Can a prosecutor wait to provide discovery until the defense asks for it?

Posted by Stone River Criminal Defense Team

Last Updated: February 17, 2025

“Can” and “should” are two very different matters. Prior to 2021, Rule 16 of Utah’s Rules of Criminal Procedure suggested that a prosecutor’s obligation to provide discovery was triggered only when the defense asked for it. The rule stated, “[T]he prosecutor shall disclose to the defense upon request the following material or information of which […]
attorney meeting with client at desk

“Can” and “should” are two very different matters. Prior to 2021, Rule 16 of Utah’s Rules of Criminal Procedure suggested that a prosecutor’s obligation to provide discovery was triggered only when the defense asked for it. The rule stated, “[T]he prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge….” Utah R. Crim. Pro. 16(a) (2020).

Constitutional principles of due process have long been interpreted as requiring that a prosecutor disclose certain discovery materials, even if the defense did not make a request. The 2021 amendments to Utah’s Rule 16 made it clear that the disclosure of these materials is mandatory without any requiring any request.

Originally Published: November 20, 2023

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