Utah Court Rules – Published for Comment
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Posted: July 1, 2016
Rule 004: Sets forth in detail the required contents of an information. The new provisions will require statements about pretrial release.
Rule 005: Repealed.
Rule 006: The proposed changes create a presumption in favor of summonses over warrants. The rule establishes the requirements for issuing a warrant. The rule also describes the required content of summonses and warrants.
Re Rule 4. We are requiring a first appearance with an information withing 96 hours (4 days) of probable cause statement approval. With a requirement to add all of this additional data in the information, I doubt prosecutors can review the evidence, screen the case and draft an information within 96 hours. It is extremely difficult for them to do it now and almost impossible to do it over a long weekend. Thus, this amendment is not practical and ignores the effort to get someone before a magistrate quickly.
Rule 6-In my anectodal experience where the Salt Lake County has recently been asking for summons, it is not working well. I have never had one single case where I know if the summons was served. While I imagine someone from AOC can determine the real numbers, it would be my observation that less than one third of the summoned defendants appear for initial appearance as scheduled, and I thin at best one fourth. Thus, as a practical matter we are simply issuing warrants in most of the cases 5-6 weeks after the information is filed. For whatever reasons the summons are not being served or obeyed in the great majority of the cases so far filed in Salt Lake County.
These are needed changes, especially the changes to Rule 006. Arrests almost always cause great disruption to people’s lives, sometime resulting in the loss of jobs and other collateral consequences. Arrest also makes it much more difficult for people to find and hire legal representation, causing some to take ill-advised pleas in order to get out of jail sooner. In almost all circumstances a summons is sufficient to begin the process as almost all people do appear in court upon receipt of a summons. A summons keeps families intact, defendants working, and makes it easier for defendants to get good legal representation.
I am concerned about the language of rule 6(g)(1) which limits the execution of the warrant to within the state. This could be used to argue that felony warrants cannot be listed on the NCIC system because they are not valid outside the state. If a defendant is arrested outside the state on a felony warrant and held for extradition it could be used to claim false arrest, to claim that extradition is not allowed, or to suppress subsequent evidence that is found based on the “illegal” arrest. The language of 6g1, if necessary, should include provisions about the valid execution of the warrant in jurisdictions outside the state by peace officers who are authorized to arrest in those jurisdictions or language that clarifies that this type of arrest is not limited by the rule.
The amendments to Rule 6 is a must. Warrants should NOT automatically go out for those accused.
A couple of additional comments.
Under (c)(1), I think that a judge needs to make a finding, “based upon a showing under oath” by the one seeking a warrant, that the defendant will likely not appear on a summons or there is substantial danger of a breach of peace, injury, etc.
To issue a warrant just because the “defendant’s address is unknown” is ripe for abuse. it is all too easy for a law enforcement officer to say “we don’t know the address,” especially with out of State clients. There should be some showing that a summons was at least tried to be served.
Also, there should be some showing, under oath, made by those seeking the warrant, that the person is likely to not appear or there is some kind of danger. This would not be an onerous burden, but would stop abuses in those cases where the defendant clearly knows they are being investigated, the investigation lasts for many months, many times an attorney is involved and is actually having a dialogues with either law enforcement or the prosecution, and upon filing the case, a warrant goes out anyway when there is absolutely no good reason.
Thank you for your consideration of my comments. And thank you for recognizing that there is a presumption for release pending cases, and there actually is a presumption of innocence until proven guilty… (ok, that is the defense attorney in me). 🙂
Ann Taliaferro
Brown Bradshaw & Moffat
Thank you for considering the following comments from the Utah County Attorney’s Office regarding proposed changes to Rule 4 of Utah Rules of Criminal Procedure
Under Subsection (b) of proposed changes to Rule 4, the prosecutor is being asked to provide a substantial amount of information in commencing a prosecution. Here are concerns we have with a few of the requests:
4(b)(3): “The names of any adult witnesses on whose evidence the information is based.”
In cases submitted to a prosecutor’s office, the police report may contain names of primary witnesses, collateral witnesses, police officers and victims. In screening a case for potential charges, a prosecutor may give varying degrees of credence to the different types of witnesses in the police report. However, being required to list the names of any adult witness on whose evidence the information is based groups everyone into a single category and does not reflect the degree to which a prosecutor may have relied upon a certain witness to file criminal charges. In other words, what is the benefit of simply listing the names of a witness without providing context about the witness’ involvement in the case? The real value of a witness will only be realized when the defense counsel reviews the police report and not by simply placing a name on an information.
In addition, witness and victim names listed on an information will be available in a public document but these individuals may not want their names to be made public at the outset of a case. Will a prosecutor be required to list the identity of a government informer and will this conflict with Rule 505 of the Utah Rules of Evidence?
Finally, this is going to take a considerable amount of time for a prosecutor to identify and list the witnesses for every information that is filed. However, the names of all witnesses and victims are provided immediately through police reports to defense through the discovery process. Listing the names of witnesses and victims in an information seems to be a duplication of efforts and does not appear to substantially benefit the court, the defendant or defense counsel. Because the defense is entitled to the police reports shortly after an information is filed, what is the benefit of listing witness names on the information? Listing the name of the case officer on the information–as the person who collected and organized all the evidence–is more efficient and accurately conveys that the information is based on the evidence collected by the officer.
4(b)(3)(B): “Upon request of the defendant the prosecution shall provide the names of witnesses that were not included in the information, unless the court finds good cause for relieving the prosecution from the obligation.”
Rule 16 of the Utah Rules of Criminal Procedure requires the prosecution to provide discovery to the defendant or defense counsel. The names of the witnesses should be listed in the discovery. Is there some reason why a separate rule is needed for the prosecution to provide the names of witnesses when the names will be already be contained in the discovery? Once again, we are not certain what this proposed rule change is trying to accomplish when Rule 16 already covers this issue.
4(b)(4): “A booking number if the defendant was arrested and detained on charges related to the information. Any pretrial release conditions shall be included, such as:
(b)(4)(A) monetary bail or other pretrial release conditions set by the magistrate when determining probable cause at arrest;
(b)(4)(B) whether the defendant was denied pretrial release;
(b)(4)(C) whether the defendant was released to a pretrial supervision agency; and
(b)(4)(D) whether the defendant is in custody.”
In the Fourth Judicial District, we do not have a pretrial release program. When a person is arrested, a judge sets bail and the amount of bail is listed on the probable cause statement. The defendant’s case is then set for an initial appearance. Since we do not have a pretrial release program–and because many other jurisdictions in Utah do not have pretrial release programs–many prosecutors will recite the same statement on every information: “Pretrial release program not available.” In addition, from the time an information is prepared until the defendant’s initial appearance, the defendant’s custody status may change. Due to the fact that a person’s custody status often changes prior to an initial appearance, we are not sure who benefits by listing a person’s custody status on an information. Finally, a person may be released from custody on the pending case for which the information is being prepared but will still be held on other matters. Trying to determine which case/cases a person is being held on is not always simple. We do not oppose listing a defendant’s booking number on the information but respectfully request that the other proposed conditions in 4(b)(4) be removed.
4(f): “When facts not set out in an information or indictment are required to inform a defendant of the nature and cause of the offense charged, so as to enable him to prepare his defense, the defendant may file a written motion for a bill of particulars. The motion shall be filed at arraignment initial appearance or within 14 10 days thereafter, or at such later time as the court may permit.”
This proposed rule change requires a defendant to file a bill of particulars at the initial appearance or within 10 days thereafter. Since the initial appearance will normally occur before a defense attorney has received any discovery from the prosecutor, we foresee defense attorneys filing a bill of particulars with every case in order to meet this deadline. Therefore, the prosecutor would have to respond to a bill of particulars before the defense attorney has normally even reviewed the discovery. We believe that the bill of particulars should still be filed after the arraignment because the discovery will often provide context about the nature and cause of the charged offenses.
In the case of State v. Mitchell, 571 P.2d 1351 9 (Utah 1977), the Utah Supreme Court stated, “A bill of particulars need not plead matters of evidence, Section 77-21-9(1) [this code section was later repealed] was designed to enable a defendant, where the short form information is used to have the stated particulars of the charge which he must meet. The bill of particulars was not intended as a device to compel the prosecution to give an accused person a preview of the evidence on which the State relies to sustain the charge.”
If a separate proposed rule change–Utah Rule of Criminal Procedure 4(h)–becomes effective, the prosecutor will no longer file a “short form information” but must include a probable cause statement within each information. A probable cause statement will normally inform a defendant of the nature and cause of the offenses charged. A bill of particulars–filed early on in the prosecution process– will not only cause additional filings by both the defense and prosecution, we believe that filing a bill of particulars at the initial appearance is not beneficial. We respectfully submit that requiring the bill of particulars to be filed after arraignment will reduce unnecessary filings and will be more beneficial after a preliminary hearing is held in order to help defense address any outstanding issues about the nature and causes of the charged offenses.
4(h): “An information shall be reviewed for sufficiency by a judge of the court in which it is filed. If the judge determines from the information, or from any supporting statements or affidavits, that there is probable cause to believe the offenses have been committed and that the accused committed them, the judge shall proceed under rule 6.”
According to this proposed rule change, a judge shall review each information to determine whether there is probable cause that an offense has been committed and that the defendant committed the offense. How is this different from a preliminary hearing requirement? Pursuant to URCrP 7(i)(2), “If from the evidence a magistrate finds probable cause to believe that the crime charged has been committed and that the defendant has committed it, the magistrate shall order that the defendant be bound over to answer in the district court. The findings of probable cause may be based on hearsay in whole or in part.”
This proposed rule states that after a judge reviews an information, supporting statements and affidavits, the judge shall determine whether an offense has been committed and the defendant committed the offense. Isn’t this the same standard a judge uses at a preliminary hearing to bind a person over for trial?
We understand that a person charged with a class A misdemeanor or a felony has a right to a preliminary examination. However, it may be confusing to ask a judge to use the same standard in reviewing an information as the judge who conducts a preliminary examination.
Thank you for your willingness to consider these comments.
Timothy L. Taylor
Utah County Attorney’s Office
I have concerns with the proposed changes to Rule 6. Rule 6(c) requires a summons to be issued, and then lists the circumstances under which a warrant would be authorized. First, as I understand the proposed rule, a summons must be issued unless the judge finds two circumstances: a danger to the community, or information the defendant will fail to appear. However, this appears to conflict with Utah Code 77-20-1(1) which states that there are additional circumstances under which a defendant is not entitled to bail: capital felony, committing new felony charges while out of custody on pending felonies or while on probation/parole, or violating a material condition of release while previously on bail. Utah Code 77-20-1(4)(d) also allows the denial of the right to bail for a defendant who violates a jail release agreement. I believe that all of the circumstances listed in 77-20-1 should be included in the rule as exceptions to the summons requirement.
Also, the proposed Rule 6(e)(3)(A) states that the amount of bail should be the “lowest amount reasonably calculated to ensure the defendant’s appearance at court.” When determining the amount of bail, the factors contained in Utah Code 77-20-1(2) should be considered, which directs the court to impose conditions that “will reasonably: (a) ensure the appearance of the accused; (b) ensure the integrity of the court process; (c) prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and (d) ensure the safety of the public.” Therefore, when determining the amount of bail, more should be considered than just what amount will ensure the defendant’s appearance.
Regarding Rule 4, I agree with the comments made by Mr. Taylor regarding the listing of witnesses on the Information. Witnesses are listed in the discovery provided to the defendant or defense counsel almost immediately after the initial appearance. Requiring them to be listed in a public document raises issues with privacy and safety concerns.
I also agree with the comments made by Mr. Taylor regarding the bill of particulars issue in Rule 4. In addition to his comments about retaining the requirement that it be filed after arraignment, I don’t believe the deadline should be changed to 10 days. In 2014, the rules committee specifically changed all deadlines less than 30 days to a uniform 7/14/21/28 days, so changing this rule to a 10 day deadline would contradict the uniformity the rules committee tried to create.
Thanks
Re.: 004
I’m pretty much in agreement with Mr. Taylor. And, I wish more Salt Lake County people didn’t think the state ends at their county borders; sometimes it seems that folks up there think rules need do no more than conform to what folks there think practice should look like.
Re.: 006
The provision limiting bail to only an amount calculated to get an appearance does not track the actual purposes (note the plural) of bail. I’m told some deputy county attorneys will be clarifying that at the next rules committee meeting, so I’ll leave further explication to them.
I appreciate the comments that it is hard to serve a summons and to track service of a summons. It is also hard to be arrested and held in jail for three or four days. The impact of issuing a warrant and preferring a warrant to a summons is that it shifts the burden of something that is difficult from the system at large to an individual person and his/her family, often with devastating effect. I have seen over and over again that clients lose their jobs if they are arrested and unable to go to work for even a day or two. This can have a cascading consequence of them losing their cars, their homes, their children, and so forth. The lesson of recent inquiries into places like Ferguson is that even misdemeanor warrants can drag a person down and keep them down forever, out of all proportion to the offenses they are accused of. Warrants should not issue as a matter of course, especially in cases where the ultimate sentence imposed might not be as long as the period of incarceration if there is a conviction. Then, of couse, there are actually innocent people who are caught up in the system, who should not ever be incarcerated.
We are the most incarcerated society on the planet. There is a huge financial impact to taxpayers of incarceration. I believe the greatest cost is from people losing work and being unable to pay bills and keep their lives together, and not from actually feeding and housing people in jail. If we are going to have a system in which we do not over-incarcerate, it should begin with at least giving people the opportunity to show up on a summons, as this proposed rule would encourage, especially for misdemeanors and non-violent felony offenses. Even if a majority do not show up, and a warrant eventually has to be issued, the benefit of allowing people the chance to be responsible would be significant.
Rule 4(c) places a new and significant burden by requiring that all informations include a probable cause statement. The current practice of most city and county offices around the state for high volume class B, C and infraction cases when NOT seeking a warrant is to include only a list of charges in the information. As the court isn’t relying on the statement as a basis for a warrant, the list of charges has proven to be a sufficient charging document for many years.
Because no legal writing is currently required to complete an information, typically this document can be prepared by an administrative assistant or secretary. However, those cases that do require a probable cause statement typically need to be written by a lawyer or paralegal or at least an employee with a superior level of training and experience in legal writing. For our office where we file thousands of misdemeanors a year in the West Valley Justice Court, this added obligation will be very difficult to accomplish without adding additional (and better qualified) employees. I have heard from several colleagues around the state that have the same concern.
This proposal feels like a problem in search of a solution and is an unnecessary additional burden on prosecution offices, especially those with a high volume of misdemeanor cases. I propose it be removed from this draft.
Rule 4(b)(4) requires the prosecution to list all bail and pretrial conditions that were issued by the magistrate to be included in the information. This is another onerous burden that presupposes the prosecution even has access to this information. Rarely do I in practice have knowledge of what bail and conditions were imposed by a magistrate upon initial arrest. Chasing down that information would be another difficult burden.
Of course, every county has different pretrial agencies (or many have none at all). This proposal supposes a statewide uniformity that doesn’t exist.
Possibly, an amendment, that add “if readily available to the prosecutor” could serve as a compromise?
Rule 6(e)(3)(a) requires that bail be set at the lowest amount reasonably calculated to ensure their appearance in court. This requirement ignores 3 of the 4 legislative purposes for considering a bail amount set forth in Utah Code 77-20-1 which states:
(3) Any person who may be admitted to bail may be released either on the person’s own recognizance or upon posting bail, on condition that the person appear in court for future court proceedings in the case, and on any other conditions imposed in the discretion of the magistrate or court that will reasonably:
(a) ensure the appearance of the accused;
(b) ensure the integrity of the court process;
(c) prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and
(d) ensure the safety of the public.
To eliminate the other factors would allow a serial killer, or serial domestic abuser, serial drunk driver, etc., to successfully argue for minimal bail as long as he can show a strong commitment to making his court appearances, despite any evidence that shows that the offender is an extreme danger to the public.
This subsection should either be eliminated or amended to more consistently match 77-20-1.
Ryan Robinson
Chief Prosecuting Attorney
West Valley City
Rule 4(c) places a new and significant burden by requiring that all informations include a probable cause statement. The current practice of most city and county offices around the state for high volume class B, C and infraction cases when NOT seeking a warrant is to include only a list of charges in the information. As the court isn’t relying on the statement as a basis for a warrant, the list of charges has proven to be a sufficient charging document for many years.
Because no legal writing is currently required to complete an information, typically this document can be prepared by an administrative assistant or secretary. However, those cases that do require a probable cause statement typically need to be written by a lawyer or paralegal or at least an employee with a superior level of training and experience in legal writing. For our office where we file thousands of misdemeanors a year in the West Valley Justice Court, this added obligation will be very difficult to accomplish without adding additional (and better qualified) employees. I have heard from several colleagues around the state that have the same concern.
This proposal feels like a problem in search of a solution and is an unnecessary additional burden on prosecution offices, especially those with a high volume of misdemeanor cases. I propose it be removed from this draft.
Rule 4(b)(4) requires the prosecution to list all bail and pretrial conditions that were issued by the magistrate to be included in the information. This is another onerous burden that presupposes the prosecution even has access to this information. Rarely do I in practice have knowledge of what bail and conditions were imposed by a magistrate upon initial arrest. Chasing down that information would be another difficult burden.
Of course, every county has different pretrial agencies (or many have none at all). This proposal supposes a statewide uniformity that doesn’t exist.
Possibly, an amendment, that add “if readily available to the prosecutor” could serve as a compromise?
Rule 6(e)(3)(a) requires that bail be set at the lowest amount reasonably calculated to ensure their appearance in court. This requirement ignores 3 of the 4 legislative purposes for considering a bail amount set forth in Utah Code 77-20-1 which states:
(3) Any person who may be admitted to bail may be released either on the person’s own recognizance or upon posting bail, on condition that the person appear in court for future court proceedings in the case, and on any other conditions imposed in the discretion of the magistrate or court that will reasonably:
(a) ensure the appearance of the accused;
(b) ensure the integrity of the court process;
(c) prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and
(d) ensure the safety of the public.
To eliminate the other factors would allow a serial killer, or serial domestic abuser, serial drunk driver, etc., to successfully argue for minimal bail as long as he can show a strong commitment to making his court appearances, despite any evidence that shows that the offender is an extreme danger to the public.
This subsection should either be eliminated or amended to more consistently match 77-20-1.
Ryan Robinson
Chief Prosecuting Attorney
West Valley City
I share the concerns of Mr. Robinson, Mr. Taylor, and Mr. Van Dyke, so I will not re-sate their concerns here. Please read and consider their comments carefully.
I agree with the comments by Mr. Robinson regarding 4(c). This would place a significant burden on prosecutors.
I agree with the comments of Mr. Robinson and Mr. Taylor.
Further, requiring a probable cause statement to accompany every information (see proposed rule 4(c)) seems to be ineffective for many low-level offenses. For example, a probable cause statement accompanying an Information for offenses like speeding, discharging a firearm within city limits, or intoxication (among other misdemeanors) would serve little, if any, practical purpose. Most of the information that would be contained in the probable cause statement in those cases is readily apparent by reading the charging document itself.
Nicholas C. Mills
Associate City Attorney
Layton City
I agree with the comments of Mr. Robinson and Mr. Taylor, as well as Mr. Mills and Ms. Johnson. Please consider them carefully.
I’m very concerned that the proposed changes within rule 4(c) go far beyond the purpose of notice and wades into Discovery. The amount of time needed by misdemeanor prosecution offices to satisfy these changes will create a significant burden that we are not equipped to handle.
Additionally, the proposed rule 6 exhibits a disregard for the safety of victims, witnesses and the public in general. The current rule has the balance needed in the interest of justice for all sides.
As the Wayne County Attorney, I concur in the thoughtful and articulate comments of Mr. Taylor of the Utah County Attorney’s office. Specifically, the additional requirements for filing an information in proposed Rule 4(c) for traffic infractions and B or C Misdemeanors will create a huge burden on prosecutors for small, rural counties. Here in Wayne County, I do not have an administrative staff, secretary, or deputies. It is just me. At our current workload level it is difficult to stay abreast of the requirements. The additional requirements for a probable cause statement, listing of all adult witnesses, and bail and pretrial conditions would be impossible to fulfill for lower-level crimes.
I also agree with Mr Taylor that listing name of individuals on a public document, such as in information, may create privacy or safety concerns; or may have a negative impact on undercover enforcement operations. Finally, Rule 16 of the Criminal Rules of Procedure already require discovery to defendant and defense counsel. There is no need to do so on the information.
I ask you to please be aware of the additional burden these proposed rules place on small and rural jurisdictions.
I agree with the comments by Timothy Taylor and Ryan Robinson, especially whereas the proposed new requirements in Rule 4 will add substantially to the workload for smaller offices like the one in which I work with little to no benefit to the Defendant, who can obtain the same information in the non-public discovery process.
Additionally, it invites motions to dismiss in petty cases based on any perceived inadequacies in the Information, which would likely result in a process that could take longer than just holding a trial, especially in the case of infractions. The proposed rule change exempts a lack of witness names from this fear, but that clearly leaves all other perceived inadequacies open for such a motion. That motion can be filed seven days prior to trial under Rule 12, leading to a delay in the trial while the parties submit motions and memoranda, subsequent filings of amended Informations that can also be challenged, and even a possible appeal and/or the filing of a new case if the amended filing is not satisfactory.
I agree with Mr. Taylor’s above comments. I suggest the following changes to the proposed rule:
Proposed language: 4(b)(3): “The names of any adult witnesses on whose evidence the information is based.”
For the below reasons I recommend that this subsection be modified to read: “ (b)(3) The names of the law enforcement officer on whose evidence the information is based.
In cases submitted to a prosecutor’s office, the police report may contain names of primary witnesses, collateral witnesses, police officers and victims. In screening a case for potential charges, a prosecutor may give varying degrees of credence to the different types of witnesses in the police report. However, being required to list the names of any adult witness on whose evidence the information is based groups everyone into a single category and does not reflect the degree to which a prosecutor may have relied upon a certain witness to file criminal charges. In other words, there is no benefit to simply listing the names of a witness without providing context about the witness’ involvement in the case. The real value of a witness will only be realized when defense counsel reviews the police report–not by simply placing a name on an information.
In addition, if this rule is passed as written, witness and victim names listed on an information will be available in a public document–but these individuals may not want their names to be made public at the outset of a case. For example, prosecutors should not be required to list the identities of a government informer; further, such a requirement conflicts with Rule 505 of the Utah Rules of Evidence. Similarly, prosecutors should not be required to list the names of victims of physical or sexual abuse, particularly when the abuse might have occurred when the victim was under the age of 18, but at the time of the information being filed is over 18.
Finally, if implemented this new requirement will take a considerable amount of time for a prosecutor to identify and list the witnesses for every information that is filed. This is an unnecessary burden on prosecution offices. The names of all witnesses and victims are timely provided to the defense pursuant to Rule 16 of the Utah Rules of Criminal, so listing the names of witnesses and victims in an information is an unnecessary duplication of effort without any substantial benefit for the court, the defendant or defense counsel.
Proposed language: 4(b)(3)(B): “Upon request of the defendant the prosecution shall provide the names of witnesses that were not included in the information, unless the court finds good cause for relieving the prosecution from the obligation.”
For the below reason I recommend this subsection be deleted from the proposed rule.
As mentioned above, Rule 16 of the Utah Rules of Criminal Procedure already requires the prosecution to provide discovery to the defendant or defense counsel. The names of the witnesses are provided in discovery. There is no reason for a new rule requiring the prosecution to provide what it is already required to provide in discovery.
Proposed language: 4(b)(4): “A booking number if the defendant was arrested and detained on charges related to the information. Any pretrial release conditions shall be included, such as:
(b)(4)(A) monetary bail or other pretrial release conditions set by the magistrate when determining probable cause at arrest;
(b)(4)(B) whether the defendant was denied pretrial release;
(b)(4)(C) whether the defendant was released to a pretrial supervision agency; and
(b)(4)(D) whether the defendant is in custody.”
For the below reasons, I suggest that (b)(4)(A), (B), (C) and (D) be deleted from the proposed rule.
In the Fourth Judicial District we do not have a pretrial release program. When a person is arrested, a judge sets bail and the amount of bail is listed on the probable cause statement. The defendant’s case is then set for an initial appearance. Since we do not have a pretrial release program–and because many other jurisdictions in Utah do not have pretrial release programs–many prosecutors will recite the same statement on every information: “Pretrial release program not available.” In addition, from the time an information is prepared until the defendant’s initial appearance, the defendant’s custody status may change and the prosecutor may not know. In fact, in cases where the accused was not arrested, the prosecution may believe the person is out of custody, but he or she may have been later arrested in another jurisdiction. In short, we agree with listing a defendant’s booking number on the information but request that the other proposed conditions in 4(b)(4) be removed.
Proposed language: 4(f): “When facts not set out in an information or indictment are required to inform a defendant of the nature and cause of the offense charged, so as to enable him to prepare his defense, the defendant may file a written motion for a bill of particulars. The motion shall be filed at arraignment initial appearance or within 14 10 days thereafter, or at such later time as the court may permit.”
For the reasons below, I recommend this rule not be changed from its current, existing form.
This proposed rule change requires a defendant to file a bill of particulars at the initial appearance or within 10 days thereafter. However, the initial appearance will normally occur before a defense attorney has received any discovery from the prosecutor, or defense counsel will not be “on board” before the 10 day period expires. Defense counsel will therefore either file a bill of particulars with every case in order to meet this 10 day deadline, or will miss the deadline all together. In the cases where defense counsel is appointed or retained within the 10 days and files a bill of particulars, the prosecutor would have to respond to the bill before defense counsel has even had the chance to review discovery (and, in almost all cases, the discovery provided will provide the exact information sought in a bill of particulars). This would, in most cases, lead to duplication of effort for the defense counsel and the prosecution.
The rule in its current form (where the bill is filed after arraignment) allows defense counsel to review the discovery materials provided and, if items may be missing, to request them through additional discovery requests or, in rare cases, through a bill of particulars after the arraignment.
Timing a bill of particulars after a preliminary hearing (in the case of a class A or felony charge) or arraignment allows defense counsel time to address any outstanding issues about the nature and causes of the charged offenses long before trial, but well after discovery is provided.
Proposed language: 4(h): “An information shall be reviewed for sufficiency by a judge of the court in which it is filed. If the judge determines from the information, or from any supporting statements or affidavits, that there is probable cause to believe the offenses have been committed and that the accused committed them, the judge shall proceed under rule 6.”
For the reasons below, I recommend this new subsection be deleted from the proposed rule.
According to this proposed subsection, a judge shall review each information to determine whether there is probable cause that an offense has been committed and that the defendant committed the offense. This is an unnecessary burden on judges and any protections provided by this subsection are already—and more fully–provided for in Utah Rule of Criminal Procedure 7(i)(2) relating to preliminary hearings for class A and felony offenses: “If from the evidence a magistrate finds probable cause to believe that the crime charged has been committed and that the defendant has committed it, the magistrate shall order that the defendant be bound over to answer in the district court.” This new rule is duplicative of URCrP 7 and should be deleted.
Jeff Buhman
Utah County Attorney
I agree with the comments submitted by Mr. Taylor, Ms. Johnson, and Mr. Robinson. The proposed amendments to Rule 4 will substantially increase the workload of misdemeanor prosecutors and smaller offices with no benefit to be gained.
The proposed changes to Rule 6(e)(3)(a) would eliminate the protective aspect of bail and allow a dangerous offender to reenter the community simply because the individual has good court attendance.
I concur with the comments submitted by Tim Taylor, Sandi Johnson, Ryan Robinson, LeEllen McCartney, Randall McUne, Nicholas Mills, and Jeff Buhman. They have adequately addressed most of my concerns with some of the proposed rules. I want to share some additional thoughts on the proposed changes to 4(c).
The requirement to include PC statements on informations does little if anything to benefit the court or defendants. But because this change will substantially increase prosecutors’ workloads, it will, however, work a disservice to victims, officers, defendants, and other parties interested in having cases filed in a timely manner. This increase in workload would also increase the time it takes to file charges, and thus lengthen the time it takes defendants to resolve their cases. Such a burden should not be placed on the community without clear and convincing reasons as to how defendants are actually prejudiced by the filing of misdemeanor informations without PC statements. I do not see why a PC statement should be required for informations filed in justice court cases where a warrant is not being requested. The significant increase in prosecutor workloads substantially outweighs the infinitesimal benefits derived from this proposed change.
A second concern is that the proposed change to 4(h) will backdoor-in quasi-preliminary hearings for justice court cases. There is a reason preliminary hearings are not required in Class B misdemeanors and below. The proposed change would create authority for justice court judges to hold private preliminary hearings at the filing of the case.
For the reasons above, and for reasons stated in others’ comments, I propose that these sections be deleted from the proposed rules.
Ivy Telles
Summit County Attorney’s Office
I, too, agree with the comments submitted by Tim Taylor, Sandi Johnson, Ryan Robinson, LeEllen McCartney, Randall McUne, Nicholas Mills, and Jeff Buhman.
I am afraid that the Rules Committee is presuming prosecutors have access to information that we, in fact, do not. The changes to rule 4 require the information to include a booking number and any pretrial release conditions. These requirements should be removed.
As a prosecutor I never know the booking number. In fact, if I ever need the booking number, I get it from the court. Additionally, including a booking number on an information serves no apparent purpose. Therefore, it is a useless rule that imposes an unnecessary burden.
I also don’t always know the pretrial release conditions. Often times a judge will speak with the defendant in person or via video without my involvement at all. As such, there may be pretrial release conditions that I am completely oblivious about. In particular, the rule requires the inclusion of conditions such as: monetary bail, whether the defendant was released to a pretrial supervision agency, whether the defendant is in custody. All of these conditions are often unknown to the prosecutor, but will typically be contained in the court’s notes. Because it is the court imposing the conditions, the court will have access to the information. It makes no sense to require a prosecutor to inform the court about the conditions that the court imposed. Such a rule is redundant and imposes a unjustified burden on the prosecutor, the judge, and the supervising agencies.
Finally, and most importantly, rule 4 is too overbroad. It will have a far-reaching, undesirable effect on justice courts. It would require a probable cause statement on every information, including all traffic violations. There are hundreds, if not thousands, of informations filed every week on cases where a defendant was issued a citation for a traffic violation, but then subsequently pleaded not guilty. This rule would require a probable cause statement on these offenses as well. As such, this rule would be completely unworkable.
I do not see any legitimate purpose to requiring a probable cause statement on informations. I believe that it is extremely rare for a person to be completely oblivious about the basis for their charges. But in the rare case where that does occur, a motion for a bill of particulars can be filed to clear up any confusion.
But if the committee feels that a PC statement is necessary, then it seems like there is a compromise that can be had on this issue. At most, a probable cause statement should only be required on cases that are initiated by information. That is, if a person was initially issued a citation, then a probable cause statement should not be required on a subsequently filed information.
I would implore the rules committee to give serious consideration to the concerns addressed in these comments by the prosecutors. Although the committee’s intentions might be well-meaning, I feel they are not well thought out. These changes pose a serious likelihood of creating a number of significant detrimental effects and I would recommend that the committee reconsider these rule changes.
Blair T. Wardle
Box Elder County Deputy Attorney
The Salt Lake City Prosecutor’s Office opposes the changes to Rule 4 of Utah Rules of Criminal Procedure. The proposed changes in Rule 4(b)(3) –(c) to (h) would create a significant burden to prosecuting offices that doesn’t currently exit and there doesn’t appear to be any real need for the changes.
Our office filed over 7,000 informations in 2015, and is on track to file over 8,000 in 2016. These cases range from Class B Misdemeanors to Infractions. The additional burdens imposed by the proposed Rule 4(b)(3)-(c) and (h) would significantly disrupt the filing of informations. Our office isn’t currently staffed to handle the significant burden of complying with the proposed requirement of preparing a probable cause statement on all informations. Currently, probable cause statements are prepared only when a warrant is requested. If the proposed rule goes into effect our office, and I assume other jurisdictions around the state, will need to increase staff (at taxpayer cost) to prepare the probable cause statements.
Likewise, requiring the prosecution office to list all bail and pretrial conditions presupposes access to this information. Our office currently relies upon access to the jail’s offender management system (OMS) but this access is limited in scope and directly controlled by that organization.
Rule 4(h) will also place an additional burden on judges in high volume jurisdictions to review each information and make a probable cause determination on every information filed. Current state law and the Rules of Criminal Procedure already provide for a probable cause determination in order to incarcerate or when the court issues a warrant. A probable cause determination has never been required based upon a person’s promise to appear. If prosecution offices around the state are not staffed to meet this new requirement, those jurisdictions will need to make judgment calls about which cases to file. Assuming only the more serious charges receive attention it sends a direct message to law enforcement to spend their time wisely. This will have a direct impact on a community’s ability to police itself for less serious crimes.
Valerie M. Wilde
Division Administrator, Salt Lake City Prosecutor’s Office
The Cache County Attorney’s Office compliments the Committee and the Council for their efforts to make the judicial system better. We all want to see improvements where they can be made. We would like the Rules Committee to consider the following concerns regarding the proposed changes to Rules 4 and 6. We would further request the Rules Committee to not approve the rules for adoption in their current form.
Rule 4
To begin, of general concern is that many of the proposed changes to Rule 4, collectively, make an information far more than just a charging document that is intended to give summary notice to a defendant. Our position is that many of these proposed changes make the information un-necessarily complicated. The changes may actually lead to greater confusion in the process, not less, for criminal defendants.
Further, from the perspective of a state’s attorney, the process of preparing an information will now be a much more laborious undertaking and, in our opinion, unnecessarily duplicate work that will take place at arraignment, preliminary hearing, and even more so during the discovery process.
More specifically, we are concerned about the requirement of under subsection (b)(3) which will now require that the prosecutor list the names of any adult witnesses on whose evidence the information is based. Informations are public documents. From past experience, we know that many adult witnesses do not want their names revealed on a charging document. For example, rape victims are most generally reticent to reveal their identity and do not want their names to appear on court documents. Rape victims desire privacy, and frankly, they should be afforded it. Also, another example is that of a confidential informant working for a drug task force. Rule 505 recognizes the need to protect such witnesses. There are extreme safety concerns in these cases. In sum, a blanket rule that requires the listing of all adult witnesses is imprudent in these, and many more, types of cases. We believe that there will be a chilling effect on concerned citizen reports to law enforcement. It is one thing to have your name appear in a police report but entirely another to have it broadcasted throughout the public domain by it appearing on a public court document. We note that subsection (b)(3)(A) states that if the prosecutor fails to include the names of adult witnesses on the information, the information will still be valid. Respectfully, we wonder what the point of the requirement is if failing to comply with it has no real consequence.
Also of concern is subsection (b)(3)(B). This provision appears to duplicate the discovery requirements already set forth in Rule 16. Under subsection (c), the requirement that all informations be accompanied by a probable cause statement will be work intensive for prosecutors and staff and, in our estimation, will not materially assist defendants or defense counsel in the proceedings. We believe that informations should remain summary notice pleadings. We note that in the case of offices handling large volumes of class B and C misdemeanors and infractions such a requirement will be particularly burdensome. Much of the time with regard to such simple charges, as we see it, the probable cause statement will simply be a regurgitation of the bald allegations in the information. For example, a probable cause statement for a stop sign violation would probably read something like this: “On August xx, 20xx, in Cache County, Utah, at the intersection of Sam Fellow Road and 3200 North, Deputy Diligent observed defendant fail to stop at the stop sign as required by law. How would this be helpful to a misdemeanor traffic offender? Finally, we see the proposed subsection (h) as creating a substantial amount of unnecessary work for judges and prosecutors. Judges will now be required review evidence up front and will need to make a probable cause determination at the time an information is filed with the Court in order to determine if they will even accept a charging document. Prosecutors will now need to include or attach to their proposed informations any supporting statements and/or affidavits to sufficiently establish probable cause, much in the same way we are required to do at a preliminary hearing. Where Utah Rule of Criminal Procedure 7(i) already sets forth the process for the State having the burden to produce sufficient evidence for a bindover at a preliminary hearings for all felonies and class A misdemeanors, subsection (h) seems un-necessary and duplicative as a preliminary hearing safeguard is already in place to protect criminal defendants.
Rule 6
We are concerned about the proposed change made to the language in subsection (a) setting forth the process whereby warrants of arrest or summonses are issued by magistrates. The old language indicated that this process took place “Upon the filing of an information” but this language has been removed and has been replaced with “upon the acceptance of an information by a judge.”
If the intent here is to weed out incomplete informations or affidavits, we feel that the language should say as much. As currently drafted, the language is much broader and may be used to argue against the executive prerogative. We see a possible separation of powers issue. As to subsection (c), we believe that it should mirror the statutory language found in U.C.A. 77-7-5(1). The proposed language of this subsection appears to create a heightened standard for the issuance of an arrest warrant that is not consistent with the language set forth in the Utah Code. For instance, the proposed language requires the court to make a finding that the defendant poses a substantial danger of a breach of peace, injury to person or property, or danger to the community. Whereas, U.C.A. 77-7-5(1)(b) simply requires the Court to find that a warrant is necessary to (i) prevent risk of injury; (ii) to secure the appearance of the accused; or (3) to protect public safety and welfare.
Where elected officials in our Utah Legislature have passed a law that specifically sets forth when a magistrate may issue a warrant, we believe that any associated procedural rules should model the legislative enactment. To not do so, presents a separation of powers issue.
Lastly, we find the language in subsection (g)(1) problematic. It could be interpreted to exclude the placement of felony warrants on NCIC and the service of warrants issued in the State of Utah in other states.
Thank you for your time in considering our comments and request to not approve the rules for adoption in their current form.
Sincerely,
Tony Baird, Chief Deputy
Spencer Walsh, Chief Prosecutor
On behalf of the Salt Lake City Prosecutor’s Office, I’m in agreement with the comments already made by Mr. Robinson, Mr. Taylor, Mr. Buhman, Ms. Telles, and other prosecutors and I share their concerns. The proposed changes in Rule 4(b)(3)-(c) and (h) would create a significant burden to prosecuting offices that doesn’t currently exist, and there doesn’t appear to be any real need for the changes.
Our office filed over 7,000 informations in 2015, and is on track to file over 8,000 in 2016. These cases range from Class B Misdemeanors to Infractions. The additional burdens imposed by the proposed Rule 4(b)(3)-(c) and (h) changes would significantly disrupt the filing of informations. Our office isn’t currently staffed to handle the significant burden of complying with the proposals, and my assumption is that other offices around the state aren’t either. As stated by Mr. Robinson, if the proposals were put into effect, prosecuting offices across the state would have to increase staffing (at taxpayer cost) with people qualified to fulfill the new requirements. Rule 4(h) also seems to place a new significant burden on judges working in high volume jurisdictions to review each information and make a probable cause determination on every information filed. If the purpose behind the rule proposal is to ensure the judge makes a probable cause determination on misdemeanor and infraction level cases, it would be more efficient for the prosecutor to simply give a verbal factual basis for the charges at the arraignment. But as Ms. Telles stated, this just creates a backdoor quasi-preliminary hearing that has long been deemed unnecessary for misdemeanor and infraction level cases.
Curtis Tuttle
Assistant Salt Lake City Prosecutor
Proposed Rule 4(b)(3) is duplicative of discovery rules that already require notification to defendants of the names of witnesses. It is inefficient to create a rule that duplicates work.
Proposed Rule 4(b)(4) requires information that may not be readily available to the prosecution at the time of the filing of the information. This information may be of interest for the courts and legislature as they consider changes in the law, but it is placing a burden on the prosecution office to become a gatekeeper of information they usually do not track.
Proposed Rule 4(c) requires the prosecutor to prepare a statement that they can neither swear to, or attest to its truthfulness. All charges prepared by the prosecution are on reliance of outside witnesses. All evidence and statements supporting an information is also provided to defendant in the form of discovery. The information requested by this proposed portion of the rule is unnecessary to inform the defendant of charges against him or her. This may be a preferred format used by some prosecution offices, but is not needed. There should not be a rule that mandates a format for a criminal Information that requires a probable cause statement.
I also agree with other comments that there are more reasons to issue a warrant than currently proposed in proposed Rule 6, and would urge language that would give courts more discretion when to issue warrants.