Rules of Evidence

URE 0509. News reporters. New. Creates a privilege for news reporters. Proposed effective date: November 1, 2007.
URE 0702. Testimony by experts. Amend. Preserves and clarifies differences between the Utah and federal approaches to expert testimony. Proposed effective date: November 1, 2007.

Utah Courts

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62 thoughts on “Rules of Evidence
  1. Todd K. Jenson

    Re: Rule 509. News Reporters.
    I assume that this proposed rule is in response to the recent Washington D.C. case involving the Bush administration, ‘Scooter’ Libby, and the former CIA agent Valerie Plume.
    The Rule seems unclear about the definition of a “Confidential source” (meaning the anonymous person who disclosed the information). The rule only defines “Confidential source information”. As described in (a)(2), the “Confidential source” could be construed as anyone or anything “likely to lead directly to the disclosure of the identity” of the anonymous protected person, which may include: the news reporter or the news agency, or almost anyone else.
    Without a clear definition of exactly who the “Confidential source” is (which, as worded, may include the news reporter itself), the Rule as proposed creates a very broad privilege, which makes the news reporter the holder of the privilege (not only the “Confidential source”) on behalf of all parties concerned (the confidential source, the news agency, the personal representative of the confidential source, etc.).
    To be clearer, the rule should define specifically who the “Confidential source” is, as well as identify the holder of the privilege.
    I realize that at the end of subsection (c), the rule appears to make the the anonymous person the holder of the privilege, however, the proposed rule does not define or identify anonymous, protected person alone as the “Confidential source”.
    Last, a the Rule adopts a very subjective standard, stating that one must show a “substantial need for that information which outweighs the interest of a continued free flow of information”, in order to have a court order a news reporter to disclose the identity of anonymous person who is the “Confidential source”. Under this rule, whether or not a court could or would order the disclosure of the identity of a “Confidential source” would depend entirely on the discretion of a judge, which will vary from court to court, and from case to case (depending on the facts of the case). The rule would have inconsistent application, and would not afford equal protection under the law.
    News reporters should be treated like everyone else under the law; there should be no special privilege extended to them, above others. The arguments against alllowing such a privilege are similar to those arguments against allowing an “accountant-client” privilege. Most notably, it would promote reckless news reporting by removing public accountability for published information, because the privilege allows a news reporter to merely invoke the privilege, and refuse to disclose the source of information–even if the information was false.
    The rule creates a double standard, where a news reporter may currently insist that it have access to all information in the interest of the public, but then, the news reporter can withold information (i.e., identity of sources) from the public under a cloak of privilege.
    The rule as proposed would remove accountability of news reporters, and hinder the search for truth in our legal system.
    The status quo is fine. No new special privilege for news reporters is necessary. In this instance (discussion of the news reporter’s privilege), the search for truth in the legal system outweighs confidentiality.

  2. Thomas N. Thompson

    I believe the rule paints with too broad a brush when it protects not only publishers, editors, or reporters, but also any “other similar person.” A number of present political action committees active in this state gather information “for the primary purpose of disseminating news to the public,” but unlike traditional news outlets, they have no stake in producing news that is fair, objective, or even truthful. Unless the organization is one that has a traditional news gathering role, there should be no protection for mere PACS.

  3. Law12345

    What is proposed here as Rule 0509 seems to be a rather convoluted way to protect news reporters whose job serves the publilc interest. Society wants reporters to reveal information provided by “inside” sources. Without adequate protections, such information will be slow to surface, if it ever does.
    The absolute privilege outlined in this Rule for published information seems a step in the right direction, but the exceptions that are later inserted tend to undermine the very privilege the Rule seems designed to protect. Unpublished information, for example, is not protected, even though it may be published later.
    I do not see why news reporters need an absolute privilege for everything they do. What they do need is a reasonable, consistent standard of source protection that ought to be managed by judges based on a totality of circumstances. Reporters should not be subject to prosecutorial fishing expeditions.
    The standard developed by Judge Boyce that is used in a number of Utah courts is a more reasonable approach than this proposed Rule.

  4. Law12345

    I respectfully disagree with Mr. Jenson’s assessment, which essentially amounts to the notion that journalists are just like everyone else.
    They are quite different, in my view, in that their role in society is to bring to light information that somebody else wants to suppress. Such information will be held in secret more often if there is insufficient protection for confidential sources. Journalists will be viewed as an arm of law enforcement. Thus, whistleblowers won’t blow as often.
    The underlying question at issue here is not whether a source’s identity should be protected forever and in all circumstances, but merely under what rules it should be subject to compulsory disclosure.
    Irresponsible use of confidential sources, raised by Mr. Jenson, is a self-correcting problem. If a person is aggrieved by what a confidential source says to the media, and can show that it is false, there is sufficient recourse already built into the law. He would bring suit against the media company, and the source’s name would either be revealed in court or the truth of the journalist’s account would be established by some other means.
    Journalists need to be recognized for the value they bring to society by providing information — sometimes uncomfortable information. They need reasonable protections, which to me means that judicial procedures should be regularized.

  5. M. Dayle Jeffs

    I am Dayle Jeffs. I am a member of the Utah Supreme Court Advisory Committee on the Rules of Evidence that issued the proposed Rule 509. Although a majority of the Committee voted to issue the proposed Rule for public comment, a substantial minority of Committee members, including myself, voted against the proposed Rule. The minority members of the Committee support adoption of an alternative version of the Rule 509 (the “Alternative Rule”) that codifies existing Utah case law and creates a qualified privilege applicable to confidential sources and unpublished information gathered by news reporters. We believe this approach reflects a more reasonable and sensible balance of the competing policy interests and is more consistent with the case law in this area as applied by local federal and state trial courts over the past two decades. The Committee voted overwhelmingly to forward both rules to the Utah Supreme Court so that the Court could choose which, if any, it wished to adopt. So that public and the bar may have a full and fair opportunity to comment on both the majority draft and the Alternative Rule, I am posting the following copies of the Alternative Rule and the Analysis of those supporting the Alternative Draft of Proposed Rule 509 (News Reporters Privilege).
    Rule 509 – News Reporters Privilege
    (Alternative Draft)
    (a) Definitions. As used in this rule:
    1. “News reporter” means a publisher, editor, reporter, author or other similar person gathering information for the primary purpose of disseminating news to the public, and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.
    2. “News Information” includes both confidential source information and unpublished news information. “Confidential source information” means the name or any other information likely to lead to the disclosure of the identity of a person who gives information to a news reporter, acting in the capacity of a reporter, with a reasonable expectation of confidentiality. “Unpublished news information” means information, other than confidential source information, that is gathered by a news reporter but not disseminated to the public, including notes, drafts, outtakes, photographs, video or sound tapes, film or other data of whatever sort in any medium now known or hereafter devised.
    (b) Privilege. A news reporter has a privilege to refuse to disclose and to prevent any other person from disclosing news information, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard by the news reporter:
    1. that the entity or person seeking the information has made reasonable efforts to obtain the information from sources other than a news reporter and has been unsuccessful;
    2. that the information sought is of certain relevance to an issue of substantial importance and goes to the heart of the matter; and
    3. given the type of controversy, that the interests in compelling disclosure of the information outweigh the interests in protecting the free flow of information to the public.
    (c) Who May Claim the Privilege. The privilege may be claimed by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator, or the personal representative of a deceased news reporter or confidential source.
    Analysis of Those Supporting the Alternative Draft
    Of Proposed Rule 509 (News Reporter’s Privilege)
    The undersigned members of the Utah Supreme Court Advisory Committee on the Rules of Evidence oppose the Committee’s proposed version of Rule 509 concerning a news reporter’s privilege. A news reporter’s privilege raises significant First Amendment issues concerning the free flow of information to the public and the role of an independent press in gathering and reporting such information. In light of the significance of these issues, and the divergent views among Committee members concerning the proper scope and application of such a privilege, the undersigned members respectfully submit this analysis endorsing a reporter’s privilege set forth in the alternative draft. This alternative rule proposes a qualified reporter’s privilege applicable to both confidential and non-confidential unpublished information that is gathered by a news reporter. For the reasons briefly summarized below, we believe this approach reflects a more reasonable and sensible balance of the competing policy interests and is more consistent with the law in this area as applied by local federal and state trial courts over the past several years.
    1. Utah Should Adopt a Reporter’s Privilege Rule. We agree with the Committee majority that it is time for Utah to recognize a reporter’s privilege. Utah is one of only three states without a statutory shield law, state constitutional protection, or state appellate court recognition of a news reporter’s privilege. Although a news reporter’s privilege has been recognized by the federal Tenth Circuit Court of Appeals, the United States District Court for the District of Utah, and several Utah trial court judges, the absence of a privilege codified by statute or the Utah Rules of Evidence has created uncertainty among law enforcement, the news media, and civil litigants about the scope and protection of the privilege in Utah. For these reasons, and to promote more clarity and uniformity in this area of the law, we support adoption of a reporter’s privilege rule.
    2. A qualified reporter’s privilege rule is consistent with local case law and practice. The version of the alternative Rule that we endorse essentially codifies the qualified reporter’s privilege adopted by the Tenth Circuit in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) and United States Magistrate Judge Ronald N. Boyce in Bottomly v. Leucadia Nat’l Corp., 24 Med. L. Rep. 211, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996). Based upon information provided to the Committee by counsel for the Utah news media and Utah prosecutors, its appears that Utah trial courts have been applying the Silkwood/Bottomly qualified privilege test for at least the past 20 years to resolve challenges to subpoenas seeking information from news reporters. The flexible nature of the test makes it well-suited to balancing the sensitive First Amendment interests of journalists in protecting their sources and news gathering material (whether obtained under a promise of confidentiality or not) against the legitimate needs of litigants and the Court to obtain evidence for the proper administration of justice. Because the privilege is qualified, there is no need for the problematic list of categorical “exceptions” to the privilege contained in the majority proposal. We believe that the better approach is to give trial judges flexibility to weigh the interests at stake in each particular case, rather than trying to prospectively predict what those interests will be, and how they must invariably be weighed. In the event any of the interests served by the exceptions are implicated by a subpoena to a news reporter, those interests would be weighed by the trial court through application of the three-part test. In short, we believe the Silkwood/Bottomly test reflects a sensible and reasonable approach to this issue and should be codified.
    3. The majority proposal provides no protection for confidential sources where the “leak” itself is alleged to be a tort or crime. The reporter’s privilege endorsed by the majority is subject to six categorical “exceptions” that substantially erode protection for confidential sources and unpublished information gathered by news reporters. Most notably, under the “witness” and “physical evidence” exceptions, a prosecutor could force a reporter to disclose the identity of a confidential source or documents received from the source simply by asserting that the source has leaked classified or protected information, arguably constituting a crime. Some of history’s most significant stories, such as the NSA domestic spying program, Watergate, the Pentagon Papers, and Iron-Contra, have depended on confidential sources disclosing information that the government claimed was “classified”. Publishing these stories serves as a critical check on government misconduct and secrecy and allows the public to hold its elected officials accountable. The majority rule provides no protection for whistle-blowers and other government “leakers” in such cases, regardless of the substantial public interest in receiving such information. Providing at least qualified protection for such sources, as the alternative rule does, serves the First Amendment rationale for the privilege in ensuring the free flow information concerning matters of public interest, and gives trial judges the flexibility they need to weigh the specific interests in each case.
    4. The privilege should include qualified protection for unpublished non-confidential newsgathering material. The majority proposal provides no protection for unpublished information that is gathered by a news reporter without a promise of confidentiality to a source. Based upon testimony received from representatives of the Utah news media, this material constitutes the vast majority of information maintained by reporters and news organizations and the vast majority of material that is sought by subpoenas to news organizations. We believe the public interest in protecting such journalistic material from the unfettered subpoena power of prosecutors and other litigants is sufficiently compelling that it should be encompassed within the scope of the privilege. Contrary to the view of the Committee majority, which characterizes the interest in protecting such journalistic material as solely “proprietary,” (see Advisory Committee Note), we view the interest as directly rooted in the First Amendment. Because the interest of the press in gathering and disseminating news and information to the public is an interest of constitutional magnitude, the duties and privileges of the press in responding to subpoenas for unpublished information should not be the same as insurance companies and other civil litigants. Providing a qualified privilege for such material strikes a reasonable balance of the competing interests. It also is consistent with the policy choice made by nearly every other state, including most recently Connecticut, that has enacted a reporter’s privilege law. The majority proposal would make Utah an extreme outlier in this area of the law and would be unwise as a matter of public policy.
    For the foregoing reasons, we respectfully submit the attached alternative proposal to the Court for its review and consideration.
    M. Dayle Jeffs, Esq. Clark Waddoups, Esq.
    Thomas W. Seiler, Esq. Thomas D. Roberts, Esq.

  6. Randy Wright

    The Daily Herald occasionally receives a subpoena for a reporter’s notes or unpublished photographs. It is in our business interest — and consistent with our larger role in society — to resist such orders. We do not want to expend resources on litigation to which we are not a party, and we strongly object to the prospect of becoming a de facto invesigative arm for law enforcement or private attorneys. If such becomes du jour, sources will come to view the media as a direct pipeline to the authorities and will cease to confide in us.
    Consequently, the Daily Herald has established a policy under which unpublished material is destroyed after a few days. This is an unfortunate but necessary practice to shield ourselves from fishing expeditions. I do not believe the practice to be in the public interest in the long run, and I wish it were avoidable. Unfortunately, it is not.
    Unpublished notes may include information relating to some topic other than the one for which the interview was initially conducted; such information may be useful later. But without some assurance that the unpublished material will be viewed by the courts as confidential, we will continue to destroy it. We recognize that gathering the information a second time may be difficult or impossible. A source may no longer be available, for example, or the details of an account may change. History thus becomes a casualty.
    News organizations want to be good citizens. What we don’t want is to be used as a convenient shortcut to information that was available to attorneys through other means. If judges were to adopt reasonable and consistent protections in the case of both confidential sources and unpublished material, I believe that most members of the news media, when justice depends upon it, would not object to disclosure.
    I have reviewed an alternative to Rule 509 that I believe to be superior to the proposal adopted by the advisory committee. This alternative approach was endorsed by several members of the committee. It includes no absolute privilege for news organizations to protect sources. Rather, it encodes a set of principles under which a court’s need for disclosure is balanced against various competing values. I believe it is the more reasonable way to go.
    Randy Wright
    Executive Editor
    Daily Herald
    Provo, UT

  7. Edward L. Carter

    While I am confident the Advisory Committee made sincere and diligent efforts to arrive at what it considered a good draft of Rule 509, I am surprised and extremely disappointed in the result reflected in the majority draft. In my view, it would be a grave mistake for the Court to adopt the proposal in the majority draft. Based on my study, the majority draft would give Utah a very unusual and likely unworkable version of reporter’s privilege. I believe the majority draft carries potential for great harm to those who most need the protection of a strong yet reasonable privilege – not just journalists but the citizens of Utah. The adoption of the majority draft would not provide clarity to Utah lawyers, judges and journalists. In fact, I believe the opposite is more likely: The majority draft would exacerbate current confusion and would likely have to be revisited through amendments in the very near future. In short, I do not consider it to be in the interest of the Court nor the state generally to adopt such a radical and untested approach, one that significantly alters decades of jurisprudence both in Utah and nationally.
    No journalist I know wants to facilitate crime or allow harm. But the majority draft seems to reflect an unrealistic fear that reporters spend much of their time trying to accomplish just that. The exceptions in part (d) of the majority Rule 509 draft appear so broad and speculative as to very likely swallow up the privilege itself. For example, the exception in (d)(1) refers to the planned commission of a crime or tort. This language would seem to lend itself to subjective and broad application such that the privilege would rarely be found to exist.
    Further, the majority draft makes no accounting for the seriousness of the torts or crimes involved. As far as I am aware, virtually all states that apply exceptions even remotely similar to this proposal do so only in cases of serious felony crimes. Yet the proposed Utah rule conceivably would negate the reporter’s privilege in case of the most minor infraction – or even the most minor infraction that someone only has imagined. Likewise, the language in (d)(2) regarding threat of harm contains no qualification about the seriousness of the harm required. In reality, every situation in which a reporter would want to claim the privilege carries the conceivable threat of harm (not necessarily physical) to someone, or there would be no need for the privilege in the first place.
    I could go on in my criticisms of the majority draft, but suffice it to say that I disagree completely with the approach taken. A much more sensible approach is the balancing test proposed in the alternative draft, which establishes a qualified privilege that can be overcome if circumstances warrant. In short, the alternative draft accounts for all the concerns and fears reflected in the majority draft’s exceptions, but without all the problems that accompany such a speculative and broad laundry list. The alternative draft also reflects decades of judicial and legislative thinking about the privilege, and thus represents a much-tested approach that has proven workable and reasonable in many different circumstances. With the alternative draft’s approach, the Court will not be revisiting this issue in a couple of years, as I fear would be the case with the majority draft approach.
    I believe the news-consuming public of Utah deserves responsible and high-quality journalism. This requires a reasonable qualified privilege to protect, when circumstances warrant, confidential sources and the product of newsgathering, including unpublished and non-confidential materials.
    Edward L. Carter, J.D. (
    Utah State Bar #9871
    Assistant professor of communications
    Brigham Young University

  8. Randy Wright

    My wife is taking a class in American history and was required to read Lincoln’s first inaugural address. I had the opportunity to read it to her. The following passage jumped out at me in connection with the Rule 509 discussion:
    “[No] law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.”
    The exeptions to the reporter privilege oulined in the advisory committee’s Rule 509 seem to be an attempt to anticipate all the important circumstances under which an exception might be made. I agree with other comments that some of the exceptions tend to undermine the purpose of granting a privilege in the first place and could make things worse for news organizations. Again, I think that giving judges discretion to balance the needs of justice against the needs of a free press within a reasonable rule framework is a better way to go.
    I also want to reiterate my view on the importance of protecting unpublished material — confidential material, yes, but any other unpublished material as well. The balancing act suggested in the alternative rule should apply here, too.
    Randy Wright
    Executive Editor
    Daily Herald

  9. Jessica Jacobs

    I am not in favor of adopting the proposed text of Rule 702. I would rather see Rule 702 of the federal rules of evidence be adopted by Utah. The way Utah currently interprets Rule 702, it allows testimony regarding junk science too easily into the courtroom. I would like to see the Federal Rule adopted instead because then much of that junk science would be filtered out by the rule and only credible scientific testimony would be heard in the courtrooms.

  10. Aric Cramer

    I would strongly urge adopting the Federal rule. Although the rule as now is to be intrepreted more strictly than the Federal rule, it is not being done and in fact is letting evidence into trials that can’t and wouldn’t pass federal muster.
    Please adopt the Federal rule!!

  11. Phillip S. Ferguson

    I write to comment on the proposed changes to Rule 702, Testimony by experts.
    My first concern is essentially a practical one: why must Utah have a separate jurisprudence on expert witnesses when virtually all other rules of evidence mirror the federal rules? From a practitioner’s point of view, working towards a unified approach on such basic issues as expert witnesses makes more sense than developing a divergent approach. There surely is wisdom in developing substantive rules of law that fit more precisely our local notions of justice, equity, and dispute resolution, and I do not suggest that we adopt rules of law just because other jurisdictions have them. However, keeping the rules as to what evidence is admissible and what evidence is not the same across jurisdictions seems to further the ability of the courts to fashion decisions that reach the unique merits of the cases they judge, and effect a more sound resolution of societal issues because the parties are on equal footing.
    Second, I am concerned with the way subsection (c) appears to interact with subsection (b). Subsection (b) speaks in terms of sufficient reliable data applied to the facts of the case in a reliable manner. Subsection (c) then says that requirement is–not may be–met simply by showing that the expert’s approach is generally accepted in the relevant community. Thus, subsection (c) seems to eviscerate subsection (b). Wouldn’t it be better either to eliminate subsection (c) altogether, or at least to modifiy it to read: “The threshold showing required by subparagraph (b) may be satisfied by demonstrating that the principles or methods on which such knowledged is based . . .” General acceptance in the relevant expert community is not the only way to establish sufficiency, reliability, and application but subsection (c) strongly suggests that it is.
    Third, by making “general acceptance” in the community the manner in which subsection (b) is satisfied, subsection (c) also eliminates the real gatekeeping function of the trial judge. S/he is reduced simply to determining whether the proposed methods and opinions are generally accepted. S/he is not required to make the more difficult determination that the expert has, in fact, gathered sufficient data, used reliable methods and principles, and applied those methods and principles in a reliable manner to the facts of the case. In a very real way, subsection (c) damages the prestige of the trial judge.
    One of the problems engendered by the Rimmasch/novel scientific evidence rule is that it takes the court out of the determination of what is useful evidence in all but a few cases. The federal rule 702, and the Daubert line of cases on which it is based, put the judge in control of the process, where s/he belongs. Under the Utah approach, the lawyers are in control. Clever lawyers and clever experts, rather than solid evidence, often win the day.
    As our society becomes more complex, and technology more advanced, there is a greater entrepreneurial attraction to the expert witness business, and a correspondingly greater need for the judge to guard against the admission into evidence of marginal “expert” testimony. The proposed amendments to rule 702 do not equip the court to perform this task.
    The Advisory Committee Note makes this clear. It erects a standard of “rational skepticism”, whatever that may mean. Subsection (c) suggests that all it means is “general acceptance” in the relevant expert community. The committee note also indicates that the “rational skeptic is receptive to any plausible evidence that may bear on reliability”, whatever that may mean.
    What the trial lawyers need, and presumably what the trial judges want, is clear guidance on what kinds of expert testimony should be admitted into evidence and what should be kept out. General acceptance by the relevant expert community is a pretty loose standard. It is this standard that led to the adoption of the Daubert line of cases and the eventual amendments to FRE 702.
    The Advisory Committee note indicates, at lines 57 – 61, that “failure to show general acceptance meriting admission under section (c) does not mean the evidence is inadmissible, only that the threshold showing for reliability under section (b) must be shown by other means.” However, the actual text of subsection (c) implies to the contrary. It says that the threshold “is satisifed if . . .” and does not allow for alternative means of proving up reliability, sufficiency and appropriate application.
    Fourth, in my personal experience, the Daubert line of cases, and the amended FRE 702 have not resulted in a rash of motions to exclude expert witnesses. Surely such motions are filed from time to time, but they would have been filed under Rimmasch, Frye, or any other standard.
    In the end, ideas such as “rational skepticism”, “any plausible evidence”, and “threshold showing” invite appeals. One can imagine, without difficulty, appellate opinions in which the high court chastises the trial court for not being skeptical enough, or for being too skeptical, or for not being sufficiently receptive to plausible evidence of reliability. One can easily imagine confused counsel and confused judges. We have enough confusion already because of the novel/non-novel dichotomy. Instead of a proliferation of motions to exclude experts, we will have a proliferation of appeals regarding whether the expert was properly excluded or not.
    My suggestion is to eliminate subsection (c) from the proposed amendment. Let the trial court make the determination as to whether the expert has garnered sufficient data and whether s/he has used reliable methods to gather, evaluate and apply that data to the facts of the case. Ideally, Utah FRE 702 would track Federal FRE 702 verbatim, but if that is not possible, remove (c) from the proposed rule and leave (a) and (b) as they are.
    Phillip S. Ferguson

  12. Chris Keen

    Please adopt the Federal version of Rule 702. It is a more fair rule and the lax nature of Utah’s current rule results in unfair results.

  13. David Stewart

    Having Proposed URE 702 go into effect would bring our court system inline with majority of the nation as well as the federal system. It is important to ensure this type of evidence be reliable and supported by proper scientific analysis and accepted among the scientific community. This rule will also ensure that junk science is not relied upon.

  14. Kenneth Reich

    RE: Proposed Rule 702
    The proposed Rule 702 governing testimony by experts again fails to meet the standard set by the equivalent Federal Rule 702. I favor the current language of the federal rule because it provides the trial court judges a known commodity with ready-made jurisprudence from around the country and our own federal courts in Utah. Also, the federal rule language provides straight-forward guidance to litigants concerning what scientific evidence will be admissible and would avoid the many appeals that this proposed rule will generate.
    The proposed rule injects unnecessary ambiguity into the expert equation by apparently allowing the courts to engage in “rational skepticism” as a means of proving or disproving the admissibility of an expert’s opinions. According to the Advisory Committee Note, a “rational skeptic is receptive to any plausible evidence that may bear on reliability.” The trial court judges are encouraged to be “rationally skeptical gatekeepers” who are willing to accept merely “plausible” evidence. This shifts the true gatekeeping function to the jury and takes it away from the judge. This is unacceptable. Juries are under time constraints and are burdened with too many other considerations to be expected to give appropriate thought to something so distant as whether an expert’s opinions are reliable. Juries will inevitably pick the expert they like best based on demeanor, appearance, and likeability instead of giving proper consideration to whether the opinion provided is reliable and helpful.
    Moreover, to further muddy the water, the Note also appears to espouse two tiers of experts: those experts who will give opinions and who must meet the requirements of subsection (b) and those experts who offer only “principles, methods or techniques” without any opinion who are tested by a looser standard under subsection (c): “Proposed expert testimony that seeks to set out relevant principles, methods or techniques without offering opinion about how they should be applied to a particular array of facts will be, in most instances, more eligible for admission under subsection (c) than case specific opinion testimony.” This two-tiered approach appears to require two different standards even though the expert’s testimony in both instances could have the same influence on a jury. Is it any different to have an expert to testify that the sequence is “A, B, C, D, ___” and let the jury fill in the obvious blank or to have the expert testify the sequence is “A, B, C, D, E”? The first example is arguably more powerful yet the expert did not give an opinion but only gave the analytical tools and steps for the jury to follow—and, the expert was subject to a lower expert threshold standard than the expert who completes the sequence and offers an opinion.
    I understand that I have not put in the amount of time that the Committee has on this issue, however, I cannot see any advantage to perpetuating an unworkable standard in Utah (Rimmasch) or creating an equally unworkable standard in the proposed amendment. The proposed rule is an invitation for many appeals to come and I oppose it. Please adopt the language of Federal Rule of Evidence Rule 702.

  15. Michael P. Zaccheo

    Comment re: Proposed Rule 702, Utah Rules of Evidence.
    Creating an expert testimony gatekeeper role for Utah state trial judges is desperately needed. The current state of the law is confusing and difficult for lawyers and judges to utilize. After representing both plaintiffs and defendants in personal injury cases tried in the United States District Courts, in my experience Daubert/Khumo based challenges of expert testimony(sometimes including formal hearings with direct and cross examinations of experts) allow both sides an opportunity to efficiently test the scientific reliability of expert testimony well in advance of trial. Thus, encouraging settlement, allowing more focused trial planning and allowing these important decisions to be made in an environment conducive to the deliberate analysis required to weed out unreliable, but well-disguised opinions offered by well-trained expert witnesses. After a brief period of overuse, this process has now become an accepted, efficient and valuable aspect of federal trial practice, for both sides. The proposed rule, with one exception, should bring these benefits to Utah state courts.
    Unfortunately, subparagraph c of the proposed new Utah rule is not, in my opinion, workable. Scientific reliability has at least two facets. First, the principals relied upon by the expert must be generally accepted. For this determination, the trial judge is informed by referring to the collective knowledge of the relevant scientific/expert community. For example, if the expert is relying on the second law of thermodynamics, the judge should be provided texts, peer reviewed articles, and other testimony which tends to establish or refute the general acceptance by physicists of the second law of thermodynamics. So far, so good for subparagraph c of proposed Rule 702 U.R.E.
    Second, however, the trial court must determine if the general principal -the second law of thermodynamics- relied upon by the expert has been applied with sufficient scientific rigor to the facts of the case so as to render the final opinion scientifically reliable. This determination requires a case specific analysis of whether the scientfic method was carefully followed by the particular expert when testing her case specific hypothesis. Sometimes the texts and articles of similar experts might be helpful, but frequently the reason the litigation is pending at all is that the case specific technical issues haven’t been evaluated and resolved by the expert community. Therefore, though there may be general principals that can be utilized to formulate an hypothesis, there might not be a generally accepted methodology to test the hypethesis. The absence of such generally accepted testing methodology is, in such circumstances, not dispositive or even helpful regarding this second facet of scientific reliability. Furthermore, even if there is general acceptance of the particular testing methodology utilized, the expert’s opinion may still not be reliable. Methodology is reliable only in context. Just because the expert community recognizes or routinely utilizes a particular testing methodology doesn’t mean that the methodology is appropriate for the particular hypothesis offered by the expert. For example, double blind testing with placebo is a generally accepted methodology for determining the efficacy of new medicinal drugs, but the same approach isn’t used for testing new surgical instruments. Once again, general acceptance isn’t a helpful concept in determining whether the accepted methodology has been rigorously applied to a unique set of facts. The trial court must be entrusted, with appelate review, to make that determination on a case by case basis without a statement in the rule identifying what will satisfy the criteria in every case.
    For these reasons, in my opinion, subparagraph c should be altered (just change “is” in line 11 to “may”) or it should be eliminated.

  16. Kent Hart

    On behalf of the Utah Association of Criminal Defense Lawyers, I strongly urge the Supreme Court to adopt Federal Rule of Evidence 702 in place of Utah’s rule. FRE 702 has been thoroughly tested in federal court and has proven to be fair and balanced. Presently, Utah’s rule allows junk science of questionable reliability especially in criminal cases. When a person’s liberty is at stake, Utah’s courts should promote reliability, not admit unproven experts.
    Kent R. Hart
    UACDL President

  17. Travis Christiansen

    I think the bar and the courts would benefit from adopting the federal approach to Rule 702. Consistency between courts would be an advantage to those who practice in both. Further, we need to be careful concerning the nature and scope of expert testimony as too often you get what you pay for.

  18. Edward L. Carter

    With respect to the proposed Rule 509, one defect is that the laundry list of exceptions to the proposed reporter’s privilege does not follow the common-law privilege approach taken by most other states.
    I have pasted below an article outlining the recent adoption of a shield law in the Washington State Senate. That bill recognized that there could be situations in which a judge determined that the privilege should be overcome to force disclosure of certain newsgathering materials, but the bill provided a sensible balancing test that allows the judge to simply weigh how important the interests are for both disclosure and confidentiality, and also to determine whether the information is available elsewhere.
    I realize the Washington bill was a legislative enactment rather than a judicial evidentiary rule, but I nonetheless think it is relevant to the Utah Supreme Court’s consideration of the proposed Rule 509. If Utah were to adopt the alternative version of Rule 509 proposed by some members of the Advisory Committee, then Utah would be in line with the majority of states in recognizing how to determine when the common-law reporter’s privilege should be allowed.
    State Senate overwhelmingly passes reporter shield measure
    Friday, March 9, 2007
    OLYMPIA — The state Senate overwhelmingly passed a measure Thursday that would keep journalists who refused to reveal confidential sources out of jail.
    The measure passed on a 41-7 bipartisan vote, with one lawmaker excused. The House unanimously passed a similar measure last month, and leaders will decide which bill will move forward to Gov. Chris Gregoire.
    The bill would grant reporters absolute privilege for protecting confidential sources — the same exemption from testifying in court that is granted to spouses, attorneys, clergy members and police officers.
    Sen. Adam Kline, D-Seattle, the bill’s main sponsor, said it was necessary to give the public “greater opportunity to know what’s going on in this world, because somebody out there who may have some very sensitive information is now going to be more willing to come forward with it.”
    “It’s for our benefit, it’s for the benefit of the voters,” he said.
    Currently, Washington has no shield law, but its courts have ruled in favor of qualified privilege based on the First Amendment and on common law.
    The proposed law would provide a more limited privilege on materials such as unpublished notes and tapes.
    Under its provisions, the media could be forced to disclose that information under certain circumstances, including when a judge finds it is necessary in a criminal or civil case and the material cannot be obtained elsewhere.
    Sen. Mike Carrell, R-Lakewood, unsuccessfully tried to amend the measure to allow courts to compel the disclosure of a source’s identity under certain circumstances.
    This is the second year the measure is before the Legislature. Last year, it overwhelming passed the House only to get stopped in the Senate, where it was never brought up for a floor vote.
    The bill defines a member of the media as anyone who is in the regular business of news gathering for publishing or broadcasting.
    Generally, authors of occasional opinion pieces or Internet bloggers would not be covered.
    Thirty-two states and the District of Columbia have enacted shield laws. A federal shield law was considered in the 109th Congress, but no law was passed last year.
    © 1998-2007 Seattle Post-Intelligencer

  19. Edward L. Carter

    Below I have pasted another story from the Associated Press detailing a state legislature (this time, Missouri) considering passage of a reporter’s privilege bill that would essentially create a simple balancing test. Regarding the proposed Rule 509, Utah would be tying its judges’ hands by adopting such a laundry list of exceptions to the reporter’s privilege.
    Instead, I believe the Court should adopt the alternative draft of Rule 509 that contains a simple balancing test that allows judges to make a determination of what is in the public interest. Instead of giving litigants a list of exceptions with which to hold a judge’s feet to the fire, the Court should simply give judges some guidance for a reasonable balancing test in the alternative draft of Rule 509.
    That way judges can weigh all the interests and make a determination of what will be best, without feeling tied down to consider every exception mentioned in the Advisory Committee’s proposed majority draft of Rule 509. I believe there might be situations in which it would be proper for a judge to apply the balancing test in favor of disclosure, and that would be allowed (when the interests for disclosure are particularly strong, such as in a murder investigation in which the reporter has information not obtainable elsewhere) under the qualified privilege and balancing test in the alternative draft of Rule 509.
    State shield law wins first round in Jefferson City
    Disclosure would require judge’s ruling.
    Published Tuesday, March 13, 2007
    JEFFERSON CITY (AP) – Before reporters can be ordered to disclose their anonymous sources and turn over notes and video that hasn’t been aired, a judge first would have to decide whether it is in the public’s interest under a House bill given first-round approval Monday night.
    The measure would create a reporter’s privilege, protecting unpublished work and the disclosure of confidential sources. The bill leaves it up to a judge to weigh the public’s interest in disclosing the information, any alternatives to compelling journalists to reveal their sources and the reason the information is being requested.
    Rep. Tim Jones, the bill’s sponsor, said he wants to prevent law enforcement officials and prosecutors from using reporters to gather information for them. “We don’t want to encourage others to shortcut and steal from another’s work product,” said Jones, R-Eureka.
    Covered under the bill would be those who earn most of their income from newsgathering or those who work for businesses that earn most of their
    income from journalism. It would cover broadcast, print and electronic media. There are 31 states, plus the District of Columbia, with media shield laws in state courts. Congress has considered adding one to federal courts after several high-profile cases in which reporters faced or served jail time after refusing to reveal sources.
    Rep. Jake Zimmerman, a lawyer, said he defended a St. Louis television station when it was subpoenaed by a county prosecutor’s office for information about a low-profile crime.
    “The subpoena was the first thing that they thought to do,” said Zimmerman, D-Olivette. “Before they sent detectives out to
    investigate, before they questioned witnesses … they sent the subpoena to the news organization and expected them to drop everything they were doing to respond to a prosecutor’s inquiry.”
    The House must vote again on the bill before it would move to the Senate.

  20. Edward L. Carter

    With respect to the proposed Rule 509, I am including an op-ed piece published in the Daily Universe, campus newspaper at Brigham Young University, on March 12, 2007. The link to the published version is available at: (last visited March 14, 2007).
    By Edward L. Carter
    Assistant professor of communications
    Nearly a decade ago while working as a daily newspaper reporter in Utah, I wrote about some serious political and personal disputes among officials in a local city.
    An elected official was accused of shoving or grabbing a city police officer after one particularly heated City Council meeting, and the ensuing prosecution generated a lot of news coverage. A source delivered to me some documents relevant to the situation, and that information helped me report more completely on the case. I believe readers benefited.
    Eventually, though, two other reporters and I were named in subpoenas commanding us to produce documents and testimony in the case. Among the things the subpoena proponent wanted to know was where I had gotten the documents. Thus I can relate to the dozens of journalists, in more high-profile cases both in Utah and nationally, who have been served with subpoenas in recent years and who have not wanted to comply for fear of causing their sources of information to dry up.
    The debate over the so-called reporter’s privilege, a legal excuse not to respond to a demand for information in a criminal or civil case, has raged for several years among lawmakers in Washington, D.C., and Salt Lake City. So far Congress has not chosen to recognize a federal reporter’s privilege, and lawmers in Utah last year rejected a proposed state shield law that would have acknowledged such a privilege.
    Now the Utah Supreme Court has a chance to do something to solve this problem, but the solution has been clouded by a poorly conceived draft of Rule 509 of the Utah Rules of Evidence.
    The proposed Rule 509, which the Court is currently considering and which would take effect November 1, contains several broad and vague exceptions to the reporter’s privilege rule. The result, it seems to me anyway, would be to unnecessarily compel reporters to turn over their notes and identify their confidential sources even when circumstances don’t warrant such an invasion of the newsgathering process.
    Instead, I would urge the Court to adopt an alternative Rule 509 that has been advanced by several members of the Advisory Committee that considered various proposals. The alternative draft would not give Utah journalists an absolute privilege against testifying in legal matters but would provide some reasonable protections from politically motivated fishing expeditions in which reporters are merely pawns in partisan fights.
    I don’t favor the alternative rule just because it would benefit journalists. I sincerely believe all Utahns are best served by a news media that is free to seek and gather information about matters of public interest without fearing the prospect of either betraying a source’s confidence or going to jail for contempt.
    I understand some people might be put off by the suggestion that members of the press get special constitutional privileges the rest of us don’t enjoy. But the Rule 509 issue is not about a constitutional privilege; it’s merely recognition of a longstanding common law privilege already afforded to many professions, including lawyers, doctors, clergy and psychotherapists. Even Utah judges already have applied the privilege to journalists, so the alternative Rule 509 would merely acknowledge the status quo.
    Several years after I was the subject of the subpoena I described, I worked, as a law student, at a Salt Lake City law firm that represented other journalists who were forced to turn over their newsgathering materials. Once in a while, the requests for information were legitimate and came in important cases. Too often, though, litigants involved in personal or political disputes of little concern to the general public attempted to drag journalists into the fray for personal reasons.
    Based on this experience, I have concluded that Utah should join the overwhelming majority of states that have recognized a reasonable, qualified reporter’s privilege. If the Utah Supreme Court adopts the alternative Rule 509 draft, reporters, their sources and all news consumers will benefit.

  21. Linda Petersen

    As president of the Utah Foundation for Open Government, a citizen coalition dedicated to preserving open government and upholding the First Amendment, my board and I have grave concerns about the proposed Rule 509.
    While I applaud the committee for its efforts to provide a qualified privilege to reporters, I fear that this proposed rule will cause confusion and ultimately hurt the very people it is designed to protect, the Utah news media and their confidential sources.
    The outlined exceptions to the absolute privilege seem designed to cover every possible eventuality, both real and imagined, but in effect provide very little protection for anyone, either source or reporter. They also seem to place the burden on the reporter or news gatherer to ascertain with clarity the intent of the source, in that it refers to a source who may “commit or plan to commit a crime or tort.”
    This is impractical and unrealistic. Sources request confidentiality under usually trying circumstances, such as the fear of reprisal, censure or fear for their own safety. It is usually not possible for the reporter to ascertain all the information outlined in the Rule. It also places an undue burden on the reporter to act as an arm of the law, determining possible intent, action or motive, instead of simply news gathering.
    The history of the U.S. is replete with instances where confidential sources provided invaluable information to reporters, from criminal activity by its own government to the perpetuation of fraud by principals of large corporations, who were then able to disseminate it to the citizens of this country. The public good has been served time and time again by the revelation of information that the parties guilty of those very crimes sought to repress.
    By trying to qualify and control, the Rule nullifies the very power given to reporters — that of being able, through assurances of source confidentiality, to access information vital to the public interest.
    The Rule also provides no protection for confidential unpublished news information gathered by the reporter, further tying his/her hands in executing his/her role as a watchdog of the people. Misconduct, whether by a government or individual, is rarely revealed to a reporter in a complete expose but piece by piece until the reporter can use that information to put together the story. The Rule will inhibit this process and lead to, as in the case of the Daily Herald, a policy of destroying such information after immediate use.
    As a citizen coalition we respect and support the media’s role in representing us where we cannot go and in providing information valuable to us through access that we do not have.
    I ask the committee to reject the proposed Rule in favor of the amended rule set forth by the minority committee members.
    Linda Petersen
    Utah Foundation for Open Government
    I believe that the amended rule propsed by the minority addresses these vital issues and enables to true intent of the Rule to be

  22. Donald W. Meyers

    This editorial appeared in the Daily Herald Jan. 31.
    Utah is one of three states in which the public may be kept in the dark on important issues because whistleblowers and others with information are afraid to speak to journalists.
    They’re not afraid of the journalists; they’re afraid of overzealous prosecutors and judges who can force the journalists to reveal their identities. There is no guarantee of anonymity under Utah law, no matter how vital the information might be or how exposed a source might be to retaliation.
    In Utah courtrooms, there is only a loose and inconsistent set of rules that can be used to force journalists to reveal their sources. Journalists in Utah have no formal privilege that allows them to protect the identity of whistleblowers or other confidential sources.
    The Utah Supreme Court may change that, though it is uncertain whether the change will be for the better.
    A committee of attorneys formed to advise the Supreme Court is suggesting one of two choices for giving news reporters a privilege for confidential sources:
    Option A is too extreme and should not be adopted. It would grant an absolute privilege to journalists to protect the names of sources who were promised confidentiality and whose information was published. This sounds good until you read the fine print: The rule goes on to make unpublished information, such as a reporter’s notes, fair game for prosecutorial fishing expeditions. A prosecutor could even claim, spuriously, that a crime had been committed by the transmission of information to a reporter and could discover the source’s name on that basis. Reporters would have to destroy their notes to protect themselves.
    Option B is much more reasonable. It suggests a “qualified” privilege for both published and unpublished material — no absolutes. Under this rule, judges would evaluate each case and decide whether the journalist should be required to disclose the name of a confidential source. The judge would weigh the need to know the name of the source against the importance of the information to the public and the public’s need for a free flow of information.
    Journalists do not need to be protected absolutely. But they do need some protection because of the nature of their jobs. Their job is to keep you informed. Procedures that allow judges to decide each case individually, according to a reasonable set of rules, make the most sense.
    Right now, the lack of uniform policy makes it difficult for journalists to do their jobs. We hope the Supreme Court amends courtroom procedures with regard to confidential sources, and we hope it chooses Option B.
    A few people argue that reporters should not have any privilege at all, that they should be required to testify and provide evidence from their notebooks. But there are many instances in which this would hurt society — mainly because it would stop many sources from talking. And that would deprive the public of important knowledge.
    Confidentiality is an established principle in many places of society. For example, the law grants lawyers, clergy and physicians an absolute privilege from divulging confidential information. The courts believe it is better for society if people can be perfectly candid with such professionals.
    It’s the same with journalists. If people feel that they will not suffer harm as a result of revealing information the public needs to know, they will be more willing to talk. They will be more willing to point out corruption and provide the public with the information it needs to hold government or business accountable.
    The Supreme Court advisory committee was sharply divided over this question, which is why two proposals are being sent up the line. Plan A had a slight majority. It looks strong, but it has many exceptions that utterly gut the very protections it purports to offer. It would turn news reporters into de facto adjuncts to investigators, police and prosecutors. Officials would have unfettered access to unpublished notes.
    Plan B is a better alternative. The committee’s dissenters have presented a proposal that codifies a balancing test that many judges currently use. It is consistent with the U.S. Justice Department’s rules on issuing subpoenas to journalists. Plan B is endorsed by the Utah media and the Attorney General’s Office. It requires that an attorney seeking information from a journalist first show that he has exhausted all reasonable means of obtaining the information, that the information is essential to the case, and that the need for obtaining it outweighs the source’s promised confidentiality.
    The Supreme Court should protect the free flow of information, not impede it. Go with Plan B.
    Donald W. Meyers,
    Editorial Page Editor
    Daily Herald

  23. April B. Squires

    I would like to add my support of Option B of Rule 509 along with that of the Utah Attorney General and the Utah Media Coalition. I am most concerned that reporters’ notes be protected and that whistleblowers are encouraged to act.
    April B. Squires
    303 A St., #503
    Salt Lake City, UT 84103

  24. Kathy Adams

    It is necessary to protect our democracy to shield sources and protect reporters and news organizations. It has become obvious that our true protector of freedom is not our government but our news sources. If reporters cannot shield their sources from prosecution, our country will be no different than any dictatorship. How many more acts of corruption does the populous need to be convinced that we need whistleblowers to expose the lies of our own government?

  25. Suzanne Dean

    As the publisher of a rural weekly newspaper based in Manti, Utah, I urge the Judicial Council to adopt the minority report regarding news reporter privilege.
    The most important reason for a privilege is to create climate in which sources are willing to freely communicate public-interest information to reporters. If sources know that reporter notes, photos, tapes or direct observation of what might be criminal activity are not protected, the sources will be much more circumspect in providing information.
    Believe it or not, this issue came up today, right here in Manti. One of my reporters is doing a story on meth in Sanpete County. She called to suggest we call the series “What’s cooking in your neighborhood.” I asked her what she meant by that, and she told me the drug counselor at the mental health agency told her that Sanpete County not only has meth, but has meth labs. (I didn’t know that–I thought meth was being brought into the county, but didn’t know it was being manufactured here.)
    She asked how I would feel if she went “underground” and visited a meth lab to report on what goes on.
    I believe a first-hand account of an evening in a meth lab might be a wake-up call for our citizens and might be a legitimate item to publish. The existence of meth labs raises not only drug abuse but also environmental issues for the broader community.
    But I had to warn my reporter that if we published such a report, we could be called in for questioning and asked to reveal confidential information. If such a case went to court and we refused to answer questions, we could be subject to contempt.
    Under the rule the advisory committee is proposing, I probably should squelch this story. If I do, the chilling effect of potential contempt will have fettered my first-amendment rights.
    Suzanne Dean
    Sanpete Messenger

  26. Judge Thomas L. Kay

    For nearly 20 years since the Utah Supreme Court decided State v. Rimmasch, 775 P2d 388(1989), Utah trial judges and lawyers have been confused as to the law regarding the admissibility of expert testimony. Now after nearly 20 years of this confusion, we have been given proposed Rule 702, a one-of-a-kind rule that will bring us 20 or more years of appellate decisions before we know what the proposed rule will mean.
    Nearly seven years ago, the Federal Rules were amended to make it clear when expert testimony could be admitted. Federal Rule 702 states “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
    Since this amended rule was adopted, judges and lawyers in federal court all know clearly what the rules are for the admission of expert testimony.
    By contrast, after nearly 20 years the law about experts in Utah state courts is still confusing. Why are we changing one confusing law of experts for a new one-of-a kind-rule that will still not make this subject clear to trial judges and attorneys?
    Why not adopt a rule that is clear, concise, and easy to apply? Why not adopt a rule that will be understood in our life time?
    The only rule that fits that description is Federal Rule of Evidence 702. That is the rule that should be adopted and not the proposed rule.

  27. DANN JONES - concerned citizen

    We do not live in a perfect world. News reporters provide balance and accountability to and for “the people” against unlawful secrecy and crime in our republic’s government, businesses and other organizations. Most often their sources need to be protected. However, balance is also provided through judges who must have the freedom to determine the best interests of the public vrs. “newspaper reporter privilege” on a case by case basis. I urge you to support “option B”

  28. Michael D. Zimmerman

    I am strongly of the view that the Utah Rule of Evidence 702 should be modified to conform to the Federal Rule of Evidence 702.
    The law surrounding the current Utah rule as it relates to novel scientific evidence was developed in the Rimmasch case, before the federal Daubert decision. At that time, Rimmasch made the Utah law more in line with modern scientific views than the then-federal law. However, the Utah courts have never broadened the application of the rigorous Rimmasch approach to non-novel scientific evidence to create a consistent whole. As importantly, since Rimmasch, the federal courts have developed law under rule 702 that now is more in line with logic and far more progressive than Utah’s as it relates to non-novel scientific evidence, which is much of the proffered evidence. Moreover, the federal rule is consistent for all such evidence. In the area of novel scientific evidence, Utah may have a sensible, intellectually defensible approach to novel scientific evidence that appropriate places the trial judge in a gate keeper function. But as respects non-novel evidence, the Utah rule remains outdated and is increasingly anachronistic in a world where the federal approach dominates. Finally, whatever advantage the Utah approach may have in the area of novel evidence is far outweighed by the inconsistency with federal law, which is far more widely followed and now more thoroughly developed. Rules that are readily known and understood have far more utility than rules that are not, and Utah rule 702 falls into the latter category.
    For Utah to adhere to its present rule 702 law is to maintain a schizophrenic approach to evidence law that the federal rule avoids, and to present practitioners with law that is difficult to understand and easy to game. Whatever the federal law’s shortcomings, its consistent approach to all scientific evidence makes Utah’s rule look intellectually indefensible by comparison.

  29. David E. Leta

    Utah’s rules of evidence, as well as its rules of civil procedure, should conform to the applicable federal rules. Doing so promotes consistency, efficiency and uniformity, which, in turn, saves time and cost for litigants, their counsel and the courts. Promulgating different rules, especially those with subtle, well meaning and innocent appearing differences, fosters disputes, which, in turn, increases the cost and amount of time necessary to resolve cases. The proposed change to Utah Rule of Evidence 702 is the type of subtle change from Federal Rule of Evidence 702 that is not in the best interest of Utah citizens or the courts. Precedent that has been developed under the Federal Rule will be of questionable value in interpreting the new proposed Utah Rule because of these subtle variations. Accordingly, I oppose the proposed rule change, and strongly recommend that the Court adopt a rule that mirrors the Federal Rule.

  30. Mark Morris

    I am writing to comment on the proposed amendment to Rule 702. I remain disappointed that there continues to be a desire in some quarters to keep Utah’s rule on expert evidence more ambiguous and complex than the Federal Rule. I favor this amendment over the status quo, but fear that there will continue to be a great deal of uncertainty about how trial judges are supposed to be gate keepers while the comments to the rule tell them that being a rational skeptic means being open to all kinds of opinions on what is reliable. This amendment, with its comments, has great potential to create confusion and foment a good deal of appeals arising from very legitimate confusion. While there may be hope of attaining some certainty after years of litigation and appellate opinions on what is rational and what is not, the clients in those cases will be paying tens and likely hundreds of thousands of dollars to help that process along. I have not understood why litigants and trial judges in Utah would not benefit from adopting Federal Rule 702, and gaining thereby the benefit of all of the jurisprudence that has created clarity and certainty to this important area. Please reconsider this amendment, and propose adopting the federal rule 702 for the sake of acheiving a playing field that is known, understood, and thus less of a burden to those who have to bear the costs of uncertainty in the law.
    Thank you for this opportunity to comment.
    Mark Morris

  31. Dr. Michael S. Sweeney

    I urge adoption of alternative Rule 509. It seems sensible. Clear rules of journalistic privilege will allow robust reporting in the public interest, yet preserve logical, legal exceptions in a carefully described set of circumstances.
    As an academic who prepares the next generation of Utah journalists, and as a former professional who worked for 14 years at major metro dailies, I consider 509 to be good law — not only for journalists, but for the people of Utah.

  32. George Naegle

    I oppose the proposed rule change and urge adoption of Federal Rule 702. The adoption of Federal Rule 702 will give us instant access to a large body of law interpreting this Rule. Adopting the proposed change will saddle us all with years of uncertainty as the Court reviews and refines this proposed change.

  33. John A. Anderson

    Several months ago, I wrote to comment on a proposed change to Utah’s Rule 702 that, as I recall, would have adopted its federal counterpart. I was surprised, and frankly quite disappointed, that the proposed rule change was not implemented. I am writing now to urge, once again, the adoption of the federal rule rather than the proposed amendment to Rule 702. While the proposed amendment may be an improvement over the existing rule, and the rather ambiguous jurisprudence it has spawned over the years, it is, nevertheless, an unnecessarily confusing rule that will undoubtedly result in continued inconsistent application in both the trial and appellate courts of this state. Rather than opting for the federal rule, that has been well received and followed by numerous states, and that has a well developed body of jurisprudence, you have proposed a rule that is ambiguous and will take years of litigation to sort out. The phrase “threshold showing” and subsection (c), in its entirety, are recipes for confusion rather than clarity. The parade of horribles offered by opponents to the earlier proposal to adopt the federal rule are belied by the empirical evidence developed by the federal courts. I am still awaiting some rational explanation for the apparent belief that a more lenient standard is better than the fair but rigorous rule adopted by the federal courts. The Advisory Committee Note certainly does not provide that explanation, nor does it resolve the ambiguities inherent in the proposed language of the rule.

  34. Bruce Burt

    My recommendation is to precisely mirror the Federal Rule, Rule 702. It has been my experience that untested and unproven testimony is too frequently admitted in state court proceedings. It has also been my experience that trial judges and lawyers are generally uneducated about when and how to apply Rimmasch and its progeny. Adoption of the Federal Rule will allow the trial courts to draw upon other jurisdictions that have already addressed the same or similar issue. It will give the lawyers and judges clarity. It will allow for a more meaningful debate on the admissibility of suspect expert testimony. Any attempts to modify the Federal Rule will only create more confusion. It is my recommendation to adopt entirely Rule 702 as stated in the FRE.

  35. Allison Barlow Hess

    These comments will also appear as a opinion piece in the Standard-Examiner, Ogden, Utah Monday, April 2, 2007
    The recently released book, “Mayflower” which recounts the Pilgrims’ arrival in Plymouth might have had a different name if the Puritans hadn’t been duped by an unscrupulous ship captain who sold them a vessel ironically named “Speedwell.” The ship’s master, Reynolds, purposely rigged the ship’s masts, so the “excess strain opened up the seams between the planks, causing the hull to leak.” By “overmasting” the Speedwell, Reynolds had provided himself with an easy way to deceive this fanatical group of landlubbers.”
    The Puritans couldn’t bail fast enough. They abandoned the ship, lost their money and eventually bought the Mayflower. The duplicitous captain slowed their voyage by more than a month at the eventual cost of many lives. Once the ship’s masts were refitted the vessel “made many voyages to the great profit of her owners.”
    The Utah Supreme Court now has before its consideration Rule 509 a News Reporter’s Privilege, comparable in many ways to the “Speedwell.” From outward appearance, the rule seems sound, but, unfortunately, six exemptions create holes that effectively sink the entire thing.
    Utah is just one of three states in the nation currently operating without any protection whatsoever for reporters’ sources or information. For the past year and a half the Supreme Court Advisory Committee on the Rules of Evidence has looked at how the judicial branch should handle reporters’ information.
    Following their work, the committee ostensibly created an absolute privilege for reporters, which would protect journalists from revealing sources or information to anyone at anytime, including the courts. However the committee then “overmasted” the privilege and opened up the seams between the planks with sweeping exemptions, notably a lack of protection for unpublished, non-confidential material and sources, and no protection for information that a prosecutor claims may be “classified” or “protected” by the government.
    Abraham Lincoln said, “Let the country know the facts, and the nation will be safe.” And many important facts have been learned using documents the government would have preferred remained classified.
    “We know about prisons that have been maintained in the name of our government around the world, and found out about it thanks to journalists at the Washington Post and the New York Times,” said the national president of the Society of Professional Journalists, Christine Tatum, who visited Utah recently. “When we understand a little bit more about the handling of certain records, wiretapping, banking analysis, firing of prosecutors, when we stop to think about all the things that are happening, we know there are facts that need to be known and people are risking a lot to be able to share them and publicize them for the health of our democracy.”
    Rule 509 doesn’t just deal with publicized material, however, under the exemptions unpublished material is fair game for prosecutors, including video outtakes, transcripts of conversations, reporters’ phone logs and e-mails.
    “It’s such an imprecise request to say, ‘I want all of your notes about XYZ’ because there’s so much information in my notes,” Tatum said. “I can think of many times when it was not germane to my story that a source was struggling with alcoholism or depression. That doesn’t mean the information isn’t sitting in my notebook. Once my notes go into the public record, there’s nothing I can do to save a person from public embarrassment. If people don’t perceive a journalist as a secret keeper as a holder of confidence, the freeze on our conversations would be immediate.”
    Most journalists in Utah support a proposal set forth by a minority on the judiciary committee. This proposal supports a balancing test outlined in 1972 by the Supreme Court and allows a judge to determine what a reporter must reveal. Using the test, the judge considers whether the material could be obtained elsewhere, whether it the information is central to the case and whether it would be admissible in a court of law.
    “If a prosecutor can’t meet the balancing test, the material is protected, reporters don’t have to turn it over,” said Jeff Hunt, who represents Utah media on this issue. “You don’t want to give anybody with subpoena power the ability to just troll through your files whenever they think it would be an easy way to get information to help them in their case.”
    The Puritans didn’t let a leaky hull stop them in their quest to sail to a new land ripe with the promise of prosperity and civil liberties; reporters too, will continue their quest to provide the information necessary for a free and unfettered exchange of ideas, but for both groups it’s a much easier voyage without a leaky hull.

  36. Terence Rooney

    I would strongly recommend adopting Federal Rule 702 verbatim, particularly since we have modeled the Federal Rules in many other respects and because FRE 702 will result in a clearer standard for Judges and lawyers to understand and implement. Since that does not appear to be likely, however, I would vote in favor of the proposed amendment but only with the provision that the Advisory Committee note be removed.

  37. Edward L. Carter

    The Salt Lake Tribune published my op-ed piece on March 27 urging the Court to adopt the alternative draft of Rule 509:
    The piece acknowledges the maxim that “[t]he public has a claim to every man’s evidence” and yet the Rules of Evidence already include privileges for spouses, physicians, mental health therapists, government informers and individuals who order environmental self-audits. The reporter’s privilege is in line with those privileges and would result in clarity for journalists, their sources and parties interested in seeking information from journalists.
    The piece argues that the alternative draft of Rule 509 better accomplishes the important public policies behind the reporter’s privilege, which is in place in the overwhelming majority of states in either statutory, evidentiary or precedential form.

  38. Lloyd R. Jones

    I would urge the adoption of the Federal Rule of Evidence 702 which would clarify the interpretation and implementation of expert testimony. Because of the developed case law regarding Federal Rule 702, I think that it’s application as a state rule would not be troublesome and would in fact, streamline expert witness/testimony and the gatekeeping responsibilities of the trial judges.

  39. Robert Wilde

    Rule 702
    The recommendation that Utah adopt it’s own Rule 702 is well taken. The annotation on Federal Rule 702 comprises more than 300 pages. In other words, you can find a case to support any position you wish on Federal Rule 702. Some have found the Rimmasch analysis unworkable. The current proposal gives a clean sweep. It focuses on proper foundation for expert witnesses without inviting the many hearings Federal Rule 702 invariably brings.
    The court should adopt the proposed Rule 702.

  40. Gary Ferguson

    Rule 702. I agree with the proposed Rule 702 URE. Federal 702 results in challenges to experts by the defense in almost every case with the hope that the defense can wear down plaintiffs. In addition, the rational relationship test is more practical for state judges than attempting to make the judges experts in that area of science.

  41. Robert Wilde

    Rule 509
    The advisory committee, and particularly the Rule 509 subcommittee, spend innumerable hours over many months considering all the options on a reporter’s privilege rule. All stake holders were invited to attend and state their case. The committee’s proposal is the best choice. Utah could do nothing and leave all concerned without definitive guidance. That is not a good choice. We could also adopt the “minority report” rule but that is not a good choice either.
    While the press does enjoy a unique position under the First Amendment that position should be supported by an appropriate rule only to the extent First Amendment rights are involved. The minority rule would give the press rights based on business interests rather than free speech interests. The committee recommendation protects the press to the extent necessary to allow the news to be reported without infringing on the rights of the rest of the people.
    The court should adopt the committee’s recommended Rule 509.

  42. Brian King

    I write in favor of the proposed changes to Rule 702 regarding expert testimony. The proposed rule provides greater guidance and flexibility than FRE 702 to a court faced with the question of whether expert testimony is admissible. The proposed language is a refinement and improvement to FRE 702. Nothing about the proposed rule leads me to believe it will open the door wider to “junk science.” Rather, the proposed language strikes me as doing more to ensure that the trial court is given the proper tools to reach the correct result regarding admissibility of expert testimony given the facts and circumstances of the particular case before the trial court. That is a good rather than a bad thing. And nothing about that prospect causes me to believe that more questionable evidence is likely to be presented to the court under the proposed rule. It seems to me that just the opposite is more likely. In short, the proposed language moves beyond FRE 702 in a positive way.

  43. Paul M. Simmons

    I generally support proposed rule 702. I prefer its approach to that of federal rule 702. I think it provides a more flexible and fact-sensitive approach than the federal rule and better implements the spirit of the Rimmasch and Daubert lines of cases, which were meant to emphasize the court’s gate-keeper role, not to make the court a roadblock to the admission of scientific evidence that may not have reached the level of general acceptance. In close cases, I trust juries to be able to distinguish between valid and bogus expert testimony.
    I also think that Utah should not blindly follow the federal rules lockstep.
    However, I agree with some of the comments that have been posted about subsection (c). I think the intent is to allow a party to meet its burden under subsection (b) by showing that the principles, methods, and data have been generally accepted in the relevant community. But I’m not sure the proposed rule as written does that. Specifically, I’m not sure how “general acceptance” relates to subsections (b)(ii) and (iii). I think it would be the rare case where the relevant scientific or other expert community has reviewed and accepted not only the reliability of an expert’s principles and methods but also the sufficiency of the facts and data he or she relied on in a particular case and his or her application of the principles or methods to those facts or data. What role should general acceptance play where one or two of the three subparagraph (b) criteria have been generally accepted, but not all of them? I think I would prefer to see subsection (c) revised to say that the court may take into account general acceptance in the relevant expert community in determining whether the threshold showing under subparagraph (b) has been met, rather than making it seem an all-or-nothing proposition, as the current subsection (c) seems to do.

  44. Francis J. Carney

    I write in support of the proposed change to Evidence Rule 702.
    This represents a sensible balance between the present Utah rule and the federal Rule 702. Twice in the recent past the Supreme Court has rejected attempts to “federalize” the Utah law of evidence, yet proponents continue to push for it.
    As to “empirical evidence” of the cost to the system of enacting a Daubert standard, one only need to have a basic familiarity with federal practice in this district (or any other) to understand that adoption of a Daubert standard means a never-ending parade of pretrial hearings.
    Indeed, I cannot recall a federal civil case involving expert testimony that did not involve pretrial Daubert challenges; perhaps my experience is more limited than others who comment here.
    It is true that there is a huge body of law interpreting what Daubert does or does not mean. Indeed, there are thousands of reported federal cases involving Daubert disputes. That there are thousands of cases attempting to read the Daubert runes ought to give pause to willing to credit the contention that Daubert is simple and clear. In fact, it is neither.
    The circuits themselves cannot agree in several important respects on what Daubert means or does not mean. There is no “one” Daubert standard; are we to adopt what the Tenth Circuit says Daubert means, or the First Circuit, or maybe some other circuit?
    Instead of a dozen or two fairly-clear Utah cases, adopting a Daubert standard means we will have the blessing of many hundreds of federal cases to dispute over.
    It is misleading to claim that our sister states are jumping on the Daubert bandwagon. My recollection is that just the opposite is true. At my last review of this issue (two years ago), many states had expressly rejected adoption of Daubert as confusing, time-consuming, wasteful, and unnecessary, among other good reasons.
    For these reasons I support the adoption of the revised Rule 702 as proposed.
    Francis J. Carney

  45. David S. Pace

    I am in favor of adopting the proposed URE 702. I actually respect the Utah case law that has developed in this area, and I feel that Utah’s rule provides a more sensible manner of finding the truth and promoting juducial economy than FRE 702.

  46. Carlos Clark

    Re: Rule 702: Utah does not have to always be in lock-step with the federal rules of evidence (or other rules of procedure). I support adopting this draft of Rule 702, as it will allow reliable, relevant evidence into trial, with more guidance than previously existed, without turning the Utah courts into the Duabert mess that exists in the federal courts.

  47. Harold L. Petersen

    As the comments supporting adoption of federal Rule 702 seem adequately discussed by retired Justice Zimmerman and Judge Kay, may I just note my complete agreement with their comments.

  48. kevin sutterfield

    Please do not incorporate the Daubert Federal Rule into Utah law. The Federal Rule is cumbersome, expensive, and does not have the flexibility that smaller cases demand in our state court system. Adopting the federal rule will increase the costs of litigation, require injured parties who have little access to the courts to spend thousands of dollars for reports for their treating physicians, and further limit affordable access to the court system. The present state rule on experts works fine, and is much more flexible for litigants, attorneys, and trial judges. We shouldn’t turn every routine case into a full blown Daubert hearing. Kevin Sutterfield. Admission date 1982

  49. Laura Hancock

    As a news reporter, I support the creation of a privilege for news reporters in Utah courts, largely because of an experience five years ago when my notes were subpoenaed by the Wasatch County Attorney.
    The country attorney apparently thought my notes would help him in his case against Mazhar Tabesh, a Heber City motel owner ultimately convicted of setting fire to part of the motel.
    However, in interviews with me, Tabesh insisted he did not start the fire; and rather was the victim of a hate crime for his Pakistani and Muslim background. I had reported as much, which is what I suppose piqued the interest of the county attorney.
    After receiving the subpoena, my editor told me not to throw away any hand-written notes or delete any typed notes on my computer. But I had thrown away most of my notes (I typically throw out notes a day or two after a story is published), except for a piece of paper on which I had scribbled some important phone numbers and a couple quotes that I did not want to lose.
    I believe the subpoena served as a muzzle. I did not want to interview Mr. Tabesh after the prosecutor subpoenaed me (and I never did talk to him again) for fear that the prosecutor would try to seize future interview notes, or that I would be found in contempt of court.
    A reporter’s privilege will give us some measure of assurance, as we go about our jobs, that our work will be protected.
    Thank you for considering it.

  50. Paul Boyden

    Response to Proposed Rule of Evidence 509-News reporters.
    The Statewide Association of Prosecutors recommends:
    I. A bright-line test is not necessary in dealing with reporter privilege;
    II. The standards in proposed Rule 509 may result in serious unintended consequences.
    III. Clarification is needed as to whether the Court intends to preempt the issue of non-confidential news information or whether that matter is to be dealt with by legislation.
    Attached to this comment are Drafts C and D. Both drafts contain suggested language for an appropriate balancing test. Draft C is suggested for use if the Court decides to deal only with confidential communications while Draft D applies the balancing test to both confidential and non-confidential news information.
    I. A bright-line test is not necessary in the application of the news reporter privilege. Cases involving the news reporter privilege are rare. Judicial economy is hardly an issue in the application of this privilege. The vast majority of all prosecutors will go their entire careers without being even peripherally involved with an issue of reporter privilege. In many areas of the law prosecutors have asked the courts to establish bright-line tests – particularly in areas of search and seizure which involve hundreds of Utah cases annually. Rarely, if ever, have prosecutors and police been accommodated. The courts have declined the invitation to establish more mechanical rules in favor of the balancing of privacy issues on a case by case basis. We acknowledge (although begrudgingly at times) that such an approach is more likely to produce a just result in an individual case despite the administrative complications. The establishment of mechanical rules certainly has no administrative justification in the handful of cases subject to the reporter privilege rule.
    Further complicating the matter is the fact that cases in which the reporter privilege may become an issue are by nature factually extraordinary. A prosecutor must be highly motivated to issue a subpoena for news information given the complications that are sure to follow. That level of motivation will either represent government at its best or government at its worst. Mechanical rules should not be substituted for judicial insight in making the distinction.
    The most compelling argument in favor of a bright-line test is the establishment of confidence in the mind of the source that communication with the reporter will remain confidential. The committee note refers to that laudable purpose on line 63 with a quotation from the Silkwood case:
    “…the basic purpose of the privilege is to assure a continued free flow of information to those who gather and publish the news.” While we agree with that purpose, we must point out that the privilege is for the interests of all of the people to subject social issues to public scrutiny. In the most extreme circumstances, the privilege is to protect against the powerful in the public or private sectors who would not otherwise be brought to accountability. The privilege is not for the specific benefit of any group. While prosecutors, defense attorneys, civil litigants, the media or even confidential sources may assert various interests, they merely represent different perspectives on the greatest public good. That public good is not necessarily served by making the life of the source simple. In some cases too porous an information system may be counter to the public interest.
    The committee note beginning at line 72 states “This rule is intended to clarify the common law for Utah so that, on the one hand, news reporters can operate with more certainty over whether they will or will not be required to disclose confidential information….” The exceptions to the privilege are already complicated enough that they are anything but certain. For example a source might reveal details of a sexual crime against a 14 year old victim and the privilege would apply whereas it would not apply if the victim were 13 years old and fit into the mandatory reporting exception. The issue as to whether the statement is confidential is further complicated by the standard of a “reasonable expectation of confidentiality” which is not much clearer than the “reasonable expectation of privacy” standard which we litigate endlessly. We do not mind litigating these issues, we simply point out that since we will be doing so anyway we might as well be litigating the real interests at issue.
    II. Unintended consequences of the proposed rule. The proposed rule appropriately attempts to create a privilege which is not absolute. In form however, it seems to have the disadvantages of an absolute rule with absolute exceptions. The great danger in drawing bright lines is that they may easily be drawn in the wrong place.
    A whistle blower may often be the sole source which needs to go to the public in order to prevent abuses by the powerful. On some occasions however, the very act of revealing the information to a reporter may be a violation of the Government Records Access Management Act (GRAMA), the Heath Insurance Portability and Accountability Act (HIPAA), or any of a host of state and federal regulations regarding information. Unless the source and the reporter are thoroughly conversant with information disclosure laws, so much for the clarity concept. If the source is committing only an inconsequential violation of one of those regulations and yet is exposing flagrant misconduct by powerful people, clearly the interest of the public is to see that such a source remain confidential. Under the proposed rule however, the communication between the source and the reporter is the “furtherance of a crime” which means there is no privilege. Similarly if the party looking for the information is claiming to have been the victim of a tort including the exposure of a trade secret the source may be exposed.
    In the event that the source is committing flagrant violations of the law or terribly injurious torts to expose inconsequential “public issues” the mechanical rule produces an unjust result on the other end of the spectrum. In either of these events, after the court has struggled with the application of the rule and exceptions in a case where the result is distasteful, the court would have been better off to have been dealing with only a balancing test in the first place.
    Another scenario which is a concern for prosecutors is the case in which a defendant in a reprehensible crime contacts a reporter in order to confidentially brag about criminal exploits. This concern does not come from idle speculation but from many years of dealing with criminal personalities. Because the proposed rule does not contain an exception for crimes committed in the past, a source might describe the rape and murder of an adult victim in gruesome detail which may be printed by an irresponsible “news organization” – likely on the internet – with full privilege under the proposed rule. Clearly the immediate response thereafter would be a legislative change either to the rule or to expand the mandatory reporting requirements.
    One of the worst scenarios which could very easily occur would be during the trial of an individual for a serious crime such as a homicide when a confidential source tells a reporter that he – rather than the defendant – committed the crime. The defendant would not be able to pierce the privilege under the proposed rule and would be unable to find the source and obtain potentially exculpatory information! Likewise the prosecutor would be unable to investigate the information or the source and prove that all of those details of the crime which only the killer would know actually came from the defendant through a cooperating party to manipulate the trial.
    It is not possible to foresee all eventualities in the application of the reporter privilege. Fortunately it is not necessary. A balancing test as contained in drafts C or D would easily allow the courts to deal justly.
    III. Confidential and non-confidential news information – clarification needed. Although it is much less of an issue for prosecutors than it is for the media, we are unable to determine whether the proposed rule intends to exclude non-confidential news information from any privilege entirely or whether the rule is intended to deal with confidential information and sources leaving the issue of non-confidential information to the legislature. Conversations with those involved with the committee process have produced both opinions. Lines 99 through 103 of the Advisory Committee notes may or may not be an invitation for the legislature to deal separately with non-confidential information.
    “Similarly, while proprietary interests of media organizations, such as protection of their intellectual property and avoiding discover requests, have been protected in some jurisdiction through shield laws and similar legislation, the committee does not view the First Amendment basis for an evidentiary privilege to be sufficiently strong to support protection of such interests in a rule of evidence.”
    We express the general concern that a shield law which creates a de facto privilege is in essence a legislative rule of evidence. It is our opinion that a balancing test would work as well for non-confidential information as it does for confidential information. Regardless of the Court’s intention as to how it plans to deal with these issues some clarification would be helpful in avoiding an unintentional conflict with the legislature.
    Draft C assumes that the court intends only to include confidential sources and news information in the rule.
    Draft D includes non-confidential information in the rule. It is functionally the equivalent of the “Alternative Draft” proposed by the media.
    Both drafts contain a variation of the balancing test proposed by the media. We do not believe that an evidentiary standard “preponderance of the evidence” is properly applied to balancing of policy interests. Standards of proof are more appropriately reserved for findings that certain facts exist. We realize that these concepts have been confused in the past, but we think it is an awkward misfit which need not be repeated here. Other changes in the drafts are primarily stylistic.
    Rule 509 – News Reporters Privilege
    (Alternative Draft C)
    (a) Definitions. As used in this rule:
    1. “News reporter” means a publisher, editor, reporter, author or other similar person gathering information for the primary purpose of disseminating news to the public, and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.
    2. “Confidential News Information” means the identity of a source and any information gathered by a news reporter from the source, if the information is provided on condition of confidentiality. This includes notes, outtakes, photographs, tapes or other data that is maintained by the news reporter or by the organization on whose behalf the reporter was acting to the extent such records include information that was provided on condition of confidentiality.
    (b) Privilege. A news reporter has a privilege to refuse to disclose and to prevent any other person from disclosing confidential news information, unless a court determines, after providing notice and an opportunity to be heard by the news reporter, that:
    1. the entity or person seeking the information has made reasonable efforts to obtain the information from sources other than a news reporter and has been unsuccessful;
    2. the information sought is relevant to an issue of substantial importance to the matter before the court; and
    3. the type of case or controversy, that the interests in compelling disclosure of the confidential news information outweigh the interests in protecting the free flow of information to the public.
    (c) Who May Claim the Privilege. The privilege may be claimed by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator, or the personal representative of a deceased news reporter or confidential source.
    Rule 509 – News Reporters Privilege
    (Alternative Draft D)
    (a) Definitions. As used in this rule:
    1. “News reporter” means a publisher, editor, reporter, author or other similar person gathering information for the primary purpose of disseminating news to the public, and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.
    2. “Confidential News Information” means the identity of a source and any information gathered by a news reporter from the source, if the information is provided on condition of confidentiality. This includes notes, outtakes, photographs, tapes or other data that is maintained by the news reporter or by the organization on whose behalf the reporter was acting to the extent such records include information that was provided on condition of confidentiality.
    3. “Unpublished News Information” means information other than confidential news information that is gathered by a news reporter but not disseminated to the public, including notes, drafts, outtakes, photographs, video or sound tapes, film or other data that is maintained by the news reporter or by the organization on whose behalf the reporter was acting.
    (b) Privilege. A news reporter has a privilege to refuse to disclose and to prevent any other person from disclosing confidential news information or unpublished news information unless a court determines, after providing notice and an opportunity to be heard by the news reporter, that:
    i. The entity or person seeking the information has made reasonable efforts to obtain the information from sources other than a news reporter and has been unsuccessful;
    ii. The information sought is relevant to an issue of substantial importance to the matter before the court; and
    iii. The interests in compelling disclosure of the confidential news information or the unpublished news information outweigh the interests in protecting the free flow of information to the public.
    (d) Who May Claim the Privilege. The privilege may be claimed by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator, or the personal representative of a deceased news reporter or confidential source.

  51. Scott D. Brown

    I urge retention of the current Utah Rule 402, and the body of common law developed in accordance therewith, although I believe the proposed modification submitted for comment to be superior to Federal Rule 402.
    Not surprisingly, our respected Defense Bar has weighed-in heavily, for the third time in seven years, campaigning to mandate application of the Federal Daubert motion/briefing/hearing process
    to every expert witness, no matter how mainstream or qualified, in every case; including every treating doctor in every garden-variety personal injury case. What a field day for defense motion practice. It is hard to imagine a more subtle, divisive, fee-generating, expert-alienating way of prolonging the course of litigation, over-burdening our state’s judicial resources, diminishing the people’s access to the judicial remedies, and diluting the juror’s role in weighing the evidence.
    The current rule’s “novel scientific principles or techniques” distinction has proven to be a relatively simple and adequate evidentiary qualifier, as the Utah Supreme Court effectively demonstrated in Patey v. Lainhart, 977 P2d 1193 (Ut 1999). If we now abandon that distinction, we will be stuck using the same unwieldy sledge-hammer(Daubert) to drive spikes and thumbtacks.
    The last thing needed in the administration of justice in our state courtrooms is a new layer of complexity surrounding the preparation and presentation of routine expert testimony.
    Until those urging a change can demonstrate that the current Rule 402 is broken, please continue resisting the one-sided campaign to fix it.
    Thank you for your service,
    Scott D. Brown

  52. John P. Lowrance

    I agree with all the comments favoring adoption of the proposed URE 702. There is no need to conform to the Federal Rule of Evidence that has already proven to cause problems. Let’s make some minor changes to a Utah Rule of Evidence that is already working to make it work better, instead of putting into place a Federal Rule of Evidence that has caused substantial confusion and frusturation.
    John P. Lowrance
    Larson, Turner, Dalby & Ethington

  53. Peter Summerill

    Re: Rule 702 – As drafted, proposed Rule 702 represents a significant step toward the development of state evidentiary law, as opposed to blind adoption of federal interpretations. Because appellate courts review a trial court’s 702 rulings on an abuse of discretion standard, reliance on the federal rule and federal authorities interpreting that rule stunts any real growth of Utah’s evidentiary jurisprudence. Specifically, a trial court presented with Rule 702 challenge may pick and choose among innumerable and often conflicting federal decisions applying Fed. R. Evid. 702. Under an abuse of discretion standard, little opportunity exists for the either the Utah Court of Appeals or Utah Supreme Court to guide application of the rule.
    Proposed Utah R. Evid. 702 also represents a reasoned and well-balanced approach toward the weight vs. admissibility issues involved in 702. The proposed rule relieves trial courts of the potential burdens which inevitably arise under a barrage of Daubert pretrial hearings, hearings which often turn into mini-trials themselves, needlessly increasing the costs of litigation. If the comments to 702 mean anything when applying Utah’s new Rule 702, then there should be no excuse from either side of the bar for complaint.
    Finally, the comments and the Rule itself go a long way toward clearing up any alleged lack of clarity between Rimmasch and Clayton, properly placing the decision in the hands of the fact-finder for determining whether the expert’s testimony, though admissible, carries sufficient weight to satisfy or assist in reaching the relevant burden of proof.
    Accordingly, proposed Utah R. Evid. 702 should be adopted.
    Peter W. Summerill
    Hasenyager & Summerill

  54. Rick S Lundell

    I fully support the adoption of Rule 702 as written, and strongly urge the Judiciary Council and the Supreme Court to reject the temptation to adopt the Federal “Daubert” Standard. The Rimmasch standard has served this State well and should continue doing so. The Jury system works. The collective knowledge of 8 citizens is more than sufficient to weigh credibility and reject expert testimony that does not wash. This has been and should continue to be the standard in Utah. Collectively, we are a bright and perceptive State that has, historically, been open to novel, emerging, scientific theory. Our Rules of Evidence should reflect the same. It would be unwise to disembowel the common law that has served this state so well and evolved upon this State’s ideas, principles and practitioners.

  55. Peter Summerill

    Re: Rule 702 – As drafted, proposed Rule 702 represents a significant step toward the development of state evidentiary law, as opposed to blind adoption of federal interpretations. Because appellate courts review a trial court’s 702 rulings on an abuse of discretion standard, reliance on the federal rule and federal authorities interpreting that rule stunts any real growth of Utah’s evidentiary jurisprudence. Specifically, a trial court presented with Rule 702 challenge may pick and choose among innumerable and often conflicting federal decisions applying Fed. R. Evid. 702. Under an abuse of discretion standard, little opportunity exists for the either the Utah Court of Appeals or Utah Supreme Court to guide application of the rule.
    Proposed Utah R. Evid. 702 also represents a reasoned and well-balanced approach toward the weight vs. admissibility issues involved in 702. The proposed rule relieves trial courts of the potential burdens which inevitably arise under a barrage of Daubert pretrial hearings, hearings which often turn into mini-trials themselves, needlessly increasing the costs of litigation. If the comments to 702 mean anything when applying Utah’s new Rule 702, then there should be no excuse from either side of the bar for complaint.
    Finally, the comments and the Rule itself go a long way toward clearing up any alleged lack of clarity between Rimmasch and Clayton, properly placing the decision in the hands of the fact-finder for determining whether the expert’s testimony, though reliable, carries sufficient weight to satisfy or assist in reaching the relevant burden of proof.
    Accordingly, proposed Utah R. Evid. 702 should be adopted.
    Peter W. Summerill
    Hasenyager & Summerill

  56. Trent J. Waddoups

    I’m leaning toward the proposed Rule 702. All the comments agree that predictability is
    the primary goal. I’m persuaded that the state version will accomplish that goal better
    than the federal version.
    The wholesale adoption of federal rules and principles hardly has a stellar record. For
    example, Fed. R. Civ. P. 17 is important in federal courts because of the limited
    jurisdiction afforded under Article III of the US Constitution, comity and federalism. But
    Utah’s Rule 17 is pretty close to worthless because it parrots the federal rule. Of course,
    evidentiary rules are less susceptible to this problem.
    But the problem of blindly following federal rules and decisions permeates our state
    caselaw unnecessarily. Consider standing, moot, ripeness, etc. Until the recent Save Our
    Canyons opinion, there had been no cogent recognition that state courts do not adhere to
    any of those doctrines (except to the degree those names are pasted to different doctrines
    with minor similarities to the federal versions, e.g. Utah R. App. P. 37) for about 20 years.
    The recent declaration by the court that it is not bound by the preservation rule is another
    great stride forward for state law.
    The state should continue to jealously protect its unique Article VIII role. The iffy
    consequences of Rimmasch and the hit-and-miss application thereof (we all agree on
    that point) could be avoided after adoption of this new rule by, for example, altering the
    standard of appellate review. If the courts change from an abuse of discretion standard to
    a correctness or clearly erroneous standard, the rule of reason could supplant notions of
    “finality” and give birth to predictability better than adoption of the federal rule.
    The worst case scenario would be a future ruling under Fed. R. Evid. 702 comparable to
    the disastrous Celotex misinterpretation of Rule 56. We should not be stuck with
    unworkable rules. That is not to say the Kumho/Daubert line of reasoning is bad or
    unworkable in its current state; rather, change might be more difficult if state courts were
    to rely too much on federal dicta and too little on the state court role and its plenary
    jurisdiction. Consider the US Supreme Court’s Campbell decision that turned on its
    incorrect assumptions regarding the admissibility of evidence of insurance claims
    practices in our state court — under the rubric of substantive due process…
    Not that recent state jurisprudence is wholly defensible. The worst examples of
    inadmissible evidence routinely admitted are “biomechanical engineers” who purport to
    look at pictures to determine past injuries. Balderas v. Starks. And the doctors who
    claim to rely on studies regarding the median rehabilitation time and baldly state that any
    treatment falling to the right of the median on the bell curve is outside of the scope of a
    statutory term for which the doctor purports to provide a definition. Prince v. Bear River.
    Whichever rule rids the system of these expensive, misleading and worse-than-useless
    “experts” I will support. The problem is that both of the cases cited above could have
    been correctly decided by properly applying Rules 402 and 403. E.g., State v. Rammel.
    Which raises the question of whether Rule 702 (by itself) is really the source of the
    problems identified by those who support the federal rule. I don’t think it is, and I think a
    few interlocutory appeals applying a different standard of appellate review together with a
    strict focus on relevance could provide more predictability than relying on the federal

  57. Thomas W. Seiler

    The proposed amendment to Rule 702 of the Rules of Evidence, with the proposed commentary, is unnecessary and will add a mountain of uncertainty to how and under what conditions opinion testimony will be admissible in evidence. A word search of “rational skepticism” does not lead to any definitions. Therefore, until defined by Utah’s appelate courts, lawyers and judges in Utah courtrooms will be feeling their way along without any light to guide them. This will lead to many appeals and, worse, to trial court decisions that are contrary to what the appellate courts ultimately decide the law to be, in cases where the economic value prevents appeal.
    The average citizen-litigant will pay a steep price for the proposed amendment, either in the cost of the appeal and re-trial of their cases or in being forced by economics to submit to a decision, contrary to the law as ultimately determined by appellate case law, for which there is no economic ability to appeal. The cost to the judiciary in loss of public confidence will be steep indeed.
    Rule 702 has a rich, well reasoned line of cases in Utah, starting with Rimmash, which allows litigators and judges alike to have reasonalbe predictability in this area of the Rules of Evidence, all of which will be loss by the proposed amendment.
    Thank you, Thomas W. Seiler

  58. David Bert Havas

    Proposed Utah Rule 702 seems to be more reasonable than adoption of the federal rule. When federal rule 702 was adopted it was with the intent that introduction of expert testimony would be simple, instead, it has become more difficult to have an expert qualified. The proposed Utah rule seems to restore logic to the intent of the rule. I urge the adoption of proposed URE 702 rather than the FRE 702.
    David Bert Havas

  59. Robert B. Sykes

    Re: Rule 702 – Proposed Changes – Opposed
    * Waste of Attorney Time
    * Draining Judicial Resources
    Dear Mr. Shea:
    I would like to weigh in on the matter of proposed changes to Rule 702, which would sup- posedly result in the adoption of the federal Daubert Rule in the state courts of Utah. I am opposed to these changes because I believe that it will result in a waste of time for counsel and a squandering of the limited resources of state court judges (who have very limited access to law clerks). The reasons for my opposition can be summed up in recounting the facts from a hearing in April, 2005, but which is typical of other cases in principle. My client had been a donor at a Red Cross Blood Center a few years ago. After giving blood, she told the phlebotomist that she felt dizzy and sick, after which the phlebotomist allegedly told her to get up and walk over and partake of some juice and cookies and she would feel better. She got up and started to walk over, at which time she fell and struck her head, re- sulting in a mild traumatic closed head brain injury (MTBI).
    The client secured medical help long before she retained our office. She consulted with one family practice doctor who also happened to be a professor at the University of Utah in sports medicine, and who had lengthy experience in treating closed head brain injuries because of her sports medicine background. The client visit- ed this doctor about 20 times over an 18-month period. The doctor diagnosed her as having sus- tained an MTBI, and this diagnosis remained throughout the treatment.
    By federal statute, all cases against the Red Cross are heard in federal court. As trial approached, the defense made a motion to strike the family practice doctor as a treating expert witness on Daubert grounds, i.e., that her opinion was allegedly not based upon research and other such matters commonly raised in a Daubert hearing. Were such a witness excluded, the case would be virtually be unprovable for the plaintiff.
    The case had been marginally worked up by one of my associates, but I was to argue the motion. It had been a long time since I had dealt with this kind of a Daubert challenge, since most of our personal injury cases are in state court. This kind of a motion would not have had, pardon the expression, “a snowball’s chance in hell” in state court, because the only question would have been, really, is the treating doctor’s testimony relevant and helpful to the jury? Instead, we had a serious challenge to a long-established treating doctor who had excel- lent credentials.
    The night before the hearing, I spent many hours, and was up virtually all night, work- ing on this issue to get prepared to argue it in front of Judge Ted Stewart. Of course, Stewart has two law clerks. His preparation and knowledge of the cases was obviously significant. The hear- ing took almost two hours, as this was a very serious attempt to exclude an important witness. In the end, the judge ruled from the Bench and denied the motion, and the matter was set for trial.
    I do not know how much time the defense put in on this matter, but counsel wrote a very lengthy brief citing a couple of dozen cases and discussing several of them extensively. We did likewise, and attached many exhibits. I estimate that my total time in preparing to argue this motion, not to mention that of my associate, was easily 20 hours. Had the matter been in state court, I doubt that the defense counsel would have ever brought the motion. I suspect that Judge Stewart spent somewhere between four and six hours in reading the lengthy memoranda. His clerk probably spent at least triple that time doing her preparation.
    In the last analysis, I pointed out to Judge Stewart that if Daubert is interpreted to mean that treating doctors should somehow be ex- cluded, then we have come a long, sad way down the road of illogical conclusions. On final analysis, Judge Stewart accepted this argument, but not until after an enormous amount of wasted time and effort. Such a motion never should have been brought, because a treating doctor with an extensive record of visits should never be ex- cluded from giving his/her expert opinion on the nature of a malady and its cause. However, this is exactly what defense counsel tried to do.
    If Rule 702 is amended to adopt the federal Daubert approach, it will cause many such needless and wasteful motions to be brought by defense counsel. The temptation will be too great for many counsel to resist. These motions will be brought not only by defense counsel, who will view them as a legitimate effort on behalf of their clients (and a magnificent billing oppor- tunity as well), but also by plaintiff’s counsel. Judges will be constantly peppered with these types of motions, many of which are brought simply to harass and overwhelm the other side. The granting of these motions will prompt numer- ous appeals by the parties. The current interpretation of Rule 702 has worked very well. There are times when expert witnesses are and should be excluded. However, these instances are, and should be, rare. Juries are fully capable of making decisions about the credibility of experts. In my opinion and experience, Daubert challenges to expert witnesses are largely tactical, seldom valid, often brought to obtain unfair advantage, and usually not otherwise well taken. The adoption of the proposed changes will result in an enormous waste of judicial and attor-ney resources for many years. Attorneys will waste enormous amounts of time making and respond-ing to the motions, and state court judges do not have the clerking resources or time to give them proper attention. We urge the Supreme Court to reject these proposed changes.
    Very truly yours,
    Robert B. Sykes
    Posted by Robert Sykes March 28, 2007 18:55 hours
    Robert B. Sykes, Esq.
    Robert B. Sykes & Associates, P.C.
    311 South State Street Suite 240
    Salt Lake City, Utah 84111-2320
    [o] 801-533-0222 [f] 801-533-8081
    [h] 801-531-7730 [c] 801-580-5599
    [Practice concentrating in Personal
    Injury, Medical Malpractice, Product
    Liability, Brain & Spinal Cord Injury,
    and Civil Rights Litigation]
    “Wo unto them that decree unrighteous decrees, and that write grievousness which they have prescribed; To turn aside the needy from judgment, and to take away the right from the poor of my people, that widows may be their prey, and that they may rob the fatherless!”
    Isaiah 10:1-2.

  60. Attorney General Mark L. Shurtleff

    Rule 509 – Comments by Utah Attorney General Mark L. Shurtleff
    Dear Chief Justice Christine Durham, Committee Chair Ellen Maycock, and members of the Supreme Court Advisory Committee on the Rules of Evidence.
    I am writing to urge the Supreme Court and its Advisory Committee on the Rules of Evidence (“Advisory Committee”) to reconsider and reject proposed Rule 509, and to recommend and adopt instead, either the Alternative Rule 509 (“Alternative Rule”) supported by the minority of the Advisory Committee, or “Draft D” recommended in the comments filed by Statewide Association of Prosecutors (“SWAP”) submitted 3/28/07. The Utah Media Coalition’s 3/28/07 written comments correctly state my support of The Alternative Rule which is substantively identical to Draft D, and either would provide a much needed framework to law enforcement, reporters, potential informants and the courts that would protect the rule of law and ensure the free flow of information so critical to a free society. I applaud and congratulate the committee on the incredible amount of time, expertise and professionalism expended on the reporter’s privilege process, but, for the reasons stated in the media coalition and SWAP comments, I cannot support the majority’s recommendation.
    Over a year ago I joined with Utah media representatives in requesting that the Supreme Court initiate the process of developing a new Rule of Evidence recognizing a “reporter’s privilege” to protect the confidentiality of news sources. I have attended and participated in a few Advisory Committee and subcommittee meetings and have been working with SWAP, the Utah Prosecution Council, and informally with representatives of the media, to try and recommend a rule that would be acceptable to both the Utah prosecutorial community and Utah media sources. There have been times in the past two years when it appeared that in Utah, the “right to every man’s evidence” was East, the “free flow of information” was West, and “never the twain shall meet.” I am pleased that the two institutions so critical to the success of our nation, and that are equally committed to serving the public – but have historically been at odds – have come together in the public interest to support a comprehensive balancing test.
    The detailed comments submitted by the Media Coalition and SWAP present all of the legal and historical reasons why Utah needs a codified reporter’s privilege, and I won’t repeat them at length here, but it might be helpful for the Court and Committee to understand the journey I have made, and key factors that motivate and inspire these comments and my plea to give Utah a reporter’s privilege rule.
    Two years ago I was asked if I would lead an effort to get state attorneys general to submit an amicus brief in support of Time, Inc’s Petition for Writ of Cert in Miller v. United States of America, asking the Supreme Court to recognize a federal reporter’s privilege, and establish a federal balancing test that would weigh the public interest in a reporter’s ability to gather news against the need to disclose confidential sources. New York Times correspondent Judith Miller was appealing her civil contempt order and jail sentence for failing to identify her confidential sources in the matter under investigation by the Department of Justice into leaks about a CIA agent, which recently resulted in the conviction of the Vice President’s former Chief of Staff, Lewis “Scooter” Libby.
    As a prosecutor my knee-jerk response to this request was something like “you’re kidding, right?” Why would I, the chief law enforcement official in my state, support a rule that would make it more difficult for law enforcement to obtain evidence of crimes? But I promised to do some homework and get back to them. After a substantial amount of research during the following few weeks into the history, law and reason of reporter shield laws and privileges, I called back and agreed to lead the effort. It was quite easy for me to respond to the same initial reaction from my colleagues. But ultimately many agreed that of all professionals, prosecutors should understand, appreciate, and strongly defend the need to protect confidential informants. On May 27, 2005 thirty-three AGs filed our joint brief. The following is just a sampling of what I learned.
    Throughout colonial times and the founding of our nation, publishers and lawmakers like John Peter Zenger and Benjamin Franklin, recognized that the ability to maintain confidences of news sources was crucial to the protection of the fundamental right of a free press. For example, in 1777, Isaac Collins, the publisher of the New Jersey Gazette refused to divulge the true identity of “Cincinnatus” who had written a satirical attack on the governor. Collins declared, “were I to comply . . . I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.”
    New Jersey Governor Livingston, writing as “Scipio” in 1784, resisted efforts to force disclosure by arguing “I hope [Tucker] is not seriously bent upon a total subversion of our political system, and pray may not a man, in a free country, convey thro’ the press his sentiments on publick grievances . . . without being obliged to send a certified copy of the baptismal register to prove his name.”
    In 1995, Justice Clarence Thomas stated the obvious when he wrote “the historical evidence indicates that Founding era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the “freedom of the press.” Mcintyre v. Ohio Elections Commission.
    This premise was generally accepted for nearly one hundred years; but near the end of the Nineteenth Century, courts began ordering reporters to reveal their sources based on the “ancient principle” that the government, in fulfilling its police powers to protect the public, was entitled to “every man’s evidence.” In 1896, Maryland responded by codifying a reporter “shield law “to protect reporters and other newspaper men from being compelled to disclose the source of any news or other information procured for publication in any legal or legislative proceeding.” Thirty-seven years passed without another state enacting a shield law, until a series of high-publicity jailings of reporters in New Jersey, who refused to divulge their sources, prompted ten states to adopt shield laws for journalists between 1933 and 1941.
    Absent enactment of a shield law, some courts refused to recognize a privilege. For example, in Clein v. State, 52 So. 2d 117 (Fla. 1950), the court reasoned that “members of the journalistic profession do not enjoy the privilege of confidential communication, as between themselves and their informants, and are under the same duty to testify, when properly called upon, as any other person.”
    This sentiment became the law of the land in federal prosecutions with the landmark Supreme Court decision in Branzburg v. Hays, 408 U.S. 665 (1972), in which the court acknowledged the need for limited First Amendment protection for news gathering, but upheld federal grand jury subpoenas ordering the release of confidential source information. Nevertheless, the door was opened, and in his concurring opinion, Justice Powell reinvigorated the debate by recognizing a balancing test. He wrote, “the asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” and the “balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”
    In his dissent in Branzburg, Justice Stewart went even further, declaring “the longstanding rule making every person’s evidence available to the grand jury is not absolute.” Following that lead in 1974, the Supreme Court in U.S. v. Nixon explained that the “ancient proposition of law” that the public has a right to everyman’s evidence was not absolute and did not apply to “those persons protected by a constitutional, common-law or statutory privilege.” Numerous state and federal courts, including the Tenth Circuit in Silkwood, have interpreted Branzburg as establishing a balancing test.
    As pointed out in the Media Coalition’s comments, most Utah trial courts have applied a Silkwood-style balancing test, but “the absence of any controlling Utah appellate court opinion or codification of the privilege…has left uncertainty as to the scope and application of the privilege in Utah.”
    Due process and justice under the rule of law demand clarity and notice in what is to be expected, so that people with important information to share, but who have reason to want to remain anonymous, can know ahead of time what protections are available; and reporters will know how to advise such informants. Furthermore, law enforcement investigators and prosecutors will have guidance on when and how forcefully they should pursue evidence of crimes in the hands of reporters; and the courts and both parties appearing therein, will have a blueprint to follow in meeting burdens of proof and determining to which side the scales of justice tip on a case-by-case basis.
    As the so-called “Chief Law Enforcement Official” and “Chief Prosecutor” in Utah, I am very concerned that our state is one of only three that has not adopted a reporter’s privilege by statute, rule or appellate decision. I therefore urge the Court and the Advisory Committee to establish a rule of evidence that recognizes the critical role confidential sources have played in our First Amendment guarantee of a free press and its importance to a free society, and provide a clear balancing test for fair and judicious resolution of disputes when that right is weighed in balance with the crucial duty of government to protect the public by discovering and punishing crime.
    Again, I wish to thank and congratulate the members of the Advisory Committee and in particular those on the subcommittee led by Christine Soltis for their combined hundreds of hours of volunteer time in studying, analyzing, debating and recommending to the Supreme Court a Rule of Evidence adding a reporter’s privilege to other utilitarian privileges recognized and protected in this state.
    In closing arguments in defending John Peter Zenger in his 1734 criminal trial for refusing to identify the authors and sources of “seditious libels” against the Crown’s governor William Crosby, Andrew Hamilton instructed the jury in arguments that are still relevant today. Power, he said, “may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived.”
    Mark L. Shurtleff
    Utah Attorney General