Senator Todd Weiler proposes the following substitute bill:


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JOINT RESOLUTION AMENDING RULES OF

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CRIMINAL PROCEDURE

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2017 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Todd Weiler

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House Sponsor: Mike K. McKell

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8     LONG TITLE
9     General Description:
10          This joint resolution amends the Utah Rules of Criminal Procedure.
11     Highlighted Provisions:
12          This resolution:
13          ▸     describes the information that is to be disclosed;
14          ▸     provides sanctions under certain circumstances for failure to comply with
15     constitutional disclosure requirements;
16          ▸     provides an exemption from sanctions; and
17          ▸     makes technical changes.
18     Special Clauses:
19          This resolution provides a special effective date.
20     Utah Rules of Criminal Procedure Affected:
21     AMENDS:
22          Rule 16, Utah Code of Criminal Procedure
23     

24     Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
25     of the two houses voting in favor thereof:
26          As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
27     rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
28     all members of both houses of the Legislature:
29          Section 1. Rule 16, Utah Code of Criminal Procedure is amended to read:
30          Rule 16. Discovery.
31          (a) As used in this rule, "open file policy" means a policy adopted by a prosecutorial
32     office to make available to the defendant the complete files of the law enforcement agency or
33     any other entity that obtains information on behalf of the law enforcement agency or prosecutor
34     in connection with the investigation of a crime committed or the prosecution of the defendant
35     unless otherwise protected by rule or law, such as work-product, privilege, or a protected
36     record that requires a court order to provide.
37          [(a)] (b) Except as otherwise provided, the prosecutor shall disclose to the defense
38     upon request information required under due process obligations to disclose that are established
39     by case law under the Utah Constitution and the Constitution of the United States, including
40     the following material or information of which [he] the prosecutor has knowledge:
41          [(a)] (b) (1) relevant written or recorded statements of the defendant or codefendants;
42          [(a)] (b) (2) the criminal record of the defendant;
43          [(a)] (b) (3) physical evidence seized from the defendant or codefendant;
44          [(a)] (b) (4) evidence known to the prosecutor that tends to negate the guilt of the
45     accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced
46     punishment; and
47          [(a)] (b) (5) any other item of evidence which the court determines on good cause
48     shown should be made available to the defendant in order for the defendant to adequately
49     prepare [his] the defendant's defense.
50          [(b)] (c) The prosecutor shall make all disclosures as soon as practicable following the
51     filing of charges and before the defendant is required to plead. The prosecutor has a continuing
52     duty to make disclosure.
53          [(c)] (d) Except as otherwise provided or as privileged, the defense shall disclose to the
54     prosecutor such information as required by statute relating to alibi or insanity and any other
55     item of evidence which the court determines on good cause shown should be made available to
56     the prosecutor in order for the prosecutor to adequately prepare [his] the prosecutor's case.
57          [(d)] (e) Unless otherwise provided, the defense attorney shall make all disclosures at
58     least 14 days before trial or as soon as practicable. [He] The defense attorney has a continuing
59     duty to make disclosure.
60          [(e)] (f) When convenience reasonably requires, the prosecutor or defense may make
61     disclosure by notifying the opposing party that material and information may be inspected,
62     tested or copied at specified reasonable times and places. The prosecutor or defense may
63     impose reasonable limitations on the further dissemination of sensitive information otherwise
64     subject to discovery to prevent improper use of the information or to protect victims and
65     witnesses from harassment, abuse, or undue invasion of privacy, including limitations on the
66     further dissemination of videotaped interviews, photographs, or psychological or medical
67     reports.
68          [(f)] (g) Upon a sufficient showing the court may at any time order that discovery or
69     inspection be denied, restricted, or deferred, that limitations on the further dissemination of
70     discovery be modified or make such other order as is appropriate. Upon motion by a party, the
71     court may permit the party to make such showing, in whole or in part, in the form of a written
72     statement to be inspected by the judge alone. If the court enters an order granting relief
73     following such an ex parte showing, the entire text of the party's statement shall be sealed and
74     preserved in the records of the court to be made available to the appellate court in the event of
75     an appeal.
76          [(g)] (h) If at any time during the course of the proceedings it is brought to the attention
77     of the court that a party has failed to comply with this rule, the court may order such party to
78     permit the discovery or inspection, grant a continuance, or prohibit the party from introducing
79     evidence not disclosed, or it may enter such other order as [it deems] the court considers just
80     under the circumstances.
81          (i) (1) A defendant may file a motion for sanctions under this Subsection (i) if the
82     defendant believes that the prosecutor knowingly and wilfully violated Subsection (b). The
83     motion must be made separately from other motions or requests and must describe the specific
84     conduct alleged to violate Subsection (b). The motion may not be filed with or presented to the
85     court unless, within a reasonable period after service of the motion, the failure to disclose is not
86     corrected. The court may award the party who prevails on the motion reasonable expenses and
87     attorney fees incurred in presenting or opposing the motion.
88          (i) (2) On the courts own initiative, the court may enter an order describing the specific
89     conduct that appears to show a knowing and willful violation of Subsection (b) and direct a
90     prosecutor to show cause why the prosecutor has not violated Subsection (b).
91          (i) (3) In addition to the penalties under Subsection (h), a court may impose the
92     following sanctions for a knowing and willful violation of Subsection (b):
93          (i) (3) (A) a public reprimand of the prosecutor;
94          (i) (3) (B) money damages to be paid by the prosecutor, and not the office for which
95     the prosecutor works;
96          (i) (3) (C) jail time under an order of contempt of court; or
97          (i) (3) (D) being tried for a class B misdemeanor.
98          (j) Notwithstanding Subsection (h) or (i), a prosecutor is not subject to sanctions for an
99     alleged violation of this rule if the prosecutor is employed by an prosecutorial office that has an
100     open file policy.
101          (j) (1) If a prosecutorial office has an open file policy, a prosecutorial office shall
102     certify conspicuously on the prosecutorial office website that the prosecutorial office has an
103     open file policy and renew that certification annually.
104          [(h)] (k) Subject to constitutional limitations, the accused may be required to:
105          [(h)] (k) (1) appear in a lineup;
106          [(h)] (k) (2) speak for identification;
107          [(h)] (k) (3) submit to fingerprinting or the making of other bodily impressions;
108          [(h)] (k) (4) pose for photographs not involving reenactment of the crime;
109          [(h)] (k) (5) try on articles of clothing or other items of disguise;
110          (k) (6) permit the taking of samples of blood, hair, fingernail scrapings, and other
111     bodily materials which can be obtained without unreasonable intrusion;
112          (k) (7) provide specimens of handwriting;
113          (k) (8) submit to reasonable physical or medical inspection of [his] the accused's body;
114     and
115          (k) (9) cut hair or allow hair to grow to approximate appearance at the time of the
116     alleged offense. Whenever the personal appearance of the accused is required for the foregoing
117     purposes, reasonable notice of the time and place of such appearance shall be given to the
118     accused and [his] the accused's counsel. Failure of the accused to appear or to comply with the
119     requirements of this rule, unless relieved by order of the court, without reasonable excuse shall
120     be grounds for revocation of pre-trial release, may be offered as evidence in the prosecutor's
121     case in chief for consideration along with other evidence concerning the guilt of the accused
122     and shall be subject to such further sanctions as the court should deem appropriate.
123          Section 2. Effective date.
124          This resolution takes effect upon approval by a constitutional two-thirds vote of all
125     members elected to each house.