Utah’s Five-Day Discovery Rule – Criminal Procedure Rule 16 – 2023 Amendments

Stephen Howard — Stone River Law

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Utah’s Five-Day Discovery Rule – Criminal Procedure Rule 16 – 2023 Amendments

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Utah prosecutors now have “five days” to provide initial discovery materials to the defense. This amendment to Rule 16 of the Utah Rules of Criminal Procedure is effective as of May 3, 2023.

Previously, Rule 16 stated only that prosecutors must make required discovery disclosures “as soon as practicable following the filing of charges.” The amended rule still uses the “as soon as practicable” language in reference to a prosecutor’s ongoing discovery obligations. But it also imposes on the prosecution team a specific obligation to turn over “all evidence that the prosecutor relied upon to file the information” within five (5) days after the day on which the prosecutor receives a defendant’s discovery request.

Under the prior rule, most prosecution offices worked with reasonable diligence to provide discovery to defense attorneys in a timely manner. But the “as soon as practicable” language provided only a vague guideline. It was common for defendants and their attorneys to make an appearance in court, only to request that the court continue (reschedule) the hearing so that defense counsel could have an opportunity to review and assess discovery materials. Such delays were an inefficient use of court resources and wasted time of individuals involved in the case. Further, cumulative delays could potentially affect a defendant’s speedy trial right.

The amended rule with its five-day initial discovery rule should promote the efficient use of court resources and reduce the time needed to resolve criminal cases or move cases along to trial. Most important, it should help to ensure that criminal defense attorneys have access to the information and materials necessary to represent their clients and to protect the right to the effective assistance of counsel.

Preliminary Hearing or Preliminary Examination?

The amendment to Rule 16(2) includes a small but significant change in language. The amended rule now refers to a “preliminary examination” rather than “preliminary hearing.”

The constitution for the State of Utah guarantees the right to a preliminary “examination” to determine probable cause in felony cases or for cases involving misdemeanors punishable by a year or more in jail. The term “examination” has special meaning in the law, and refers to the process of asking questions and taking the testimony of witnesses in a court hearing.

Many prosecutors, judges, and defense attorneys casually refer to the court process involved in reaching a probable cause determination as a “preliminary hearing.” While the difference in terminology is subtle, correctly referring to the hearing as a “preliminary examination” can help remind all parties involved that actual evidence and testimony are required to reach a determination of probable cause.

(Note that Rule 1102 of the Utah Rules of Evidence and Rule 7B of the Utah Rules of Criminal Procedure were also amended in 2023 to specifically limit the use of written statements and other hearsay evidence at the preliminary examination stage of a criminal case.)