Bill Summary – FastDemocracy

Enrolled Copy                                                                       S.J.R. 6
            JOINT RESOLUTION AMENDING RULES OF PROCEDURE
            AND EVIDENCE REGARDING CRIMINAL PROSECUTIONS
                                       2023 GENERAL SESSION
                                              STATE OF UTAH
                                 Chief Sponsor: Todd D. Weiler
                                 House Sponsor: Nelson T. Abbott
 7
 LONG TITLE
 General Description:
        This joint resolution amends court rules of procedure and evidence regarding criminal
 prosecutions.
 Highlighted Provisions:
        This joint resolution:
        < amends Rule 7B of the Utah Rules of Criminal Procedure to address the probable
 cause determination at a preliminary examination;
        < amends Rule 16 of the Utah Rules of Criminal Procedure to address the disclosure
 of evidence after an information is filed;
        < amends Rule 22 of the Utah Rules of Juvenile Procedure to address the probable
 cause determination at a preliminary examination;
        < amends Rule 1102 of the Utah Rules of Evidence to address statements from
 witnesses; and
        < makes technical and conforming changes.
 Special Clauses:
        This joint resolution provides a special effective date.
 Utah Rules of Criminal Procedure Affected:
 AMENDS:
        Rule 7B, Utah Rules of Criminal Procedure
        Rule 16, Utah Rules of Criminal Procedure
 Utah Rules of Juvenile Procedure Affected:
       S.J.R. 6                                                                        Enrolled Copy
 AMENDS:
        Rule 22, Utah Rules of Juvenile Procedure
 Utah Rules of Evidence Affected:
 AMENDS:
        Rule 1102, Utah Rules of Evidence
35
 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
 of the two houses voting in favor thereof:
        As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
 rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
 all members of both houses of the Legislature:
        Section 1. Rule 7B, Utah Rules of Criminal Procedure is amended to read:
        Rule 7B. Preliminary examinations.
        (a) Burden of proof. At the preliminary examination, the state has the burden of proof
 and proceeds first with its case. At the conclusion of the state's case, the defendant may testify
 under oath, call witnesses, and present evidence. The defendant may also cross-examine
 adverse witnesses.
        (b) Probable cause determination. If from the evidence the magistrate finds probable
 cause to believe that the crime charged has been committed and that the defendant has
 committed it, the magistrate must order that the defendant be bound over for trial. The findings
 of probable cause may be based on hearsay, [in whole or in part] but may not be based solely
 on hearsay evidence admitted under Rule 1102(b)(8) of the Utah Rules of Evidence. Objections
 to evidence on the ground that it was acquired by unlawful means are not properly raised at the
 preliminary examination.
        (c) If no probable cause. If the magistrate does not find probable cause to believe the
 crime charged has been committed or the defendant committed it, the magistrate must dismiss
 the information and discharge the defendant. The magistrate may enter findings of fact,
 conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the
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       Enrolled Copy                                                                              S.J.R. 6
 state from instituting a subsequent prosecution for the same offense.
        (d) Witnesses. At a preliminary examination, the magistrate, upon request of either
 party, may exclude witnesses from the courtroom and may require witnesses not to converse
 with each other until the preliminary examination is concluded.
        (e) Written findings. If the magistrate orders the defendant bound over for trial, the
 magistrate must execute a bind-over order and include any written findings in the case record.
        (f) Assignment on motion to quash. If a defendant files a motion to quash a bind-over
 order, the motion shall be decided by the judge assigned to the case after bind-over, regardless
 of whether the judge conducted the preliminary examination in the judge’s role as a magistrate.
        Section 2. Rule 16, Utah Rules of Criminal Procedure is amended to read:
        Rule 16. Discovery.
        (a) Disclosures by prosecutor.
        (1) Mandatory disclosures. The prosecutor must disclose to the defendant the following
 material or information directly related to the case of which the prosecution team has
 knowledge and control:
        (A) written or recorded statements of the defendant and any codefendants, and the
 substance of any unrecorded oral statements made by the defendant and any codefendants to
 law enforcement officials;
        (B) reports and results of any physical or mental examination, of any identification
 procedure, and of any scientific test or experiment;
        (C) physical and electronic evidence, including any warrants, warrant affidavits, books,
 papers, documents, photographs, and digital media recordings;
        (D) written or recorded statements of witnesses;
        (E) reports prepared by law enforcement officials and any notes that are not
 incorporated into such a report; and
        (F) evidence that must be disclosed under the United States and Utah constitutions,
 including all evidence favorable to the defendant that is material to guilt or punishment.
        (2) Timing of mandatory disclosures. The prosecutor’s duty to disclose under
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        S.J.R. 6                                                                        Enrolled Copy
 paragraph (a)(1) is a continuing duty as the material or information becomes known to the
 prosecutor. The prosecutor’s disclosures must be made as soon as practicable following the
 filing of [charges an Information] an information, except that a prosecutor must disclose all
 evidence that the prosecutor relied upon to file the information within five days after the day on
 which the prosecutor receives a request for discovery from the defendant. In every case, all
 material or information listed under paragraph (a)(1) that is presently and reasonably available
 to the prosecutor must be disclosed before the preliminary [hearing] examination, if applicable,
 or before the defendant enters a plea of guilty or no contest or goes to trial, unless otherwise
 waived by the defendant.
        (3) Disclosures upon request.
        (A) Upon request, the prosecutor must obtain and disclose to the defendant any of the
 material or information listed in paragraph (a)(1) which is in a record possessed by another
 governmental agency and may be shared with the prosecutor under Title 63G, Chapter 2,
 Government Records Access and Management Act. The request must identify with
 particularity the record sought and the agency that possesses it, and must demonstrate that the
 information in the record is directly related to the case.
        (B) If the government agency refuses to share with the prosecutor the record containing
 the requested material or information under paragraph (a)(3)(A), or if the prosecution
 determines that it is prohibited by law from disclosing to the defense the record shared by the
 governmental agency, the prosecutor must promptly file notice stating the reasons for
 noncompliance. The defense may thereafter file an appropriate motion seeking a subpoena or
 other order requiring the disclosure of the requested record.
        (4) Good cause disclosures. The prosecutor must disclose any other item of evidence
 which the court determines on good cause shown should be made available to the defendant in
 order for the defendant to adequately prepare a defense.
        (5) Trial disclosures. The prosecutor must also disclose to the defendant the following
 information and material no later than 14 days, or as soon as practicable, before trial:
        (A) Unless otherwise prohibited by law, a written list of the names and current contact
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        Enrolled Copy                                                                            S.J.R. 6
 information of all persons whom the prosecution intends to call as witnesses at trial; and
         (B) Any exhibits that the prosecution intends to introduce at trial.
         (C) Upon order of the court, the criminal records, if any, of all persons whom the
 prosecution intends to call as a witness at trial.
         (6) Information not subject to disclosure. Unless otherwise required by law, the
 prosecution’s disclosure obligations do not include information or material that is privileged or
 attorney work product. Attorney work product protection is not subject to the exception in Rule
 26(b)(5) of the Utah Rules of Civil Procedure.
         (b) Disclosures by defense.
         (1) Good cause disclosures. The defense must disclose to the prosecutor any item of
 evidence which the court determines on good cause shown should be made available to the
 prosecutor in order for the prosecutor to adequately prepare the prosecutor’s case for trial.
         (2) Other disclosures required by statute. The defense must disclose to the prosecutor
 such information as required by statute relating to alibi or insanity.
         (3) Trial disclosures. The defense must also disclose to the prosecutor the following
 information and material no later than 14 days, or as soon as practicable, before trial:
         (A) A written list of the names and current contact information of all persons, except
 for the defendant, whom the defense intends to call as witnesses at trial; and
         (B) Any exhibits that the defense intends to introduce at trial.
         (4) Information not subject to disclosure. The defendant’s disclosure obligations do not
 include information or material that is privileged or attorney work product. Attorney work
 product protection is not subject to the exception in Rule 26(b)(5) of the Utah Rules of Civil
 Procedure.
         (c) Methods of disclosure.
         (1) The prosecutor or defendant may make disclosure by notifying the opposing party
 that material and information may be inspected, tested, or copied at specified reasonable times
 and places.
         (2) If the prosecutor concludes any disclosure required under this rule is prohibited by
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        S.J.R. 6                                                                        Enrolled Copy
 law, or believes disclosure would endanger any person or interfere with an ongoing
 investigation, the prosecutor must file notice identifying the nature of the material or
 information withheld and the basis for non-disclosure. If disclosure is then requested by the
 defendant, the court must hold an in camera review to decide whether disclosure is required
 and whether any limitations or restrictions will apply to disclosure as provided in paragraph
 (d).
        (d) Disclosure limitations and restrictions.
        (1) The prosecutor or defendant may impose reasonable limitations on the further
 dissemination of sensitive information otherwise subject to discovery to prevent improper use
 of the information or to protect victims and witnesses from harassment, abuse, or undue
 invasion of privacy, including limitations on the further dissemination of recorded interviews,
 photographs, or psychological or medical reports.
        (2) Upon a sufficient showing the court may at any time order that discovery or
 inspection be denied, restricted, or deferred, that limitations on the further dissemination of
 discovery be modified or make such other order as is appropriate. Upon motion by a party, the
 court may permit the party to make such showing, in whole or in part, in the form of a written
 statement to be inspected by the judge alone. If the court enters an order granting relief
 following such an ex parte showing, the entire text of the party's statement shall be sealed and
 preserved in the records of the court to be made available to the appellate court in the event of
 an appeal.
        (e) Relief and sanctions for failing to disclose.
        (1) When a party fails to comply with the disclosure requirements of this rule, the court
 may, subject to constitutional limitations and the rules of evidence, take the measures or
 impose the sanctions provided in this paragraph that it deems appropriate under the
 circumstances. If a party has failed to comply with this rule, the court may take one or more of
 the following actions:
        (A) order such party to permit the discovery or inspection, of the undisclosed material
 or information;
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        Enrolled Copy                                                                            S.J.R. 6
        (B) grant a continuance of the proceedings;
        (C) prohibit the party from introducing evidence not disclosed; or
        (D) order such other relief as the court deems just under the circumstances.
        (2) If after a hearing the court finds that a party has knowingly and willfully failed to
 comply with an order of the court compelling disclosure under this rule, the nondisclosing
 party or attorney may be held in contempt of court and subject to the penalties thereof.
        (f) Identification evidence.
        (1) Subject to constitutional limitations and upon good cause shown, the trial court
 may order the defendant to: appear in a lineup; speak for identification; submit to
 fingerprinting or the making of other bodily impressions; pose for photographs not involving
 reenactment of the crime; try on articles of clothing or other items of disguise; permit the
 taking of samples of blood, hair, fingernail scrapings, and other bodily materials which can be
 obtained without unreasonable intrusion; provide specimens of handwriting; submit to
 reasonable physical or medical inspection of the accused’s body; and cut hair or allow hair to
 grow to approximate appearance at the time of the alleged offense.
        (2) Whenever the personal appearance of the accused is required for the foregoing
 purposes, reasonable notice of the time and place of such appearance shall be given to the
 accused and the accused’s counsel.
        (3) Unless relieved by court order, failure of the accused to appear or to comply with
 the requirements of this paragraph without reasonable excuse shall be grounds for revocation of
 pre-trial release and will subject the defendant to such further consequences or sanctions as the
 court may deem appropriate, including allowing the prosecutor to offer as evidence at trial the
 defendant’s failure to comply with this paragraph.
        Section 3. Rule 22, Utah Rules of Juvenile Procedure is amended to read:
        Rule 22. Initial appearance and preliminary examinations in cases under Utah
 Code section 80-6-503.
        (a) When a summons is issued in lieu of a warrant of arrest, the minor shall appear
 before the court as directed in the summons.
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        S.J.R. 6                                                                       Enrolled Copy
        (b) When any peace officer or other person makes an arrest of a minor without a
 warrant, the minor shall be taken to a juvenile detention facility pending a detention hearing,
 which shall be held as provided by these rules. When any peace officer makes an arrest of a
 minor with a warrant, the minor shall be taken to the place designated on the warrant. If an
 information has not been filed, one shall be filed without delay in the court with jurisdiction
 over the offense.
        (c) If a minor is arrested in a county other than where the offense was committed the
 minor shall without unnecessary delay be returned to the county where the crime was
 committed and shall be taken before a judge of the juvenile court.
        (d) The court shall, upon the minor’s first appearance, inform the minor:
        (1) of the charge in the information or indictment and furnish the minor with a copy;
        (2) of any affidavit or recorded testimony given in support of the information and how
 to obtain them;
        (3) of the right to retain counsel or have counsel appointed by the court;
        (4) of rights concerning detention, pretrial release, and bail in the event the minor is
 bound over to stand trial in district court; and
        (5) that the minor is not required to make any statement, and that any statements made
 may be used against the minor in a court of law.
        (e) The court shall, after providing the information under paragraph (d) and before
 proceeding further, allow the minor reasonable time and opportunity to consult counsel and
 shall allow the minor to contact any attorney by any reasonable means, without delay and
 without fee.
        (f) The minor may not be called on to enter a plea. During the initial appearance, the
 minor shall be advised of the right to a preliminary examination. If the minor waives the right
 to a preliminary examination the court shall proceed in accordance with R