Posted: January 24, 2014
Rules of Criminal Procedure
URCrP 007. Proceedings before magistrate. Amend. Conforms the rule to existing practices. Authorizes a magistrate to issue a material witness warrant at the same time bail is fixed. Clarifies that a material witness may not be detained if the person cannot post bail and that the witness’s testimony may be taken by deposition.
URCrP 038. Appeals from justice court to district court. Amend. Reflects that citations are now efiled and, therefore, that an abstract of a citation will be included in the record on appeal.
URCrP 040. Search warrants. Amend. Makes all sealed search warrants public after six months. The prosecutor or law enforcement officer may apply for additional six month sealing periods. If documents have been sealed for three years or more, an individual may seek to indefinitely seal the documents.
Way to be transparent. What possible reason could justify sealing search warrants? Any information in the search warrant regarding “confidential informants” is already protected by the moniker “C.I”.
I support the proposed changes to Rule 40. I am on the board of the Utah Headliners Chapter of the Society of Professional Journalists. I was one of the chapter’s two representatives in this matter. While the proposal does not provide everything the Headliners sought, it is a good first step toward increasing transparency and access in Utah’s process for issuing search warrants. The proposal also maintains safeguards to ensure no criminal investigations will be disrupted by a public disclosure.
This is a terrible proposal. Six months is an entirely too long of period and limits public access to information that is necessary for one, good governence. The events surrounding the Swallow and Shurtleff investigations are prime example of why these warrants should be made public in a seasonable manner.
Further, while recognizing the need for investigative discretion, the rule apparently provides no standard as to what would justify granting an extension. This likely would result in pro forma requests being granted indefinitely. Such a change would decrease any incentive for prosecutors and police to diligently investigate a person of interest in a timely manner.
Finally, there should be no general provision for sealing the records indefinitely. If there is a concern about the reputational effect of an investigation that found no wrong doing or evidence insufficient of a crime, the solution is more speech, let the issue be debated in public, *not* by restricting the flow of information.
Craig Buschmann
UT Bar No. 10696
I support the proposed changes to Rule 40, but see this as only a step in the right direction. I am a investigative reporter for Standard-Examiner and a board member on the Utah Headliners Chapter of the Society of Professional Journalists.
Search warrants should be presumed public unless otherwise stated. Sealing a search warrant, as a general matter of practice should be abolished, because it is not in the interest of the public or it’s safety. Rather it should be an exception to the rule. It harms the rights of the general public on multiple levels. Not only are journalists restricted from providing relevant details to the public for investigative stories uncovering public official misdeeds or unlawful search and seizures, it is more commonly an issue for attorneys working to come to a prompt resolution for their client and offer them a right to a speedy trial.
A search warrant is done by public officials doing the public’s business. Unless there is a noted harm to society by releasing the information, it must be made public. As stated on the Utah State Courts website, access to search warrants allows protection to the public from “historical abusive searches by authorities.”
If a timely review of a search warrant and the grounds the judge granted the warrant on are sealed indefinitely it potentially sends innocent people behind bars with no recourse.
No option for public scrutiny leads to a silencing of watchdogs seeking to ensure the Fourth Amendment right (of prohibiting unlawful search and seizure) is kept in tact.
Thank you for your consideration in this matter.
I disagree with the proposed changes to Rule 7 regarding the material witness provisions. A material witness warrant is sought and granted only where there is reason to believe the witness will not appear. The change to allow the judge to fix bail is appropriate. However, the subsequent changes in procedure are inappropriate. First, the proposed change would allow for a deposition to occur instead of recorded court testimony in the presence of the magistrate and the defendant, where the witness is subject to cross-examination. A deposition takes place out of court, with no judge present and lacks the reliability of sworn-cross examined testimony in court. In cases where a material witness warrant is necessary, often the witness and the defendant are in custody, so the logistics of where and how to do the deposition are unworkable. Additionally, in a deposition there is no judge to rule on the objections of counsel, so inadmissible testimony can be elicited. Second, eliminating the provision to allow the testimony to be admitted if the witness does not appear defeats the entire purpose of a material witness warrant, which is to guarantee that the witnesses testimony will be preserved for trial. Currently, once the witness testifies at the hearing, the judge shall release the witness. If the witness than fails to appear at trial, their reliable, sworn, cross-examined testimony is admissible.
I support the proposed changes to Rule 40, seeing them as a good first step toward improved transparency by the state courts when it comes to the handling of search warrants. These documents are vital public records whose timely release will serve as a critical check on potential abuses by law enforcement and prosecutors.
As a reporter who frequently covers public safety issues and the courts, I understand the government’s legitimate interest in protecting confidential informants from harm. I also understand that individuals have a right to privacy. That said, the current practice of sealing search warrants indefinitely goes too far and fails to recognize the public’s right to know what government officials are doing in its name.
Transparency is great, but with 90% of the cases being resolved via plea bargaining and pleas in abeyance, what difference will it make? Not to mention the growing number of “qualifying” cases being scheduled under Early Case Resolution calendars. Legal defenders are striking deals for their “clients” in 30 days or less. Defendants are threatened with maximum sentences if they even dare to think of taking their cases to trial. All they are told is what will happen if they are found guilty so the majority of them admit guilt to some reduced charge of “attempted possession” without even knowing all of the evidence against them, that’s it, case closed. In other words, it’s simply not enough. Requiring that there be exigent circumstances before any judge will consider signing an order permitting a SWAT team of heavily armed men to violently and forcibly enter any American’s home to seize items such as those used to grow or ingest a plant that is now legally distributed and marketed on a state level for recreational use in Washington and Colorado and used medicinally in 17 other states some of which have the some of the largest populations out of all the 50 states.
Rule 7 regarding depositions in place of court sworn testimony is a problem as it is clearly an attempt to get around Crawford. If a defendant has had an opportunity to cross examine a witness and the witness is unavailable at trial the testimony can come in under Crawford. A deposition does not require the same rules as in court and there is not a judge present. This is not necessary and will likely end up harming our constitutional protections.
Rule 40. I see no reason to allow government to have the ability to hide the ball any more than they already do. In a search warrant a confidential informant the police do now want known, will be labeled CI and juveniles are usually referred to by initials. I cannot see any valid reason to seal a SW for more than 20 days. This potentially violates the first amendment, fourth, fifth, and sixth. It is often times difficult for court clerks to even find a SW because they are not filed under the defendant’s name or case number. What reason would we need this rule except to allow police and others the ability to have an unfair advantage in an already biased system that continually tries to get around our protections.
I support the change to rule 40. My name is Sheryl Worsley and I work for KSL Newsradio as the station’s News Director. I also serve as the current president of the Utah Headliners, the local chapter of the Society of Professional Journalists. The move to make sealed search warrants open after six months automatically is a step in the right direction. In order for the public to be confident their government is functioning properly and in order to protect against abuse, it is imperative that government actions be open to the review of that public. If the judiciary has determined a person’s Fourth amendment right against unreasonable search and seizure is out-weighed by a police or safety interest, the reason for removing that right should not be kept secret. I understand there are some cases where an investigation may be compromised by public disclosure for a time period close to the initial search and this rule addresses that by allowing prosecutors or police to request the seal again. What doesn’t make sense is that a warrant could ever be sealed indefinitely. There are no decisions made by public servants which should be forever above scrutiny. I see this rule as a compromise between what we now have and the way it should be, so I support making this change.