Utah Court Rules – Published for Comment
The Supreme Court and Judicial Council invite comments about amending these rules. To view the proposed amendment, click on the rule number.
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Posted: June 27, 2019
URCrP014. Subpoenas. The proposed amendments redefine and clarify the processes for taking and using testimony of a material witness, and for obtaining information for a victim.
Privileged as opposed to non-public is better because it is more narrowly defines the breadth of materials. It also applies to all parties, which seems appropriate.
The change from “non-public” victim records to “privileged” victim records has serious, perhaps unintended, consequences. It is not clear whether the word “privileged” is meant to be strictly defined in accordance with the evidentiary privileges or whether it is being used more broadly. In accordance with the Rule’s previous advisory committee note, the purpose of this provision was to protect a victim from exploitation in the court process and assure that the dignity of the victim was respected/protected as provided in the victim’s rights statutes. Assuming that the word “privileged” is strictly defined as an evidentiary privilege, this proposed language would allow a criminal defendant to have access to child victim records maintained by the Division of Child and Family Services/Child Protective Services, without the requirement of notice to a victim or a court hearing and determination that the records are material. The DCFS/CPS records do not neatly fall into the categories of “medical, mental health, school . . .” records, or to evidentiary privileges. It also appears that the proposed language at (b)(8), at lines 81-83, potentially eviscerate, or conflict with, the provisions of (b)(1), lines 51-55. Removing the words “non-public” but then adding the language at (b)(8) which provides a catch-all provision, creates a very confusing rule for the court and practitioners.