Rules of Evidence – Comment Period Closed May 27, 2021

URE0512. Victim Communications (AMEND). Clarifies that URE 510 applies to this rule. Disclosures of the following confidential communications will now waive the privilege: 1) disclosures required under Title 62A, Chapter 4a, Child and Family Services or UCA § 62A-3-305, 2) evidence of a victim being in clear and immediate danger to the victim’s self or others, and 3) evidence that the victim has committed a crime, plans to commit a crime, or intends to conceal a crime.

URE1101. Applicability of Rules (AMEND). Amends the committee note following State v. Weeks, 61 P.3d 1000. Clarifies that the Utah Rules of Evidence are inapplicable to proceedings for revoking probation, unless the court for good cause otherwise orders.

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2 thoughts on “Rules of Evidence – Comment Period Closed May 27, 2021
  1. Nathalie Skibine

    The 2019 advisory committee note to rule 1101 seems aimed at court-ordered restitution but will affect complete restitution. The note quotes the majority opinion in Weeks, but the dissent was concerned that “the restitution ordered by the trial court becomes an enforceable money judgment against the defendant, bearing interest, fully enforceable and collectable with the possible addition of attorney fees, and does not abate on the death of the defendant.” State v. Weeks, 61 P.3d at 1008 (Howe, J., dissenting). “It is incongruous to hold that a money judgment of this nature could be entered against a criminal defendant without according him the same due process that any other debtor would receive in a civil court.” Id. More recently, the Utah Supreme Court expressed concerns that a truncated restitution process “does not work . . . well when there are difficult issues” and would “benefit from the tools we have developed in the civil context to deal with complex questions of causation and damages.” State v. Ogden, 2018 UT 8 ¶ 27 n.5. Ogden stated that if the Legislature does not revisit the statute, the Court might look to amending the Utah Rules of Criminal Procedure “to promote a process that is fair to both victims and defendants in more complex cases.” Id. The advisory committee note seems to be reaffirming the policy arguments in Weeks without addressing the Ogden concerns. I think this creates confusion.

  2. A.Black

    Rule 512 states there is an exception to the privilege that exists in the following circumstances: “(d)(4) when the confidential communication is evidence that the victim has committed a crime, plans to commit a crime, or intends to conceal a crime;”

    The heart of the purpose of the confidential communication is so the victim can seek resources and trust in systems and advocates to keep them safe and certain communications confidential for a reason. If a victim of a crime discloses that they used meth 3 years ago and has struggled with sobriety since getting clean, that crime may not be relevant to what has occured recently. This put those entrusted with confidential communications in a position where they now have to go tell a prosecutor, etc a victim of a crime violated a law a few years ago -therefore injecting bias into an already difficult criminal justice process for a victim who may already fear not being beleived, being blamed, and going through more trauma or retaliation.

    This scenario could also apply for someone who wants to tell an advocate that they are wanting to report a sexual assault but afraid to tell police officers that they smoked heroin with the suspect prior to their rapist filming them while unconscious. The victim expressed being afraid of what the drug usage may do if they come forward to the officers about the sexual assault. Many advocates hear confessions like this every day, and they want and help victims to come forward. Part of that is build trust and helping them with informed decisions without simultaneously making their advocates paid informants for the State of Utah.

    These same rule requirements are not placed on attorneys or health care or anyone else who has an important client relationship where there is trust built in to it’s foundation. This part of the rule contradicts it’s entire purpose and is designed as a way to not really give victims the respect of confidential communications. Nor is it urgent for safety, that of a child or elder or vulnerable adult which is already covered in the rule and statute. Finally, this rule was not put out to advocates throughout the state for their review and approval.