“Discovery” refers to evidence, information, and other materials that are exchanged between the parties in a pending court case. Discovery in Utah criminal cases is governed by procedural rules, statutes, and important constitutional principles of due process.
Constitutional Foundations for Required Discovery
A person charged with a crime is has the guarantee of several important constitutional rights, including the right to confront and cross-examine witnesses, the right to have the effective assistance of counsel, and various due process protections that serve to enforce certain more specific rights. Full disclosure of relevant discovery materials is critical to ensuring that these rights are given real meaning.
Obligations of the Prosecution Team
Utah’s Supreme Court has made it clear that discovery obligations extend to the entire prosecution team – not just the individual prosecutor currently assigned to the case. See, State v. Knight, 734 P.2d 913 (Utah 1987).
The prosecution team includes other attorneys and staff who work in the office of the prosecutor as well as any police officers, police agencies, and other government agencies involved in the investigation of or prosecution the criminal case. Materials in the possession of or under the control of any such agency or any individual member of such agency is subject to required disclosure in discovery.
“Open File” Policies Create an Illusion of Transparency
Some prosecution offices (city or county) in Utah attempt to meet technical compliance with their discovery obligations by using an “open file” policy. Such a policy generally informs defense attorneys that they are welcome to come and inspect the entire prosecution file upon request.
An “open file” policy creates an illusion of transparency, but does little or nothing to guarantee that the prosecution team is providing the defense with all of the discovery materials to which the defense is constitutionally entitled. Access to an open file only discloses what is actually in the file. It tells the defense nothing about what the rest of the prosecution team (i.e., police officers and other government agencies) may have in their possession.
Constitutional principles of due process require that the relevant materials actually be disclosed to and provided to the defense, not just that the defense have access to view an empty file.
Rule 16, Utah Rules of Criminal Procedure
Utah’s Rule 16 sets out several requirements relating to disclosures by the prosecution to the defense, as well as circumstances under which the defense may be required to provide discovery materials to the prosecution. Key elements of Rule 16 include:
- mandatory disclosures by the prosecution;
- disclosures by the prosecution required only on request from the defense;
- disclosures by the defense on order of the court;
- statutorily-required disclosures by defense and by prosecution
- timing of disclosure;
- methods of disclosure;
- restrictions on further dissemination; and
- relief and sanctions for failure to disclose.
Discovery Request or Demand?
Historically, defense attorneys have usually used the word “request” in framing their discovery-related court filings. In light of the many appellate court decisions that have clearly stated that a defendant has a constitutional right to receive discovery materials, some defense attorneys have begun framing discovery filings as “demands” for discovery.
While either “request” or “demand” may be grammatically correct, using the term “demand” can provide an important reminder to prosecution teams that compliance with discovery rules is not optional.
Sample Language for a Criminal Discovery Demand
Defendant (insert defendant’s name here), by and through counsel, hereby demands that the Prosecution Team provide to Defense Counsel as soon as practicable, copies of all discoverable materials relating to the above-captioned case, including but not limited to the materials specifically requested herein.
Five-Day Rule: Pursuant to Rule 16 of the Utah Rules of Criminal Procedure, any materials or evidence relied on by the prosecution in filing the Information in this case must be disclosed to the defense within five days after the day on which the prosecution receives a request/demand for discovery from the defense.
Prosecution Team: Pursuant to State v. Knight, 734 P.2d 913 (Utah 1987) and Rule 16(a)(1) of the Utah Rules of Criminal Procedure, the Government’s obligation to provide discovery applies not only to materials in the immediate possession of the prosecuting attorney but also to all materials in the possession of or under the control of any member of the prosecution team. The prosecution team includes any police officers or agencies involved in the investigation and/or prosecution of the case and any other attorney or staff employed by or working with the prosecuting agency. See, Knight, 734 P.2d at 918, n. 5.
Exculpatory Materials Notice: Pursuant to Brady v. Maryland, 373 U.S. 83, (1963), Giglio v. United States, 405 U.S. 150 (1972), State v. Knight, 734 P.2d 913 (Utah 1987), and the due process provisions of both the United States Constitution and the Constitution of State of Utah, notice is hereby given to the Prosecution Team that any and all exculpatory evidence that has been discovered by or is in the possession of or under the control of any member of the prosecution team must be immediately disclosed and provided to Defense Counsel.
(A list of materials requested should follow immediately after these introductory paragraphs.)
The materials presented here are intended only as a general overview and guide to discovery processes in Utah criminal cases. Individuals facing criminal prosecution are strongly encouraged to seek assistance from an experienced criminal defense attorney.