Utah Court Rules – Published for Comment
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Posted: January 20, 2021
URCrP016. This proposal incorporates changes suggested by the public comments to require disclosure of police officer’s notes only if they have not been incorporated into a police report, allowing defendants to waive the mandatory disclosures, and clarifying the notice procedure when a prosecutor decides a required disclosure is either not lawful or would endanger any person or an ongoing investigation.
The defense disclosure requirements described in the proposed URCrP 16(b)(3)(A) (b)(3)(B), requiring the disclosure of any witnesses or evidence the defense intends to introduce at trial, is an order that most Judges have made leading up to trial when the prosecutor requests it (under the current rule 16(c)).
However, I have found that this order is often not complied with. Many defense attorneys only disclose witnesses shortly before they are put on the stand, even when they have been ordered to disclose them well before trial. The explanation I have generally received is: “I hadn’t decided whether or not to call them as a witness (or introduce an exhibit) until just a few minutes ago. Therefore, until a few minutes ago, I did not ‘intend’ to call them (or introduce the exhibit).” This usually significantly hinders the prosecutor’s ability to prepare for cross examination of witnesses or prepare to rebut to information in the exhibit.
I think this problem could be remedied by changing the word “intends” to “may”. That way, if there is a reasonable possibility that the defense may call a witness or introduce an exhibit, the disclosure would be required, even if they had not made a final decision about whether or not to call the witness (or introduce the exhibit).
Limiting the discovery of an officer’s notes to “any notes that are not incorporated into such a report” creates a situation where an officer / agency could refuse to produce the officer’s handwritten notes and claim they are “incorporated.” Defense counsel should be given the opportunity to review any handwritten notes independently and determine if the totality of the notes have, in fact, been incorporated into the official report or if there were observations in the notes which might contradict the official report.
Lines 14 and 15 should be changed to state “… and any notes produced by any law enforcement official involved in the investigation of the events which resulted in the defendant being charged. This rule applies to notes taken in either analog or digital format.”
I want to thank the Rules Committee for considering many of the public comments regarding changes to Rule 16. I often feel jaded and believe that committees merely jump through the hoops seeking public comment but don’t intend to take the comments seriously. I couldn’t have been more wrong. I believe the new draft creates a nice balance and gives neither the prosecution nor defense everything they want–which probably indicates a good rule. Thank you.
Who is on the “prosecutor team” noted in subsection (a)(1)? That term should be defined and once that term is defined, we can give input as to whether or not the disclosure requirement is reasonable and practicable.
Let me join others in praising the efforts to build a better rule 16. I share Michael Branum’s concern about an express rule that limits access to “any notes that are not incorporated into such a report.” An officer’s field notes are his first impression. They’re not unlike a “present sense impression,” the most close-in-time statement of unfolding observations that record the officer’s sense of what’s going on. That makes them incredibly useful. What purpose does a rule serve that denies access to those across the board? Concerns that a defendant might impeach the officer’s later report with his field notes? If the impeachment has merit then that’s exculpatory evidence that a defendant has a constitutional right to. If the impeachment doesn’t have merit then it’s because there’s a reasonable explanation for the inconsistency between notes and report and the officer can explain that on the stand. Either way, a jury is likely going to be interested in those details. And it’s antithetical to fundamental fairness to have a rule that shields police officers from legitimate questioning.
Although it goes beyond the scope of the current rule, I hope that the committee will at some point look into some expanded discovery rules on a) expert disclosures, particularly related to the documents that the expert relies on for the basis of their testimony, and b) restitution. There is an ongoing travesty in how unregulated and perfunctory restitution hearings go. Restitution hearings are like civil bench trials with no rules of evidence, no depositions, and no discovery deadlines. And at the end of it all, a defendant can go to jail for failing to keep up with restitution requirements. Don’t wait to pass a better Rule 16 now. But please recognize that this is something that really needs looking at.