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Prosecutors who don't hand over all of their evidence to defendants could soon face sanctions, if lawmakers pass a joint resolution amending Utah's rules of criminal procedure.
The proposal — sponsored for Sen. Todd Weiler, R-Woods Cross — would give judges discretion to punish prosecutors through public reprimands, fines or even jail time if they have not disclosed all evidence during the discovery process after a case is filed. Defense attorneys could ask for the punishment, or a judge could sanction on his or her own initiative.
Weiler said Wednesday during a Senate Judiciary, Law Enforcement and Criminal Justice Committee hearing that SJR7 was drafted in response to complaints that some Utah prosecutors have not followed through on their duty to provide all evidence, including evidence that might clear the defendant of wrongdoing.
"There is a need in the state to focus on this duty of prosecutors to disclose evidence favorable to the defendant in a timely manner," Weiler said.
He did not cite any specific case or instance where evidence had not been produced by prosecutors.
Steve Burton, with the Utah Association of Criminal Defense Lawyers, told the legislative committee that defense attorneys also are concerned that prosecutors are filing cases without taking a thorough look at the evidence. Prosecutors generally dismiss those cases eventually, he said — but in the meantime, a defendant may have sat in jail for weeks, lost a job and had to hire an attorney to defend themselves.
Burton said he believes the proposed resolution is a "step in the right direction."
"In theory, an attorney can be sanctioned if they willingly fail to disclose evidence," Burton told the committee. "It almost never happens. When it does happen, it's national news. So I think that it is important for there to be some very explicit sanctions when someone [withholds evidence] intentionally or negligently."
But Weiler's proposed resolution has one caveat: If a county attorney's office has an "open file" policy — meaning their office makes their complete file available to the defendant — its prosecutors can't be sanctioned under the rule amendment.
And many, if not most, of Utah's prosecutor offices already have those policies in place. Some — including Utah, Davis and Washington counties — have a written policy outlining prosecutors' duty to give information to the defendant, according to their county attorneys. Others, such Juab County, have more of an informal policy.
"Our unwritten policy and practice has always been to make our complete file, excluding attorney work product, available to defendants," Juab County Attorney Jared Eldridge told The Salt Lake Tribune. "… I suspect most, if not all, prosecutor's office already have an open file policy, at least in practice."
If the joint resolution is passed, Eldridge said his office would likely put their policies in writing, and post it on the county' website. This, in theory, would make his office immune from any possible sanctions proposed in Weiler's resolution.
The resolution defines an "open file policy" as "a policy adopted by a prosecutorial office to make available to the defendant the complete files of the law enforcement agency or any other entity that obtains information on behalf of the law enforcement agency or prosecutor in connection with the investigation of a crime committed … "
Utah County Attorney Jeffrey Buhman said his office has a written policy — but it is not exactly the same as what is written in the resolution. Buhman doesn't have the authority, he said, to make law enforcement files open if his office doesn't possess them.
"We request, demand, cajole and pester to get all information out of the police and other entities' files," Buhman said, "but ultimately, they have possession of the evidence."
Davis County Attorney Troy Rawlings said his office's policy is similar to that in Weiler's legislation. He noted that while other offices in the state may say they have an open file policy, there can be "significant nuances" on what that is.
"You can say you have one," Rawlings said, "but what does it mean in practice?"
Some voiced opposition during the committee meeting Wednesday, saying it should be the courts, not lawmakers, who scrutinize rules and decide if changes are needed.
"Our suggestion really would be that this whole issue ought to go before the criminal procedure advisory committee," said Paul Boyden, executive director of the Statewide Association of Prosecutors. "… We need to take a step back and figure this out."
Weiler emphasized at the committee hearing that there would still be judicial oversight in the process, and noted that he didn't think the proposed legislation went far enough.
"For anyone to argue that we should give bad prosecutors the opportunity to go another year and potentially get away with knowing and willfully withholding evidence favorable to a defendant — that's a problem," he said.
With a 2-1 vote, the joint resolution passed out of committee this week, and is now headed to consideration by the full Senate. To take effect, it would need two-thirds vote of all members elected to each house.