Rules of Criminal Procedure – Comment Period Closed September 5, 2020

Overall, I think this is an improvement on the rule. Although the State and the criminally accused are not in equally positioned, reciprocity regarding pre-trial disclosures is discussed in case law and seems appropriate. However, subsections (a)(5) and (b)(4) are incongruous. While it is important to address the applicability of Civil Rule 26 (via Rule 81) to Criminal Procedure, the premise seems faulty. The civil rules of discovery are much more robust than criminal, yet the rules do not reflect the disparity. Nothing could be more in need of protection than a person’s liberty in the State’s attempt to deprive its citizens of that liberty. Consequently, the criminally accused must be afforded tools no less than what’s afforded civil complaintants. What is really unsettling is (a)(5) seems to protect the State from not disclosing information claimed as work product – without exception. Work product has never been an absolute protection, but it is now. Certainly the reasoning for having an exception to the work product protection in the civil rules would apply to the State in criminal cases. There are times when hardship calls for work product to be reviled. Absolutely exempting the State and the criminally accused from divulging opinions and mental impressions is appropriate, but “work product” can be broadly defined and the State’s protections should be very narrowly tailored. Conversely, however, the absolute exception is appropriate for the criminally accused because it will have a chilling effect on investigations.

The rule presents significant practical challenges – particularly to the prosecution (because it imposes new additional burdens on the prosecution which are not imposed on the defense)

16(a)(1)(D) makes no exception for discovery of illicit images (like child pornography). It should.

16(a)(1)(E): this new rule lacks reciprocity. If the new rule is going to recognize the need for witness statements to prepare for trial or consider in resolution, it needs to apply to both parties. This rule doesn’t. There is a fair argument from both sides that witness interviews may include work product. As such, witness statements which contain work product would be exempt under (a)(5) and (b)(4). Either there is a need to presumptively include witness statements, subject to work product exemption, or not. The point is reciprocity.
Please consider how the federal rules handle this issue: Rules 16, 26.2 and 18 U.S.C.S. 3500. Case law is fairly clear on this issue: witness statements from both parties are discoverable, subject to work product privileges (which may mean redacting portions of statements). If the rule is going to recognize that fact from one side, it needs to recognize it from both.

16(a)(3) imposes an impossible burden upon the prosecution. The State can obtain almost anything pursuant to the government to government GRAMA provision, but may be aware of none of it. Should a defense request be broad enough (to include “all information regarding the defendant’s history, the witnesses’ history, and impeachment material of any witness,” for example) the State would be in the impossible position of having to find and obtain it. This information may be in reports held by agency in the State. The way the rule is written dumps the burden of investigation onto the prosecution and holds them accountable if they fail. To put in the language of the Utah Supreme Court: “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.” State v. Pliego, 974 P.2d 279 (Utah 1999).
I think this consequence could be limited by adding a line to make clear that it applies only to “material or information of which the prosecution team has knowledge and control.” Alternatively, it could require that the defense request be particular as to the agency involved, date of the record, and the individual who is the subject of the record.

(a)(4)(a) includes “criminal records” of witnesses. It is unclear what this means. Does it mean BCI criminal history, Xchange criminal history (which is superior to BCI generally), all police reports involving the witness, police agency records (like Spillman)?

I have done a fair amount of research on this topic and I would be happy to share case law with members of the committee if you would like.

Below are a few items that are seem to be unclear and could possibly cause confusion for both law enforcement and attorneys.

1) “Mandatory disclosures:
(a)(1)(A) relevant written or recorded statements of the defendant or and any codefendants, and
the substance of any unrecorded oral statements made by the defendant and any codefendants to
law enforcement officials;”

Comment:What does “the substance of any unrecorded oral statements” actually entail? For example, a suspect may talk to officers about several things which may or may not be relevant to the matter which is being investigated. Are officers required to put in their reports “the substance” of everything a suspect says–even irrelevant items? In addition, if these are unrecorded oral statements, how can a prosecutor be required to disclose items which may not even be relevant? This language is extremely broad and appears to require law enforcement and prosecutors to disclose statements regardless of whether or not those statements have any bearing on a case.

“(a)(1)(F) reports and notes prepared by law enforcement officials;”

Comment: “Notes” prepared by law enforcement officials may contain thoughts, work product, leads for other cases, etc. Why can’t law enforcement officials be trusted to include relevant and/or exculpatory information in their reports without defense attorneys being able to examine an officer’s cryptic handwritten messages on a piece of paper? If this is the new standard, then investigators for defense attorneys should be required to turn over their notes from their investigations.

“(a)(3) Disclosures upon request. Upon request, the prosecutor must obtain and disclose to the
defense any of the material or information listed above which is possessed by another governmental agency and may be shared with the prosecutor under Title 63G, Chapter 2, Government Records Access and Management Act.”

Comment: This requirement appears to be at odds to State v. Spry, 2001 UT App 75 and State v. Pliego, 1999 UT 8. The court stated in Spry, “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 P18.”

How can prosecutors ever completely comply with this requirement? This discovery request would be part of every defense attorney’s request for discovery and where does the prosecutor begin to look? Do we send a discovery request to every state and local government agency in order to find out whether these agencies have any “material” or “information”? Does this requirement apply not only to “material” or “information” pertaining to a defendant but to any witness? If this is the case, the term “Herculean burden” doesn’t even begin to describe the efforts that would be required by the prosecutor. In addition, if a defense attorney believes that a government agency has some “material” or “information” that the defense attorney desires, why can’t the defense attorney obtain it? Why do prosecutors have to do their jobs for them? This rule is so fraught with potential abuse that there is a reasonable and rational basis that our appellate court rejected this requirement.

I am in agreement with the concerns expressed in each comment as it relates to the additional burdens these changes place on the prosecutor. Additionally, the requirement that the prosecutor provide “…and notes from a law enforcement official” is vague and problematic. What constitutes a note? Is it every piece of paper an officer writes on? If the officer discards or misplaces the note, will the prosecutor be sanctioned? if the prosecutor is unaware that a note exists prior to a hearing or trial, but it is mentioned during the officer’s testimony, what is the remedy? If that same note is no longer available, what is the remedy? Is a prosecutor required to gather every piece of paper from an officer in order to comply with this rule? Overall, the proposed rule changes place an undue burden on the prosecutor.

a(1)(F) – “reports and notes prepared by law enforcement officials;”
This does not comport with Trombetta, 467 U.S. 479, “If the agents’ notes . . . were made only for the purpose of transferring the data thereon . . . , and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute [****15] an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242.” (citing Killian v. United States, 368 U.S. 231 (1961)).

a(3) – The fact that a record kept by a different agency “may” be shared with the prosecution under GRAMA, doesn’t always mean that agency will share it. This section’s language should be changed from “the prosecution must obtain and disclose to the defense…” to language less burdensome on the prosecution in those instances where the outside agency refuses to provide the record. Perhaps something along the lines of: “the prosecution must request and, upon obtaining, disclose to the defense…”

a(4)(A) – I do not usually have our paralegals pull criminal histories for every witness in the case unless requested by defense counsel and ordered by the court per BCI’s guidance. Has this committee requested any input from BCI on this requirement? I feel that they should advise as to whether or not there should be a process for this. Otherwise, this requirement could overly burden smaller prosecution offices that do not have the resources to pull histories on all witnesses in every case.

Removed (d) – Removing “The defense has a continuing duty to make disclosure” – I cannot understand why this portion was removed. Having dealt with unethical defense counsel, I feel that this section should NOT be removed. Defense should have an ongoing duty to disclose, especially if specifics requests for discovery have been made/filed by the prosecution.

Overall I think the rest of the proposed changes are great. Thanks.

I am in favor of these amendments, and, as a private defense attorney, I think the best and most needed revision made here is the addition of subsection a(3). Judging by the comments above, that also seems to be a provision causing consternation among my prosecutor colleagues (many of whom I know and respect, just for the record).
First, let me give my perspective on why that addition is necessary: for many years in my practice, my standard operating procedure was sending out GRAMA requests to all the relevant agencies in addition to my standard discovery request to the prosecutor. I took the oft-cited argument at face value and assumed it’s just as easy for me to try and get this information independently than to try and make the prosecutor do it. Well, it’s not. The GRAMA request that went smoothly, where the agency searched for and identified my requested records, charged me a reasonable fee, and gave me the records in a timely manner was the exception rather than the rule.
Common excuses for not complying with GRAMA included:
“There’s a criminal case ongoing so you should go through the prosecutor for discovery.”
“There’s a criminal case ongoing so giving you records would interfere with an ‘active investigation.’”
“You need to submit a notarized release from your client and all the other individuals in the [videos or reports].”
“We need to redact portions of the [audio or video] and we don’t have the technology for that.”
Many of these excuses for not complying are contrary to the plain language of GRAMA, but litigating all these cases through the GRAMA appeals process and through a separate district court case is prohibitively expensive, slow, and inefficient; particularly when the agencies are usually more than willing to quickly hand over relevant records to the prosecutor. (I realize there are exceptions to this–but I don’t think it’s debatable that, generally speaking, it’s MUCH easier for a prosecutor to get a record from a LEA than a defense attorney.)
That’s why a rule requiring the prosecutor to get relevant, GRAMA-able records from LEAs upon request is simpler and more efficient–which is what the rules of criminal procedure should promote.
The counter-arguments against a(3) mostly seem to be the “parade of horrors” type, based on the most extreme and burdensome reading imaginable. But the remedies baked into this rule are discretionary and based on reasonableness. See proposed e(1). As such, they range from the very mild (an order for discovery, a continuance), to, at the most extreme, a contempt finding for willful disregard of a previously issued order for discovery. To suggest that a Utah judge would ever order a prosecutor to send out blind and broadly-worded GRAMA requests to every agency in the State to fish for entirely hypothetical information that may be relevant under the rule–let alone hold a prosecutor in contempt for not doing it–does not reflect courtroom reality that I’ve ever seen.
In other words, the rule already has a de-facto requirement for us defense attorneys to be reasonably specific in our requests under a(3), because we’re not going to get any remedy beyond that “appropriate under the circumstances.” This seems to me a good balance of burden, efficiency, and consequence in the discovery process.

Re line 16 about providing officers’ notes: The U. S. Supreme Court has already held the government need not provide officers’ notes to the defense.

Here’s some language from Trombetta, 467 U.S. 479, citing Killian:

“One case in which we have discussed due process constraints on the Government’s failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U. S. C. § 1001. A key element of the Government’s case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner’s trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner’s defense, the Court ruled that their destruction did not rise to the level of constitutional violation:

“If the agents’ notes . . . were made only for the purpose of transferring the data thereon . . . , and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242.” [end of quotation].

Even acknowledging 2020’s zeitgeist including the distrust of law enforcement, the implied logic of Killian still holds, since there’s nothing to stop a dishonest law enforcement officer who takes notes on four Post-It notes from scanning two of the four Post-It notes into Spillman, then later saying,

“Yep, I scanned all my Post-It notes into Spillman.”

Discovery is about providing content, it is not about the medium or format through which the content is provided, unless there’s something about the medium that creates an issue.

So long as defendant gets the content, defendant has what s/he needs to defense their case.

EAB

While maybe based on proper principles, the practical impossibilities of these proposed amendments overwhelm this proposal.

First, (a)(1) imputes knowledge of a ‘prosecution team’ to a prosecutor. The limits of the ‘prosecution team’ are not defined. Is it the prosecutor and the case officer? Any officer who responded to the criminal event? Support staff of the prosecutor and/or police officer? Unless properly limited, strict compliance with the mandatory disclosures within subsection (a) would require not only that the prosecutor undertake the ‘herculean efforts’ previously discussed but also that all members of the amorphous ‘prosecution team’ undertake these herculean efforts. In complex cases that prosecution may be comprised of dozens of persons, whose obligation would attach upon filing of an information and would be mandatory prior to the preliminary hearing, which by Rule could occur within 14 days of the date of arrest.

Another series of problems arises in the removal of any exception to the mandatory disclosure requirements of (a). For instance, (a)(1)(B) creates a mandatory disclosure of the criminal history of all co-defendants but creates no exception for instances where the prosecutor is barred from disclosing the criminal history of a co-defendant, as is the case with minor co-defendants. While a seemingly minor issue, this is just one example of the conflicts with law or rules that may be created by enacting an amendment to this Rule which contains no exception clause.

Furthermore, the lack of limitation for a reasonable scope creates an issue in (a)(1)(D), which requires the disclosure of “physical and electronic evidence, including any warrants, warrant affidavits, books, papers, documents, photographs, and digital media recordings” but specifically removes the language which limits this to a disclosure of information obtained from a defendant or co-defendant. This touches on and exacerbates an issue of national concern — what privacy rights do witnesses and victims have in data that is not relevant to a criminal case but may be necessarily disclosed to the State as part of an investigation. For instance, a witness may have received text communications from a defendant and either due to investigative overreach or investigative necessity, a complete forensic download of the witness’ device may be made. However, the complete forensic download may contain information that is in no way relevant to the criminal case such as bank records, private communications, or personal photos. A victim of a sexual crime may not want to turn over personal photographs of their body to a criminal defendant when those photographs have nothing to do with the case at hand. However, no attempt has been made to limit the scope of disclosures to relevant, admissible evidence and pursuant to the plain language of the amendment, that would become necessary.

The problems with the mandatory disclosure of ‘notes’ under (a)(1)(F) has been previously noted, but is very problematic.

Amended (a)(1)(G) also is vague and seems like it will lend itself to vexatious litigation. What is ‘evidence favorable to a defendant?’ Some evidence would be obviously favorable, but would also be covered under the mandatory disclosure provisions of Brady and Giglio and their progeny. However, this subsection appears to expand the obligation beyond Brady and Giglio. It places a burden on the prosecution to divine the defense strategy of the Defendant and provide the Defendant with anything that the Defendant may find favorable under the Defendant’s theory.

Amended (a)(2) also creates a burden on the prosecution to not only provide any evidence that the prosecutor possesses, but also that is ‘reasonably available’ to the prosecutor. Reasonable availability is not defined. Is this evidence that the State may get through a GRAMA request? That the State may get through a search warrant? That the State may get through further interview and investigation with a victim or other witness? This added language places the burden of the defense investigation on the prosecution for all ‘reasonably available’ evidence.

Amended (a)(4)(A) presents a similar problem to the issues created by other amendments in not limiting disclosures to relevant and admissible evidence. Under the language of the amendment, the State is required to provide the criminal history of all witnesses, including law enforcement and expert witnesses, regardless of the admissibility of that evidence under Rules 608, 609, 404, or any other Rule of Evidence.

The practical problems with expanding the burden on the prosecution overwhelm the positive elements of this amendment. If the purpose behind the amendment is to ensure that the Defendant has all evidence that the prosecutor possesses and that the prosecution complies with their burden under Brady and Giglio, those modifications could be made with far less sweeping changes which would not be so practically problematic.

In fiscal year 2020 ending June 30, the Salt Lake County District Attorney’s Office filed 25,871 criminal charges against defendants, including over half of the 1,460 first degree felonies filed statewide. By way of comparison, the prosecuting agency which filed the second largest number of charges was Utah County at 7,938 charges in the same timeframe. As the largest prosecuting agency in Utah, the proposed revisions to Rule 16 will affect our office more than any other. The Salt Lake County District Attorney’s Office applauds many of the proposed revisions to Rule 16. Even before the COVID-19 pandemic put an abrupt pause to jury trials across Utah, the proportion of cases resolved by plea deal grossly outweighed the cases which went to trial. Considering that reality, ensuring that both parties have complete discovery as soon as practicable will ensure the courts continue to serve their truth searching function even when a case resolves short of trial. There are some proposed revisions to Rule 16 which may not help and, in some cases, will interfere with the truth-seeking function of the criminal justice system. Accordingly, the Salt Lake County District Attorney’s Office submits the following seven recommendations.

1. Define “prosecution team” in subsection 16(a)(1). The proposed revision extends the duty to disclose from information and material a “prosecutor has knowledge” about to what a “prosecution team has knowledge and control” over. Although clearly intended an expansion beyond the individual prosecutor, it is unclear what the outer reaches of this “prosecution team” are. Current Utah Code and Rules make no reference to the “prosecution team.” In 1984 the Utah Supreme Court cited the 4th Circuit when it concluded that it was concerned with more than what the prosecutor knew regarding witness credibility and declared that “officers are part of the prosecution team.” State v. Shabata, 678 P.2d 785, 788 (Utah 1984). But in 2005, the Utah Supreme Court pointed out that FBI reports about a key prosecution witness which the defense had obtained “were never in the possession of the prosecutorial team handling [the Defendant’s] case.” State v. Pinder, 2005 UT 15, ¶ 31, 114 P.3d 551, 558. Expanding the rule’s application from the prosecutor to the “prosecution team” without defining the prosecution team will only invite confusion and litigation rather than clarity regarding the duties of prosecutors. One alternative expansion which would not require a definition could be to replace “prosecution team” with “prosecutor’s office.”

2. Proposed subsection 16(a)(1)(A)’s requirement to turn over the substance of any unrecorded oral statements of codefendants combined with the new timeframe for disclosures will complicate cases where one codefendant is cooperating with the police/prosecution. In some cases, prosecutors become aware of information from a codefendant but want police or prosecution office investigators to conduct further investigation to confirm or disprovee the new information. The disclosed information may also be about other potential defendants. If that information does not lead to a prosecutable case against the other potential codefendant(s) within the new time frames for required disclosure, disclosing the substance of the statements risks alerting the other potential codefendants they are being investigated (especially if the potential codefendant is higher “up the chain”). This issue could be mitigated or eliminated by either including the word “relevant” to the part of the sentence related to unrecorded statements to police, or by replacing the “related to the case” phrasing in subsection (a)(1) with “relevant” since there is a legal meaning to what is “relevant.”

3. Clarify proposed subsection 16(a)(1)(D) to require prosecutors to disclose relevant information rather than to provide all physical evidence to the defense. The current rule requires a prosecutor to disclose material or information of which the prosecutor has knowledge. The proposed revision extends that disclosure requirement to any material the prosecution team has control over. By expanding “prosecutor” to “prosecution team” and “knowledge” to “knowledge and control,” the new version of the rule expands the possible interpretations of “disclose” and may imply that physical evidence, such as a phone or bloody shirt, must be provided to the defense. While defense counsel should certainly be informed of the nature and quality of physical evidence under the control of the prosecution, disclosing information about that material will be practicable in a way that providing the material itself will not.

4. Consider eliminating the reference to officers’ notes in subsection 16(a)(1)(F). All parties have a better understanding of a case when the case has complete and accurate police reports. While technology allows officers to write reports in more locations than ever before, the dynamic and field-oriented nature of police work still prevents officers from writing reports contemporaneously to their field work such as interviewing witnesses or making arrests. Because of the inevitable gap between the officer’s lived experience and written report, note-taking serves an important role in helping officers write complete and accurate reports. Ironically, in hopes of getting more accurate information by demanding that officers retain and provide their notes even after writing a report, the proposed revision will have a chilling effect on note-taking generally and a deleterious effect on the quality and accuracy of police reports. Any attorney who has handled criminal cases after an agency has implemented body-worn cameras has had the unfortunate experience of reading a single-sentence police report which simply states “see the body cam.” Requiring officers to retain and requiring prosecutors to disclose all notes taken in preparation for a report in addition to the report itself will only serve to discourage note-taking by officers. While pointing out spelling errors and incomplete sentences could serve for a few “gotcha” questions by defense counsel during cross-examination, report accuracy will decrease and defendants will ultimately suffer from reports being less detailed and accurate because officers will decline to take any contemporaneous notes for fear of looking foolish later.

5. Remove references to preliminary hearings in the subsection on the timing of mandatory disclosures in Subsection 16(a)(2). Proposed subsection 16(a)(2) states “In every case, all material or information listed under subsection (a)(1) that is presently and reasonably available to the prosecutor must be disclosed before the preliminary hearing, if applicable…” The previous sentence already requires prosecutor disclosures to be made as soon as practicable following the filing of an Information (incidentally, by replacing “charges” with “Information” this draft rule suggests there is no duty for prosecutors to provide evidence after a charge by citation or a grand jury indictment). Not only is a preliminary hearing inapplicable to cases involving a grand jury indictment, an admittedly rare occurrence, but most criminal Informations are not subject to a preliminary hearing. In fiscal year 2019 most criminal charges in Utah (46,245) were filed as infractions, class C misdemeanors, and class B misdemeanors, none of which are subject to preliminary hearing. And as much as defense counsel may pine for the days when a preliminary hearing served as a discovery device, that secondary purpose was eliminated in 1995. See State v. Aleh, 2015 UT App 195, ¶14 (“a constitutional amendment eliminated this secondary purpose in 1995”). Preliminary hearings serve as a probable cause determination equivalent to the determination made by judges before issuing a search warrant. Just as a defendant is not entitled to complete discovery prior to the execution of a search warrant, the preliminary hearing should not operate as a deadline by which all discovery must be provided. The reference to preliminary hearings should be removed from subsection 16(a)(2).

6. Do not turn prosecutor offices into defense attorneys’ Government Records Access and Management Act (“GRAMA”) agents. Subsection 16(a)(3) would require prosecutors to ask any state or local government agency for any government record the defense requests regardless of relevance. Beyond turning prosecutor offices into defense attorney’s investigative agents, this is a blatant attempt by defense attorneys to circumvent any GRAMA inconvenience on the backs and budgets of prosecutors. GRAMA allows a governmental entity to provide private, controlled, or protected records to another government entity that enforces or litigates criminal law. Utah Code Ann. §63G-2-206. Accordingly, prosecutor offices may be able to obtain government records which are classified as private, controlled, or protected. This proposed subsection tries to leverage that prosecutor access to require disclosure of any record requested by defense without any showing of relevance. The rule also doesn’t address who would have to bear the costs of complying with these GRAMA requests. Additionally, the proposed rule ignores the impracticality of requiring prosecutors to go digging for information the defense is looking for without knowing what specifically the defense is trying to find. Consider a recent GRAMA request by a defense attorney to the Utah Transit Authority (UTA) for some emails. Upon receiving the original request, UTA estimated that 15,000 emails would be covered and informed the defense attorney of the cost involved in gathering those emails. Based on that response, the defense attorney was able to communicate directly with UTA and narrow the focus of the request to mitigate the burden on UTA as well as the amount of irrelevant information the defense attorney had to sort through. If Subsection 16(a)(3) is implemented, the narrowing of overbroad records requests which is a frequent feature of the GRAMA process will be circumvented because the prosecutor isn’t really the person seeking the records, so the prosecutor won’t be able to narrow overbroad requests without violating this rule by not requesting what the defense attorney asked for. Defense counsel has “an affirmative duty to make a reasonable investigation” that is independent of the prosecution’s disclosure duties. State v. Kallin, 877 P.2d 138, 143 (Utah 1994). Part of that duty is to gather critical defense evidence. See id. Defendants may subpoena records pursuant to Rule 14(b) and that rule is the appropriate vehicle for defendants to obtain records not possessed by the prosecution. Pliego, 1999 UT 8, ¶ 20; State v. Spry, 2001 UT App 75, ¶ 16 n.3, 21 P.3d 675; e.g., State v. Hansen, 2002 UT 114, ¶ 6 n.1, 61 P.3d 1062. The fact that the prosecution may have access to materials sought by the defendant is immaterial so long as the defendant can obtain the records by judicial process. Spry, 2001 UT App 75, ¶ 16; see Pliego, 1999 UT 8, ¶¶ 15-28 (declining to follow State v. Mickelson, 848 P.2d 677, 687-89 (Utah App. 1992)

7. Consider mirroring defense discovery obligations to the prosecutors’ obligations and severing the defense deadline to disclose from the trial date. Subsection 16(b)(1) refers to the mandatory disclosures of defense counsel, but unlike the prosecution’s subsection which requires specific disclosures as soon as practicable after filing charges, this subsection only requires the defense to provide what the judge finds good cause to provide and does not offer a deadline other than “no later than 14 days, or as soon as practicable, before trial” in subsection 16(b)(3). In striving for truth, the rule should impose a similar obligation on the defense to provide reciprocal discovery covering the same evidence required by prosecutors and requiring disclosure as soon as practicable.

The Salt Lake County District Attorney’s Office supports the intent behind the proposed changes to Rule 16, ensuring that all parties have a complete and accurate understanding of the events that transpired before a plea or trial occurs. While some of the proposed changes interfere with that intent, as explained above, we remain committed to ensure that all charged defendants receive complete discovery, including exculpatory evidence, as soon as practicable following the filing of charges.

We, the below listed prosecutors from the Davis County Attorney’s Office, are providing the following comments and feedback in response to the proposed changes to Rule 16 of the Utah Rules of Criminal Procedure. As prosecutors in Davis County, we believe that we are at the forefront in the State of Utah for providing discovery in the most ethical, fair, and complete manner possible. We have maintained an open file policy with defense counsel for years, providing full access to any and all information and evidence that we possess that does not qualify as attorney work product. It is in this light that we provide the following feedback on the proposed changes to Rule 16, not as an attempt to avoid complying with our obligation to provide full and meaningful discovery, but instead to demonstrate the difficulty, and in some cases impossibility, of complying with the proposed rule changes. In our view, many of the proposed changes make it impossible for even the best intentioned prosecutors to fully comply with the proposed rule as currently written.

Timing of disclosures

The current language of the proposed Rule 16 creates ambiguities as to when discovery must be provided. We are aware of and appreciate that the committee was attempting to create flexibility in not making an absolute requirement that full discovery be provided by a preliminary hearing. However, the current version of the proposed rule still states that discovery “must” be provided “before the defendant is required to plead.” See proposed Rule 16(a)(2), line 29 of the redline version. As the rule does not clarify what is meant by when a “defendant is required to plead,” it could reasonably be interpreted as requiring discovery by the first time that a court asks a defendant to enter a plea of guilty or not guilty. As this is typically asked by all courts at a defendant’s initial appearance, the prosecutor would be under a mandatory obligation to provide full discovery prior to defendant’s initial appearance under the currently proposed language. Thus, the current language of the rule arguably requires production of discovery even prior to a preliminary hearing.

To remedy this specific problem, the language should be changed to state “… prior to defendant entering a guilty or no contest plea or prior to trial, unless otherwise waived by the defendant.” This language would clear up the timing ambiguity as well as allow for a waiver if a defendant chooses to proceed without receiving full discovery, which a defendant may have an interest in doing, especially in a justice court setting.

Another problem that this timing requirement creates, which cannot be as easily fixed through a wording change, deals with Brady/Giglio disclosures. Under proposed Rule 16(a)(1)(G) (line 18 of the redline version), a prosecutor is required to disclose this information, which is appropriate. The problem is the timing requirement of this disclosure. As currently proposed, this disclosure would still have to be prior to a preliminary hearing as well as prior to the defendant being required to plead (which, as noted, under the current proposed language is arguably as soon as a defendant’s initial appearance). To comply with this requirement, a prosecutor would have to prepare his or her case prior to filing to a point that the prosecutor could identify all possible witnesses, including chain and custody witnesses, to determine if one of those witnesses had Brady/Giglio issues. This would put far too much burden on a prosecutor in the early stages of a case and would almost certainly result in situations where potentially dangerous criminals were left out in the public without charges being immediately filed, in spite of the existence of probable cause, because a prosecutor did not have sufficient information at the filing stage to comply with this discovery disclosure requirement.

While we take our responsibility to disclose Brady/Giglio material seriously and provide this information as soon as reasonably practicable as part of discovery, the timing requirement that is currently being proposed is overly burdensome and unreasonable.

Mandatory disclosures without requiring a specific request for discovery

Proposed Rule 16(a)(1) requires mandatory disclosures without a request by a defendant or his counsel. See proposed Rule 16(a)(1), lines 3-5 of the redline version. While mandatory disclosures are more feasible in district court cases, providing discovery without first receiving a specific request becomes nearly impossible to comply with in the justice court setting. We have already noted the timing issues that currently exist with pleas being entered, but three additional issues present themselves in justice courts that don’t generally arise in district courts.

First, because defendants are referred to a justice court by citation and a prosecutor is not involved in the initial charging decision, a prosecutor does not know about the existence of a prosecution until after a defendant has already appeared in court and contested the citation. In such a setting, where the prosecutor did not initiate the prosecution, it would require the prosecutor to constantly be independently monitoring what citations were submitted to the court in an effort to comply with the mandatory disclosure requirement. This would be extremely difficult, time consuming, and burdensome to the point of being arguably unworkable upon justice court prosecutors and cost prohibitive upon the jurisdictions who would have to foot the bill for this constant monitoring.

Second, a large portion of justice court cases are never contested by the cited defendant. Rule 16, as currently written, still requires that discovery be sent to a defendant even when it is not needed by that individual. The prior suggested language of “unless otherwise waived by the defendant” would help resolve this issue.

Finally, because the majority of cases in justice court involve pro se litigants, it is much harder to deliver discovery or make it available to these defendants when the prosecutor does not have the defendants’ contact information readily available, when it would have otherwise been included in a formal discovery request. While an address for a defendant is often included on the defendant’s citation, generally this contact information is pulled from state records and is frequently either not the best contact information for the defendant and is outright incorrect all together.

It is for these reasons that we suggest that mandatory disclosure, if adopted, be limited only to class A misdemeanors and felonies. For class B and C misdemeanors and Infractions, a discovery requests should still be required. However, as we will demonstrate in the next section, limiting mandatory discovery to district court cases would still not eliminate all of the problems created by such a mandate.

Criminal history dissemination violations

Proposed Rule 16 requires that the prosecution provide the criminal record of “the defendant,” “any co-defendants,” and “of all persons whom the prosecution intends to call as witnesses at trial.” See proposed Rule 16(a)(1)(b), line 9 of the redline version, and 16(a)(4)(A), lines 37-39 of the redline version. Utah Code Annotated § 53-10-108 controls the dissemination of criminal histories and makes it a class B misdemeanor to disclose a criminal history unless specifically authorized for purposes listed in the statute (see UTAH CODE ANN. § 53-10-108(12)(a)).

While § 53-10-108(5)(c) allows for the disclosure of “[a] criminal history of a defendant . . . by the prosecutor to a defendant’s defense counsel, upon request during the discovery process,” no such other exception exists to allow a prosecutor to obtain and disseminate criminal histories of co-defendants or other witnesses in the case. So, compliance with the proposed Rule 16 would mandate prosecutors to violate the law. While we recognize that the requirement for providing criminal records of other witnesses has a provision that states “unless otherwise prohibited by statute or rule,” no such exclusion exists for criminal histories of co-defendants. And even with the exception for non-co-defendant witnesses, where they do not need to be actually provided if prohibited by law, including this language into the proposed rule will almost certainly create unnecessary litigation when the information is not initially provided by prosecutors.

Finally, even providing a defendant’s criminal history would be illegal if a defendant relies on mandatory disclosure under the proposed rule amendment rather than by making a formal request for the defendant’s criminal history. This is because, as previously quoted, a criminal history of a defendant can only be disclosed “upon request” during the discovery process. Without a specific request first, disclosure of a defendant’s criminal history is currently illegal even when only supplied to defense counsel. This is an example of why mandatory disclosure without a discovery request requirement is problematic even when limited to just district court cases.

Disclosure of officers’ notes

Officers’ notes would now have to be provided as part of the proposed Rule 16 changes. See Rule 16(a)(1)(F), line 16 of the redline version. This creates two potential problems. The first would be the burden of creating a mechanism to collect all notes of any law enforcement officer involved in the case, no matter how irrelevant and/or duplicative that information may be. Such a requirement would almost certainly become unworkable in a case of any significant complexity. The second problem is that such a requirement would likely lead to officers taking fewer notes, which could in turn lead to worse investigations and reports, thus discouraging the search for truth, rather than promoting it.

Dissemination of physical or mental examinations

Proposed Rule 16(a)(1)(c), see line 10 of the redline version, mandates disclosure of “reports and results of any physical or mental examination” that the prosecution has knowledge and control of. This requirement is significantly overbroad. This requirement does not limit disclosure to only examinations performed during investigation of the present case in which discovery is sought. It does not limit whose physical or mental examinations must be supplied. It requires no showing of relevance prior to the prosecutor providing the records. Finally, it contains no limiting language, like “unless otherwise prohibited by statute or rule,” to allow a prosecutor to avoid providing protected and inadmissible medical and mental health records.

The currently proposed language in many instances will directly conflict with Rule 14(b) of the Utah Rules of Criminal Procedure which is designed to safeguard and restrict the production of “medical, mental health, school, or other non-public records pertaining to a victim.” It also would also conflict frequently with Utah Rules of Evidence 412, which limits the admissibility of a victim’s other sexual behavior or predisposition. The impasse between proposed Rule 16(a)(1)(c) and Rule 14(b) would put the prosecutor in a no win situation where he or she cannot comply with both rules. To cure this issue, Rule 16(a)(1)(c) should add the language “unless otherwise prohibited by statute or rule.”

Fishing expeditions by defense counsel at the expense of time and resources of the prosecution

Proposed Rule 16 will require the prosecutor to obtain and disclose “upon request” evidence not currently in the prosecutor’s or even the investigating agency’s possession if the information sought is “possessed by another governmental agency and may be shared with the prosecutor” under GRAMA. See proposed Rule 16(a)(3), lines 31-34 of the redline version. Note that the proposed rule requires no relevancy or good faith showing prior to the prosecutor being required to obtain this information once it is requested by a defendant or defense counsel. Without a relevancy or good faith requirement, proposed Rule 16(a)(3) is ripe for abuse, requiring the prosecution to spend its limited resources to track down voluminous information, where this information would already be available to a defendant through GRAMA.

For example, this rule change will almost certainly prompt most defense attorneys to file a discovery request in every case asking for all police reports where a potential witnesses in the current case has been a witness or filed a report or made statements in another case. The defense would do so in hopes of finding some inconsistent statement somewhere in a prior case in which to impeach the witnesses in the present case. This would generally be a significant long shot, but where it would be the prosecution that was required to do the research and comply with the request, defense counsel stands to lose nothing by making such a request. The prosecution would then have to contact every governmental agency in existence to see if one of the witnesses made a report or statement in a case in that jurisdiction. And for many law enforcement witnesses or crime lab witnesses, they may have been involved in hundreds, if not thousands, of investigations. The prosecution would have the burden of collecting all of this information under the currently proposed Rule 16(a)(3).

Just to contact all law enforcement agencies in the State of Utah, a prosecutor would need to contact over 90 municipal or multi-municipal law enforcement agencies, 29 county sheriff’s departments, nine college or university law enforcement agencies, three institutional law enforcement agencies (UTA police, Veterans Administration police, and Salt Lake City Airport police), 30 separate Utah Highway Patrol offices, six Adult probation and parole regions, the Department of Wildlife Resources, the Department of Environmental Quality, the Utah Division of Homeland Security, and the Utah Bureau of Investigations. Additionally, because the rule change would apply to obtaining any government agency records, prosecutors would also have to contact additional government entities including the Department of Health, the Department of Child and Family Services, and all 41 of the state’s school districts.

The Utah State Supreme Court has already recognized the unreasonableness of requiring such a “herculean burden” of searching through records of every governmental agency “looking for exculpatory evidence on behalf of [a] defendant.” State v. Pliego, 1999 UT 8, ¶ 18. And yet, that is exactly what proposed Rule 16(a)(3) will result in, a herculean and unreasonable burden in almost every case that the prosecution handles. This would be a burden that no prosecutor or prosecutors’ office would be able to reasonably comply with.

Proposed Rule 16(a)(3), like Rule 16(a)(1)(c), also lacks the language “unless otherwise prohibited by statute or rule.” As such, it would have the same problems of potentially requiring the prosecution to disseminate protected and inadmissible records under Rule 14(b) of the Utah Rules of Criminal Procedure and Rule 412 of the Utah Rules of Evidence in many cases involving victims. And these requests will come, as they are already being filed presently in cases. We have examples of these sorts of discovery requests already from actual cases. This proposed rule change would likely cause these sorts of requests in almost all cases.

In light of the forgoing issues created by the proposed Rule 16(a)(3), Rule 16(a)(3) should be removed entirely, as it is far too burdensome upon prosecutors and too problematic with other existing rules.

Fairness in reciprocal discovery

Finally, under the currently proposed version of Rule 16(b)(1), lines 47-51 of the redline version, reciprocal discovery is only supplied to a prosecutor after a “court determines on good cause shown” that the information is necessary “in order for the prosecutor to adequately prepare the prosecutor’s case for trial.” Requiring a court review and order prior to the prosecutor being able to obtain reciprocal discovery causes a waste of judicial resources and time, where the prosecutor is only seeking evidence and information that the defendant will be using at trial. Utah should adopt the approach of Rule 16 of the Federal Rules of evidence which states “Where the government agrees to an open-file policy, the defendant must provide reciprocal discovery. . . .” See Fed. R. Crim. P. 16(c). This reciprocal discovery is automatic on the condition that the government maintains an open-file policy with defense counsel. In such circumstances, no separate motion or order is necessary. This system functions efficiently and fairly in the federal system and should be adopted in Utah.

Sincerely,

Richard Larsen
Troy Rawlings
David Cole
Jason Nelson
Jeff Thompson
Rick Westmoreland
Nathan Lyon
Ryan Perkins
Kathi Sjoberg
Gage Arnold
Matt Janzen
Benjamin Willoughby
Joshua Wayment