02-10 08:58 1st Sub. (Buff) H.B. 171
Tyler Clancy proposes the following substitute bill:
1
Victim and Witness Privacy Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Tyler Clancy
Senate Sponsor: Michael K. McKell
2
3
LONG TITLE
4
General Description:
5
This bill addresses the privacy of a victim and witness in a criminal investigation or action.
6
Highlighted Provisions:
7
This bill:
8
▸ defines terms;
9
▸ addresses access by a defendant to nonpublic information belonging to a victim or
10
witness, including:
11
● providing that a defendant may only obtain nonpublic information belonging to a
12
victim or witness that is not in the possession of a law enforcement agency or
13
prosecuting attorney through a valid search warrant or a subpoena;
14
● requiring the prosecuting attorney to make available, to the defendant, nonpublic
15
information belonging to a victim or witness that is in the possession of a law
16
enforcement agency or prosecuting attorney;
17
● providing that a defendant may only inspect, view, or examine the nonpublic
18
information belonging to a victim or witness that is in the possession of a law
19
enforcement agency at a governmental facility; and
20
● providing the requirements for a defendant to copy, photograph, or otherwise
21
reproduce nonpublic information belonging to a victim or witness; and
22
▸ provides a victim or a witness in a criminal proceeding with a right to privacy in any
23
nonpublic information belonging to the victim or witness that is collected during the
24
course of the criminal investigation or action.
25
Money Appropriated in this Bill:
26
None
27
Other Special Clauses:
28
None
29
Utah Code Sections Affected:
1st Sub. H.B. 171 1st Sub. (Buff) H.B. 171 02-10 08:58
30
AMENDS:
31
77-37-3, as last amended by Laws of Utah 2024, Chapters 96, 164
32
ENACTS:
33
77-4-202, Utah Code Annotated 1953
34
35
Be it enacted by the Legislature of the state of Utah:
36
Section 1. Section 77-4-202 is enacted to read:
37
77-4-202 . Production of nonpublic information belonging to a victim or witness.
38
(1) As used in this section:
39
(a) "Governmental facility" means a facility that is owned, leased, or operated by this
40
state or a political subdivision of this state.
41
(b) "Law enforcement agency" means a public or private agency having general police
42
power and charged with making arrests in connection with enforcement of the
43
criminal statutes and ordinances of this state or any political subdivision of this state.
44
(c) "Nonpublic information" means information that:
45
(i) is otherwise not available to the public; and
46
(ii) a reasonable person would believe that there is a reasonable expectation of
47
privacy.
48
(d)(i) "Prosecuting agency" means:
49
(A) the Office of the Attorney General;
50
(B) the office of a county attorney or district attorney;
51
(C) the office of a city or municipal attorney; or
52
(D) a law firm contracted to provide prosecution services to a political subdivision
53
of the state.
54
(ii) "Prosecuting agency" includes an attorney on staff for an entity described in
55
Subsection (1)(d)(i), whether acting in a civil or criminal capacity.
56
(e) "Record" means information that is inscribed on a tangible medium or that is stored
57
in an electronic or other medium and is retrievable in perceivable form.
58
(f) "Victim" means the same as that term is defined in Section 77-37-2.
59
(g)(i) "Victim or witness information" means nonpublic information related to a
60
victim or witness.
61
(ii) "Victim or witness information" includes nonpublic information obtained by a
62
law enforcement or prosecuting agency in the course of a criminal investigation.
63
(h) "Witness" means the same as that term is defined in Section 77-37-2.
- 2 - 02-10 08:58 1st Sub. (Buff) H.B. 171
64
(2) If a defendant seeks nonpublic information related to a victim or witness that is not in
65
the possession of a law enforcement agency or the prosecuting agency, the defendant
66
may only obtain the victim or witness information as described in Rule 14(c) of the Utah
67
Rules of Criminal Procedure.
68
(3) If victim or witness information is in the possession of a law enforcement agency or the
69
prosecuting agency:
70
(a) the prosecuting attorney shall make the victim or witness information available to the
71
defendant in accordance with this section; and
72
(b) the defendant may only inspect, view, or examine the victim or witness information
73
at a governmental facility.
74
(4) Any victim or witness information that is in the possession of a law enforcement agency
75
or the prosecuting agency shall remain in the care, custody, and control of:
76
(a) the law enforcement agency;
77
(b) the prosecuting agency; or
78
(c) the court.
79
(5) The prosecuting agency may provide the defendant with, or permit the defendant to
80
copy, photograph, or otherwise reproduce, victim or witness information without an
81
order from the court if:
82
(a) the victim or witness information is an oral or written statement given by the victim
83
or witness to a law enforcement agency or prosecuting agency;
84
(b) the victim or witness information was directly communicated to the defendant by the
85
victim or witness;
86
(c) the victim or witness information is direct evidence of an element of the offense for
87
which the defendant is charged;
88
(d) the victim or witness information has been submitted by the prosecuting agency as
89
an exhibit at a hearing; or
90
(e) the prosecuting attorney intends to submit the victim or witness information as an
91
exhibit at trial.
92
(6) Subject to Subsections (7) and (8), a court may issue an order allowing a defendant to
93
copy, photograph, or otherwise reproduce victim or witness information if the court
94
finds that:
95
(a) the victim or witness information is relevant and material evidence;
96
(b) a review of the victim or witness information at a governmental facility is inadequate
97
for the defendant to prepare a defense for trial; and
- 3 - 1st Sub. (Buff) H.B. 171 02-10 08:58
98
(c) the defendant has a legitimate interest in copying, photographing, or otherwise
99
reproducing the victim or witness information that outweighs the victim's or witness's
100
right to privacy and right to be free from harassment as described in Section 77-37-3.
101
(7) The court may only issue an order described in Subsection (6) after:
102
(a) the prosecuting agency and the victim or witness have been given notice of the
103
hearing and an opportunity to be heard at the hearing; and
104
(b) the court has considered and limited, where appropriate, the use and further
105
disclosure of the victim and witness information in order to protect the privacy
106
interests of the victim or witness.
107
(8)(a) There is a rebuttable presumption against allowing a defendant to copy,
108
photograph, or otherwise reproduce victim or witness information that is an intimate
109
image, as that term is defined in Section 76-5b-203.
110
(b) If the court issues an order allowing the defendant to copy, photograph, or otherwise
111
reproduce an intimate image, the court shall include in the order limitations on:
112
(i) the number of copies, photographs, or reproductions that the defendant is
113
permitted to make;
114
(ii) who may view the intimate image;
115
(iii) how the image may be stored; and
116
(iv) the disposition of the intimate image upon the completion of the criminal
117
prosecution against the defendant.
118
(9) At the request of a victim, witness, or a representative of a victim or witness, the court
119
may:
120
(a) conduct an ex parte in camera review of victim or witness information that the victim
121
or witness does not believe should be made available to the defendant; and
122
(b) enter an order prohibiting the inspection, review, or examination of the victim or
123
witness information if the victim or witness information is:
124
(i) not relevant or material evidence in the criminal case; or
125
(ii) evidence of sexual behavior by the victim or witness that is inadmissible under
126
Rule 412 of the Utah Rules of Evidence.
127
(10) A law enforcement agency and a prosecuting agency shall establish a policy that
128
ensures victim and witness information is:
129
(a) used solely for legitimate law enforcement and prosecutorial purposes; and
130
(b) maintained in a manner that protects the privacy of a victim or witness.
131
(11) This section does not:
- 4 - 02-10 08:58 1st Sub. (Buff) H.B. 171
132
(a) limit the rights of a defendant under the Constitution of the United States or the Utah
133
Constitution;
134
(b) create a right for a defendant that is beyond the rights created by the requirements of
135
Rule 16 of the Utah Rules of Criminal Procedure, the Utah Constitution, and the
136
United States Constitution; or
137
(c) prevent a law enforcement agency or prosecuting agency from providing information
138
to the Utah Office for Victims of Crime that is necessary to provide victim services to
139
a victim.
140
Section 2. Section 77-37-3 is amended to read:
141
77-37-3 . Bill of rights.
142
(1) The bill of rights for victims and witnesses is:
143
(a) Victims and witnesses have a right to be informed as to the level of protection from
144
intimidation and harm available to them, and from what sources, as they participate
145
in criminal justice proceedings as designated by Section 76-8-508, regarding
146
tampering with a witness, and Section 76-8-509, regarding extortion or bribery to
147
dismiss a criminal proceeding. Law enforcement, prosecution, and corrections
148
personnel have the duty to timely provide this information in a form which is useful
149
to the victim.
150
(b) Victims and witnesses, including children and their guardians, have a right to be
151
informed and assisted as to their role in the criminal justice process. All criminal
152
justice agencies have the duty to provide this information and assistance.
153
(c) Victims and witnesses have a right to clear explanations regarding relevant legal
154
proceedings; these explanations shall be appropriate to the age of child victims and
155
witnesses. All criminal justice agencies have the duty to provide these explanations.
156
(d) Victims and witnesses should have a secure waiting area that does not require them
157
to be in close proximity to defendants or the family and friends of defendants.
158
Agencies controlling facilities shall, whenever possible, provide this area.
159
(e) Victims may seek restitution or reparations, including medical costs, as provided in
160
Title 63M, Chapter 7, Criminal Justice and Substance Abuse, Title 77, Chapter 38b,
161
Crime Victims Restitution Act, and Section 80-6-710. State and local government
162
agencies that serve victims have the duty to have a functional knowledge of the
163
procedures established by the Crime Victim Reparations Board and to inform victims
164
of these procedures.
165
(f) Victims and witnesses have a right to have any personal property returned as
- 5 - 1st Sub. (Buff) H.B. 171 02-10 08:58
166
provided in Chapter 11a, Seizure of Property and Contraband, and Chapter 11d, Lost
167
or Mislaid Property. Criminal justice agencies shall expeditiously return the property
168
when it is no longer needed for court law enforcement or prosecution purposes.
169
(g) Victims and witnesses have the right to reasonable employer intercession services,
170
including pursuing employer cooperation in minimizing employees' loss of pay and
171
other benefits resulting from their participation in the criminal justice process.
172
Officers of the court shall provide these services and shall consider victims' and
173
witnesses' schedules so that activities which conflict can be avoided. Where conflicts
174
cannot be avoided, the victim may request that the responsible agency intercede with
175
employers or other parties.
176
(h) Victims and witnesses, particularly children, should have a speedy disposition of the
177
entire criminal justice process. All involved public agencies shall establish policies
178
and procedures to encourage speedy disposition of criminal cases.
179
(i) Victims and witnesses have the right to timely notice of judicial proceedings they are
180
to attend and timely notice of cancellation of any proceedings. Criminal justice
181
agencies have the duty to provide these notifications. Defense counsel and others
182
have the duty to provide timely notice to prosecution of any continuances or other
183
changes that may be required.
184
(j) A victim or a witness in a criminal proceeding has a right to privacy in any victim or
185
witness information, as defined in Section 77-4-202, that is collected during the
186
course of the criminal investigation or action.
187
(2) In addition to the rights of a victim described in Subsection (1), a victim of a sexual
188
offense has the right to:
189
(a) request voluntary testing for themselves for HIV infection as described in Section
190
53-10-803;
191
(b) request mandatory testing of the alleged sexual offender for HIV infection as
192
described in Section 53-10-802;
193
(c) not to be prevented from, or charged for, a medical forensic examination;
194
(d) have the evidence from a sexual assault kit, or the contents of the sexual assault kit,
195
preserved for the time periods described in Title 77, Chapter 11c, Retention of
196
Evidence, without any charge to the victim;
197
(e) be informed whether a DNA profile was obtained from the testing of the evidence in
198
a sexual assault kit or from other crime scene evidence;
199
(f) be informed whether a DNA profile developed from the evidence in a sexual assault
- 6 - 02-10 08:58 1st Sub. (Buff) H.B. 171
200
kit, or from other crime scene evidence, has been entered into the Utah Combined
201
DNA Index System;
202
(g) be informed of any result from a sexual assault kit or from other crime scene
203
evidence if that disclosure would not impede or compromise an ongoing
204
investigation, including:
205
(i) whether there is a match between a DNA profile developed from the evidence in a
206
sexual assault kit, or from other crime scene evidence, and a DNA profile
207
contained in the Utah Combined DNA Index System; and
208
(ii) a toxicology result or other information that is collected from a sexual assault kit
209
as part of a medical forensic examination of the victim;
210
(h) be informed in writing of policies governing the collection and preservation of a
211
sexual assault kit;
212
(i) be informed of the status and location of a sexual assault kit;
213
(j) upon written request by the victim, receive a notice of intent from an agency, as
214
defined in Section 53-10-905, if the agency intends to destroy or dispose of evidence
215
from a sexual assault kit;
216
(k) be granted further preservation of the sexual assault kit if the agency, as defined in
217
Section 53-10-905, intends to destroy or dispose of evidence from a sexual assault kit
218
and the victim submits a written request as described in Section 53-10-905;
219
(l) designate a person of the victim's choosing to act as a recipient of the information
220
provided under this Subsection (2) or Subsections (3) and (4); and
221
(m) be informed of all the enumerated rights in this Subsection (2).
222
(3) Subsections (2)(e) through (g) do not require that the law enforcement agency
223
communicate with the victim or the victim's designee regarding the status of DNA
224
testing, absent a specific request received from the victim or the victim's designee.
225
(4) A law enforcement agency investigating a sexual offense may:
226
(a) release the information indicated in Subsections (2)(e) through (g) upon the request
227
of the victim of the sexual offense, or the victim's designee and is the designated
228
agency to provide that information to the victim or the victim's designee;
229
(b) require that the victim's request be in writing; and
230
(c) respond to the victim's request with verbal communication, written communication,
231
or by email if an email address is available.
232
(5) A law enforcement agency investigating a sexual offense shall:
233
(a) notify the victim of the sexual offense, or the victim's designee, if the law
- 7 - 1st Sub. (Buff) H.B. 171 02-10 08:58
234
enforcement agency determines that DNA evidence will not be analyzed in a case
235
where the identity of the perpetrator has not be confirmed;
236
(b) provide the information described in this section in a timely manner; and
237
(c) upon request of the victim or the victim's designee, advise the victim or the victim's
238
designee of any significant changes in the information of which the law enforcement
239
agency is aware.
240
(6) The law enforcement agency investigating the sexual offense is responsible for
241
informing the victim of the sexual offense, or the victim's designee, of the rights
242
established under this section.
243
(7) Informational rights of the victim under this chapter are based upon the victim
244
providing the current name, address, telephone number, and email address, if an email
245
address is available, of the person to whom the information should be provided to the
246
criminal justice agencies involved in the case.
247
Section 3. Effective date.
248
This bill takes effect on May 7, 2025.
- 8 -