(a) This chapter shall be known and may be cited as the "Utah Rules of Criminal Procedure."

(b) These rules shall govern the procedure in all criminal cases in the courts of this state except juvenile court cases. These rules are intended and shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary expense and delay.

(c) These rules shall take effect on July 1, 1980. Thereafter, they shall govern all criminal proceedings commenced and, so far as just and practicable, all proceedings then pending. All statutes and rules in conflict therewith are repealed.

(a) Computing time. The following rules apply in computing any time period specified in these rules, any local rule or court order, or in any statute that does not specify a method of computing time.

(1) When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period; and

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays.

(3) Unless the court orders otherwise, if the clerk’s office is inaccessible:

(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday or legal holiday; or

(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) Unless a different time is set by a statute or court order, filing on the last day means:

(A) for electronic filing, at midnight; and

(B) for filing by other means, the filing must be made before the clerk’s office is scheduled to close.

(5) The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal holiday” is any holiday that is recognized and observed by the State of Utah, as specified here: https://www.utcourts.gov/en/about/miscellaneous/law-library/holidays.html

(b) Extending time.

(1) When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

(2) A court must not extend the time for taking any action under the rules applying to a judgment of acquittal, new trial, arrest of judgment and appeal, unless otherwise provided in these rules.

(c) Additional time after service by mail. When a party may or must act within a specified time after service and service is made by mail, three days are added after the period would otherwise expire under paragraph (a).

(a) All written motions, notices and pleadings shall be filed with the court and served on all other parties.

(b) Whenever service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney, unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions.

(c) The party preparing an order shall, upon execution by the court, mail to each party a copy thereof and certify to the court such mailing.

(a) Commencing a prosecution. A prosecution may be commenced by filing an information. The information shall be filed in a format required by rules of the Judicial Council.

(b) Contents of information.An information must contain:

(b)(1) If known, the defendant's name, date of birth, and current address as provided by law enforcement and corrections authorities.

(b)(1)(A) If the name of the defendant is not known, the prosecution must identify the defendant as John or Jane Doe, and must provide any known identifying information.

(b)(1)(B) Other identifying information may be provided in accordance with rules of the Judicial Council, provided the information does not include non-public records.

(b)(2) Numbered counts using the name given to the offense by statute or ordinance, or stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge.

(b)(2)(A) The prosecution may allege alternate theories of the same offense in a single count or in multiple counts.

(b)(3) Unless otherwise contained in filings accompanying the Information, a booking number and a State Identification Number (SID) if the defendant was arrested and detained on charges related to the information. Any pretrial release conditions must be included, such as:

(b)(3)(A) monetary bail or other pretrial release conditions set by the magistrate when determining probable cause at arrest;

(b)(3)(B) whether the defendant was denied pretrial release;

(b)(3)(C) whether the defendant was released to a pretrial supervision agency; and

(b)(3)(D) whether the defendant is in custody.

(c) Felonies and class A misdemeanors.If a felony or class A violation is alleged, and in all cases requesting a warrant, an information must:

(c)(1) contain or be accompanied by a statement of facts sufficient to support probable cause for the charged offense or offenses. The information need not include facts such as time, place, means, intent, manner, value, and ownership unless necessary to charge the offense. Supporting physical materials such as money, securities, written instruments, pictures, statutes, and judgments may be identified using names or by describing the documents. Neither presumptions of law nor matters of judicial notice need be stated,

(d) Amending the information.The court may permit an information to be amended at any time before trial has commenced so long as the substantial rights of the defendant are not prejudiced. If an additional or different offense is charged, the defendant has the right to a preliminary hearing on that offense as provided under these rules and any continuance as necessary to meet the amendment. The court may permit an information to be amended after the trial has commenced but before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. After verdict, an information may be amended so as to state the offense with such particularity as to bar a subsequent prosecution for the same offense upon the same set of facts.

(e) Bill of particulars. When facts not set out in an information are required to inform a defendant of the nature and cause of the offense charged, so as to enable the defendant to prepare a defense, the defendant may file a written motion for a bill of particulars. The motion must be filed at arraignment or within 14 days thereafter, or at such later time as the court may permit. The court may, on its own motion, direct the filing of a bill of particulars. A bill of particulars may be amended or supplemented at any time subject to such conditions as justice may require. The request for and contents of a bill of particulars must be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged.

A prosecution may be commenced by the filing of an indictment. The indictment shall be filed in a format and according to the rules of the judicial council.

(a) The filing shall include the defendant's name, date of birth, and last known address. Other identifying information may be provided in accordance with rules of the Judicial Council concerning electronic filing, as long as the actual indictment document does not include non-public records. If the name of the defendant is not known, the prosecution shall identify the defendant as John or Jane Doe, and include any identifying information known.

(b) An indictment shall charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge.

(c) The court may permit an indictment to be amended after the trial has commenced but before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. After verdict, an indictment may be amended so as to state the offense with such particularity as to bar a subsequent prosecution for the same offense upon the same set of facts.

(d) When facts not set out in the indictment are required to inform a defendant of the nature and cause of the offense charged, so as to enable him to prepare his defense, the defendant may file a written motion for a bill of particulars. The motion shall be filed no later than 14 days after arraignment unless allowed by the court. The court may, on its own motion, direct the filing of a bill of particulars. A bill of particulars may be amended or supplemented at any time subject to such conditions as justice may require. The request for and contents of a bill of particulars shall be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged.

(e) Upon the filing of an indictment, the court shall proceed under Rule 6.

(a) If a case commences with the filing of a citation pursuant to Utah Code § 77-7-18, the following procedures apply.

(b) If the citation did not specify a time certain for the defendant to appear, the court may schedule a time to appear before the court and provide notice to the defendant by mail, or other means of contact provided with the citation.

(c) If the defendant timely appears, the court shall proceed under rule 7.

(d) If the defendant fails to timely appear, as required by the court or the terms of the citation, the court may issue a bench warrant for the defendant's arrest.

(e) If the defendant fails to appear upon a citation, the court may instruct the prosecutor to file an information that complies with rule 4. Such information need not contain the statement described in rule 4(c). It shall however, include the citation number originally issued to the defendant.

(a) Upon the filing of an indictment, or upon the acceptance of an information by a judge, the court must set the case for an initial appearance or arraignment, as appropriate. The court must then issue a summons directing the defendant to appear for that hearing, except as described in subsection (c).

(b) The summons must inform the defendant of the date, time and courthouse location for the initial appearance or arraignment. The summons may be mailed to the defendant's last known address, or served by anyone authorized to serve a summons in a civil action.

(c) If the defendant is not a corporation, a judge may issue a warrant of arrest instead of a summons if the court finds from the information and any supporting statements or affidavits that:

(c)(1) The defendant’s address is unknown or the defendant will not otherwise appear on a summons; or

(c)(2) there is substantial danger of a breach of the peace, injury to persons or property, or danger to the community.

(d) A judge may issue a warrant of arrest in cases where the defendant has failed to appear in response to a summons.

(e) Prior to issuing a warrant the judge must review the information for sufficiency. If the judge determines from the information, or from any supporting statements or affidavits, that there is probable cause to believe the offenses have been committed and that the accused committed them, the judge may issue the warrant. If the judge determines there is not probable cause the judge must notify the prosecutor. If the prosecutor does not file a sufficient information within 28 days, the judge must dismiss the case.

(e)(1) When a warrant of arrest is issued, the judge must state on the warrant:

(e)(1)(A) Whether the defendant is denied pretrial release under the authority of Utah Code § 77-20-1, and the alleged facts supporting.

(e)(1)(B) The conditions of pretrial release the court requires of the defendant in accordance with Utah Code section 77-20-1.

(e)(1)(C) As required by Utah Code section 77-20-1, if the court determinesmonetary bail is necessary, the judge must consider the individual’s ability to pay and set the lowest amount reasonably calculated to ensure the defendant's appearance at court.

(e)(1)(D) The court must state whether the defendant's personal appearance is required or whether the defendant may remit monetary bail to satisfy any obligation to the court pursuant to Utah Code § 77-7-21.

(e)(1)(E) The geographic area from which the issuing court will guarantee transport pursuant to Utah Code § 77-7-5.

(f) The clerk of the court must enter the warrant into the court information management system.

(g) Service, Execution and return of the warrant.

(g)(1) The warrant must be served by a peace officer. The officer may execute the warrant at any place within the state.

(g)(2) The warrant must be executed by the arrest of the defendant. The officer need not possess the warrant at the time of the arrest. Upon request, the officer must show the warrant to the defendant as soon as practicable. If the officer does not have the warrant in possession at the time of the arrest, the officer must inform the defendant of the offense charged and of the fact that the warrant has been issued.

(g)(3) The person executing a warrant or serving a summons must make return thereof to the magistrate as soon as practicable.

(h) The court may periodically review unexecuted warrants to determine whether they should be recalled.

(a) First appearance. At the defendant's first appearance, the court must inform the defendant:

(a)(1) of the charge in the information or indictment and furnish a copy;

(a)(2) of any affidavit or recorded testimony given in support of the information and how to obtain them;

(a)(3) of the right to retain counsel or have counsel appointed by the court without expense if unable to obtain counsel;

(a)(4) of rights concerning pretrial release; and

(a)(5) that the defendant is not required to make any statement, and that any statement the defendant makes may be used against the defendant in a court of law.

(b) Right to counsel. If the defendant is present at the initial appearance without counsel, the court must determine if the defendant is capable of retaining the services of an attorney within a reasonable time. If the court determines the defendant has such resources, the court must allow the defendant a reasonable time and opportunity to retain and consult with counsel. If the court determines the defendant is indigent, the court must appoint counsel pursuant to Rule 8, unless the defendant knowingly and intelligently waives the right to counsel.

(c) Release conditions.

(c)(1) Except as provided in paragraph (c), the court must issue a pretrial status order pursuant to Utah Code section 77-20-1. Parties should be prepared to address this issue, including notice requirements under Utah Code section 77-37-3 and Utah Code section 77-38-3.

(c)(2) A motion to modify the pretrial status order issued at initial appearance may be made by either party at any time upon notice to the opposing party sufficient to permit the opposing party to prepare for the hearing and to permit each alleged victim to be notified and be present.

(c)(3) Subsequent motions to modify a pretrial status order may be made only upon a showing that there has been a material change in circumstances.

(c)(4) A hearing on a motion to modify a pretrial status order may be held in conjunction with a preliminary hearing or any other pretrial hearing.

(d) Continuances. Upon application of either party and a showing of good cause, the court may allow up to a seven day continuance of the hearing to allow for preparation, including notification to any victims. The court may allow more than seven days with the consent of the defendant.

(e) Right to preliminary examination.

(e)(1) The court must inform the defendant of the right to a preliminary examination and the times for holding the hearing. If the defendant waives the right to a preliminary examination, and the prosecuting attorney consents, the court must order the defendant bound over for trial.

(e)(2) If the defendant does not waive a preliminary examination, the court must schedule the preliminary examination upon request. The examination must be held within a reasonable time, but not later than 14 days if the defendant is in custody for the offense charged and not later than 28 days if the defendant is not in custody. These time periods may be extended by the magistrate for good cause shown. Upon consent of the parties, the court may schedule the case for other proceedings before scheduling a preliminary hearing.

(e)(3) A preliminary examination may not be held if the defendant is indicted.

(a) Initial appearance. At the defendant’s initial appearance, the court must inform the defendant:

(a)(1) of the charge in the information, indictment, or citation and furnish a copy;

(a)(2) of any affidavit or recorded testimony given in support of the information and how to obtain them;

(a)(3) of the right to retain counsel or have counsel appointed by the court without expense if unable to obtain counsel;

(a)(4) of rights concerning pretrial release; and

(a)(5) that the defendant is not required to make any statement, and that any statement the defendant makes may be used against the defendant in a court of law.

(b) Right to counsel. If the defendant is present at the initial appearance without counsel, the court must determine if the defendant is capable of retaining the services of an attorney within a reasonable time. If the court determines the defendant has such resources, the court must allow the defendant a reasonable time and opportunity to retain and consult with counsel. If the court determines defendant is indigent, the court must appoint counsel pursuant to rule 8, unless the defendant knowingly and intelligently waives such appointment.

(c) Release conditions. Except as provided in paragraph (d), the court must issue a pretrial status order pursuant to Utah Code section 77-20-1. Parties should be prepared to address this issue, including notice requirements under Utah Code section 77-37-3 and Utah Code section 77-38-3.

(c)(1) A motion to modify the pretrial status order issued at initial appearance may be made by either party at any time upon notice to the opposing party sufficient to permit the opposing party to prepare for the hearing and to permit each alleged victim to be notified and be present.

(c)(2) Subsequent motions to modify a pretrial status order may be made only upon a showing that there has been a material change in circumstances.

(c)(3) A hearing on a motion to modify a pretrial status order may be held in conjunction with a preliminary hearing or any other pretrial hearing.

(d) Continuances. Upon application of either party and a showing of good cause, the court may allow up to a seven day continuance of the hearing to allow for preparation, including notification to any victims. The court may allow more than seven days with the consent of the defendant.

(e) Entering a plea.

(e)(1) If defendant is prepared with counsel, or if defendant waives the right to be represented by counsel, the court must call upon the defendant to enter a plea.

(e)(2) If the plea is guilty, the court must sentence the defendant as provided by law.

(e)(3) If the plea is not guilty, the court must set the matter for trial or a pretrial conference within a reasonable time. Such time should be no longer than 30 days if defendant is in custody.

(e)(4) The court may administratively enter a not guilty plea for the defendant. If the court has appointed counsel, the defendant does not desire to enter a plea, or for other good cause, the court must then schedule a pretrial conference.

(a) Burden of proof.At the preliminary examination, the state has the burden of proof and proceeds first with its case. At the conclusion of the state’s case, the defendant may testify under oath, call witnesses, and present evidence. The defendant may also cross-examine adverse witnesses.

(b) Probable cause determination. If from the evidence the magistrate finds probable cause to believe that the crime charged has been committed and that the defendant has committed it, the magistrate must order that the defendant be bound over for trial. The findings of probable cause may be based, in whole or in part, on reliable hearsay. Objections to evidence on the ground that it was acquired by unlawful means are not properly raised at the preliminary examination.

(c) If no probable cause. If the magistrate does not find probable cause to believe the crime charged has been committed or the defendant committed it, the magistrate must dismiss the information and discharge the defendant. The magistrate may enter findings of fact, conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the state from instituting a subsequent prosecution for the same offense.

(d) Witnesses.

(1) At a preliminary examination, the magistrate, upon request of either party, may exclude witnesses from the courtroom and may require witnesses not to converse with each other until the preliminary examination is concluded.

(2) A prosecutor may present the testimony of any relevant witness at a preliminary examination, including the testimony of an investigating peace officer. The prosecutor or the defense may introduce, through direct or cross examination, the testimony of an investigating peace officer, including testimony from the investigating peace officer on the totality or details of the investigation of the crime for which the defendant is charged.

(e) Written findings. If the magistrate orders the defendant bound over for trial, the magistrate must execute a bind-over order and include any written findings in the case record.

(f) Assignment on motion to quash. If a defendant files a motion to quash a bind-over order, the motion shall be decided by the judge assigned to the case after bind-over, regardless of whether the judge conducted the preliminary examination in the judge’s role as a magistrate.

(a) Warrant. If it appears from an affidavit filed by a party that a material witness in a pending case will not appear and testify, a magistrate may issue a warrant and fix bail with or without sureties in a sum considered adequate for the appearance of the witness.

(b) Hearing. If the witness is arrested on a warrant issued by the magistrate, the custodial authority shall notify the issuing magistrate before the end of the next business day. The magistrate shall provide a hearing to address bail and release conditions for the witness within three business days or, upon a showing of good cause, within a reasonable period of time. The witness shall be entitled to be represented by counsel. The court shall appoint counsel for an indigent witness if required to protect the rights of the witness.

(c) Examining witness. If necessary to secure the testimony of the witness, the magistrate may order that the witness remain in custody for a reasonable period of time so the witness can be examined and cross-examined before the magistrate in the presence of the defendant. The testimony shall be recorded. The witness shall then be released unless further detention is necessary to prevent a failure of justice.

(d) Use of testimony. If the witness is unavailable or fails to appear at any subsequent hearing or trial when ordered to do so, the recorded testimony may be used at the hearing or trial in lieu of the personal testimony of the witness.

(a) Right to counsel. A defendant charged with a public offense has the right to self-representation, and if indigent, has the right to court-appointed counsel if the defendant faces any possibility of the deprivation of liberty.

(b) Capital case qualifications. In all cases in which counsel is appointed to represent an indigent defendant who is charged with an offense for which the punishment may be death, the court will appoint two or more attorneys to represent the defendant and will make a finding on the record that appointed counsel is competent in the trial of capital case.   To be found competent to represent a defendant charged in a capital case, the combined experience of the appointed attorneys must meet the following requirements:

(1) at least one of the appointed attorneys must have tried to verdict at least six felony cases as defense counsel within the past four years or 25 felony cases total, with at least six of the 25 cases as defense counsel;

(2) at least one of the appointed attorneys must have appeared as defense counsel or defense co-counsel in a capital or a felony homicide case which was tried to a jury and which went to final verdict;

(3) within the last five years, at least one of the appointed attorneys must have completed or taught, in person, at least eight hours of approved continuing legal education which dealt, in substantial part, with the representation of defendants in death penalty cases; and

(4) at least one of the appointed attorneys must have at least five years of  experience  in the active practice of law.

(c) Capital case appointment considerations. In making its selection of attorneys for appointment in a capital case, the court will also consider at least the following factors:

(1) whether one or more of the attorneys under consideration have previously appeared as defense counsel or defense co-counsel in a capital case;

(2) the extent to which the attorneys under consideration have sufficient time and support and can dedicate those resources to the representation of the defendant in the capital case now pending before the court with undivided loyalty to the defendant;

(3) the extent to which the attorneys under consideration have engaged in the active practice of criminal law in the past five years;

(4) the diligence, competency, the total workload, and ability of the attorneys being considered; and

(5) any other factor which may be relevant to a determination that counsel to be appointed will fairly, efficiently and effectively provide representation to the defendant.

(d) Capital case appeals. In all cases where an indigent defendant is sentenced to death, the court will appoint one or more attorneys to represent such defendant on appeal and will make a finding that counsel is competent in the appeal of capital cases. To be found competent to represent on appeal a person sentenced to death, the combined experience of the appointed attorneys must meet the following requirements:

(1) at least one attorney must have served as counsel in at least three felony appeals; and

(2) within the last five years, at least one attorney must have attended and completed within the past five years an approved continuing legal education course which dealt, in substantial part, with the trial or appeal of death penalty cases.

(e) Post-conviction cases. In all cases in which counsel is appointed to represent an indigent petitioner pursuant to Utah Code section 78B-9-202(2)(a), the court will appoint one or more attorneys to represent such petitioner at post-conviction trial and on post-conviction appeal and will make a finding that counsel is qualified to represent persons sentenced to death in post-conviction cases. To be found qualified, the combined experience of the appointed attorneys must meet the following requirements:

(1) at least one of the appointed attorneys must have served as counsel in at least three felony or post-conviction appeals;

(2) at least one of the appointed attorneys must have appeared as counsel or co-counsel in a post-conviction case at the evidentiary hearing, on appeal, or otherwise demonstrated proficiency in the area of post-conviction litigation;

(3) within the last five years at least one of the appointed attorneys must have attended and completed or taught within the past five years an approved continuing legal education course which dealt, in substantial part, with the trial and appeal of death penalty cases or with the prosecution or defense of post-conviction proceedings in death penalty cases;

(4) at least one of the appointed attorneys must have tried to judgment or verdict three civil jury or felony cases within the past four years or ten cases total; and

(5) the experience of at least one of the appointed attorneys must total not less than five years in the active practice of law.

(f) Appointing from appellate roster. When appointing counsel for an indigent defendant on appeal from a court of record, the court will select an attorney from the appellate roster maintained by the Board of Appellate Judges under rule 11-401 of the Utah Rules of Judicial Administration, subject to any exemptions established by that rule.

(g) Noncompliance. Mere noncompliance with this rule or failure to follow the guidelines set forth in this rule shall not of itself be grounds for establishing that appointed counsel ineffectively represented the defendant at trial or on appeal.

(h) Litigation expenses and attorney fees.

(1) Litigation expenses and attorneys' fees for appointed counsel will be paid as described in Chapter 22 of Title 78B.

(2) Litigation expenses and attorneys fees for post-conviction counsel will be paid pursuant to Utah Code section 78B-9-202.

(a) Probable cause determination.

(a)(1) A person arrested and delivered to a correctional facility without a warrant for an offense must be presented without unnecessary delay before a magistrate for the determination of probable cause and eligibility for pretrial release pursuant to Utah Code § 77-20-1.

(a)(2) The arresting officer, custodial authority, or prosecutor with authority over the most serious offense for which defendant was arrested must, as soon as reasonably feasible but in no event longer than 24 hours after the arrest, present to a magistrate a sworn statement that contains the facts known to support probable cause to believe the defendant has committed a crime. The statement must contain any facts known to the affiant that are relevant to determining the appropriateness of precharge release and the conditions thereof.

(a)(3) If available, the magistrate should also be presented the results of a validated pretrial risk assessment tool.

(a)(4) The magistrate must review the information provided and determine if probable cause exists to believe the defendant committed the offense or offenses described. If the magistrate finds there is probable cause, the magistrate must determine if the person is eligible for pretrial release pursuant to Utah Code § 77-20-1. The magistrate will impose the least restrictive reasonably available conditions of release reasonably necessary to:

(a)(4)(A) ensure the individual’s appearance at future court proceedings;

(a)(4)(B) ensure that the individual will not obstruct or attempt to obstruct the criminal justice process;

(a)(4)(C) ensure the safety of any witnesses or victims of the offense allegedly committed by the individual; and

(a)(4)(D) ensure the safety and welfare of the public and the community.

(a)(5) If the magistrate finds the statement does not support probable cause to support the charges filed, the magistrate may determine what if any charges are supported, and proceed under paragraph (a)(4).

(a)(6) If probable cause is not articulated for any charge, the magistrate must return the statement to the submitting authority indicating such.

(a)(7) A statement that is verbally communicated by telephone must be reduced to a sworn written statement prior to presentment to the magistrate. The statement must be retained by the submitting authority and as soon as practicable, a copy shall be delivered to the magistrate who made the determination.

(a)(8) The arrestee need not be present at the probable cause determination.

(b) Magistrate availability.

(b)(1) The information required in paragraph (a) may be presented to any magistrate, although if the judicial district has adopted a magistrate rotation, the presentment should be in accord with that schedule or rotation. If the arrestee is charged with a capital offense, the magistrate may not be a justice court judge.

(b)(2) If a person is arrested in a county other than where the offense was alleged to have been committed, the arresting authority may present the person to a magistrate in the location arrested, or in the county where the crime was committed.

(c) Time for review.

(c)(1) Unless the time is extended at 24 hours after booking, if no probable cause determination and pretrial status order have been received by the custodial authority, the defendant must be released on the arrested charges on recognizance.

(c)(2) During the 24 hours after arrest, for good cause shown an arresting officer, custodial authority, or prosecutor with authority over the most serious offense for which defendant was arrested may request an additional 24 hours to hold a defendant and prepare the probable cause statement or request for release conditions.

(c)(3) If after 24 hours, the suspect remains in custody, an information must be filed without delay charging the suspect with offenses from the incident leading to the arrest.

(c)(4)(A) If no information has been filed by 3:00pm on the fourth calendar day after the defendant was booked, the release conditions set under subsection (a)(4)( shall revert to recognizance release.

(c)(4)(B) The four day period in this subsection may be extended upon application of the prosecutor for a period of three more days, for good cause shown.

(c)(4)(C) If the time periods in this subsection (c)(4)(A) and (c)(4)(B) expire on a weekend or legal holiday, the period expires at 3:00pm on the next business day.

(d) Other processes.Nothing in this rule is intended to preclude the accomplishment of other procedural processes at the time of the probable cause determination.

(a)(1) For purposes of this rule an “arrest warrant” means a warrant issued by a judge pursuant to Rule 6(c), or after a defendant’s failure to appear at an initial appearance or arraignment after having been summoned.

(a)(2) An “arrest warrant” does not include a warrant issued for failing to appear for a subsequent court proceeding or for reasons other than those described in subsection (a)(1).

(b)(1) When a peace officer or other person arrests a defendant pursuant to an arrest warrant and the arrested person cannot meet the release conditions required by the judge or magistrate issuing the arrest warrant, the person arrested must be presented to a magistrate within 48 hours after arrest. The information provided to the magistrate must include the case number, and the results of any validated pretrial risk assessment.

(b)(2) If the time periods in this subsection (b) expire on a weekend or legal holiday, the period expires at 5:00pm on the next business day.

(c) With the results of a pretrial risk assessment, and having considered the factors that caused the court to issue an arrest warrant in the first place, the magistrate may modify the release conditions.

(d) Any defendant who remains in custody after the review process must be seen by the court issuing the arrest warrant no later than the third day after the arrest.

(e) If the arrested person meets the release conditions required by the arrest warrant, the person must be released and instructed to appear as required in the issuing court.

(f) Any posted security must be forwarded to the court issuing the arrest warrant.

(a)(1) Unless otherwise provided by law, complaints, citations, or informations charging multiple offenses, which may include violations of state laws, county ordinances, or municipal ordinances and arising from a single criminal episode as defined by Utah Code § 76-1-401, shall be filed in a single court that has jurisdiction of the charged offense with the highest possible penalty of all the offenses charged.

(a)(2) The offenses within the complaint, citation, or information may not be separated except by order of the court and for good cause shown.

(b) For purposes of this section, the court that is adjudicating the complaint, citation, or information has jurisdiction over all the offenses charged, and a single prosecutorial entity shall prosecute the offenses.

(a) Upon the return of an indictment or upon receipt of the records from the magistrate following a bind-over, the defendant shall forthwith be arraigned in the district court. Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before the defendant is called upon to plead.

(b) If upon arraignment the defendant requests additional time in which to plead or otherwise respond, a reasonable time may be granted.

(c) Any defect or irregularity in or want or absence of any proceeding provided for by statute or these rules prior to arraignment shall be specifically and expressly objected to before a plea of guilty is entered or the same is waived.

(d) If a defendant has been released pretrial, prior to arraignment and thereafter fails to appear for arraignment or trial when required to do so, a warrant of arrest may issue and any monetary bail may be forfeited.

(a) Right to Counsel. Upon arraignment, except for an infraction, a defendant must be represented by counsel, unless the defendant waives counsel in open court. The defendant must not be required to plead until the defendant has had a reasonable time to confer with counsel.

(b) Types of pleas. A defendant may plead not guilty, guilty, no contest, not guilty by reason of insanity, or guilty and mentally ill. A defendant may plead in the alternative not guilty or not guilty by reason of insanity. If a defendant refuses to plead or if a defendant corporation fails to appear, the court will enter a plea of not guilty.

(c) No contest plea. A defendant may plead no contest only with the consent of the court.

(d) Not guilty plea. When a defendant enters a plea of not guilty, the case will be set for trial. A defendant unable to make bail must be given a preference for an early trial. In cases other than felonies the court will advise the defendant, or counsel, of the requirements for making a written demand for a jury trial.

(e) Guilty plea. The court may refuse to accept a plea of guilty, no contest or guilty and mentally ill, and may not accept the plea until the court has found:

(e)(1) if the defendant is not represented by counsel, he or she has knowingly waived the right to counsel and does not desire counsel;

(e)(2) the plea is voluntarily made;

(e)(3) the defendant knows of the right to the presumption of innocence, the right against compulsory self-incrimination, the right to a speedy public trial before an impartial jury, the right to confront and cross-examine in open court the prosecution witnesses, the right to compel the attendance of defense witnesses, and that by entering the plea, these rights are waived;

(e)(4)(A) the defendant understands the nature and elements of the offense to which the plea is entered, that upon trial the prosecution would have the burden of proving each of those elements beyond a reasonable doubt, and that the plea is an admission of all those elements;

(e)(4)(B) there is a factual basis for the plea. A factual basis is sufficient if it establishes that the charged crime was actually committed by the defendant or, if the defendant refuses or is otherwise unable to admit culpability, that the prosecution has sufficient evidence to establish a substantial risk of conviction;

(e)(5) the defendant knows the minimum and maximum sentence, and if applicable, the minimum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered, including the possibility of the imposition of consecutive sentences;

(e)(6) if the tendered plea is a result of a prior plea discussion and plea agreement, and if so, what agreement has been reached;

(e)(7) the defendant has been advised of the time limits for filing any motion to withdraw the plea; and

(e)(8) the defendant has been advised that the right of appeal is limited.

These findings may be based on questioning of the defendant on the record or, if used, a written statement reciting these factors after the court has established that the defendant has read, understood, and acknowledged the contents of the statement. If the defendant cannot understand the English language, it will be sufficient that the statement has been read or translated to the defendant.

Unless specifically required by statute or rule, a court is not required to inquire into or advise concerning any collateral consequences of a plea.

(f) Motion to withdraw plea. Failure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty, no contest or guilty and mentally ill is not a ground for setting the plea aside, but may be the ground for extending the time to make a motion under Utah Code § 77-13-6.

(g) Plea in domestic violence offense. If the defendant pleads guilty, no contest, or guilty and mentally ill to a misdemeanor crime of domestic violence, as defined in Utah Code § 77-36-1, the court will advise the defendant orally or in writing that, if the case meets the criteria of 18 U.S.C. § 921(a)(33) or Utah Code § 76-10-503 then pursuant to federal law or state law, it is unlawful for the defendant to possess, receive or transport any firearm or ammunition. The failure to advise does not render the plea invalid or form the basis for withdrawal of the plea.

(h) Plea recommendations.

(h)(1) If it appears that the prosecuting attorney or any other party has agreed to request or recommend the acceptance of a plea to a lesser included offense, or the dismissal of other charges, the agreement must be approved or rejected by the court.

(h)(2) If sentencing recommendations are allowed by the court, the court will advise the defendant personally that any recommendation as to sentence is not binding on the court.

(i) Plea agreements.

(i)(1) The judge will not participate in plea discussions prior to any plea agreement being made by the prosecuting attorney.

(i)(2) When a tentative plea agreement has been reached, the judge, upon request of the parties, may permit the disclosure of the tentative agreement and the reasons for it, in advance of the time for tender of the plea. The judge may then indicate to the prosecuting attorney and defense counsel whether the proposed disposition will be approved.

(i)(3) If the judge then decides that final disposition should not be in conformity with the plea agreement, the judge must advise the parties as to the nature of the divergence from the plea agreement and then call upon the parties to either affirm or withdraw from the plea agreement.

(j) Conditional plea. With approval of the court and the consent of the prosecution, a defendant may enter a conditional plea of guilty, guilty and mentally ill, or no contest, reserving in the record the right, on appeal from the judgment, to a review of the adverse determination of any specified pre-trial motion. A defendant who prevails on appeal will be allowed to withdraw the plea.

(k) Guilty and mentally ill. When a defendant tenders a plea of guilty and mentally ill, in addition to the other requirements of this rule, the court will hold a hearing within a reasonable time to determine if the defendant is mentally ill in accordance with Utah Code § 77-16a-103.

(l) Strict compliance not necessary. Compliance with this rule will be determined by examining the record as a whole. Any variance from procedures required by this rule which does not affect substantial rights will be disregarded. Failure to comply with this rule is not, by itself, sufficient grounds for a collateral attack on a guilty plea.

(a) Motions. An application to the court for an order shall be by motion, which, unless made during a trial or hearing, shall be in writing and in accordance with this rule. A motion shall state succinctly and with particularity the grounds upon which it is made and the relief sought. A motion need not be accompanied by a memorandum unless required by the court.

(b) Request to Submit for Decision. If neither party has advised the court of the filing nor requested a hearing, when the time for filing a response to a motion and the reply has passed, either party may file a request to submit the motion for decision. If a written Request to Submit is filed it shall be a separate pleading so captioned. The Request to Submit for Decision shall state the date on which the motion was served, the date the opposing memorandum, if any, was served, the date the reply memorandum, if any, was served, and whether a hearing has been requested. The notification shall contain a certificate of mailing to all parties. If no party files a written Request to Submit, or the motion has not otherwise been brought to the attention of the court, the motion will not be considered submitted for decision.

(c) Time for filing specified motions. Any defense, objection or request, including request for rulings on the admissibility of evidence, which is capable of determination without the trial of the general issue may be raised prior to trial by written motion.

(1) The following shall be raised at least 7 days prior to the trial:

(A) defenses and objections based on defects in the indictment or information;

(B) motions to suppressevidence;

(C) requests for discovery where allowed;

(D) requests for severance of charges or defendants;

(E) motions to dismiss on the ground of double jeopardy; or

(F) motions challenging jurisdiction, unless good cause is shown why the issue could not have been raised at least 7 days prior to trial.

(2) Motions for a reduction of a criminal offense at sentencing pursuant to Utah Code § 76-3-402(1) shall be in writing and filed at least 14 days prior to the date of sentencing unless the court sets the date for sentencing within ten days of the entry of conviction. Motions for a reduction of criminal offense pursuant to Utah Code § 76-3-402(2) may be raised at any time after sentencing upon proper service of the motion on the appropriate prosecuting entity.

(3) Motions on the justification of the use of force pursuant to Utah Code section 76-2-309 shall be filed:

(A) in writing; and

(B) at least 28 days before trial, unless there is good cause shown as to why the issue could not have been raised at least 28 days before trial.

(d) Motions to Suppress. A motion to suppress evidence shall:

(d)(1) describe the evidence sought to be suppressed;

(d)(2) set forth the standing of the movant to make the application; and

(d)(3) specify sufficient legal and factual grounds for the motion to give the opposing party reasonable notice of the issues and to enable the court to determine what proceedings are appropriate to address them. If an evidentiary hearing is requested, no written response to the motion by the non-moving party is required, unless the court orders otherwise. At the conclusion of the evidentiary hearing, the court may provide a reasonable time for all parties to respond to the issues of fact and law raised in the motion and at the hearing.

(e) Motions made before a trial. A motion made before trial shall be determined before trial unless the court for good cause orders that the ruling be deferred for later determination. Where factual issues are involved in determining a motion, the court shall state its findings on the record.

(f) Failure to timely raise defenses or objections. Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial or at the time set by the court shall constitute waiver thereof, but the court for cause shown may grant relief from such waiver.

(g) Record of proceedings. A verbatim record shall be made of all proceedings at the hearing on motions, including such findings of fact and conclusions of law as are made orally.

(h) Defects in the institution of the prosecution or indictment of information. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that bail be continued for a reasonable and specified time pending the filing of a new indictment or information. Nothing in this rule shall be deemed to affect provisions of law relating to a statute of limitations.

(i) Motions challenging the constitutionality of Utah statutes, ordinances, and other governmental enactments.

(1) Challenges to a statute. If a party in a court of record challenges the constitutionality of a statute in an action in which the Attorney General has not appeared, the party raising the question of constitutionality shall notify the Attorney General of such fact by serving the notice on the Attorney General by email or, if circumstances prevent service by email, by mail at the address below. The party shall then file proof of service with the court.

Email: notices@agutah.gov

Mail:

Office of the Utah Attorney General

Attn: Utah Solicitor General

350 North State Street, Suite 230

P.O. Box 14230

Salt Lake City, Utah 84114-2320

(2) Challenges to an ordinance or other governmental enactment. If a party challenges the constitutionality of a governmental entity’s ordinance, rule, or other administrative or legislative enactment in an action in which the governmental entity has not appeared, the party raising the question of constitutionality shall notify the governmental entity of such fact by serving the person identified in Rule 4(d)(1) of the Utah Rules of Civil Procedure. The party shall then file proof of service with the court.

(3) Notification procedures.

(A) Form and content. The notice shall (i) be in writing, (ii) be titled “Notice of Constitutional Challenge Under URCrP 12(i),” (iii) concisely describe the nature of the challenge, and (iv) include, as an attachment, the pleading, motion, or other paper challenging the constitutionality of the statute, ordinance, or other governmental enactment.

(B) Timing. The party shall serve the notice on the Attorney General or other governmental entity on or before the date the party files the paper challenging the constitutionality of the statute, ordinance, or other governmental enactment.

(4) Attorney General’s or other governmental entity’s response to notice.

(A) Within 14 days after the deadline for the parties to file all papers in response to the constitutional challenge, the Attorney General or other governmental entity (“responding entity”) shall file a notice of intent to respond unless the responding entity determines that a response is unnecessary. The responding entity may seek up to an additional 7 days’ extension of time to file a notice of intent to respond.

(B) If the responding entity files a notice of intent to respond within the time permitted by this rule, the court will allow the responding entity to file a response to the constitutional challenge and participate at oral argument when it is heard.

(C) Unless the parties stipulate to or the court grants additional time, the responding entity’s response to the constitutional challenge shall be filed within 14 days after filing the notice of intent to respond.

(D) The responding entity’s right to respond to a constitutional challenge under Rule 25A of the Utah Rules of Appellate Procedure is unaffected by the responding entity’s decision not to respond under this rule.

(5) Failure to provide notice. Failure to provide notice as required by this rule is not a waiver of any constitutional challenge otherwise timely asserted. If a party does not serve a notice as required by this rule, the court may postpone the hearing until the party serves the notice.

(a) A notice of transfer of a domestic violence case from a justice court to district court, pursuant to Utah Code Ann. 78A-7-106(6), must be filed electronically, or in writing, in the justice court within 14 days of the court setting the case for trial. If the trial date set by the court is less than 22 days away, the notice must be filed within 7 days of the setting of the trial date. A notice of transfer cannot be filed in a case that has not been set for trial.

(1) The notice of transfer will identify the prosecuting entity for the case, defense counsel, and at least the defendant’s physical address. If available, the notice should also include an email address for the defendant.

(2) The notice of transfer is irrevocable.

(b) Upon receiving a notice of transfer, the justice court shall transmit via email copies of the notice of transfer and the Information to the address identified by the district court to receive them.

(1) If no information has been filed when the notice to transfer is filed, the justice court will order the prosecution to file an information within 7 days. Upon receipt of the information, the justice court shall then transmit the notice to transfer and the Information as required above.

(2) The justice court will also, upon request of the district court, transfer any monetary bail posted by the defendant to the district court.

(c) Upon receiving the transferred case, the district court must set a scheduling conference with the parties. Any pre-trial decisions made by the justice court will stand, unless the district court, in its discretion, grants a motion to address them. The district court will schedule further proceedings as needed.

(d) All further proceedings, including any pre-trial plea of guilty or no-contest, any trial, and if necessary, sentencing shall occur in the district court. The matter shall not be remanded to the justice court.

(e) Any appeal taken from a transferred case will be as if the case had originated in the district court.

(f) If the transferred case is dismissed by the district court without prejudice, and any of the charges from the dismissed case are refiled by the prosecutor, the information alleging those violations will be filed in the district court.

(g) In any domestic violence case already set for trial in a justice court as of July 19, 2022, a party seeking to transfer shall file a notice to transfer on or before August 2, 2022.

(a) The trial court, in its discretion, may hold a pretrial conference, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The accused shall be present unless the accused waives the right to appear.

(b) At the conclusion of the conference, a pretrial order shall set out the matters ruled upon. Any stipulations made shall be signed by counsel, approved by the court and filed, and shall be binding upon the parties at trial, on appeal, and in post-conviction proceedings unless set aside or modified by the court.

(a) Subpoenas requiring the attendance of a witness or interpreter and production or inspection of records, papers, or other objects.

(a)(1) A subpoena to require the attendance of a witness or interpreter before a court, magistrate or grand jury in connection with a criminal investigation or prosecution may be issued by the magistrate with whom an information is filed, the prosecuting attorney on his or her own initiative or upon the direction of the grand jury, or the court in which an information or indictment is to be tried. The clerk of the court in which a case is pending must issue in blank to the defendant, without charge, as many signed subpoenas as the defendant may require. An attorney admitted to practice in the court in which the action is pending may also issue and sign a subpoena as an officer of the court.

(a)(2) A subpoena may command the person to whom it is directed to appear and testify or to produce in court or to allow inspection of records, papers or other objects, other than those records pertaining to a victim covered by Subsection (b). The court may quash or modify the subpoena if compliance would be unreasonable.

(a)(3) A subpoena may be served by any person over the age of 18 years who is not a party. Service must be made by delivering a copy of the subpoena to the witness or interpreter personally and notifying the witness or interpreter of the contents. A peace officer must serve any subpoena delivered for service in the peace officer's county.

(a)(4) Written return of service of a subpoena must be made promptly to the court and to the person requesting that the subpoena be served, stating the time and place of service and by whom service was made.

(a)(5) A subpoena may compel the attendance of a witness from anywhere in the state.

(a)(6) When a person required as a witness is in custody within the state, the court may order the officer having custody of the witness to bring the witness before the court.

(a)(7) Failure to obey a subpoena without reasonable excuse may be deemed a contempt of the court responsible for its issuance.

(a)(8) If a party has reason to believe a material witness is about to leave the state, will be too ill or infirm to attend a trial or hearing, or will not appear and testify pursuant to a subpoena, the party may, upon notice to the other, apply to the court for an order that the witness be examined conditionally by deposition. The party must file an affidavit providing facts to support the party’s request. Attendance of the witness at the deposition may be compelled by subpoena. The defendant shall be present at the deposition and the court will make whatever order is necessary to effect such attendance.A deposition may be used as substantive evidence at the trial or hearing to the extent it would otherwise be admissible under the Rules of Evidence if the witness is too ill or infirm to attend, the party offering the deposition has been unable to obtain the attendance of the witness by subpoena, or the witness refuses to testify despite a court order to do so.

(b) Subpoenas for the production of records of victim.

(b)(1) No subpoena or court order compelling the production of medical, mental health, school, or other privileged records pertaining to a victim shall be issued by or at the request of any party unless the court finds after a hearing, upon notice as provided below, that the records are material and the party is entitled to production of the records sought under applicable rules of privilege, and state and federal law.

(b)(2) The request for the subpoena or court order shall identify the records sought with particularity and be reasonably limited as to subject matter.

(b)(3) The request for the subpoena or court order shall be filed with the court as soon as practicable, but no later than 28 days before trial, or by such other time as permitted by the court. The request and notice of any hearing shall be served on counsel for the victim or victim's representative and on the opposing party. Service on an unrepresented victim must be facilitated through the prosecutor. The prosecutor must make reasonable efforts to provide a copy of the request for the subpoena to the victim or victim’s representative within 14 days of receiving it.

(b)(4) If the court makes the required findings under subsection (b)(1), it must issue a subpoena or order requiring the production of the records to the court. The court will then conduct an in camera review of the records and disclose to the defense and prosecution only those portions that the requesting party has demonstrated a right to inspect.

(b)(5) Any party issuing a subpoena for non-privileged records, papers or other objects pertaining to a victim must serve a copy of the subpoena upon the victim or victim’s representative. Service on an unrepresented victim must be facilitated through the prosecutor. The prosecutor must make reasonable efforts to provide a copy of the subpoena to the victim within 14 days of receiving it. The subpoena may not require compliance in less than 14 days after service on the prosecutor or victim’s representative.

(b)(6) The court may, in its discretion or upon motion of either party or the victim or the victim's representative, issue any reasonable order to protect the privacy of the victim or to limit dissemination of disclosed records.

(b)(7) For purposes of this rule, "victim" and "victim's representative" are used as defined in Utah Code § 77‑38‑2.

(b)(8) Nothing in this rule alters or supersedes other rules, privileges, statutes or caselaw pertaining to the release or admissibility of an individual’s medical, psychological, school or other records.

(c) Applicability of Rule 45, Utah Rules of Civil Procedure. The provisions of Rule 45, Utah Rules of Civil Procedure, will govern the content, issuance, objections to, and service of subpoenas to the extent those provisions are consistent with the Utah Rules of Criminal Procedure.

(a) ­­­­­­­­­­Appointing an expert witness. The court may appoint any expert witness agreed upon by the parties or of its own selection. An expert so appointed shall be informed of the expert’s duties by the court in writing, a copy of which shall be filed. An expert so appointed shall advise the court and the parties of the expert’s findings and may thereafter be called to testify by the court or by any party. The expert shall be subject to cross-examination by each party. The court shall determine the reasonable compensation of the expert and direct payment thereof. The parties may call expert witnesses of their own at their own expense. Upon showing that a defendant is financially unable to pay the fees of an expert whose services are necessary for adequate defense, the witness fee shall be paid as if the witness were called on behalf of the prosecution.

(b) ­­­­­­­­­­Appointing an interpreter. The court may appoint an interpreter of its own selection and shall determine reasonable compensation and direct payment thereof. The court may allow counsel to question the interpreter before the interpreter is sworn to discharge the duties of an interpreter.

(a) Previously recorded statements. In any case concerning a charge of child abuse or of a sexual offense against a child, the oral statement of a victim or other witness younger than 14 years of age which was recorded prior to the filing of an information or indictment is, upon motion and for good cause shown, admissible as evidence in any court proceeding regarding the offense if all of the following conditions are met:

(a)(1) the child is available to testify and to be cross-examined at trial, either in person or as provided by law, or the child is unavailable to testify at trial, but the defendant had a previous opportunity to cross-examine the child concerning the recorded statement, such that the defendant’s rights of confrontation are not violated;

(a)(2) no attorney for either party is in the child's presence when the statement is recorded;

(a)(3) the recording is visual and aural and is recorded on film, videotape or other electronic means;

(a)(4) the recording is accurate and has not been altered;

(a)(5) each voice in the recording is identified;

(a)(6) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify and be cross-examined by either party;

(a)(7) the defendant and the defendant’s attorney are provided an opportunity to view the recording before it is shown to the court or jury; and

(a)(8) the court views the recording before it is shown to the jury and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence.

(b) Remote transmission of testimony. In a criminal case concerning a charge of child abuse or of a sexual offense against a child, the court, upon motion of a party and for good cause shown, may order that the testimony of any victim or other witness younger than 14 years of age be taken in a room other than the court room, and be televised by closed circuit equipment to be viewed by the jury in the court room. All of the following conditions shall be observed:

(b)(1) Only the judge, attorneys for each party and the testifying child (if any), persons necessary to operate equipment, and a counselor or therapist whose presence contributes to the welfare and emotional well-being of the child may be in the room during the child’s testimony. A defendant who consents to be hidden from the child's view may also be present unless the court determines that the child will suffer serious emotional or mental strain if required to testify in the defendant's presence, or that the child's testimony will be inherently unreliable if required to testify in the defendant's presence. If the court makes that determination, or if the defendant consents:

(b)(1)(A) the defendant may not be present during the child's testimony;

(b)(1)(B) the court shall ensure that the child cannot hear or see the defendant;

(b)(1)(C) the court shall advise the child prior to testifying that the defendant is present at the trial and may listen to the child's testimony;

(b)(1)(D) the defendant shall be permitted to observe and hear the child's testimony, and the court shall ensure that the defendant has a means of two-way telephonic communication with the

defendant’s attorney during the child's testimony; and

(b)(1)(E) the conditions of a normal court proceeding shall be approximated as nearly as possible.

(b)(2) Only the judge and an attorney for each party may question the child.

(b)(3) As much as possible, persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror so the child cannot see or hear them.

(b)(4) If the defendant is present with the child during the child's testimony, the court may order that persons operating the closed circuit equipment film both the child and the defendant during the child's testimony, so that the jury may view both the child and the defendant, if that may be arranged without violating other requirements of Subsection (b)(1).

(c) Remote recording of testimony. In any criminal case concerning a charge of child abuse or of a sexual offense against a child, the court may order, upon motion of a party and for good cause shown, that the testimony of any victim or other witness younger than 14 years of age be taken outside the courtroom and be recorded. That testimony is admissible as evidence, for viewing in any court proceeding regarding the charges if the provisions of Subsection (b) are observed, in addition to the following provisions:

(c)(1) the recording is visual and aural and recorded on film, videotape or by other electronic means;

(c)(2) the recording is accurate and is not altered;

(c)(3) each voice on the recording is identified; and

(c)(4) each party is given an opportunity to view the recording before it is shown in the courtroom.

(d) Presence of child when recording is used. If the court orders that the testimony of a child be taken under Subsection (b) or (c), the child may not be required to testify in court at any proceeding where the recorded testimony is used.

(a) Disclosures by prosecutor.

(1) Mandatory disclosures. The prosecutor must disclose to the defendant the following material or information directly related to the case of which the prosecution team has knowledge and control:

(A) written or recorded statements of the defendant and any codefendants, and the substance of any unrecorded oral statements made by the defendant and any codefendants to law enforcement officials;

(B) reports and results of any physical or mental examination, of any identification procedure, and of any scientific test or experiment;

(C) physical and electronic evidence, including any warrants, warrant affidavits, books, papers, documents, photographs, and digital media recordings;

(D) written or recorded statements of witnesses;

(E) reports prepared by law enforcement officials and any notes that are not incorporated into such a report; and

(F) evidence that must be disclosed under the United States and Utah constitutions, including all evidence favorable to the defendant that is material to guilt or punishment.

(2) Timing of mandatory disclosures. The prosecutor’s duty to disclose under paragraph (a)(1) is a continuing duty as the material or information becomes known to the prosecutor. The prosecutor’s disclosures must be made as soon as practicable following the filing of an information, except that a prosecutor must disclose all evidence that the prosecutor relied upon to file the information within five days after the day on which the prosecutor receives a request for discovery from the defendant. In every case, all material or information listed under paragraph (a)(1) that is presently and reasonably available to the prosecutor must be disclosed before the preliminary examination, if applicable, or before the defendant enters a plea of guilty or no contest or goes to trial, unless otherwise waived by the defendant.

(3) Disclosures upon request.

(A) Upon request, the prosecutor must obtain and disclose to the defendant any of the material or information listed in paragraph (a)(1) which is in a record possessed by another governmental agency and may be shared with the prosecutor under Title 63G, Chapter 2, Government Records Access and Management Act. The request must identify with particularity the record sought and the agency that possesses it, and must demonstrate that the information in the record is directly related to the case.

(B) If the government agency refuses to share with the prosecutor the record containing the requested material or information under paragraph (a)(3)(A), or if the prosecution determines that it is prohibited by law from disclosing to the defense the record shared by the governmental agency, the prosecutor must promptly file notice stating the reasons for noncompliance. The defense may thereafter file an appropriate motion seeking a subpoena or other order requiring the disclosure of the requested record.

(4) Good cause disclosures. The prosecutor must disclose any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare a defense.

(5) Trial disclosures. The prosecutor must also disclose to the defendant the following information and material no later than 14 days, or as soon as practicable, before trial:

(A) Unless otherwise prohibited by law, a written list of the names and current contact information of all persons whom the prosecution intends to call as witnesses at trial; and

(B) Any exhibits that the prosecution intends to introduce at trial.

(C) Upon order of the court, the criminal records, if any, of all persons whom the prosecution intends to call as a witness at trial.

(6) Information not subject to disclosure. Unless otherwise required by law, the prosecution’s disclosure obligations do not include information or material that is privileged or attorney work product. Attorney work product protection is not subject to the exception in Rule 26(b)(6) of the Utah Rules of Civil Procedure.

(b) Disclosures by defense.

(1) Good cause disclosures. The defense must disclose to the prosecutor any item of evidence which the court determines on good cause shown should be made available to the prosecutor in order for the prosecutor to adequately prepare the prosecutor’s case for trial.

(2) Other disclosures required by statute. The defense must disclose to the prosecutor such information as required by statute relating to alibi or insanity.

(3) Trial disclosures. The defense must also disclose to the prosecutor the following information and material no later than 14 days, or as soon as practicable, before trial:

(A) A written list of the names and current contact information of all persons, except for the defendant, whom the defense intends to call as witnesses at trial; and

(B) Any exhibits that the defense intends to introduce at trial.

(4) Information not subject to disclosure. The defendant’s disclosure obligations do not include information or material that is privileged or attorney work product. Attorney work product protection is not subject to the exception in Rule 26(b)(6) of the Utah Rules of Civil Procedure.

(c) Methods of disclosure.

(1) The prosecutor or defendant may make disclosure by notifying the opposing party that material and information may be inspected, tested, or copied at specified reasonable times and places.

(2) If the prosecutor concludes any disclosure required under this rule is prohibited by law, or believes disclosure would endanger any person or interfere with an ongoing investigation, the prosecutor must file notice identifying the nature of the material or information withheld and the basis for non-disclosure. If disclosure is then requested by the defendant, the court must hold an in camera review to decide whether disclosure is required and whether any limitations or restrictions will apply to disclosure as provided in paragraph (d).

(d) Disclosure limitations and restrictions.

(1) The prosecutor or defendant may impose reasonable limitations on the further dissemination of sensitive information otherwise subject to discovery to prevent improper use of the information or to protect victims and witnesses from harassment, abuse, or undue invasion of privacy, including limitations on the further dissemination of recorded interviews, photographs, or psychological or medical reports.

(2) Upon a sufficient showing the court may at any time order that discovery or inspection be denied, restricted, or deferred, that limitations on the further dissemination of discovery be modified or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(e) Relief and sanctions for failing to disclose.

(1) When a party fails to comply with the disclosure requirements of this rule, the court may, subject to constitutional limitations and the rules of evidence, take the measures or impose the sanctions provided in this paragraph that it deems appropriate under the circumstances. If a party has failed to comply with this rule, the court may take one or more of the following actions:

(A) order such party to permit the discovery or inspection, of the undisclosed material or information;

(B) grant a continuance of the proceedings;

(C) prohibit the party from introducing evidence not disclosed; or

(D) order such other relief as the court deems just under the circumstances.

(2) If after a hearing the court finds that a party has knowingly and willfully failed to comply with an order of the court compelling disclosure under this rule, the nondisclosing party or attorney may be held in contempt of court and subject to the penalties thereof.

(f) Identification evidence.

(1) Subject to constitutional limitations and upon good cause shown, the trial court may order the defendant to: appear in a lineup; speak for identification; submit to fingerprinting or the making of other bodily impressions; pose for photographs not involving reenactment of the crime; try on articles of clothing or other items of disguise; permit the taking of samples of blood, hair, fingernail scrapings, and other bodily materials which can be obtained without unreasonable intrusion; provide specimens of handwriting; submit to reasonable physical or medical inspection of the accused’s body; and cut hair or allow hair to grow to approximate appearance at the time of the alleged offense.

(2) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given to the accused and the accused’s counsel.

(3) Unless relieved by court order, failure of the accused to appear or to comply with the requirements of this paragraph without reasonable excuse shall be grounds for revocation of pre‑trial release and will subject the defendant to such further consequences or sanctions as the court may deem appropriate, including allowing the prosecutor to offer as evidence at trial the defendant’s failure to comply with this paragraph.

(a) Defendant’s presence. In all cases the defendant shall have the right to appear and defend in person and by counsel. The defendant shall be personally present at the trial with the following exceptions:

(a)(1) In prosecutions of misdemeanors and infractions, the defendant may consent in writing to trial in the defendant’s absence;

(a)(2) In prosecutions for offenses not punishable by death, the defendant's voluntary absence from the trial after notice to defendant of the time for trial shall not prevent the case from being tried and a verdict or judgment entered therein shall have the same effect as if defendant had been present; and

(a)(3) The court may exclude or excuse a defendant from trial for good cause shown which may include tumultuous, riotous, or obstreperous conduct.

Upon application of the prosecution, the court may require the personal attendance of the defendant at the trial.

(b) Calendar priorities. Cases shall be set on the trial calendar to be tried in the following order:

(b)(1) misdemeanor cases when defendant is in custody;

(b)(2) felony cases when defendant is in custody;

(b)(3) felony cases when defendant is on bail or recognizance; and

(b)(4) misdemeanor cases when defendant is on bail or recognizance.

(c) Jury trial in felony cases. All felony cases shall be tried by jury unless the defendant waives a jury in open court with the approval of the court and the consent of the prosecution.

(d) Jury trial in other cases. All other cases shall be tried without a jury unless the defendant makes written demand at least 14 days prior to trial, or the court orders otherwise. No jury shall be allowed in the trial of an infraction.

(e)(1) Number of jurors. In all cases, the number of members of a trial jury shall be as specified in Utah Code § 78B-1-104.

(e)(2) In all cases the prosecution and defense may, with the consent of the accused and the approval of the court, by stipulation in writing or made orally in open court, proceed to trial or complete a trial then in progress with any number of jurors less than otherwise required.

(f) Trial process. After the jury has been impaneled and sworn, the trial shall proceed in the following order:

(f)(1) The charge shall be read and the plea of the defendant stated;

(f)(2) The prosecuting attorney may make an opening statement and the defense may make an opening statement or reserve it until the prosecution has rested;

(f)(3) The prosecution shall offer evidence in support of the charge;

(f)(4) When the prosecution has rested, the defense may present its case;

(f)(5) Thereafter, the parties may offer only rebutting evidence unless the court, for good cause, otherwise permits;

(f)(6) When the evidence is concluded and at any other appropriate time, the court shall instruct the jury; and

(f)(7) Unless the cause is submitted to the jury on either side or on both sides without argument, the prosecution shall open the argument, the defense shall follow and the prosecution may close by responding to the defense argument. The court may set reasonable limits upon the argument of counsel for each party and the time to be allowed for argument.

(g) Alternate jurors. If a juror becomes ill, disabled or disqualified during trial and an alternate juror has been selected, the case shall proceed using the alternate juror. If no alternate has been selected, the parties may stipulate to proceed with the number of jurors remaining. Otherwise, the jury shall be discharged and a new trial ordered.

(h) Questions by jurors. A judge may invite jurors to submit written questions to a witness as provided in this section.

(h)(1) If the judge permits jurors to submit questions, the judge shall control the process to ensure the jury maintains its role as the impartial finder of fact and does not become an investigative body. The judge may disallow any question from a juror and may discontinue questions from jurors at any time.

(h)(2) If the judge permits jurors to submit questions, the judge should advise the jurors that they may write the question as it occurs to them and submit the question to the bailiff for transmittal to the judge. The judge should advise the jurors that some questions might not be allowed.

(h)(3) The judge shall review the question with counsel and unrepresented parties and rule upon any objection to the question. The judge may disallow a question even though no objection is made. The judge shall preserve the written question in the court file. If the question is allowed, the judge shall ask the question or permit counsel or an unrepresented party to ask it. The question may be rephrased into proper form. The judge shall allow counsel and unrepresented parties to examine the witness after the juror's question.

(i) Juries visiting off-site places. When in the opinion of the court it is proper for the jury to view the place in which the offense is alleged to have been committed, or in which any other material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. The officer shall be sworn that while the jury are thus conducted, the officer will suffer no person other than the person so appointed to speak to them nor shall the officer speak to the jury on any subject connected with the trial and to return them into court without unnecessary delay or at a specified time.

(j) Admonition prior to recess. At each recess of the court, whether the jurors are permitted to separate or are sequestered, they shall be admonished by the court that it is their duty not to converse among themselves or to converse with, or suffer themselves to be addressed by, any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them.

(k) Deliberations. Upon retiring for deliberation, the jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons or contraband. The court shall permit the jury to view exhibits upon request. Jurors are entitled to take notes during the trial and to have those notes with them during deliberations. As necessary, the court shall provide jurors with writing materials and instruct the jury on taking and using notes.

(l) Jury under officer’s charge. When the case is finally submitted to the jury, they shall be kept together in some convenient place under charge of an officer until they agree upon a verdict or are discharged, unless otherwise ordered by the court. Except by order of the court, the officer having them under the officer’s charge shall not allow any communication to be made to them, nor shall the officer speak to the jury except to ask them if they have agreed upon their verdict, and the officer shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

(m) Juror questions during deliberations. After the jury has retired for deliberation, if they desire to be informed on any point of law arising in the cause, they shall inform the officer in charge of them, who shall communicate such request to the court. The court may then direct that the jury be brought before the court where, in the presence of the defendant and both counsel, the court shall respond to the inquiry or advise the jury that no further instructions shall be given. Such response shall be recorded. The court may in its discretion respond to the inquiry in writing without having the jury brought before the court, in which case the inquiry and the response thereto shall be entered in the record.

(n) Incorrect verdict. If the verdict rendered by a jury is incorrect on its face, it may be corrected by the jury under the advice of the court, or the jury may be sent out again.

(o) Directed verdict. At the conclusion of the evidence by the prosecution, or at the conclusion of all the evidence, the court may issue an order dismissing any information or indictment, or any count thereof, upon the ground that the evidence is not legally sufficient to establish the offense charged therein or any lesser included offense.

(a) Definitions.

(1) “Participant” means a party, a participating victim, or an attorney for a party or participating victim.

(2) “In-person” means a participant will be physically present in the courtroom.

(3) “In-person hearing” means a hearing where all participants appear in person.

(4) “Remote” or “remotely” means a participant will appear by video conference or other electronic means approved by the court.

(5) “Remote hearing” means no participants will be physically present in the courtroom and all participants will appear remotely.

(6) “Hybrid hearing” means a hearing at which some participants appear in person and others appear remotely.

(b) Setting hearing format; factors to consider. The court has discretion to set a hearing as an in-person hearing, a remote hearing, or a hybrid hearing. In determining which format to use for a hearing, the court will consider:

(1) the preference of the participants, if known;

(2) the anticipated hearing length;

(3) the number of participants;

(4) the burden on a participant of appearing in person compared to appearing remotely, including time and economic impacts;

(5) the complexity of issues to be addressed;

(6) whether and to what extent documentary or testimonial evidence is likely to be presented;

(7) the availability of adequate technology to accomplish the hearing’s purpose; 

(8) the availability of language interpretation or accommodations for communication with individuals with disabilities;

(9) the possibility that the court may order a party, who is not already in custody, into custody;

(10) the preference of the incarcerating custodian where a party is incarcerated, if the hearing does not implicate significant constitutional rights; and

(11) any other factor, based on the specific facts and circumstances of the case or the court’s calendar, that the court deems relevant.

(c) Request to appear by a different format.

(1) Manner of request. A participant may request that the court allow the participant or a witness to appear at a hearing by a different format than that set by the court. Any request must be made verbally during a hearing, by email, by letter, or by written motion, and the participant must state the reason for the request. If a participant is represented by an attorney, all requests must be made by the attorney.

(A) Email and letter requests.

(i) An email or letter request must be copied on all parties;

(ii) An email or letter request must include in the subject line, “REQUEST TO APPEAR IN PERSON, Case ___________” or “REQUEST TO APPEAR REMOTELY, Case _________;” and

(iii) An email request must be sent to the court’s email address, which may be obtained from the court clerk.

(B) Request by written motion. If making a request by written motion, the motion must succinctly state the grounds for the request and be accompanied by a request to submit for decision and a proposed order. The motion need not be accompanied by a supporting memorandum. 

(2) Timing. All requests, except those made verbally during a hearing, must be sent to the court at least seven days before the hearing unless there are exigent circumstances or the hearing was set less than seven days before the hearing date, in which cases the request must be made as soon as reasonably possible.

(d) Resolution of the request.

(1) Timing and manner of resolution. The court may rule on a request under paragraph (c) without awaiting a response. The court may rule on the request in open court, by email, by minute entry, or by written order. If the request is made by email, the court will make a record of the request if the request is denied.

(2) Court’s accommodation of participant’s preference; factors to consider. The court will accommodate a timely request unless the court makes, on the record, a finding of good cause to order the participant to appear in the format originally noticed. The court may find good cause to deny a request based on:

(A) a constitutional or statutory right that requires a particular manner of appearance or a significant possibility that such a right would be impermissibly diminished or infringed by appearing remotely;

(B) a concern for a participant’s or witness’s safety, well-being, or specific situational needs;

(C) a prior technological challenge in the case that unreasonably contributed to delay or a compromised record;

(D) a prior failure to demonstrate appropriate court decorum, including attempting to participate from a location that is not conducive to accomplishing the purpose of the hearing;

(E) a prior failure to appear for a hearing of which the participant had notice; 

(F) the possibility that the court m ay order a party, who is not already in custody, into custody;

(G) the preference of the incarcerating custodian where a party is incarcerated, if the hearing does not implicate significant constitutional rights;

(H) a participant’s involvement in a problem-solving court;

(I) an agreement or any objection of the parties;

(J) the court’s determination that the consequential nature of a specific hearing requires all participants to appear in person; or

(K) the capacity of the court, including but not limited to the required technology equipment, staff, or security, to accommodate the request.

(3) Effect on other participants. The preference of one participant, and the court’s accommodation of that preference, does not:

(A) change the format of the hearing for any other participant unless otherwise ordered by the court; or

(B) affect any other participant’s opportunity to make a timely request to appear by a different format or the court’s consideration of that request.

(a) Method of selection. The judge shall determine the method of selecting the jury and notify the parties at a pretrial conference or otherwise prior to trial. The following procedures for selection are not exclusive.

(a)(1) Strike and replace method. The court shall summon the number of the jurors that are to try the cause plus such an additional number as will allow for any alternates, for all peremptory challenges permitted, and for all challenges for cause granted. At the direction of the judge, the clerk shall call jurors in random order. The judge may hear and determine challenges for cause during the course of questioning or at the end thereof. The judge may and, at the request of any party, shall hear and determine challenges for cause outside the hearing of the jurors. After each challenge for cause sustained, another juror shall be called to fill the vacancy, and any such new juror may be challenged for cause. When the challenges for cause are completed, the clerk shall provide a list of the jurors remaining, and each side, beginning with the prosecution, shall indicate thereon its peremptory challenge to one juror at a time in regular turn, as the court may direct, until all peremptory challenges are exhausted or waived. The clerk shall then call the remaining jurors, or so many of them as shall be necessary to constitute the jury, including any alternate jurors, and the persons whose names are so called shall constitute the jury. If alternate jurors have been selected, the last jurors called shall be the alternates, unless otherwise ordered by the court prior to voir dire.

(a)(2) Struck method. The court shall summon the number of jurors that are to try the cause plus such an additional number as will allow for any alternates, for all peremptory challenges permitted and for all challenges for cause granted. At the direction of the judge, the clerk shall call jurors in random order. The judge may hear and determine challenges for cause during the course of questioning or at the end thereof. The judge may and, at the request of any party, shall hear and determine challenges for cause outside the hearing of the jurors. When the challenges for cause are completed, the clerk shall provide a list of the jurors remaining, and each side, beginning with the prosecution, shall indicate thereon its peremptory challenge to one juror at a time in regular turn until all peremptory challenges are exhausted or waived. The clerk shall then call the remaining jurors, or so many of them as shall be necessary to constitute the jury, including any alternate jurors, and the persons whose names are so called shall constitute the jury. If alternate jurors have been selected, the last jurors called shall be the alternates, unless otherwise ordered by the court prior to voir dire.

(a)(3) In courts using lists of prospective jurors generated in random order by computer, the clerk may call the jurors in that random order.

(b) Examination of prospective jurors. The court may permit counsel or the defendant to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court may permit counsel or the defendant to supplement the examination by such further inquiry as it deems proper, or may itself submit to the prospective jurors additional questions requested by counsel or the defendant. Prior to examining the jurors, the court may make a preliminary statement of the case. The court may permit the parties or their attorneys to make a preliminary statement of the case, and notify the parties in advance of trial.

(c) Challenges to panel or individuals. A challenge may be made to the panel or to an individual juror.

(c)(1) The panel is a list of jurors called to serve at a particular court or for the trial of a particular action. A challenge to the panel is an objection made to all jurors summoned and may be taken by either party.

(c)(1)(i) A challenge to the panel can be founded only on a material departure from the procedure prescribed with respect to the selection, drawing, summoning and return of the panel.

(c)(1)(ii) The challenge to the panel shall be taken before the jury is sworn and shall be in writing or made upon the record. It shall specifically set forth the facts constituting the grounds of the challenge.

(c)(1)(iii) If a challenge to the panel is opposed by the adverse party, a hearing may be had to try any question of fact upon which the challenge is based. The jurors challenged, and any other persons, may be called as witnesses at the hearing thereon.

(c)(1)(iv) The court shall decide the challenge. If the challenge to the panel is allowed, the court shall discharge the jury so far as the trial in question is concerned. If a challenge is denied, the court shall direct the selection of jurors to proceed.

(c)(2) A challenge to an individual juror may be either peremptory or for cause. A challenge to an individual juror may be made only before the jury is sworn to try the action, except the court may, for good cause, permit it to be made after the juror is sworn but before any of the evidence is presented. In challenges for cause the rules relating to challenges to a panel and hearings thereon shall apply. All challenges for cause shall be taken first by the prosecution and then by the defense alternately. Challenges for cause shall be completed before peremptory challenges are taken.

(d) Peremptory challenges. A peremptory challenge is an objection to a juror for which no reason need be given. In capital cases, each side is entitled to 10 peremptory challenges. In other felony cases each side is entitled to four peremptory challenges. In misdemeanor cases, each side is entitled to three peremptory challenges. If there is more than one defendant the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

(e) Challenges for cause. A challenge for cause is an objection to a particular juror and shall be heard and determined by the court. The juror challenged and any other person may be examined as a witness on the hearing of such challenge. A challenge for cause may be taken on one or more of the following grounds. On its own motion the court may remove a juror upon the same grounds.

(e)(1) Want of any of the qualifications prescribed by law.

(e)(2) Any mental or physical infirmity which renders one incapable of performing the duties of a juror.

(e)(3) Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted.

(e)(4) The existence of any social, legal, business, fiduciary or other relationship between the prospective juror and any party, witness or person alleged to have been victimized or injured by the defendant, which relationship when viewed objectively, would suggest to reasonable minds that the prospective juror would be unable or unwilling to return a verdict which would be free of favoritism. A prospective juror shall not be disqualified solely because the juror is indebted to or employed by the state or a political subdivision thereof.

(e)(5) Having been or being the party adverse to the defendant in a civil action, or having complained against or having been accused by the defendant in a criminal prosecution.

(e)(6) Having served on the grand jury which found the indictment.

(e)(7) Having served on a trial jury which has tried another person for the particular offense charged.

(e)(8) Having been one of a jury formally sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict after the case was submitted to it.

(e)(9) Having served as a juror in a civil action brought against the defendant for the act charged as an offense.

(e)(10) If the offense charged is punishable with death, the juror's views on capital punishment would prevent or substantially impair the performance of the juror's duties as a juror in accordance with the instructions of the court and the juror's oath in subsection (h).

(e)(11) Because the juror is or, within one year preceding, has been engaged or interested in carrying on any business, calling or employment, the carrying on of which is a violation of law, where defendant is charged with a like offense.

(e)(12) Because the juror has been a witness, either for or against the defendant on the preliminary examination or before the grand jury.

(e)(13) Having formed or expressed an unqualified opinion or belief as to whether the defendant is guilty or not guilty of the offense charged.

(e)(14) Conduct, responses, state of mind or other circumstances that reasonably lead the court to conclude the juror is not likely to act impartially. No person may serve as a juror, if challenged, unless the judge is convinced the juror can and will act impartially and fairly.

(f) Alternate jurors. The court may impanel alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties. Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror. If one or two alternate jurors are called, the prosecution and defense shall each have one additional peremptory challenge. If three or four alternate jurors are called, each side shall have two additional peremptory challenges. Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

(g) Juror oath. When the jury is selected an oath shall be administered to the jurors, in substance, that they and each of them will well and truly try the matter in issue between the parties, and render a true verdict according to the evidence and the instructions of the court.

Advisory Committee Notes

Paragraph (b) The preliminary statement of the case does not serve the same purpose as the opening statement presented after the jury is selected. The preliminary statement of the case serves only to provide a brief context in which the jurors might more knowledgeably answer questions during voir dire. A preliminary opening statement is not required and may serve no useful purpose in short trials or trials with relatively simple issues. The judge should be particularly attuned to prevent argument or posturing at this early stage of the trial.

Paragraph (e)(14). The Utah Supreme Court has noted a tendency of trial court judges to rule against a challenge for cause in the face of legitimate questions about a juror's biases. The Supreme Court limited the following admonition to capital cases, but it is a sound philosophy even in trials of lesser consequence.

[W]e take this opportunity to address an issue of growing concern to this court. We are perplexed by the trial courts' frequent insistence on passing jurors for cause in death penalty cases when legitimate concerns about their suitability have been raised during voir dire. While the abuse-of-discretion standard of review affords trial courts wide latitude in making their for-cause determinations, we are troubled by their tendency to "push the edge of the envelope," especially when capital voir dire panels are so large and the death penalty is at issue. Moreover, capital cases are extremely costly, in terms of both time and money. Passing questionable jurors increases the drain on the state's resources and jeopardizes an otherwise valid conviction and/or sentence. ... If a party raises legitimate questions as to a potential juror's beliefs, biases, or physical ability to serve, the potential juror should be struck for cause, even where it would not be legally erroneous to refuse. State v. Carter, 888 P.2d 629 (Utah 1995).

In determining challenges for cause, the task of the judge is to find the proper balance. It is not the judge's duty to seat a jury from a too-small venire panel or to seat a jury as quickly as possible. Although thorough questioning of a juror to determine the existence, nature and extent of a bias is appropriate, it is not the judge's duty to extract the "right" answer from or to "rehabilitate" a juror. The judge should accept honest answers to understood questions and, based on that evidence, make the sometimes difficult decision to seat only those jurors the judge is convinced will act fairly and impartially. This higher duty demands a sufficient venire panel and sufficient voir dire. The trial court judge enjoys considerable discretion in limiting voir dire when there is no apparent link between a question and potential bias, but "when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears. The trial court must allow such inquiries." The court should ensure the parties have a meaningful opportunity to explore grounds for challenges for cause and to ask follow-up questions, either through direct questioning or questioning by the court.

The objective of a challenge for cause is to remove from the venire panel persons who cannot act impartially in deliberating upon a verdict. The lack of impartiality may be due to some bias for or against one of the parties; it may be due to an opinion about the subject matter of the action or about the action itself. The civil rules of procedure have a few - and the criminal rules many more - specific circumstances, usually a relationship with a party or a circumstance of the juror, from which the bias of the juror is inferred. In addition to these enumerated grounds for a challenge for cause, both the civil rules and the criminal rules close with the following grounds: formulation by the juror of a state of mind that will prevent the juror from acting impartially. However, the rules go on to provide that no person shall be disqualified as a juror by reason of having formed an opinion upon the matter if it satisfactorily appears to the court that the person will, notwithstanding that opinion, act impartially.

The amendments focus on the "state of mind" clause. In determining whether a person can act impartially, the court should focus not only on that person's state of mind but should consider the totality of the circumstances. These circumstances might include the experiences, conduct, statements, opinions, or associations of the juror. Rather than determining that the juror is "prevented" from acting impartially, the court should determine whether the juror "is not likely to act impartially." These amendments conform to the directive of the Supreme Court: If there is a legitimate question about the ability of a person to act impartially, the court should remove that person from the panel.

There is no need to modify this determination with the statement that a juror who can set aside an opinion based on public journals, rumors or common notoriety and act impartially should not be struck. Having read or heard of the matter and even having an opinion about the matter do not meet the standard of the rule. Well-informed and involved citizens are not automatically to be disqualified from jury service. Sound public policy supports knowledgeable, involved citizens as jurors. The challenge for the court is to evaluate the impact of this extra-judicial information on the ability of the person to act impartially. Information and opinions about the case remain relevant to but not determinative of the question: "Will the person be a fair and impartial juror?"

In stating that no person may serve as a juror unless the judge is "convinced" the juror will act impartially, the Committee uses the term "convinced" advisedly. The term is not intended to suggest the application of a clear and convincing standard of proof in determining juror impartiality, such a high standard being contrary to the Committee's objectives. Nor is the term intended to undermine the long-held presumption that potential jurors who satisfy the basic requirements imposed by statutes and rules are qualified to serve. Rather, the term is intended to encourage the trial judge to be thorough and deliberative in evaluating challenges for cause. Although not an evidentiary standard at all, the term "convinced" implies a high standard for judicial decision-making. Review of the decision should remain limited to an abuse of discretion.

This new standard for challenges for cause represents a balance more easily stated than achieved. These amendments encourage judges to exercise greater care in evaluating challenges for cause and to resolve legitimate doubts in favor of removal. This may mean some jurors now removed by peremptory challenge will be removed instead for cause. It may also mean the court will have to summon more prospective jurors for voir dire. Whether lawyers will use fewer peremptory challenges will have to await the judgment of experience.

(a) After the jury is sworn and before opening statements, the court may instruct the jury concerning the jurors' duties and conduct, the order of proceedings, the elements and burden of proof for the alleged crime, and the definition of terms. The court may instruct the jury concerning any matter stipulated to by the parties and agreed to by the court and any matter the court in its discretion believes will assist the jurors in comprehending the case. Preliminary instructions shall be in writing and a copy provided to each juror. At the final pretrial conference or at such other time as the court directs, a party may file a written request that the court instruct the jury on the law as set forth in the request. The court shall inform the parties of its action upon a requested instruction prior to instructing the jury, and it shall furnish the parties with a copy of its proposed instructions, unless the parties waive this requirement.

(b) During the course of the trial, the court may instruct the jury on the law if the instruction will assist the jurors in comprehending the case. Prior to giving the written instruction, the court shall advise the parties of its intent to do so and of the content of the instruction. A party may request an interim written instruction.

(c) At the close of the evidence or at such earlier time as the court reasonably directs, any party may file written request that the court instruct the jury on the law as set forth in the request. At the same time copies of such requests shall be furnished to the other parties. The court shall inform counsel of its proposed action upon the request; and it shall furnish counsel with a copy of its proposed instructions, unless the parties waive this requirement. Final instructions shall be in writing and at least one copy provided to the jury. The court shall provide a copy to any juror who requests one and may, in its discretion, provide a copy to all jurors.

(d) Upon each written request so presented and given, or refused, the court shall endorse its decision and shall initial or sign it. If part be given and part refused, the court shall distinguish, showing by the endorsement what part of the charge was given and what part was refused.

(e) Objections to written instructions shall be made before the instructions are given to the jury. Objections to oral instructions may be made after they are given to the jury, but before the jury retires to consider its verdict. The court shall provide an opportunity to make objections outside the hearing of the jury. Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice. In stating the objection the party shall identify the matter to which the objection is made and the ground of the objection.

(f) The court shall not comment on the evidence in the case, and if the court refers to any of the evidence, it shall instruct the jury that they are the exclusive judges of all questions of fact.

(g) Arguments of the respective parties shall be made after the court has given the jury its final instructions. Unless otherwise provided by law, any limitation upon time for argument shall be within the discretion of the court.

Exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party state objections to the actions of the court and the reasons therefor. If a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice the party.

(a)(1) Verdict options. For crimes committed on or after May 6, 2002, the verdict of the jury shall be either "guilty" or "not guilty," "not guilty by reason of insanity," "guilty and mentally ill at the time of the offense," or "not guilty of the crime charged but guilty of a lesser included offense," or "not guilty of the crime charged but guilty of a lesser included offense and mentally ill at the time of the offense," provided that when the defense of mental illness has been asserted and the defendant is acquitted on the ground that the defendant was insane at the time of the commission of the offense charged, the verdict shall be "not guilty by reason of insanity."

(a)(2) For crimes committed before May 6, 2002, the defendant may elect to proceed under subsection (a)(1) or under (a)(3).

(a)(3) For crimes committed before May 6, 2002, unless the defendant elects to proceed under subsection (a)(1), the verdict of the jury shall be either "guilty," "not guilty," "not guilty by reason of insanity," "guilty and mentally ill," "not guilty of the crime charged but guilty of a lesser included offense," or "not guilty of the crime charged but guilty of a lesser included offense and mentally ill" provided that when the defense of mental illness has been asserted and the defendant is acquitted on the ground that the defendant was insane at the time of the commission of the offense charged, the verdict shall be "not guilty by reason of insanity."

(b) Unanimity. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court and in the presence of the defendant and counsel. If the defendant is voluntarily absent, the verdict may be received in the defendant’s absence.

(c) Multiple defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to any defendant as to whom it has agreed. If the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

(d) Multiple offenses. When the defendant may be convicted of more than one offense charged, each offense of which the defendant is convicted shall be stated separately in the verdict.

(e) Offenses included in charged offense. The jury may return a verdict of guilty to the offense charged or to any offense necessarily included in the offense charged or an attempt to commit either the offense charged or an offense necessarily included therein.

(f) Polling the jury. When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or may be polled at the court's own instance. If, upon the poll, there is no unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. If the verdict is unanimous, it shall be recorded.

(g) Acquittal. If judgment of acquittal is given on a verdict or the case is dismissed and the defendant is not detained for any other legal cause, the defendant shall be discharged as soon as the judgment is given. If a verdict of guilty is returned, the court may order the defendant to be taken into custody to await judgment on the verdict or may permit the defendant to remain on bail.

(a) Presentence investigation reports shall be completed by order of the court as provided in Utah Code §§ 77‑18‑1 and 64‑13‑20. Presentence reports shall either be physically removed from the case file and kept in a separate storage area or retained in the case file in a sealed envelope marked "Protected".

(b) Full disclosure of the presentence investigation report shall be made to the prosecutor, defense counsel, or the defendant if the defendant is not represented by counsel, unless disclosure of the presentence report would jeopardize the life or safety of third parties. At least 3 business days in advance of the scheduled sentencing date, the Department shall provide a copy of the presentence investigation report to the court, and to the defendant's counsel or the defendant if not represented by counsel, and the prosecutor. The presentence report shall also be made available to prosecutors, defense counsel and the defendant at the court on the date of sentencing. In cases where a party or a party's counsel notifies the court clerk, in writing, that the presentence investigation report is the subject of an appeal, the clerk shall include the sealed presentence investigation report as part of the record.

(c) Restitution.

(c)(1) The presentence investigation report prepared by the Department of Corrections shall include a specific statement of pecuniary damages as provided in Utah Code § 77‑18‑1(5)(b)(ii). This statement shall include, but not be limited to, a specific dollar amount recommended by the Department of Corrections to be paid by the defendant to the victim(s).

(c)(2) In cases where a specific dollar value is not known, and is not an accumulating amount, e.g. continuing medical expenses, the court may continue the sentencing. If sentencing occurs, it shall be done with the concurrence of defense counsel/defendant and the prosecutor and an agreement shall be reached as to how restitution shall be determined. In no instance shall the restitution amount be determined by the Department of Corrections without approval of the court, defendant, defense counsel and the prosecutor. If the parties disagree about the restitution amount, a restitution hearing shall be scheduled.

Effective November 1, 2003

(a) Time for sentencing. Upon the entry of a plea or verdict of guilty or plea of no contest, the court must set a time for imposing sentence which may be not less than two nor more than 45 days after the verdict or plea, unless the court, with the concurrence of the defendant, otherwise orders. Pending sentence, the court may commit the defendant or may continue or alter bail or recognizance. Before imposing sentence the court must afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed. The prosecuting attorney must also be given an opportunity to present any information material to the imposition of sentence.

(b) Defendant’s absence. On the same grounds that a defendant may be tried in defendant's absence, defendant may likewise be sentenced in defendant's absence. If a defendant fails to appear for sentence, a warrant for defendant's arrest may be issued by the court.

(c) Sentencing advisories.

(c)(1) Upon a verdict or plea of guilty or plea of no contest, the court must impose sentence and must enter a judgment of conviction which must include the plea or the verdict, if any, and the sentence. Following imposition of sentence, the court must advise the defendant of defendant's right to appeal, the time within which any appeal must be filed and the right to retain counsel or have counsel appointed by the court if indigent.

(c)(2) If the defendant is convicted of a misdemeanor crime of domestic violence, as defined in Utah Code § 77-36-1, the court must advise the defendant orally or in writing that, if the case meets the criteria of 18 U.S.C. § 921(a)(33) or Utah Code § 76-10-503, then pursuant to federal law or state law it is unlawful for the defendant to possess, receive or transport any firearm or ammunition. The failure to advise does not render the plea invalid or form the basis for withdrawal of the plea.

(d) Commitment. When a jail or prison sentence is imposed, the court must issue its commitment setting forth the sentence. The officer delivering the defendant to the jail or prison must deliver a true copy of the commitment to the jail or prison and must make the officer's return on the commitment and file it with the court.

(e) Correcting a sentence.

(e)(1) Types of sentences. The court must correct a sentence when the sentenced imposed:

(e)(1)(A) exceeds the statutorily authorized maximums;

(e)(1)(B) is less than statutorily required minimums;

(e)(1)(C) violates Double Jeopardy;

(e)(1)(D) is ambiguous as to the time and manner in which it is to be served;

(e)(1)(E) is internally contradictory; or

(e)(1)(F) omits a condition required by statute or includes a condition prohibited by statute.

(e)(2) Post-sentence appellate decisions. The court must correct the sentence of a defendant who can prove that the sentence is unconstitutional under a rule established or ruling issued by the United States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after sentence was imposed, and the rule or ruling was not dictated by precedent existing at the time the defendant’s conviction or sentence became final.

(e)(3) Time for filing. A motion under (e)(1)(C), (e)(1)(D), or (e)(1)(E) must be filed no later than one year from the date the facts supporting the claim could have been discovered through the exercise of due diligence. A motion under the other provisions may be filed at any time.

(f) Sentencing and mentally ill offenders. Upon a verdict or plea of guilty and mentally ill, the court must impose sentence in accordance with Title 77, Chapter 16a, Utah Code. If the court retains jurisdiction over a mentally ill offender committed to the Department of Human Services as provided by Utah Code § 77-16a-202(1)(b), the court must so specify in the sentencing order.

Committee Note

A defendant may rely on subparagraph (e)(2) only when the rule or ruling is to be applied retroactively.

At any time prior to the imposition of sentence, the court upon its own initiative may, or upon motion of a defendant shall, arrest judgment if the facts proved or admitted do not constitute a public offense, or the defendant is mentally ill, or there is other good cause for the arrest of judgment. Upon arresting judgment the court may, unless a judgment of acquittal of the offense charged is entered or jeopardy has attached, order a commitment until the defendant is charged anew or retried, or may enter any other order as may be just and proper under the circumstances.

(a) The court may, upon motion of a party or upon its own initiative, grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.

(b) A motion for a new trial shall be made in writing and upon notice. The motion shall be accompanied by affidavits or evidence of the essential facts in support of the motion. If additional time is required to procure affidavits or evidence the court may postpone the hearing on the motion for such time as it deems reasonable.

(c) A motion for a new trial shall be made not later than 14 days after entry of the sentence, or within such further time as the court may fix before expiration of the time for filing a motion for new trial.

(d) If a new trial is granted, the party shall be in the same position as if no trial had been held and the former verdict shall not be used or mentioned either in evidence or in argument.

(a) Dismissing an information. In its discretion, for substantial cause and in furtherance of justice, the court may, either on its own initiative or upon application of either party, order an information or indictment dismissed.

(b) Mandatory dismissal. The court shall dismiss the information or indictment when:

(b)(1) There is unreasonable or unconstitutional delay in bringing defendant to trial;

(b)(2) The allegations of the information or indictment, together with any bill of particulars furnished in support thereof, do not constitute the offense intended to be charged in the pleading so filed;

(b)(3) It appears that there was a substantial and prejudicial defect in the impaneling or in the proceedings relating to the grand jury;

(b)(4) The court is without jurisdiction; or

(b)(5) The prosecution is barred by the statute of limitations.

(c) Record of dismissal.The reasons for any such dismissal shall be set forth in an order and entered in the minutes.

(d) Effects of dismissal.If the dismissal is based upon the grounds that there was unreasonable delay, or the court is without jurisdiction, or the offense was not properly alleged in the information or indictment, or there was a defect in the impaneling or of the proceedings relating to the grand jury, further prosecution for the offense shall not be barred and the court may make such orders with respect to the custody of the defendant pending the filing of new charges as the interest of justice may require. Otherwise the defendant shall be discharged and bail exonerated.

An order of dismissal based upon unconstitutional delay in bringing the defendant to trial or based upon the statute of limitations, shall be a bar to any other prosecution for the offense charged.

(e) Dismissal by compromise.In misdemeanor cases, upon motion of the prosecutor, the court may dismiss the case if it is compromised by the defendant and the injured party. The injured party shall first acknowledge the compromise before the court or in writing. The reasons for the order shall be set forth therein and entered in the minutes. The order shall be a bar to another prosecution for the same offense; provided however, that dismissal by compromise shall not be granted when the misdemeanor is committed by or upon a peace officer while in the performance of duties, or riotously, or with an intent to commit a felony.

(a) In all pretrial and post-conviction rulings by a court, counsel for the party or parties obtaining the ruling shall within 14 days, or within a shorter time as the court may direct, file with the court a proposed order, judgment, or decree in conformity with the ruling.

(b) Copies of the proposed findings, judgments, and orders shall be served upon opposing counsel before being presented to the court for signature unless the court otherwise orders. Notice of objections shall be submitted to the court and counsel within five days after service.

(c) All orders, judgments, and decrees shall be prepared in such a manner as to show whether they are entered based on a ruling after a hearing or argument, the stipulation of counsel, the motion of counsel or upon the court's own initiative, and shall identify the attorneys of record in the cause or proceeding in which the judgment, order or decree is made. If the order, judgment, or decree is the result of a hearing, the order shall include the date of the hearing, the nature of the hearing, and the names of the attorneys and parties present at the hearing.

(d) The trial court shall prepare the final judgment and sentence, and any commitment order. The trial court shall serve the final judgment and sentence on the parties and immediately transmit the commitment order to the county sheriff.

(e) All orders, judgments and decrees shall be prepared as separate documents and shall not include any matters by reference unless otherwise directed by the court.

(f) No orders, judgments, or decrees based upon stipulation shall be signed or entered unless the stipulation is in writing, signed by the attorneys of record for the respective parties and filed with the clerk or the stipulation was made on the record.

(a) Staying sentence terms other than incarceration.

(a)(1) A sentence of death is stayed if a motion for a new trial, an appeal or a petition for other relief is pending. The defendant shall remain in the custody of the warden of the Utah State Prison until the appeal or petition for other relief is resolved.

(a)(2) When an appeal is taken by the prosecution, a stay of any order of judgment in favor of the defendant may be granted by the court upon good cause pending disposition of the appeal.

(a)(3) Upon the filing of a motion for a new trial or a notice of appeal, and upon motion of the defendant, the court may stay any sentenced amount of fines, conditions of probation (other than incarceration) pending disposition of the motion for a new trial or appeal, upon notice to the prosecution and a hearing if requested by the prosecution.

(a)(4) A party dissatisfied with the trial court’s ruling on such a motion may petition for relief in the court with appellate jurisdiction.

(b) Staying sentence terms of incarceration. A defendant sentenced, or required as a term of probation, to serve a period of incarceration in jail or in prison, shall be detained, unless released by the court in conformity with this rule.

(b)(1) In general. Before a court may release a defendant after the filing of a motion for a new trial or notice of appeal, the court must:

(b)(1)(A) issue a certificate of probable cause; and

(b)(1)(B) determine by clear and convincing evidence that the defendant:

(b)(1)(B)(i) is not likely to flee; and

(b)(1)(B)(ii) does not pose a danger to the physical, psychological, or financial and economic safety or well-being of any other individual or the community if released under any conditions as set forth in subsection (c).

(b)(2) A defendant shall file a written motion in the trial court requesting a stay of the sentence term of incarceration.

(b)(2)(A) That motion shall be accompanied by a copy of the filed motion for a new trial or notice of appeal; a written application for a certificate of probable cause; and a memorandum of law. The memorandum shall identify the issues to be presented in the motion for a new trial proceedings or on appeal and support the defendant's position that those issues raise a substantial question of law or fact reasonably likely to result in reversal, an order for a new trial or a sentence that does not include a term of incarceration in jail or prison. The memorandum shall also address why clear and convincing evidence exists that the defendant is not a flight risk and that the defendant does not pose a danger as outlined in paragraph (b)(1)(B)(ii).

(b)(2)(B) A copy of the motion, the application for a certificate of probable cause and supporting memorandum shall be served on the prosecuting attorney. An opposing memorandum may be filed within 14 days after receipt of the application, or within a shorter time as the court deems necessary. A hearing on the application shall be held within 14 days after the court receives the opposing memorandum, or if no opposing memorandum is filed, within 14 days after the application is filed with the court.

(b)(3) The court shall issue a certificate of probable cause if it finds that the motion for a new trial or appeal:

(b)(3)(A) is not being taken for the purpose of delay; and

(b)(3)(B) raises substantial issues of law or fact reasonably likely to result in reversal, an order for a new trial or a sentence that does not include a term of incarceration in jail or prison.

(b)(4) If the court issues a certificate of probable cause it shall order the defendant released if it finds that clear and convincing evidence exists to demonstrate that the defendant is not a flight risk and does not pose a danger as outlined in paragraph (b)(1)(B)(ii) if released under any of the conditions set forth in subsection (c).

(b)(5) The court ordering release pending determination of a motion for a new trial or appeal under subsection (b)(4) shall order release on the least restrictive reasonably available condition or combination of conditions set forth in subsection (c) that the court determines will reasonably ensure the appearance of the defendant as required and the safety of any other individual, property, and the community.

(b)(6) Review of trial court’s order. A party dissatisfied with the relief granted or denied under this subsection (b) may petition the court with appellate jurisdiction in which the appeal is pending.

(b)(6)(A) If the petition is filed by the defendant, a copy of the petition, the affidavit and papers filed in support of the original motion shall be served on the Utah Attorney General if the case involves any felony charge, and on the prosecuting attorney if the case involves only misdemeanor charges.

(b)(6)(B) If the petition is filed by the prosecution, a copy of the petition and supporting papers shall be served on defense counsel, or the defendant if the defendant is not represented by counsel.

(c) Conditions of release. If the court determines that the defendant may be released pending motion for a new trial proceedings or an appeal, it may release the defendant on the least restrictive reasonably available condition or combination of conditions that the court determines will reasonably ensure the appearance of the defendant as required and the safety of any other individual, property, and the community. The conditions may include, without limitation, that the defendant:

(c)(1) is admitted to appropriate bail;

(c)(2) not commit a federal, state or local crime during the period of release;

(c)(3) remain in the custody of a designated person who agrees to assume supervision of the defendant and who agrees to report any violation of a release condition to the court, if the designated person is reasonably able to assure the court that the defendant will appear as required and will not pose a danger to the safety of any other person, property, or the community;

(c)(4) maintain employment, or if unemployed, actively seek employment;

(c)(5) maintain or commence an educational program;

(c)(6) abide by specified restrictions on personal associations, place of abode or travel;

(c)(7) avoid all contact with the victim or victims of the crime(s), any witness or witnesses who testified against the defendant and any potential witnesses who might testify concerning the offenses if the appeal results in a reversal or an order for a new trial;

(c)(8) report on a regular basis to a designated law enforcement agency, pretrial services agency or other agency;

(c)(9) comply with a specified curfew;

(c)(10) refrain from possessing a firearm, destructive device or other dangerous weapon;

(c)(11) refrain from possessing or using alcohol, or any narcotic drug or other controlled substance except as prescribed by a licensed medical practitioner;

(c)(12) undergo available medical, psychological or psychiatric treatment, including treatment for drug or alcohol abuse or dependency;

(c)(13) execute an agreement to forfeit, upon failing to appear as required, such designated property, including money, as is reasonably necessary to assure the appearance of the defendant as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court may specify;

(c)(14) return to custody for specified hours following release for employment, schooling or other limited purposes; and

(c)(15) satisfy any other condition that is reasonably necessary to ensure the appearance of the defendant as required and the safety of any other individual, property, and the community.

(d) Amended conditions of release. The court may at any time for good cause shown amend the order granting release to impose additional or different conditions of release.

(a) Except as outlined in subsection (d) below, the procedures in this rule shall govern stays of terms of sentences when a defendant files an appeal in a court not of record for a trial de novo pursuant to Utah Code § 78A-7-118(1).

(b) Upon the timely filing of a notice of appeal for a trial de novo, the court shall:

(b)(1) order stayed any fine or fee payments until the appeal is resolved; and

(b)(2) order stayed any period of incarceration, unless:

(b)(2)(A) at the time of sentencing, the judge found by a preponderance of the evidence that the defendant posed a danger to another person or the community; or

(b)(2)(B) the appeal does not appear to have a legal basis.

(c) If a stay is ordered, the judge may leave in effect any other terms of probation the judge deems necessary including:

(c)(1) continuation of any pre-trial restrictions or orders;

(c)(2) sentencing protective orders under Utah Code § 77-36-5.1;

(c)(3) orders that limit or monitor a defendant’s drug and alcohol use, including use of an ignition interlock device; and

(c)(4) requiring defendant’s monetary bail to continue until defendant’s appearance in the district court. The judge shall only order monetary bail to continue if the court finds by clear and convincing evidence that, without such security, the defendant will likely fail to appear at district court.

(d) The provisions of this rule do not apply to appeals for trial de novo from convictions for violations of Title 41, Chapter 6a, Part 5, DUI and Reckless Driving, or any local ordinance as described in Utah Code § 41-6a-501(2)(a)(iii). The procedure outlined in Rule 27B shall be used in those cases.

(e) A party dissatisfied with the findings made by the justice court judge in staying a sentence under this rule shall utilize the procedure outlined in rule 27B(g) to obtain relief in the district court.

(f) A court may at any time for good cause shown amend its order granting release to impose additional or different conditions of release. However, the justice court may only act under this subsection (f) if the district court has not docketed or held any hearings pursuant to this rule.

(g) For purposes of this rule, “term of sentence” or “sentence” shall include findings of contempt pursuant to Utah Code § 78B-6-301 et seq.

(a) The procedures in this rule shall be used in determining whether to stay the payment of any fines or periods of incarceration pending the resolution of an appeal for a hearing de novo, pursuant to Utah Code § 78A‑7‑118(3). This rule shall also govern stays in all appeals involving violations of Title 41, Chapter 6a, Part 5, DUI and Reckless Driving, or any local ordinance as described in Utah Code § 41‑6a‑501(2)(a)(iii).

(b) Periods of incarceration of 28 days or less.

(b)(1) Unless exempted under subsection (b)(2), the justice court judge shall, upon the filing of a notice of appeal, stay the term of incarceration. The Court shall then order the defendant released on the least restrictive reasonably available condition or combination of conditions in Rule 27(c) that the court determines will reasonably ensure the appearance of the defendant as required and the safety of any other individual, property, and the community.

(b)(2) However, the justice court shall not order a defendant released if:

(b)(2)(A) at the time of sentencing, the court makes a finding that the defendant poses an identifiable risk to the safety of another individual, property, or the community and that the period of incarceration, and no less restrictive reasonably available alternative, is necessary to reduce or eliminate that risk; or

(b)(2)(B) it enters a written finding that the appeal does not appear to have a legal basis.

(c) Periods of incarceration of longer than 28 days.

(c)(1) After, or at the time of, the filing of a notice of appeal, if a stay is desired, the defendant shall file a written motion requesting a stay of a sentence term of incarceration of more than 28 days. That motion shall be accompanied by a memorandum indicating the legal basis for the appeal and that the appeal is not being taken for purposes of delay. The memorandum shall also address why the defendant is not a flight risk; and why the defendant does not pose a danger to any other person, property, or the community.

(c)(2) A copy of the motion, and supporting memorandum shall be served on the prosecuting attorney. An opposing memorandum may be filed within 7 days after receipt of the application, or shorter time as the court deems necessary. A hearing on the application shall be held within 7 days of the court receiving either the opposing memorandum or an indication that no opposing memorandum will be filed. If no opposing memorandum is filed, the hearing will be held within 14 days after the application is filed with the court.

(c)(3) The court shall order the defendant released unless it finds by a preponderance of the evidence that:

(c)(3)(A) the defendant is a flight risk;

(c)(3)(B) the defendant would pose a danger to any other person, property, or the community if released under any of the conditions set forth in Rule 27(c); or

(c)(3)(C) the appeal does not appear to have a legal basis.

(c)(4) The court ordering release pending appeal under subsection (c)(3) shall order that release on the least restrictive reasonably available condition or combination of conditions set forth in Rule 27(c) that the court determines will reasonably ensure the appearance of the defendant as required and the safety of any other individual, property, and the community.

(d) Fine and Fee payments. Fine and fee payments shall be stayed pending resolution of the appeal.

(e) Other terms of sentence or probation. Upon motion of the defendant, the justice court may stay any other term of sentence related to conditions of probation (other than incarceration) pending disposition of the appeal, upon notice to the prosecution and a hearing if requested by the prosecution.

(f) A court may at any time for good cause shown amend its order granting release to impose additional or different conditions of release. However, the justice court may only act under this subsection (f) if the district court has not docketed or held any hearings pursuant to this rule.

(g) A party dissatisfied with the relief granted, denied or modified under this rule may petition the district court judge assigned to the appeal for relief.

(g)(1) Such petition shall be in writing and accompanied by the notice of appeal filed in the justice court, the original motion for a stay and accompanying papers filed in the justice court, if any, and any orders or findings of the justice court on the issue. The petition shall be served on the opposing party.

(g)(2) The district court shall schedule a hearing within 7 days of its receipt of the petition, or a shorter time if the court determines justice requires. The court shall allow the opposing party an opportunity to file a memorandum in opposition to the petition, and to be present and heard at the hearing.

(g)(3) The district court shall use the same presumptions, evidentiary burdens and procedures outlined in subsections (b), (c) and (d) of this rule in determining whether it should stay any terms of the justice court’s sentence during the pendency of the appeal.

(h) For purposes of this rule, “term of sentence” or “sentence” shall include:

(h)(1) any terms or orders of the justice court emanating from a plea held in abeyance pursuant to Utah Code § 77‑2(a)‑1 et seq.; and

(h)(2) findings of contempt pursuant to Utah Code § 78B‑6‑301 et seq.

(a) If a judgment of conviction is reversed, a new trial shall be held unless otherwise specified by the appellate court. Pending a new trial or other proceeding, the defendant shall be detained, or released, or otherwise restricted as the trial court on remand determines proper. If no further trial or proceeding is to be had a defendant in custody shall be discharged, and a defendant restricted by monetary bail or otherwise shall be released from restriction and monetary bail exonerated and any deposit of funds or property refunded to the proper person.

(b) Upon affirmance by the appellate court, the judgment or order affirmed or modified shall be executed.

(c) Unless otherwise ordered by the trial court, within 28 days after receipt of the remittitur, the trial court shall notify the parties and place the matter on the calendar for review.

(a) Disability.

(a)(1) Substitute judge during trial. If, by reason of death, sickness, or other disability, the judge before whom a trial has begun is unable to continue with the trial, any other judge of that court or any judge assigned by the presiding officer of the Judicial Council, upon certifying that the judge is familiar with the record of the trial, may, unless otherwise disqualified, proceed with and finish the trial, but if the assigned judge is satisfied that neither the judge nor a substitute judge can proceed with the trial, the judge may grant a new trial.

(a)(2) Substitute judge after guilty verdict.If, by reason of death, sickness, or other disability, the judge before whom a defendant has been tried is unable to perform the duties required of the court after a verdict of guilty, any other judge of that court or any judge assigned by the presiding officer of the Judicial Council may perform those duties.

(b) Disqualification.

(b)(1) Motion to disqualify.

(b)(1)(A) A party to any action or the party's attorney may file a motion to disqualify a judge. The motion shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias or prejudice, or conflict of interest.

(b)(1)(B) The motion shall be filed after commencement of the action, but not later than 21 days after the last of the following:

(b)(1)(B)(i) assignment of the action or hearing to the judge;

(b)(1)(B)(ii) appearance of the party or the party's attorney; or

(b)(1)(B)(iii) the date on which the moving party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based.

If the last event occurs fewer than 21 days prior to a hearing, the motion shall be filed as soon as practicable.

(b)(1)(C) Signing the motion or affidavit constitutes a certificate under Rule 11 of the Utah Rules of Civil Procedure and subjects the party or attorney to the procedures and sanctions of Rule 11. No party may file more than one motion to disqualify in an action.

(b)(1)(D) The other parties to the action may not file an opposition to the motion and if any response is filed it will not be considered. The moving party need not file a Request to Submit for Decision under Rule 12. The motion will be submitted for decision upon filing.

(b)(2) Reviewing judge; reassignment.

(b)(2)(A) The judge against whom the motion and affidavit are directed shall, without further hearing, enter an order granting the motion or certifying the motion and affidavit to a reviewing judge. The judge shall take no further action in the case until the motion is decided. If the judge grants the motion, the order shall direct the presiding judge of the court to assign another judge to the action or hearing. Assignment in justice court cases will be in accordance with Utah Code of Judicial Administration Rule 9-109. The presiding judge of the court, any judge of the district, or any judge of a court of like jurisdiction, may serve as the reviewing judge.

(b)(2)(B) If the reviewing judge finds that the motion and affidavit are timely filed, filed in good faith and legally sufficient, the reviewing judge shall assign another judge to the action or hearing or request the presiding judge to do so. Assignment in justice court cases will be in accordance with Utah Code of Judicial Administration Rule 9-109.

(b)(2)(C) In determining issues of fact or of law, the reviewing judge may consider any part of the record of the action and may request of the judge who is the subject of the motion and affidavit an affidavit responsive to questions posed by the reviewing judge.

(b)(2)(D) The reviewing judge may deny a motion not filed in a timely manner.

(c) Change of venue.

(c)(1) Courts of record.

(c)(1)(A) In the courts of record, if a party believes that a fair and impartial trial cannot be had in the court location or in the county where the action is pending, that party may move to have the trial of the case take place with a jury from another county or the case transferred to a court location in a county where a fair trial may be held. Such motion shall be supported by an affidavit setting forth facts.

(c)(1)(B) If the court is satisfied that the representations made in the affidavit required by subsection (c)(1)(A) are true and justify a change of jury pool or location, the court shall enter an order transferring the case, or selecting a jury from a county free from the objection. If the court is not satisfied that the representations justify an alternate jury pool or transfer of the case, the court shall either enter an order denying the motion or order a hearing to receive further evidence with respect to the alleged prejudice and resolve the matter.

(c)(2) Justice courts.

(c)(2)(A) In the justice courts, if a party believes that a fair and impartial trial cannot be had in the court location or in the county where the action is pending, that party may move to have the trial of the case take place with a jury from another county or in a court location where a fair trial may be held. Such motion shall be supported by an affidavit setting forth facts.

(c)(2)(B) If the court is satisfied that the representations made in the affidavit required by subsection (c)(2)(A) are true and justify a change of jury pool or location, the court shall enter an order selecting a jury from a county free from the objection; or directing that trial proceedings be held in a court location free from the objection. If the court is not satisfied that the representations justify an alternate jury pool or relocation of the trial, the court shall either enter an order denying the motion or order a hearing to receive further evidence with respect to the alleged prejudice and resolve the matter.

(c)(3) Timing. A motion filed pursuant to this subsection (c) shall be filed not later than 14 days after the party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based.

(d) Documents of record.When a change of judge or place of trial is ordered all documents of record concerning the case shall, without delay, be transferred or made available in the new location.

(a) Notice of change. In any criminal action commenced after April 15, 1992 in any district or justice court, all parties joined in the action may, by unanimous agreement and without cause, change the judge assigned to the action by filing a notice of change of judge. The parties shall send a copy of the notice to the assigned judge and the presiding judge. The notice shall be signed by all parties and shall state: (1) the name of the assigned judge; (2) the date on which the action was commenced; (3) that all parties joined in the action have agreed to the change; (4) that no other persons are expected to be named as parties; and (5) that a good faith effort has been made to serve all parties named in the pleadings. The notice shall not specify any reason for the change of judge. Under no circumstances shall more than one change of judge be allowed under this rule in any action. A change of judge under this rule is available only after a judge has been assigned to the case for trial. A notice of change may not be filed prior to or during a preliminary examination.

(b) Time.The notice shall be filed by the later of 28 days after bindover to the assigned judge, or if the assigned judge has rejected a proposed plea disposition, within 10 days of such rejection. Failure to file a timely notice precludes any change of judge under this rule.

(c) Assignment of action. Upon the filing of a notice of change, the assigned judge shall take no further action in the case. The presiding judge shall promptly determine whether the notice is proper and, if so, shall reassign the action. If the presiding judge is also the assigned judge, the clerk shall promptly send the notice to the Chief Justice, who shall determine whether the notice is proper and, if so, shall reassign the action.

(d) Nondisclosure to court. No party shall communicate to the court, or cause another to communicate to the court, the fact of any party's seeking consent to a notice of change.

(e) Rule 29 unaffected.This rule does not affect any rights under Rule 29.

(a) Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.

(b) Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court may order.

(a) District courts may make local rules for the conduct of criminal proceedings not inconsistent with these rules and statutes of the state. Copies of all rules made by a court shall, upon promulgation, be furnished to the Supreme Court and to the Judicial Council and shall be made available to members of the state bar and the public.

(b) If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or statutes.

The case file shall include copies of all minute entries of proceedings and orders made in that case.

(a) All pleadings, written motions and other papers must be free from burdensome, irrelevant, immaterial, scandalous, or uncivil matters. All attorneys must likewise govern their conduct. Pleadings, written motions and other papers and attorney conduct which are not in compliance may be disregarded or stricken, in whole or in part, and the court may impose sanctions against the offending person.

(b) The court may make appropriate orders regulating the conduct of officers, parties, spectators and witnesses prior to and during the conduct of any proceeding.

(a) A motion to consolidate cases shall be heard by the judge assigned to the first case filed. Notice of a motion to consolidate cases shall be given to all parties in each case. The order denying or granting the motion shall be filed in each case.

(b) If a motion to consolidate is granted, the case number of the first case filed shall be used for all subsequent papers and the case shall be heard by the judge assigned to the first case. The presiding judge may assign the case to another judge for good cause.

(a) The prosecuting agency shall inform all victims and subpoenaed witnesses of their responsibilities during the criminal proceedings.

(b) The prosecuting agency shall inform all victims and subpoenaed witnesses of their right to be free from threats, intimidation and harm by anyone seeking to induce the victim or witness to testify falsely, withhold testimony or information, avoid legal process, or secure the dismissal of or prevent the filing of a criminal complaint, indictment or information.

(c) If requested by the victim, the prosecuting agency shall provide notice to all victims of the date and time of scheduled hearings, trial and sentencing and of their right to be present during those proceedings and any other public hearing unless they are subpoenaed to testify as a witness and the exclusionary rule is invoked.

(d) The informational rights of victims and witnesses contained in paragraphs (a) through (c) of this rule are contingent upon their providing the prosecuting agency and court with their current telephone numbers and addresses.

(e) In cases where the victim or the victim's legal guardian so requests, the prosecutor shall explain to the victim that a plea agreement involves the dismissal or reduction of charges in exchange for a plea of guilty and identify the possible penalties which may be imposed by the court upon acceptance of the plea agreement. At the time of entry of the plea, the prosecutor shall represent to the court, either in writing or on the record, that the victim has been contacted and an explanation of the plea bargain has been provided to the victim or the victim's legal guardian prior to the court's acceptance of the plea. If the victim or the victim's legal guardian has informed the prosecutor that he or she wishes to address the court at the change of plea or sentencing hearing, the prosecutor shall so inform the court.

(f) The court shall not require victims and witnesses to state their addresses and telephone numbers in open court.

(g) Judges should give scheduling priority to those criminal cases where the victim is a minor in an effort to minimize the emotional trauma to the victim. Scheduling priorities for cases involving minor victims are subject to the scheduling priorities for criminal cases where the defendant is in custody.

(a) Withdrawal of counsel prior to entry of judgment.

(a)(1) Consistent with the Rules of Professional Conduct, an attorney may not withdraw as counsel of record in criminal cases without the approval of the court.

(a)(2) A motion to withdraw as an attorney in a criminal case shall be made in open court with the defendant present unless otherwise ordered by the court. Counsel must certify that the withdrawal meets the requirements of the Rules of Professional Conduct.

(b) Withdrawal of counsel after entry of judgment. Prior to permitting withdrawal of trial counsel, the trial court shall require counsel to certify either orally in open court or in writing, that the requirements in Subsection (a) have been satisfied and:

(b)(1) The defendant has been advised of the right to file a motion for new trial or to seek a certificate of probable cause, and if in counsel's opinion such action is appropriate, that the same has been filed.

(b)(2) The defendant has been advised of the right to appeal and if in counsel's opinion such action is appropriate, that a Notice of Appeal, a Request for Transcript, and in appropriate cases, an Affidavit of Impecuniosity and an Order requiring the appropriate county to bear the costs of preparing the transcript have been filed.

Published decisions of the Supreme Court and the Court of Appeals may be cited as precedent in all criminal proceedings. Unpublished decisions may also be cited as precedent, so long as all parties and the court are supplied with accurate copies at the time the decision is first cited.

(a) Appeal of a judgment or order of the justice court is as provided in Utah Code § 78A-7-118. A case appealed from a justice court must be heard in a district courthouse located in the same county as the justice court from which the case is appealed. In counties with multiple district courthouse locations, the presiding judge of the district court will determine the appropriate location for the hearing of appeals.

(b) The notice of appeal.

(b)(1) A notice of appeal from an order or judgment must be filed within 28 days of the entry of that order or judgment.

(b)(2) Contents of the notice. The notice required by this rule must be in the form of, or substantially similar to, that provided in the appendix of this rule. At a minimum the notice must contain:

(b)(2)(A) a statement of the order or judgment being appealed and the date of entry of that order or judgment;

(b)(2)(B) the current address at which the appealing party may receive notices concerning the appeal;

(b)(2)(C) a statement as to whether the defendant is in custody because of the order or judgment appealed; and

(b)(2)(D) a statement that the notice has been served on the opposing party and the method of that service.

(b)(3) Deficiencies in the form of the filing will not cause the court to reject the filing. They may, however, impact the efficient processing of the appeal.

(c) Motion to reinstate period for filing appeal.

(c)(1) Upon a showing that a defendant was deprived of the right to appeal, the justice court must reinstate the 28-day period for filing an appeal. A defendant seeking such reinstatement must file a written motion in the justice court and serve the prosecuting entity. The court must appoint counsel if the defendant qualifies for court-appointed counsel. The prosecutor must have 21 days after service of the motion to file a written response. If the prosecutor opposes the motion, the justice court must set a hearing at which the parties may present evidence. If the justice court finds by a preponderance of the evidence that the defendant has demonstrated that the defendant was deprived of the right to appeal, it must enter an order reinstating the time for appeal. The defendant's notice of appeal must be filed with the clerk of the justice court within 28 days after the date of entry of the order.

(c)(2) Absent a showing of excusable neglect, a motion to reinstate may be filed no later than six months after the original time for appeal has expired.

(d)(1) Duties of the justice court. Within 7 days of receiving the notice of appeal, the justice court must transmit to the appropriate district court an appeal packet containing:

(d)(1)(A) the notice of appeal;

(d)(1)(B) the docket;

(d)(1)(C) the information or citation; and

(d)(1)(D) the judgment and sentence, if any.

(d)(2) Upon request from the district court the justice court must transmit to the district court any other orders and papers filed in the case.

(e) Duties of the district court.

(e)(1) Upon receipt of the appeal packet from the justice court, the district court must hold a scheduling conference to determine what issues must be resolved by the appeal. The district court must send notices to the appellant at the address provided on the notice of appeal. Notices to the other party must be served to the address provided in the justice court docket for that party.

(e)(2) If the defendant is in custody because of the matter appealed, the district court must hold the conference within 7 days of the receipt of the appeals packet. If the defendant is not in custody because of the matter appealed, the court must hold the conference within 28 days of receipt of the appeals packet.

(f) District court procedures for trials de novo. An appeal by a defendant pursuant to Utah Code § 78A-7-118(1) must be accomplished by the following procedures:

(f)(1) If the defendant elects to go to trial, the district court will determine what number and level of offenses the defendant is facing.

(f)(2) Discovery, the trial, and any pre-trial evidentiary matters the court deems necessary, will be held in accordance with these rules.

(f)(3) After the trial, the district court must, if appropriate, sentence the defendant and enter judgment in the case as provided in these rules and otherwise by law.

(f)(4) When entered, the judgment of conviction or order of dismissal serves to vacate the judgment or orders of the justice court and becomes the judgment of the case.

(f)(5) A defendant may resolve an appeal by waiving trial and compromising the case by any process authorized by law to resolve a criminal case.

(f)(5)(A) Any plea must be taken in accordance with these rules.

(f)(5)(B) The court must proceed to sentence the defendant or enter such other orders required by the particular plea or disposition.

(f)(5)(C) When entered, the district court’s judgment or other orders vacate the orders or judgment of the justice court and become the order or judgment of the case.

(f)(5)(D) A defendant who moves to withdraw a plea entered pursuant to this section may only seek to withdraw it pursuant to the provisions of Utah Code § 77-13-6.

(f)(6) Other dispositions. A defendant, at a point prior to entering a plea admitting guilt or a no contest plea, or prior to commencement of trial, may choose to withdraw the appeal and have the case remanded to the justice court. Within 14 days of the defendant notifying the court of such an election, the district court shall remand the case to the justice court.

(g) District court procedures for hearings de novo. If the appeal seeks a de novo hearing pursuant to Utah Code § 78A-7-118(3) or (4);

(g)(1) the court must conduct such hearing and make the appropriate findings or orders, and

(g)(2) within 14 days of entering its findings or orders, the district court must remand the case to the justice court, unless the case is disposed of by the findings or orders, or the district court retains jurisdiction pursuant to § 78A-7-118(6).

(h) Retained jurisdiction. In cases where the district court retains jurisdiction after disposing of the matters on appeal, the court must order the justice court to forward all monetary bail, other security, or revenues received by the justice court to the district court for disposition. The justice court must transmit such monies or securities within 21 days of receiving the order.

(i) Other bases for remand. The district court may also dismiss the appeal and remand the case to the justice court if it finds that the defendant has abandoned the appeal.

(j) Justice court procedures on remand. Upon receiving a remanded case, the justice court must set a review conference to determine what, if any proceedings need be taken. If the defendant is in custody because of the case being considered, such hearing must be had within five days of receipt of the order of remand. Otherwise, the review conference should be had within 28 days. The court must send notice of the review conference to the parties at the addresses contained in the notice of appeal, unless those have been updated by the district court.

(k) During the pendency of the appeal, and until a judgment, order of dismissal, or other final order is entered in the district court, the justice court will retain jurisdiction to monitor terms of probation or other consequences of the plea or judgment, unless those orders or terms are stayed pursuant to Rule 27A.

(l) Reinstatement of dismissed appeal.

(l)(1) An appeal dismissed pursuant to subsection (i) may be reinstated by the district court upon motion of the defendant for:

(l)(1)(A) mistake, inadvertence, surprise, excusable neglect; or

(l)(1)(B) fraud, misrepresentation, or misconduct of an adverse party.

(l)(2) The motion must be made within a reasonable time after entry of the order of dismissal or remand.

(a) All parties have a continuing duty to notify the court of a delinquency case pending in juvenile court in which the defendant is a party.

(b) The notice shall be filed with a party's initial pleading or as soon as practicable after the party becomes aware of the other pending case. The notice shall include the case caption, file number and name of the judge or commissioner in the other case.

(a) Definitions.

As used in this rule:

(a)(1)"Daytime" means the hours beginning at 6 a.m. and ending at 10 p.m. local time.

(a)(2)"Recorded "or “recording” includes the original recording of testimony, a return or other communication or any copy, printout, facsimile, or other replication that is intended by the person making the recording to have the same effect as the original.

(a)(3) "Search warrant" is an order issued by a magistrate in the name of the state and directed to a peace officer, describing with particularity the thing, place, or person to be searched and the property or evidence to be seized and includes an original written or recorded warrant or any copy, printout, facsimile or other replica intended by the magistrate issuing the warrant to have the same effect as the original.

(b) Grounds for issuance.

Property or evidence may be seized pursuant to a search warrant if there is probable cause to believe it:

(b)(1) was unlawfully acquired or is unlawfully possessed;

(b)(2) has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense; or

(b)(3) is evidence of illegal conduct.

(c) Conditions precedent to issuance.

(c)(1) A search warrant shall not issue except upon probable cause, supported by oath or affirmation, and shall particularly describe the person or place to be searched and the person, property, or evidence to be seized.

(c)(2) If the item sought to be seized is evidence of illegal conduct, and is in the possession of a person or entity for which there is insufficient probable cause shown to the magistrate to believe that such person or entity is a party to the alleged illegal conduct, no search warrant shall issue except upon a finding by the magistrate that the evidence sought to be seized cannot be obtained by subpoena, or that such evidence would be concealed, destroyed, damaged, or altered if sought by subpoena. If such a finding is made and a search warrant issued, the magistrate shall direct upon the warrant such conditions that reasonably afford protection of the following interests of the person or entity in possession of such evidence:

(c)(2)(A) protection against unreasonable interference with normal business;

(c)(2)(B) protection against the loss or disclosure of protected confidential sources of information; or

(c)(2)(C) protection against prior or direct restraints on constitutionally protected rights.

(d) Search warrant served in readable form.

A copy of a search warrant shall be served in a readable form upon the person or place to be searched.

(e) Time for service ‑‑ Officer may request assistance.

(e)(1) The magistrate shall insert a direction in the warrant that it be served in the daytime, unless the affidavit or recorded testimony states sufficient grounds to believe a search is necessary in the night to seize the property prior to its being concealed, destroyed, damaged, altered, or for other good reason; in which case the magistrate may insert a direction that it be served any time of the day or night.

(e)(2) The search warrant shall be served within ten days from the date of issuance. Any search warrant not executed within this time shall be void and shall be returned to the court or magistrate as not executed.

(e)(3) An officer may request other persons to assist in conducting the search.

(f) Receipt for property taken.

The officer, when seizing property pursuant to a search warrant, shall give a receipt to the person from whom it was seized or in whose possession it was found. If no person is present, the officer shall leave the receipt in the place where the property was found.

(g) Return ‑‑ Inventory of property taken.

The officer, after execution of the warrant, shall promptly make a signed return of the warrant to a magistrate of the issuing court and deliver a written or recorded inventory of anything seized, stating the place where it is being held.

(h) Safekeeping of property.

The officer seizing the property shall be responsible for its safekeeping and maintenance until the court otherwise orders.

(i) Magistrate to retain and file copies -- Documents sealed for twenty days -- Forwarding of record to court with jurisdiction.

(i)(1) At the time of issuance, the magistrate shall retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based and shall, within a reasonable time, file those sealed documents in court files which are secured against access by the public. Those documents shall remain sealed until twenty days following the issuance of the warrant unless that time is extended or reduced under Section (m). Unsealed search warrant documents shall be filed in the court record available to the public.

(i)(2) Sealing and retention of the file may be accomplished by:

(i)(2)(A) placing paper documents or storage media in a sealed envelope and filing the sealed envelope in a court file not available to the public;

(i)(2)(B) storing the documents by electronic or other means under the control of the court in a manner reasonably designed to preserve the integrity of the documents and protect them against disclosure to the public during the period in which they are sealed; or

(i)(2)(C) filing through the use of an electronic filing system operated by the State of Utah which system is designed to transmit accurate copies of the documents to the court file without allowing alteration to the documents after issuance of the warrant by the magistrate.

(j) Findings required for service without notice. If the magistrate finds upon proof, under oath, that the object of the search may be quickly destroyed, disposed of, or secreted, or that physical harm may result to any person if notice were given, the magistrate may direct that the officer need not give notice of authority and purpose before entering the premises to be searched.

(k) Violation of health, safety, building, or animal cruelty laws or ordinances ‑‑ Warrant to obtain evidence.

In addition to other warrants provided by this rule, a magistrate, upon a showing of probable cause to believe a state, county, or city law or ordinance, has been violated in relation to health, safety, building, or animal cruelty, may issue a warrant for the purpose of obtaining evidence of a violation. A warrant may be obtained from a magistrate upon request of a peace officer or state, county, or municipal health, fire, building, or animal control official only after approval by a prosecuting attorney. A search warrant issued under this section shall be directed to any peace officer within the county where the warrant is to be executed, who shall serve the warrant. Other concerned personnel may accompany the officer.

(l) Remotely communicated search warrants.

(l)(1) Means of communication. When reasonable under the circumstances, a search warrant may be issued upon sworn or affirmed testimony of a person who is not in the physical presence of the magistrate, provided the magistrate is satisfied that probable cause exists for the issuance of the warrant. All communication between the magistrate and the peace officer or prosecuting attorney requesting the warrant may be remotely transmitted by voice, image, text, or any combination of those, or by other means.

(l)(2) Communication to be recorded. All testimony upon which the magistrate relies for a finding of probable cause shall be on oath or affirmation. The testimony and content of the warrant shall be recorded. Recording shall be by writing or by mechanical, magnetic, electronic, photographic storage or by other means.

(l)(3) Issuance. If the magistrate finds that probable cause is shown, the magistrate shall issue a search warrant.

(l)(4) Signing warrant. Upon approval, the magistrate may direct the peace officer or the prosecuting attorney requesting a warrant from a remote location to sign the magistrate's name on a warrant at a remote location.

(l)(5) Filing of warrant and testimony. The warrant and recorded testimony shall be retained by and filed with the court pursuant to Section (i). Filing may be by writing or by mechanical, magnetic, electronic, photographic storage or by other means.

(l)(6) Usable copies made available. Except as provided in Sections (i) and (m) of this rule, any person having standing may request and shall be provided with a copy of the warrant and a copy of the recorded testimony submitted in support of the application for the warrant. The copies shall be provided in a reasonably usable form.

(m) Sealing and Unsealing of Search Warrant Documents.

(m)(1) Application for sealing of documents related to search warrants. A prosecutor or peace officer may make a written or otherwise recorded application to the court to have documents or records related to search warrants sealed for a time in addition to the sealing required by Subsection (i)(1). Upon a showing of good cause, the court may order the following documents to be sealed:

(m)(1)(A) applications for search warrants;

(m)(1)(B) search warrants;

(m)(1)(C) affidavits or other recorded testimony upon which the search warrant is based;

(m)(1)(D) the application, affidavits or other recorded testimony and order for sealing the documents.

(m)(2) Sealing of search warrant documents. Search warrant documents are public record that may be sealed in entirety or in part and not placed in the public file if all or part of the information in them would:

(m)(2)(A) cause a substantial risk of harm to a person’s safety;

(m)(2)(B) pose a clearly unwarranted invasion of or harm to a person’s reputation or privacy; or

(m)(2)(C) pose a serious impediment to the investigation.

Sealed documents shall be maintained in a file not available to the public. If a document is not sealed in its entirety, the court may order a copy of the document with the sealed portions redacted to be placed in the public file and an un‑redacted copy to be placed in the sealed file. Except as required by Section (i), no document may be designated as “Filed under Seal” or “Confidential” unless it is accompanied by a court order sealing the document.

(m)(3) Unsealing of documents. Any person having standing may file a motion to unseal search warrant documents with notice to the prosecutor and law enforcement agency. If the prosecutor or law enforcement agency files an appropriate and timely objection to the unsealing, the court may hold a hearing on the motion and objection. Where no objection to unsealing the documents is filed, the defendant may prepare an order for entry by the court. The court may order the unsealing of the documents or order copies of the documents to be delivered to a designated person without unsealing the documents and require the person receiving the documents not to disclose the contents to any other person without the authorization of the court.

(m)(4) Length of time documents may remain sealed.

(m)(4)(A) The documents may remain sealed for a period of up to six months. Prior to the end of the six month period, the prosecutor, peace officer, or a person with a direct interest in the records may apply to the court to seal the documents for an additional period of up to six months. Upon a finding that conditions for sealing remain, the court may order the documents to be sealed for up to six additional months. The prosecutor, peace officer, or a person with standing may seek, and the court may grant, additional six month extensions provided conditions for sealing remain.

(m)(4)(B) If search warrant documents have remained sealed for at least three years, the prosecutor, peace officer, or a person with standing may apply to the court to seal the documents indefinitely. Upon a finding that the conditions for sealing remain, the court may order that the documents be sealed indefinitely, pending further order from the court.

ADVISORY COMMITTEE NOTE:

Terms used are intended to be interpreted liberally in order to facilitate remote communications as a means of applying for and issuing search warrants while at the same time preserving the integrity of the probable cause application and the terms of warrants that are authorized.

(a) This section is adapted from former Sec. 77-23-201 Utah Code Ann.

(b) This section is adapted from former Sec. 77-23-202 Utah Code Ann.

(c) This section is adapted from former Sec. 77-23-203 Utah Code Ann.

(d) This section is adapted from former Sec. 77-23-204 Utah Code Ann.

(e) This section is adapted from former Sec. 77-23-205 Utah Code Ann.

(f) This section is adapted from former Sec. 77-23-206 Utah Code Ann. The statute contained the words “Failure to give or leave a receipt does not render the evidence seized inadmissible at trial.” This rule is not a departure from that original legislative intent. While the committee did not consider it necessary to address admissibility in a procedural rule, the elimination of that language does not suggest that failure to comply with the receipt requirement should be a basis for exclusion of the evidence seized.

(g) This section is adapted from former Sec. 77-23-207 Utah Code Ann.

(h) This section is adapted from former Sec.77-23-208 Utah Code Ann.

(i) Subsection (1) is added in compliance with the order of the Utah Supreme Court in Anderson v. Taylor, 2006 UT 79. Subsection (2) is added to allow for a planned electronic search warrant system operated by the Utah Bureau Of Criminal Identification, or other systems which might be employed by a magistrate. This provision supercedes the supervisory orders of the Court in Anderson v. Taylor for that purpose.

(j) This section is adapted from former Sec. 77-23-210(2) Utah Code Ann.

(k) This section is adapted from former Sec. 77-23-211 Utah Code Ann.

(l) This section was formerly Rule 40 Remotely Communicated Search Warrants. Terms used are intended to be interpreted liberally in order to facilitate remote communications as a means of applying for and issuing search warrants while at the same time preserving the integrity of the probable cause application and the terms of warrants that are authorized.

(m) (New section)

(a) Notice of Non-Appearance

(a)(1) If a defendant released on an unsecured bond fails to appear as required, the court must within 7 days of the failure to appear, send notice of the nonappearance to the defendant and the prosecutor. The clerk of the court shall:

(a)(1)(A) email the notice to the defendant at the email address provided on the bond, or mail notice to the defendant if an email address was not provided; and

(a)(1)(B) email a copy of the notice to the prosecutor.

(b) Forfeiture Hearing. A forfeiture hearing may not be scheduled earlier than 30 days from the date the notice was sent.

(b)(1) The forfeiture hearing date must be included in the notice of nonappearance.

(b)(2) If a defendant appears in court prior to the forfeiture hearing, the court must reinstate or exonerate the bond.

(b)(3) If the defendant failed to appear because the defendant was, or is, in the custody of authorities, the bond may not be forfeited.

(b)(4) The court may continue the forfeiture hearing upon application by either party.

(b)(5) The court may reinstate or exonerate the unsecured bond if the court finds that the failure to appear was not due to the defendant’s neglect.

(c) Forfeiture Judgment.

(c)(1) A court may enter a forfeiture judgment without further notice if the court finds by a preponderance of evidence that:

(c)(1)(A) the defendant failed to appear as required;

(c)(1)(B) the defendant and prosecutor were provided with notice of nonappearance in accordance with paragraph (a); and

(c)(1)(C) a forfeiture hearing was held in accordance with paragraph (b).

(c)(2) The amount of the judgment may not exceed the amount of the bond.

(c)(3) The court must email a signed copy of the judgment to the prosecutor and defendant, or by mail to the defendant if an email was not provided on the bond.

(d) Exoneration

(d)(1) An unsecured bond must be exonerated without motion:

(d)(1)(A) at the conclusion of the case, after the defendant is sentenced. If the sentence includes a commitment to jail or prison, the court can hold the bond until the defendant appears at the jail or prison, or 7 days has passed, whichever occurs first;

(d)(1)(B) if there has not been any activity on the case for 12 months from the date the bond was executed;

(d)(1)(C) if the defendant has passed away; or

(d)(1)(D) if the defendant is in custody out of state and the prosecutor elects, in writing, not to extradite the defendant.

(d)(2) If an Information, indictment, or request to extend time has not been filed within 120 days of the receipt of a signed unsecured bond, the court must exonerate the bond.

(e) Amending or Discharging Forfeiture Judgment. A court may, on its own motion or upon motion of a party, amend or set aside a forfeiture judgment. Nothing in this rule precludes the defendant from filing a motion under Rule 60(b) of the Utah Rules of Civil Procedure to set aside the forfeiture judgment.

(a) Definitions.

(1) “AOC” means the Administrative Office of the Court.

(2) “Bureau” means the Bureau of Criminal Identification of the Department of Public Safety.

(3) “Clean slate eligible case” means the same as defined in Utah Code § 77-40a-101.

(4) “Conviction” means a judgment by a criminal court on a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere.

(5) “Expunge” means to seal or otherwise restrict access to the individual's record when the record includes a criminal investigation, detention, arrest, or conviction.

(b) Automatic expungement.

(1) Cases eligible for automatic expungement.

(A) Records in the following case types may be expunged automatically:

(i) a case that resulted in an acquittal on all charges;

(ii) a case that is dismissed with prejudice, other than a case dismissed with prejudice as a result of successful completion of a plea in abeyance which shall be processed under (b)(1)(A)(iii); and

(iii) a clean slate eligible case.

(B) Once a month the AOC must identify for each court the cases that are eligible for automatic expungement under (b)(1)(A). Cases that are clean slate eligible under (b)(1)(A)(iii) must be identified separately from those eligible for automatic expungement under (b)(1)(A)(i) and (b)(1)(A)(ii).

(2)Notice to prosecuting entities.

(A) When a list of clean slate eligible cases is created, the AOC must notify each prosecuting agency that the list is available for review on the Utah Courts Xchange website.

(B) Every prosecuting entity in the state must provide the AOC with the email address where notices should be sent. The prosecuting entity must immediately notify the AOC if the entity wants the notices sent to a different email address.

(C) The AOC is not required to send the prosecuting entity notice of cases to be expunged under paragraphs (b)(1)(A)(i) and (b)(1)(A)(ii).

(3) Objection by prosecuting entities.

(A) If the prosecuting entity objects to the expungement of a clean slate eligible case, the prosecuting agency must e-file an appropriate and valid objection within 35 days of the date notice was sent under paragraph (b)(2)(A). To be appropriate, the objection must be for at least one of the statutory bases for objection. To be valid, the objection must be e-filed using the correct document type. If an appropriate and valid objection is timely received, the AOC must remove the case from the list of clean slate eligible cases.

(B) Failure to properly e-file an objection will result in the objection being rejected.

(4) Expungement orders.

(A) After the period for objections has expired, the AOC will compile a list of the remaining clean slate eligible cases and the court will issue an expungement order for each eligible case.

(B) The AOC must provide copies of the expungement orders to the bureau and notify the prosecuting entity.

(c) Expungement by petition.

(1) How commenced. An expungement action is commenced upon the filing of a petition for expungement in the court where the criminal case was filed or if charges were never filed, in the district court of the county in which the arrest occurred or citation was issued. The petition must include the identification number from the Bureau for the certificate of eligibility. A certificate of eligibility is not required if the petitioner is proceeding under Utah Code Section 77-40a-305(3) and (4).

(2) Notice to the prosecutor. The court must provide notice of a filing of a petition to the prosecutorial office that handled the court proceedings within three days after the day on which the petitioner’s filling fee is paid or waived. If a case was never filed, the court must provide notice of a filing of a petition to the district or county attorney’s office in the jurisdiction where the arrest or citation occurred.

(3) Role of the prosecutor.

(A) Upon receipt of a notice of a filing of a petition for expungement of a conviction or a charge dismissed in accordance with a plea in abeyance, the prosecuting attorney must make reasonable efforts to provide notice to any victim of the conviction or charge.

(B) Any notice sent by the prosecutor to a victim must include a Judicial Council-approved form victim objection, a copy of the petition, certificate of eligibility, and copies of statutes and rules applicable to the petition.

(C) The prosecutor must file with the court a declaration verifying the date the notice was provided to the victim. If the prosecutor is unable to provide notice to the victim, the declaration must disclose the efforts made to provide notice to the victim. If there was no victim, the prosecutor need not file a declaration.

(D) If a prosecutor is unable to provide notice to a victim, the court must make a finding whether the efforts made to provide the victim notice in the declaration were reasonable.

(4) Role of the victim.

(A) Within 35 days after the court provided notice to the prosecutor, the victim may file with the court an objection or recommendation to the expungement petition. The court will provide any objection or recommendation filed by the victim to the petitioner and the prosecutor.

(B) A victim may appear at any expungement hearing and make a statement regarding the expungement.

(5) Objection by prosecutor.

(A) The prosecutor has 35 days from the date the notice of the petition is provided to the prosecutor to file an objection or recommendation to the petition.

(B) If the prosecutor files an objection with the court within the time frame in paragraph (c)(6)(A), the court must schedule a hearing.

(C) The petitioner, prosecutor, victim, or any other person with relevant information may testify at the hearing.

(6) Response to Objection or Recommendation. The petitioner may respond in writing to any objections or statements filed in response to the petition within 14 days after the day on which the objection or statement was received.

(7) Objection not filed.

(A) If a response from the prosecutor and any victim is received by the court within 35 days after the petition is served on the prosecutor and does not include an objection, the petitioner may file a request to submit for decision and the expungement may be granted without a hearing, though a request to submit is not required for the court to make a decision.

(B) If no objection is received within 60 days from the day on which the petition for expungement is filed with the court, the expungement may be grated without a hearing.

(8) Expungement order. If the court enters an expungement order, the court must provide to the petitioner certified copies of the order in the number requested by the petitioner. When issuing an expungement order, the court will use the forms approved by the Board of District Court Judges. The order of expungement will have a copy of the certificate of eligibility attached. The court will provide notice to the Bureau of the expungement order. The Bureau will notify all criminal justice agencies affected by the expungement order.

(9) Timing. All timeframes must be read consistently with Rule 6 of the Utah Rules of Civil Procedure.