investigatory grand jury is a judge, judge referee, or three-judge panel. A panel of three superior court judges appoints the grand jury, in response to an application by a judge, justice, Chief State's Attorney, or a state's attorney that demonstrates there is probable cause to believe a crime has been committed. If the applicant is a prosecutor, he also must demonstrate that normal investigatory methods have failed or are likely to fail, or are too dangerous.
The grand jury and attorneys or state's attorneys who are asked to assist it may subpoena people to testify before it and produce documents. Grand jury witnesses must be informed of their right to have counsel present. If they are targets, they must be advised of their right to remain silent.
At the conclusion of the investigation, the grand jury must file its finding of whether there is probable cause to believe a crime was committed, with the court and the prosecutor, if any, who applied for the grand jury.
Under federal law, grand juries screen evidence to determine whether to indict, and conduct investigations to determine whether a crime has been committed. They are impaneled by the federal district court of the judicial district in which the particular grand jury sits. They conduct their proceedings ex parte and without any judicial officer in attendance. They can investigate based merely on a suspicion that the law has been violated, or even to seek assurance that it has not.
Federal grand jury investigations are primarily controlled by federal prosecutors, who typically decide which witnesses should appear, draft the subpoenas and conduct the primary questioning of the witnesses. Grand jury subpoenas are issued under the court's authority, in the name of the grand jury. Because the grand jury's function is to determine whether a crime has been committed, the government need not justify a subpoena by presenting evidence that demonstrates probable cause. But prosecutors may not use the grand jury subpoena power to gather information without the intended participation of the grand jury.
As a matter of constitutional law, grand jury witnesses may invoke their Fifth Amendment privilege to remain silent in response to potentially incriminating questions, but are not entitled to Miranda warnings even if they are targets of the investigation. Furthermore, they are not constitutionally entitled to an advance warning that they are in fact targets of an investigation. Witnesses are not constitutionally entitled to be accompanied by counsel during a grand jury appearance, although most lower courts appear to recognize a constitutional right to leave the grand jury room to consult with counsel before answering potentially incriminating questions.
The Department of Justice's policy for U.S. Attorneys requires them to advise “suspects” or “targets,” at the time they receive a subpoena, of the federal criminal laws that are the general subject of the inquiry, the right to remain silent, and the opportunity to consult with retained counsel outside the grand jury room.
RB 669, “An Act Granting Investigative Subpoena Powers to State's Attorneys” empowered state prosecutors, before criminal charges were filed, to subpoena people to come into their office to answer questions or produce property for inspection. It authorized them to use this power during the course of investigating state felonies, if they “certified” that the witness' attendance, testimony, or document production would be otherwise unavailable.
It did not require state prosecutors to inform a witness before his appearance of the inquiry's purpose. It did require them, before questioning began, to inform targets of their target status; and all witnesses, of the inquiry's purpose and their rights to remain silent and have counsel present. It allowed subpoena recipients to file a court motion to quash their subpoena, and specified when the court could grant the motion, including “for other just cause.” And it authorized the state's attorney to grant transactional or use immunity for witnesses who invoked their Fifth Amendment privilege.
According to the National Center on State Courts, and Sara Sun Beale's and William C. Bryson's Grand Jury Law and Practice, in every state except Arizona, Maine, Mississippi, Oklahoma, and West Virginia, grand juries conduct criminal investigations.
Federal law does not authorize federal prosecutors, independent of a grand jury proceeding and before charges are filed, to subpoena people to come into their offices for questioning or to produce evidence. We found three states that allow state prosecutors to do this -- Florida, Missouri, and Montana.
CONNECTICUT GRAND JURY LAW
Grand Jury Indictment Requirement Repealed
On November 24, 1982, Connecticut voters approved the adoption of a constitutional amendment to repeal the requirement of a grand jury indictment before a person could be tried for any crime punishable by death or life imprisonment, and to require, instead, a probable cause hearing. The state retained the investigatory grand jury, defined by statute as a judge, constitutional state referee or three-judge panel appointed “to conduct an investigation into the commission of a crime or crimes” (see CGS § 54-47b).
Scope of Grand Jury Investigations
Investigatory grand juries are limited to examining: (1) state and local governmental corruption, (2) Medicaid vendor fraud, (3) racketeering activity under CORA, (4) election law violations, and (5) class A, B, or C felonies or unclassified felonies punishable by more than five years imprisonment, for which the chief state's attorney or state's attorney can show that there is no other means of obtaining information as to whether a crime has been committed or the identity of the person or people who may have committed it (CGS § 54-47b).
Application for Investigation
Judges of the superior, appellate, or supreme court, the chief state's attorney or a state's attorney may apply to a panel of three superior court judges specially designated by the chief court administrator, for a grand jury investigation. The applicant must have a reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe a crime has been committed. And he must include in his application a statement of the facts and circumstances that justify this belief. If he is the chief state's attorney or a state's attorney, he also must include facts that demonstrate that normal investigatory methods have failed, are likely to fail, or are too dangerous (CGS § 54-47c).
Panel May Approve Changes in Duration and Scope
The panel that approves the appointment must designate a court location where motions to quash and contempt proceedings will be heard and investigation findings and records filed. The panel's order must specify a duration of up to six months for the investigation, and the investigation's scope. Subsequently, the panel may approve an extension in the duration or a change in the investigation's scope.
Disclosure to the Public
The panel's order and the application must be sealed, but the panel must submit to the chief court administrator a summary of the investigation's scope. This summary is available to the public unless a majority of the panel determines it should be sealed to protect an individual's safety or the investigation itself, or to comply with other statutes or court rules.
The grand jury must conduct its investigation in private, unless the panel, by majority vote, determines that disclosure is in the public interest (CGS § 54-47e).
Attorney Assistance to Grand Jury; Grand Jury Subpoena Power
The grand jury may seek assistance with its investigation from the chief state's attorney or state's attorney who applied for the grand jury, or if a judge was the applicant, from an attorney it appoints.
It may subpoena people to testify before it and produce documents. If a summoned witness fails to comply, the grand jury may report this to the appropriate state's attorney, or the chief state's attorney, who in turn may file a complaint in criminal court. After a show cause hearing, the court may punish the witness for contempt.
Rights to Counsel and Target Warnings
The grand jury or the assisting attorneys may question the witness, who must be informed that he has the right to have counsel present and to consult with counsel. The statutes require testimony to be recorded by an official court stenographer or his assistant. The official conducting the investigation must inform witnesses if they are targets, and advise targets of their federal and state constitutional rights not to be compelled to give evidence against themselves. In addition, attorneys appointed to assist in the investigation must disclose to the grand jury exculpatory information they possess or control concerning targets (CGS § 54-47f).
Within 60 days after the investigation ends, the grand jury must file its finding with the court, the panel of judges that receives applications for grand jury investigations, and the chief state's attorney or the state's attorney, if any, who applied for the grand jury. The finding must state whether there is probable cause to believe a crime was committed. It may include all or part of the investigation record, but may not disclose allegations that a person committed a crime unless the grand jury found probable cause that he committed it or he requests release of that part of the record.
The finding must be open to public inspection and copying at the court seven days after it is filed, unless within that period the chief state's attorney or the state's attorney with whom it was filed requests that the grand jury not disclose all or part of its finding.(CGS § 54-47g).
In addition, the stenographer must file the investigation record with the court and the panel. This record is available upon request, and without a hearing, to the chief state's attorney or the state's attorney, if any, who applied for the grand jury.
Grand Jury Indictment Required for Federal Felony Prosecutions
The Fifth Amendment prohibits a person from being compelled to stand trial on federal charges for a capital or infamous crime unless he has been indicted by a grand jury. Any offense punishable by imprisonment for a term greater that one year or hard labor is considered an infamous crime. Federal Rule of Criminal Procedure 7 gives effect to the amendment. It provides that a capital offense or offense punishable by hard labor or a prison term exceeding one year must be prosecuted by indictment, but a defendant may waive indictment for the latter infamous offenses.
Investigative Grand Juries- Regular and Special
Under federal law, the grand jury has two functions -- screening evidence to determine whether to indict, and conducting investigations to determine whether a federal crime has been committed. The indictment and investigative functions are performed by both “regular” and “special” grand juries.
“Regular” grand juries are impaneled under Rule 6(a) of the Federal Rules of Criminal Procedure, which requires the courts to order one or more grand juries to be “summoned at such times as the public interest requires.” “Special” grand juries are impaneled under the Organized Crime Control Act of 1970, codified at 18 U.S.C. §s 3331 through 3334. Specifically, the law requires that the district courts call special grand juries in those judicial districts that contain more than four million inhabitants, or in which an Attorney General, Deputy Attorney General or designated Assistant Attorney General certifies to the chief judge that a special grand jury is necessary because of criminal activity in the district. Each special or regular grand jury is impaneled by the federal district court of the judicial district in which the grand jury sits.
Special grand juries differ from regular grand juries in the following three ways: (1) their 18 month term can be extended to 36 months; (2) U.S. Attorneys have a statutory duty to transmit to special grand juries information about alleged offenses received from third parties, if the third parties so request; and (3) special grand juries are specifically authorized to issue reports against public officials. Typically the U.S. Attorneys use both regular and special grand juries to conduct investigations, but send the everyday cases that are prepared and ready for screening to regular grand juries (Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 8.1 (1984)). Except where inconsistent, the statutes, criminal procedure rules, and cases that govern regular grand juries apply as well to special grand juries (see 18 U.S.C. § 3334).
Broad Investigatory Powers
The grand jury is afforded wide latitude to determine whether or not a crime has been committed. It “'can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.'” It may investigate with no particular defendant or criminal charge in mind. Its function is to inquire into all information that might concern its investigation until it identifies an offense or determines that none has occurred. It generally is not required to abide by evidentiary and procedural rules that apply to criminal trials, and may consider information obtained in violation of the Fourth Amendment exclusionary rule (U.S. v. R. Enterprises, Inc., 111 S. Ct. 722, 726 (1991)[citations omitted]).
Role of Prosecutors
Grand jury investigations are primarily controlled by the prosecutors, who typically decide which witnesses should appear, draft the subpoenas and conduct the primary questioning of witnesses. “Although the grand jury power to investigate is broad and the federal prosecutors enjoy wide discretion in performing their tasks, the prosecutors' employment of the grand jury subjects their conduct to the authority and supervision of the courts. Therefore, prosecutorial conduct in using the power of the federal grand jury is not unfettered” (James F. Holderman, Preindictment Prosecutorial Conduct in the Federal System, 71 J. Crim. L. & Criminology 1, 5 (1980)).
Secrecy and Recording of Proceedings
Grand jury proceedings are conducted ex parte, in secret, and without a judicial officer to monitor them. Government attorneys, the witness being examined, interpreters if necessary, and a court stenographer or recording device operator may be present while the grand jury is in session, but only the grand jurors are permitted while the grand jury is deliberating or voting (Fed. R. Crim. P. 6(e)).
Criminal Procedure Rule 6(e) allows disclosure of grand jury matters to (1) government attorneys to use in enforcing federal criminal law, and (2) other government personnel assisting government attorneys in their work. It also authorizes the court to order or allow disclosure in specified situations. Otherwise, it prohibits disclosure of grand jury matters.
Federal grand juries have nationwide subpoena power. Under Criminal Procedure Rule 17, the clerk of the United States District Court of the jurisdiction in which the grand jury sits issues the subpoenas in blank for completion and service. Unlike with a criminal trial subpoena, the government need not justify a grand jury subpoena by presenting evidence to establish probable cause. This is because the subpoena's purpose is to determine whether probable cause exists. “'[T]he identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning'” (R. Enterprises, Inc., 111 S. Ct. at 726 [citations omitted]).
Federal grand jury law authorizes prosecutors to decide what witnesses to call and the evidence to subpoena, and does not require them to obtain the grand jury's prior approval. But, the subpoenas they obtain are issued under the court's authority, in the name of the grand jury. Case law clearly establishes that prosecutors may not use the grand jury subpoena power to gather information without the intended participation of the grand jury (see Holderman, supra, at 7).
Apparently, in the federal courts it is common practice for the prosecutor to direct a subpoenaed witness to report to the prosecutor's office before a scheduled grand jury appearance in order to “prepare” or “debrief” the witness. The courts generally permit such meetings, but may require that the witness be given the option of appearing before the grand jury without being interviewed in advance (see 1 Sara Sun Beale & William C. Bryson, Grand Jury Law and Practice § 6.10 (1986)).
Some courts have severely criticized the practice of issuing a grand jury subpoena as a ploy to interrogate a witness in a prosecutor's office (see, e.g., United States v. DiGilio, 538 F.2d 972, 985 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977)(“Neither the FBI nor the Strike Force nor the United States Attorney has been granted subpoena power for office interrogation outside the presence of the grand jury”)). In one case, the D.C. Circuit observed:
'The Constitution of the United States, the statutes, the traditions of our law, the deep rooted preferences of our people speak clearly. They recognize the primary and nearly exclusive role of the Grand Jury as the agency of compulsory disclosure.' They do not recognize the United States Attorney's office as a proper substitute for the grand jury room and they do not recognize the use of a grand jury subpoena, a process of the District Court, as a compulsory administrative process of the United States Attorney's office.
It was clearly an improper use of the District Court's process for the Assistant United States Attorney to issue a grand jury subpoena for the purposes of conducting his own inquisition (Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954)[citations omitted]).
Although it is well established that a grand jury witness may invoke his Fifth Amendment privilege in response to potentially incriminatory questions, the U.S. Supreme Court has declined to rule that Miranda warnings are constitutionally required, and has explicitly indicated that they are not (see Minnesota v. Murphy, 104 S. Ct. 1136, 1144 (1984); United States v. Washington, 97 S. Ct. 1814, 1819-20 (1977); United States v. Mandujano, 96 S. Ct. 1768, 1778 (1976)(plurality opinion)). (In Miranda v. Arizona, 384 U.S. 384 U.S. 436 (1966), the Court held that suspects interrogated while in police custody must be warned of their right to remain silent and of the consequences of failing to assert their Fifth Amendment privilege, in order to dissipate the “overbearing compulsion” associated with such custody.) The Court's refusal to recognize Miranda rights for grand jury witnesses appears to be based on its conclusion that, unlike police custody, the grand jury setting is not inherently coercive.
The Court, moreover, has ruled that grand jury witnesses are not entitled to advance “target” warnings when they are potential defendants in danger of indictment (Washington, 97. S. Ct. at 1820). Although the lower courts have generally recognized that target warnings are not constitutionally required, some have expressed their disapproval of prosecutorial failure to give some kind of warning to targets who are virtually certain to be indicted (see United States v. Gillespie, 974 F.2d 796 (7th Cir. 1992); United States v. Pacheco-Ortiz, 889 F.2d 301 (1st Cir. 1989)).
The Department of Justice's U.S. Attorneys' Manual declares that it is the department's policy to advise grand jury witnesses who are “suspects” or “targets” of their right to remain silent and that anything they do say may be used against them in subsequent proceedings. In addition, the manual states that suspects and targets should be advised of the inquiry's general subject matter (the federal criminal laws possibly violated), and of the opportunity to consult with retained counsel outside the grand jury room (U.S. Department of Justice, U.S. Attorneys' Manual, § 9-11.150).
The manual defines a “subject” of a grand jury investigation as “a person whose conduct is within the scope of the grand jury's investigation.” It defines a “target” as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”
Department of Justice Policy on Subpoenaing Targets
The Department of Justice manual instructs district attorneys to attempt to secure a target's voluntary appearance before resorting to a subpoena. According to the manual, if a target does not agree to appear, he should be subpoenaed only if the grand jury and the U.S. Attorney or the responsible Assistant Attorney General approve of the subpoena. The U.S. Attorney or Assistant Attorney General is to consider (1) the importance of the testimony or information sought, (2) whether other witnesses could provide the information, and (3) whether the intended questions or information sought would be protected by a privilege (U.S. Attorneys' Manual, § 9-11.151).
Advance Assertions of an Intention to Claim the Privilege Against Self-Incrimination
The courts have generally ruled that it is not unconstitutional for a prosecutor to call as a grand jury witness someone who indicates in advance that he intends to invoke his Fifth Amendment privilege in response to all grand jury questions (see Bank of Nova Scotia v. United States, 108 S. Ct. 2369, 2376 (1988)). The U.S. Attorneys' Manual states that a witness who is a target should be excused from testifying if he and his attorney state in writing that he will invoke his privilege, unless both the grand jury and the U.S. Attorney agree to insist on the appearance. The manual instructs that in determining whether to insist on the appearance, the U.S. Attorney should consider the factors which justified the subpoena in the first place (U.S. Attorneys' Manual, § 9-11.154).
Right to Counsel
The constitutional right to counsel does not attach at the investigative stage before the initiation of formal proceedings against a defendant (see Kirby v. Illinois, 92 S. Ct. 1877 (1972)(Moran v. Burbine, 106 S. Ct. 1135, 1145-47 (1986)). It is well established that a person is not entitled to be accompanied by retained or appointed counsel during a grand jury appearance, even if he is a target (see Mandujano, 96 S. Ct. at 1779)).
Although the U.S. Supreme Court has not ruled on these issues, most lower courts recognize that (1) grand jury witnesses are constitutionally entitled to leave the grand jury room to consult with counsel before answering incriminating questions, and (2) the attorney-client relationship is entitled to protection in grand jury proceedings (Beale and Bryson, supra, § 6.17; see, e.g., United States V. Ramsey, 785 F.2d 184, 193 (7th Cir.), cert. denied, 476 U.S. 1186 (1986)). The normal practice in the federal courts is to allow nonimmunized witnesses to consult with counsel outside the grand jury room (see, e.g., United States v. Soto, 574 F. Supp. 986, 990 (D. Conn. 1983)). The U.S. Attorneys' Manual requires prosecutors to advise targets and subjects of their right to leave the grand jury room to consult with counsel (§ 9-11.150)).
RB 669, “AN ACT GRANTING INVESTIGATIVE SUBPOENA POWERS TO STATE'S ATTORNEYS”
RB 669 empowered the Chief State's Attorney, the state's attorneys, and designated assistant state's attorneys, before criminal charges were filed, to subpoena people to come into their office or “some other reasonable location” to answer questions or produce property for inspection. It authorized them to use this power during “the course of the investigation of a state felony or felonies,” if they “certified” that the witness' attendance, testimony, or document production would be otherwise unavailable. The bill did not indicate to whom they would certify this, nor did it indicate that they must make the certification before issuing the subpoena.
The bill required the subpoena to be served at least five working days before the scheduled appearance date, unless a Superior Court judge, for good cause shown, ordered an earlier appearance. It did not require the state's attorney to inform the person before his appearance of the inquiry's purpose. It did require him to inform targets of an investigation of this status when they appeared, before questioning. It required the state's attorney to advise witnesses, before they testified, of (1) the inquiry's purpose, (2) their right not to be compelled to give self-incriminating evidence, and (3) their right to have counsel present and to consult with counsel. The bill did not specify that indigent witnesses had the right to appointed counsel.
Witnesses' Failure to Comply
Under the bill, if a subpoenaed person failed to appear, answer any “proper” question, or produce requested property, the state's attorney could file a Superior Court complaint. The bill required the judge, upon finding that reasonable cause existed, to issue a citation requiring the witness to show cause why he did not comply.
The bill specified that the witness' court appearance in response to the citation was to be in camera. It required the judge, upon finding the witness failed to show cause, to order the witness to appear, answer the questions, or produce the property, as the case might be. It made the witness' wilful noncompliance contempt of court.
Motions to Quash Subpoenas
Under the bill, a person who received a subpoena could move to quash it by filing a motion with the chief clerk of the court. The bill authorized the court to quash or modify the subpoena if (1) the witness did not have information relevant to the inquiry; (2) the testimony sought was protected by the attorney-client or a statutory privilege; (3) the production of the property sought would be unreasonable or oppressive, or constituted attorney-client work product; or (4) “for other just cause.”
Potentially Incriminating Testimony or Evidence
One section of the bill declared that before being required to give any testimony, a witness must be advised of his right not to be compelled to give evidence against himself. Another section authorized the state's attorney to grant transactional or use immunity from prosecution to any person who is called or intended to be called on behalf of the state.
(In general, “use immunity” prohibits the witness' compelled testimony and its fruits from being used in connection with prosecuting him. “Transactional immunity” protects him from being prosecuted for the offense to which his compelled testimony relates. “Use immunity” is constitutionally required if a person is compelled to give self-incriminating testimony. A person is not constitutionally entitled to transactional immunity.)
The bill additionally declared that a person who has been subpoenaed may not be excused from attending and testifying or producing any document on the ground that the evidence may tend to convict him of a crime. And it declared that no evidence so produced “shall be received against him upon any criminal investigation or proceeding,” except for perjury committed while testifying or producing the document.
The bill specified that information and property obtained through the investigative subpoena power were confidential, not a public record, and not disclosable under the state's freedom of information statutes except to the extent the state's attorney needed to disclose them in the performance of his official duties.
STATE INVESTIGATIVE SUBPOENA LAWS
Florida law allows state attorneys to subpoena witnesses and information independent of grand jury proceedings, as part of the state attorneys' broad investigative powers. According to Tallahassee Chief Assistant State's Attorney Tony Guarisco, state prosecutors regularly subpoena people to appear in their office to testify under oath before charges are filed.
Specifically, the law grants a state attorney “the process of his or her court to summon witnesses from throughout the state to appear before the state attorney in or out of term time at such convenient places in the state attorney's judicial circuit and at such convenient times as may be designated in the summons, to testify before him or her as to any violation of the criminal law upon which they may be interrogated . . . .” For a witness who fails to appear for questioning, the law allows the prosecutor to obtain an order to show cause why the witness should not be held in contempt (Fla. Stat. Ann. § 27.04).
In the words of one Florida appellate court, the state attorney is a “one-man grand jury.” He is both the investigatory and accusatory arm of the judicial system, subject only to limitations imposed by the constitution, common law, and statutes to protect individual rights from abuse of such far-reaching powers (Imparato v. Spicola, 238 So.2d 503, 507 (Fla. Dist. Ct. App. 1970)).
Missouri law similarly empowers its prosecuting attorneys to subpoena witnesses and evidence, independent of grand jury proceedings and before charges are filed. Specifically, it provides: “[i]n the course of a criminal investigation, the prosecuting or circuit attorney may request the circuit judge to issue a subpoena to any witness who may have information for the purpose of oral examination under oath to require the production of books, papers, records, or other material of any evidentiary nature at the office of the prosecuting or circuit attorney requesting the subpoena” (Mo. Laws § 56.085).
Under Montana law, whenever a prosecutor has a duty to investigate unlawful activity, a supreme court justice or district court judge may issue subpoenas commanding the people to whom they are directed to appear before the prosecutor and give testimony or produce documents that are “necessary and proper to the investigation.” The law specifies that the prosecutor must first supply an affidavit asserting that the administration of justice requires the subpoena to be issued (Mont. Code Ann. § 46-4-301).
A person who, without just cause, fails to obey a subpoena may be punished for contempt of court. The law allows a person aggrieved by a subpoena to file a court motion to dismiss the subpoena or, in the case of a subpoena to produce documents, to limit its scope (Mont. Code Ann. §§ 46-4-302 and 46-4-303).
The law requires testimony to be recorded, and grants witnesses the right to have counsel present at all times. If the witness does not have funds to obtain counsel, the court must appoint counsel (Mont. Code Ann. § 46-4-304).