Rules of Criminal Procedure – Comment Period Closed February 23, 2019

URCrP007B. The proposed amendment states that a motion to quash a bindover will be decided by the judge to whom the case is assigned after bindover.

URCrP016. The proposed amendments create greater specificity about the information that must be disclosed by the prosecution and by the defense. And the proposed amendments expand on the consequences for failing to disclose information.

URCrP027. The proposed amendments will allow a defendant to seek a stay upon filing a motion for a new trial.

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12 thoughts on “Rules of Criminal Procedure – Comment Period Closed February 23, 2019
  1. Annie Taliaferro

    With regard to proposed changes to Rule 27, allowing a defendant to seek a stay upon filing a motion for new trial, is a much needed change. Thank you.

    The only issue I see is with the procedure of appealing an adverse ruling denying a stay pending a motion for new trial. The proposed Rule says the defendant may appeal to the appellate court that would hear the appeal, but the Rules Committee is effectively giving appellate jurisdiction over an adverse “trial court ruling” where a defendant would need to seek permission to file an interlocutory appeal otherwise. In other words, the Rules Committee is giving appellate jurisdiction where it does not exist now. This same problem does not arise when a defendant is seeking review of the denial of a motion to stay pending appeal, because the appeal has already been filed and an appellate court already has jurisdiction. This issue needs to be dealt with. What it may come down to is that review of a denial of a stay pending a motion for new trial will need to be sought by an interlocutory petition, or the defendant, if unsuccessful in the motion for new trial, can move for a stay pending appeal and then if that is denied, review can go directly to the appellate court who has jurisdiction over the appeal.

    Kind of a complicated little procedural quirk…

  2. Janet Lawrence

    Regarding proposed amendments to URCrP016. There is tension between (a)(3)(A) requiring the prosecutor to disclose “a written list of the names, addresses, and criminal records, if any, of all persons whom
    the prosecution intends to call as witnesses at trial” and Utah Code section 77-38-3(11)(a) (“The victim’s address, telephone number, and victim impact statement is available only to the following persons or entities in the performance of their duties: (i) a law enforcement agency, including the prosecuting agency; (ii) a victims’ right committee as provided in Section 77-37-5; (iii) a governmentally sponsored victim or witness program; (iv) the Department of Corrections; (v) the Utah Office for Victims of Crime; (vi) the Commission on Criminal and Juvenile Justice; and (vii) the Board of Pardons and Parole.“). The state is barred by statute from disclosing the victim’s address to the defense.

    Additionally, (f)(1) needs to retain the subordinating conjunction “If.”

  3. Christine Scott

    In rule 16, requiring the State to provide criminal records of all the State’s witnesses will require the State to violate the dissemination rules of the Bureau of Criminal Identification, which is the agency that controls the records. Defense counsel has always had access to XChange where they can look the criminal histories up themselves. If the rules committee is inclined to keep this change, why would it not be required for defense counsel to disclose any known criminal record of their witnesses? Both parties have an equal interest in impeachment and both are assured the right to a fair trial.

  4. Chad Steur

    Re: URCrP016

    I recently had a case where the defense witness had a close family relationship to the alleged victim. I was concerned that disclosure on a witness list of this individual would have resulted in alleged victim pressuring witness to change anticipated testimony. If disclosure would have been required, in my opinion the remedy (such as impeaching the in-court testimony with a prior recorded statement) would have been less effective, and I’m not confident that witness tampering charges, if merited, could have been brought against the alleged victim prior to the trial date.

    I also recently had a justice court case where the prosecutor failed to disclose evidence until after the case was dismissed for the discovery violation. The information was disclosed just prior to the de novo hearing on the appeal. As a result, the dismissal was overturned and the case sent back to the justice court. I would ask for some clarification in the rules in this regard.

    Thank you.

  5. Bryson King

    Rule 16(g)(3) should be removed from the proposed changes. The proposal permits the State to offer evidence of a defendant’s failure to comply with identification procedures without providing guidance as to the limits of that evidence and its purpose. Presumably, the evidence would be admitted pursuant to Rule 404(b), but fails to comply with the requirements set forth in that evidentiary rule for admission. The proposal generally lacks support and compliance with our evidentiary rules and seems to take on the form of punishment for a defendant’s refusal to cooperate with Identification evidence. While the defendant’s right against self-incrimination has its limitations, and the proposed rules seeks to carve out an exception to assert that right, the form of the rule is punitive. In similar fashion, it would likely be inappropriate and inadmissible for the State to present evidence at trial that a defendant refused to speak with investigating officers, or asserted his right to remain silent, or requested the presence/help of an attorney. While the State has a legitimate interest in developing its case through Identification evidence, subject to constitutional limitations, the State should not be given the windfall of present additional evidence that a defendant refused or resisted in the development of this evidence. Our current case, evidentiary rules, and state constitution do not support the introduction of this proposal as a punitive measure for punishing criminal defendants who exercise their right against self incrimination by failing to comply with the Identification evidence subsection. While the subsection on identification evidence itself should be reconsidered, for the time being the proposed rule in 16(g)(3) should be removed.

  6. Timothy L. Taylor

    I respectfully request that the rules committee not adopt the language “or government access” in the proposed change to the mandatory disclosure requirement set forth in Rule 16(a)(1).

    The entire language contained in the proposed change to Rule 16(a)(1) states: “Mandatory disclosure. As soon as practicable following the filing of the Information and before the defendant is required to plead, or if applicable, before the preliminary hearing, the prosecutor must disclose to the defense the following material or information of which the prosecutor has knowledge and control or government access:”

    The requirement for a prosecutor to disclose material or information for which the prosecutor has “knowledge and control” comports with the Utah Supreme Court’s decision in the case of State v. Pliego, 1999 UT 8. The court in Pliego stated that a “prosecutor cannot be expected to disclose materials which he does not know exist, nor is he required to turn over every stone or ‘exhaustively pursue every angle’ searching for exculpatory evidence or other evidence that may be helpful to the defendant’s preparation of his case.” Pliego at para 11 (quoting State v. Shaffer, 725 P.2d 1301 at 1306).

    The court in Pliego went even further by stating, “…we further note our disagreement with the Perdomo rule, requiring the prosecutor to disclose materials that are ‘in possession of some arm of the state.’ 929 F.2d [967] at 971. In our view, this requirement is too broad. Such a rule would place a herculean burden on the prosecutor to search through records of every state agency looking for exculpatory evidence on behalf of the defendant. “ Pliego at para 18.

    If the rules committee adopts the language “or government access”, the preceding holding in Pliego will be overturned. The “government access” language in the proposed change to Rule 16(a)(1) does not require a prosecutor to have any particular knowledge or control of the information which must be disclosed, rather the only requirement is that a prosecutor have “government access.” In other words, prosecutors who may have access to a record contained within a state agency would be required to search through those state agencies in order to comply with this rule.

    This type of “herculean burden” is exactly the type of burden that the Utah Supreme Court rejected in Pliego and I respectfully request that the “government access” requirement be removed from the proposed change to Rule 16(a)(1).

  7. Blair T. Wardle

    I agree with the comments proffered by Janet Lawrence, Christine Scott, and Timothy Taylor above and echo their concerns. I would also like to add some of my specific concerns as well.

    16(a)(1) requires the prosecutor to disclose a number of non-exculpatory items “of which the prosecutor has knowledge and control or government access.” This proposed change goes far above and beyond the obligations imposed by the Federal and State constitutions. This change is problematic for two reasons: First, this language could be interpreted to require the prosecutor to turn over any records to which they have “government access” regardless of knowledge. The Utah Supreme Court has specifically rejected such a broad scope, holding that “the prosecutor’s disclosure duty arises only when he, his staff, or the investigating officers come across exculpatory materials during their investigation.” State v. Pliego, 1999 UT 8 at P.15. The Court of Appeals also specifically held that “Requiring the State to disclose to the defense all information to which it has “access” under GRAMA ‘would place a herculean burden on the prosecutor to search through [the] records of every state agency’ looking for relevant written or recorded statements on behalf of the defendant simply because the State has access to the records under GRAMA. Pliego, 1999 UT 8 at ¶ 18, 974 P.2d 279. Such a result would violate the principles articulated by our supreme court in Pliego.” Second, while the government may have access to that information, providing that information to a third party, such as a pro se defendant or a defense attorney, may violate other laws, including GRAMA and the Victim Rights Statute. And what would be their obligations about further dissemination?

    Regarding changes in 16(a)(1)(A) – this should include the caveat that the statements must be related to the case. As it is currently written, it could be for any statement ever.

    Regarding changes in 16(a)(1)(B) – see concerns above. Would this provision regarding co-defendants be in line with any other statutes, including GRAMA, BCI certification, etc. without a court order? Also, would this apply to juvenile co-defendants?

    Regarding changes in 16(a)(3)(A) – This requirement of a “written” list of the names and addresses of any potential witnesses is both burdensome and dangerous. Putting the addresses of victims and witnesses in a public document violates the privacy of victims and poses a substantial risk. This would inevitably create serious problems for domestic violence, rape, and gang cases. While a defense attorney may need to serve a witness, a home address is not necessary for that. The Court should be able to facilitate the safest way for that to occur, in order to prevent the harassment of witnesses and victims. Also, requiring the prosecution to “disclose” the “criminal records” of all persons, without a specific court order, runs the potential of violating GRAMA and BCI regulations, thereby subjecting the prosecutor to criminal sanctions. For example, will this include juvenile records, that are protected documents, and to which most prosecutors do not have access?

    Regarding changes in 16(b)(3)(A) – same concerns with “written” disclosures. It would require disclosure of protected information in a public document.

    Regarding changes in 16(f)(1)(D) – the Utah Supreme Court has noted that if a judge grants a mistrial “the trial judge has a duty to carefully evaluate the circumstances of the particular case and determine that legal necessity requires the discharge of the jury.” Further, the “judge must consider possible alternatives to terminating the proceeding and determining that none of the proposed alternatives are reasonable.” State v. Manatau, 2014 UT 7 (internal citations, quotations omitted). My concern is that simply listing a mistrial as one of the alternatives, will cause courts to skip the required steps they have to take to grant a mistrial. Having a judge say that it is an option under the rule is simply insufficient.

    For the foregoing reasons, I strongly urge that implementation of these proposals be reconsidered. It creates far more problems than it solves.

  8. Lori Randall

    I am currently in the position of a system based Victim Advocate and I too, agree with the comments submitted by Janet Lawrence, Christine Scott, Timothy Taylor, and Blair Wardle above and echo their concerns. I would also like to add some of my specific concerns as well.

    It is hard enough to encourage victims, survivors, and witnesses to participate in the Law Enforcement and Judicial systems and passing this change will only make this encouragement basically non-existence. Why would anyone want to engage in any participation in a system with no regards to their safety?

    Our main responsibility as a Victim Advocate is to make sure that victims’ rights are upheld and that we stand by the Utah Crime Victims’ Bill of Rights. Which states:

    77-37-1 Legislative intent. (1) The Legislature recognizes the duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, the essential nature of citizen cooperation to state and local law enforcement efforts, and the general effectiveness and well-being of the criminal justice system of this state. In this chapter, the Legislature declares its intent to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity

    Regarding changes in 16(a)(3)(A) – This requirement of a “written” list of the names and addresses of any potential witnesses is both burdensome and dangerous. Putting the addresses of victims and witnesses in a public document violates the privacy of victims and poses a substantial risk. This would inevitably create serious problems for domestic violence, rape, gang cases and for ALL major crimes. While a defense attorney may need to serve a witness, a home address is not necessary for that. The Court should be able to facilitate the safest way for that to occur, in order to prevent the harassment of witnesses and victims. Also, requiring the prosecution to “disclose” the “criminal records” of all persons, without a specific court order, runs the potential of violating GRAMA and BCI regulations, thereby subjecting the prosecutor to criminal sanctions. For example, will this include juvenile records, that are protected documents, and to which most prosecutors do not have access?

    Please, I respectfully urge and request that these proposals be reconsidered, please keep the safety of all victims, survivors, and witnesses in the forethought.

  9. Julee Smith

    I am currently the Director of a Domestic Violence shelter and Sexual Assault center. Please do not adopt the Rule change 16.
    The vast majority of victims of domestic violence and or sexual assault have been threatened that if they report and/or testify they will be harmed/killed by the perpetrator. To disclose their personal information such as their address etc. would be a breach of confidentiality and open the door for retaliation. This would have a huge impact on not only victims being willing to testify but also even reporting offenses. Currently domestic violence and sexual assault are two of the most under reported law violations in Utah. Adoption of this rule would increase this unwillingness to report, which of course encourages perpetrators to continue to violate the law and harm and kill innocent citizens. The justice system is extremely focused on protecting the rights of defendants, please help protect the rights of victims as well. Your careful consideration and not implementing the proposed rule change would be greatly appreciated by all victims, their loved ones and those of us would provide services to them as well.

  10. Ryan Peters

    I would respectfully request three modifications to the proposed Rule 16 and add my concerns to those already expressed.

    1) I am concerned with the language “government access” in 16(a)(1). This is contrary to well-established Supreme Court precedent in State v. Pliego, 1999 UT 8. It appears that this should have been written with two requirements–A) prosecutor knowledge; and B) prosecutor control or access. As it is written, it seems that knowledge, control, or access is all that is needed, presumably obviating the requirement of “knowledge” for the latter two. Knowledge, imputed or actual, must be a requirement before the prosecutor is obligated to disclose. The Supreme Court has said as much in not only Pliego but also State v. Fierst 692 P.2d 751 (Utah 1984). Further, “government access” is not defined. There are many situations where documents are in the possession of some “arm of the government” and where the prosecutor is aware of such, but is not able to get copies of it to disclose–such as DCFS records in certain situations. I would urge the “government access” language be dropped and the final clause of that paragraph be read “knowledge and control.” The prosecution should not be required to undertake an investigation for the defense, particularly when the defense can get the information as easily as the prosecution.

    2) 16(a)(3)(A): I likewise am concerned about providing written addresses and other contact information for victims in cases. This is contrary to statutory law set forth in 77-38-3(11)(a) and 77-38-6. Requiring prosecutors to provide victim contact information will necessarily place them in the position of violating statute in order to comply with discovery obligations. Alleged victims should be excepted from this provision. Further, the names and address of all other witnesses should only be required to be provided to the defense, not filed in a public document. In addition, certain witnesses should also be excepted, such as witnesses who are in danger physically, economically, etc. due to their testifying. There should be some mechanism to except these witnesses from the disclosure of contact information.

    3) Finally, the requirement to provide criminal records of witnesses also puts prosecutors in violation of state law. Prosecutors already have a duty, that is acknowledged in the proposed rule, under the Constitution to provide any exculpatory, mitigating, or impeachment evidence regarding its witnesses at trial. However, providing actual documentation of criminal history would violate the law. Under 53-10-108, “dissemination of information from a criminal history record…is limited to: (a) criminal justice agencies for purposes of administration of criminal justice.” The term “criminal justice agencies” is defined and does not include defendants or their attorneys. Were the provision regarding prosecution witness criminal histories to stand in the proposed rule, prosecutors would be required to request the criminal history from BCI and then disseminate that information in contradiction to the statute. Further, supplying criminal histories of victims to defendants runs contrary to the spirit of the Rights of Crime Victims Act (77-38-1) and could run afoul of Rule of Evidence 412 in certain situations. This provision again, puts the prosecutor in the position of violating one law to comply with another. I would request this provision on criminal histories be stricken.

  11. William J Carlson, Chief Policy Advisor, on behalf of Salt Lake County District Attorney's Office

    Regarding the proposed revisions to URCrP016, the Salt Lake County District Attorney’s Office echoes many of the concerns expressed regarding the proposal. When a prosecutor files criminal charges against someone, that person’s liberty and property interests are immediately at risk. Combining the defendant’s threatened liberty interests with the inevitable resource imbalance between the enforcement arm of the state and an individual charged with a crime, it is understandable that the courts would consider expanding prosecutors’ discovery obligations in an effort to balance the scales. Even so, several of the specific proposals are impractical, some create conflicts with existing law, and others will have a chilling effect that threatens to decrease the accuracy of investigations.

    The proposed revision to 16(a)(1) requiring all discovery be provided before a preliminary hearing will lead to delays in scheduling preliminary hearings until all discovery has been received by the prosecutor and shared with the defense.

    The proposed revision to 16(a)(1) adding the phrase “and control or government access” may be read either as modifying the condition “of which the prosecutor has knowledge” or as an alternative to that condition. Imposing obligations on prosecutors to disclose materials before a preliminary hearing regardless of whether the prosecutor has knowledge of the materials is too broad to be practicable. The fiction that prosecutors supervise and control the policies of every government agency that submits an investigation to them for screening criminal charges may serve a benefit for defendants who are convicted without the full panoply of evidence collected by every agency. Even so, prosecutors are unlikely to be able to certify that they possess, let alone have disclosed, all material or information of which is within “government access.” State v. Pliego in 1999 led the Utah Supreme Court to wisely conclude that disclosure rules should not require prosecutors to carry the herculean burden of searching the entirety of the records of every government agency.

    The proposed revision to 16(a)(1)(A) requires, without any relevancy limitation, the substance of any unrecorded oral statement made by defendants and codefendants to law enforcement. This may be impractical for statements made in the context of and during a specific investigation but will be impossible for defendants’ conversations with any officer ever before or after the specific investigation.

    Other commenters have raised the conflict of laws created through the proposed revision to 16(a)(1)(B) and (a)(3)(A) in requiring prosecutors to provide the criminal histories and contact information for victims, witnesses, and co-defendants. The District Attorney’s Office joins in those concerns.

    The proposed revision to 16(a)(1)(F) requiring reports as well as notes prepared by law enforcement will lead to an increase in Tiedemann hearings where officers, having used handwritten notes to prepare their reports, discard the notes after the report is submitted. Additionally, this will have a chilling effect on notetaking, lead to officers taking fewer notes to help them remember the events before preparing reports, and in turn have a negative impact on the accuracy of police reports. The introduction of body cams led to a spike of police “reports” that simply said “refer to body cam.” This obligation to provide not just a report, but all the notes written in preparation for writing the report will have the opposite of the intended effect.

    The language authorizing a court to hold someone in contempt in proposed 16(f)(2) is unneeded. A court’s authority to sanction contemptuous conduct is both statutory and inherent. Prosecutors also already have personal responsibility for discovery under the special rules of professional conduct for prosecutors.

    The removal of the notice requirement for alibi and insanity defenses in the proposed revision to 16(b)(1) will not improve transparency or judicial efficiency.

    Finally, as this comment period is in the midst of the state’s general session of the state legislature, some members of the bar, including members of advisory committees, have suggested that Article VIII, Section 4 of the state constitution precludes the Utah State Legislature from amending the rules by introducing a new rule of evidence or procedure through a two thirds vote by a House or Senate joint resolution. Were the Utah Supreme Court to interpret the legislature’s authority to amend rules so narrowly, it would similarly be obligated to restrain from amending adopted rules without the legislature’s support. After all, Utah’s Constitution gives the Supreme Court authority to adopt rules of procedure and evidence and gives the Legislature the authority to amend. Having already adopted rule 16, a strict and narrow reading of Article VIII, Section 4 would preclude the Supreme Court from amending the rule.

  12. Ben Willoughby

    There are several concerns with the proposed new Rule 16.

    1. Rule 16(a)(1) adds the words “or government access” to the familiar duty to provide evidence “of which the prosecutor has knowledge and control.” The comments on this from Mr. Wardle and Mr. Taylor are spot on. After this change, the defense would never need to file a GRAMA request or a subpoena duces tecum themselves, or have their investigator chase a lead ever again. The State would have to do it—and do it without request.

    The phrase “government access” is too loose to be applied well. It is fodder for increased disputes between the parties and would require more involvement from the courts. The current system seems to generate very few motions to compel discovery. The uncertainty of this proposed phrase seems likely to change that.

    2. Rule 16(a)(1)(B) proposes to require the State to provide the criminal history of co-defendants. This would be illegal under Utah Code § 53-1-108(5)(c). Furthermore, what possible relevance would the criminal history of a co-defendant have? If the State plans to call the co-defendant to testify and there are impeachable offenses on the criminal history those are already required to be disclosed.

    3. Rule 16(a)(1)(F) would require the State to provide the notes prepared by law enforcement. Notes jotted down by the police are merely memory aids to help the officer prepare final reports. The officer’s report is the relevant document. The prosecutor cannot possibly chase down every scrap of paper on which an officer jotted a note to be used later in a police report. Why would notes be treated differently than rough drafts of a police report, which are also not provided? Other than burdening the State, what possible use would an officer’s note to him or herself have to the defense?

    4. Rule 16(a)(3)(A) would require the State to provide “a written list of the names, addresses, and criminal records, if any, of all persons whom the prosecution intends to call as witnesses at trial.” Again, providing the criminal histories of witnesses violates state law. On many cases, witnesses have valid reasons why they would not want their home address handed over to the defendant. Prosecution offices carefully redact police reports to remove home addresses. On violent crimes, especially on gang-related offenses protecting home addresses is very important. The current practice is to provide phone numbers for witnesses whenever requested by the defense. In the counties where I have experience, this process seems to be handled by the parties themselves without the court’s involvement. This rule would require prosecution offices to repeatedly file motions with the court to protect this sensitive information.

    5. Rule 16(a)(3)(B) and Rule 16(b)(3) require all of these exchanges, including all exhibits, no later than fourteen days before trial. As a practical matter, there is a lot of work done preparing for trials by both sides in the final two weeks. Courts are already adequately protecting parties from unfair surprise. Courts have all the tools necessary to provide that protection. Whenever appropriate, trial courts already have the authority to exclude evidence and witnesses, delay to give the other side time prepare, or grant a continuance.

    Benjamin B. Willoughby
    Rich County Attorney