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

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…

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.

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.

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.

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.

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.