02-13 20:23 2nd Sub. (Gray) H.B. 171
Tyler Clancy proposes the following substitute bill:
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Victim and Witness Privacy Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Tyler Clancy
Senate Sponsor: Michael K. McKell
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LONG TITLE
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General Description:
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This bill addresses the privacy of a victim and witness in a criminal investigation or action.
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Highlighted Provisions:
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This bill:
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▸ defines terms;
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▸ addresses access by a defendant and a defendant's attorney to nonpublic electronic data
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related to a victim or witness, including:
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● providing that a defendant may only obtain nonpublic electronic data related to a
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victim or witness that is not in the possession of a law enforcement agency or
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prosecuting attorney through a valid search warrant or a subpoena or voluntarily from
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the victim or witness;
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● requiring the prosecuting attorney to make available, to the defendant or the
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defendant's attorney, nonpublic electronic data related to a victim or witness that is in
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the possession of a law enforcement agency or prosecuting attorney;
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● providing that a defendant's attorney may only inspect, view, or examine the nonpublic
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electronic data related to a victim or witness that is in the possession of a law
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enforcement agency at a governmental facility; and
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● providing the requirements for a defendant's attorney to copy, photograph, or
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otherwise reproduce nonpublic electronic data related to a victim or witness; and
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▸ provides a victim or a witness in a criminal proceeding with a right to privacy in any
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nonpublic electronic data related to the victim or witness that is collected during the
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course of the criminal investigation or action.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
2nd Sub. H.B. 171 2nd Sub. (Gray) H.B. 171 02-13 20:23
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Utah Code Sections Affected:
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AMENDS:
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77-37-3, as last amended by Laws of Utah 2024, Chapters 96, 164
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ENACTS:
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77-4-202, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 77-4-202 is enacted to read:
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77-4-202 . Production of nonpublic electronic data related to a victim or witness.
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(1) As used in this section:
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(a) "Governmental facility" means a facility that is owned, leased, or operated by this
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state or a political subdivision of this state.
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(b) "Law enforcement agency" means a public or private agency having general police
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power and charged with making arrests in connection with enforcement of the
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criminal statutes and ordinances of this state or any political subdivision of this state.
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(c)(i) "Nonpublic victim or witness data" means electronic data related to a victim or
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witness:
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(A) that is otherwise not available to the public; and
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(B) for which a reasonable person would believe that the victim or witness has a
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reasonable expectation of privacy.
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(ii) "Nonpublic victim or witness data" includes electronic data related to a victim or
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witness that is obtained by a law enforcement or prosecuting agency in the course
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of a criminal investigation.
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(d)(i) "Prosecuting agency" means:
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(A) the Office of the Attorney General;
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(B) the office of a county attorney or district attorney;
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(C) the office of a city or municipal attorney; or
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(D) a law firm contracted to provide prosecution services to a political subdivision
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of the state.
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(ii) "Prosecuting agency" includes an attorney on staff for an entity described in
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Subsection (1)(d)(i), whether acting in a civil or criminal capacity.
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(e) "Victim" means the same as that term is defined in Section 77-37-2.
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(f) "Witness" means the same as that term is defined in Section 77-37-2.
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(2) If a defendant seeks nonpublic victim or witness data that is not in the possession of a
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law enforcement agency or the prosecuting agency, the defendant may only obtain the
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nonpublic victim or witness data:
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(a) as described in Rule 14(c) of the Utah Rules of Criminal Procedure; or
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(b) if the victim or witness voluntarily provides the nonpublic victim or witness data to
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the defendant or the defendant's attorney.
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(3) If nonpublic victim or witness data is in the possession of a law enforcement agency or
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the prosecuting agency:
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(a) the prosecuting attorney shall make the nonpublic victim or witness data available to
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the defendant's attorney in accordance with this section; and
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(b) the defendant's attorney may only inspect, view, or examine the nonpublic victim or
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witness data at a governmental facility. or copy, photograph, or otherwise reproduce
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the nonpublic victim or witness data, in accordance with this section.
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(4) The prosecuting attorney shall describe in the discovery disclosure to the defendant
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whether the prosecuting attorney has any nonpublic victim or witness data, including the
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source of the nonpublic victim or witness data.
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(5) Any nonpublic victim or witness data related to a victim or witness that is in the
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possession of a law enforcement agency or the prosecuting agency shall remain in the
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care, custody, and control of:
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(a) the law enforcement agency;
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(b) the prosecuting agency; or
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(c) the court.
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(6) The prosecuting agency shall provide the defendant's attorney with, or permit the
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defendant's attorney to copy, photograph, or otherwise reproduce, nonpublic victim or
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witness data without an order from the court if:
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(a) the nonpublic victim or witness data is an oral or written statement given by the
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victim or witness to a law enforcement agency or prosecuting agency;
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(b) the nonpublic victim or witness data was directly communicated to the defendant by
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the victim or witness;
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(c) the nonpublic victim or witness data is direct evidence of an element of the offense
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for which the defendant is charged;
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(d) the nonpublic victim or witness data has been submitted by the prosecuting agency
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as an exhibit at a hearing;
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(e) the prosecuting attorney knows that the nonpublic victim or witness data is a
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communication that describes or explains the criminal conduct for which the
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defendant is charged;
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(f) the prosecuting attorney knows that the nonpublic victim or witness data is
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exculpatory evidence; or
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(g) the prosecuting attorney intends to submit the nonpublic victim or witness data as an
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exhibit at trial.
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(7) Before a prosecuting attorney provides the nonpublic victim or witness data as
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described in Subsection (5), the prosecuting attorney may request an order from the
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court that:
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(a) requires the defendant's attorney to inspect, view, or examine the nonpublic victim or
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witness data at a governmental facility upon a showing by the prosecuting attorney
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that making the nonpublic victim or witness data available at a governmental facility
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would not unreasonably interfere with access to the nonpublic victim or witness data
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by the defendant's attorney; or
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(b) limits the ability of the defendant's attorney to copy, photograph, distribute, or
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otherwise reproduce the nonpublic victim or witness data upon a showing by the
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prosecuting attorney that copying, photographing, reproducing, or distributing of the
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nonpublic victim or witness data would violate the privacy interests of the victim or
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witness.
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(8)(a) Subject to Subsections (9), a defendant's attorney may submit a request to the
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court for an order allowing the defendant's attorney to copy, photograph, or otherwise
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reproduce nonpublic victim or witness data if the court finds that:
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(i) the nonpublic victim or witness data is relevant and material evidence;
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(ii) a review of the nonpublic victim or witness data at a governmental facility is
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inadequate for the defendant to prepare a defense for trial; and
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(iii) the defendant's attorney has a legitimate interest in copying, photographing, or
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otherwise reproducing the nonpublic victim or witness data that outweighs the
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victim's or witness's right to privacy and right to be free from harassment as
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described in Section 77-37-3.
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(b) The defendant's attorney shall serve the request described in Subsection (8)(a) on the
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prosecuting attorney and the victim or witness.
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(c) The prosecuting attorney and the victim or witness may object to any request within
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21 days after the day on which the request is submitted to the court.
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(9)(a) In issuing an order described in Subsection (8)(a), the court shall consider and
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limit, where appropriate, the use and further disclosure of the nonpublic victim or
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witness data in order to protect the privacy interests of the victim or witness.
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(b) There is a rebuttable presumption against allowing a defendant's attorney to copy,
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photograph, or otherwise reproduce nonpublic victim or witness data that is an
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intimate image, as that term is defined in Section 76-5b-203.
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(c) If the court issues an order allowing the defendant's attorney to copy, photograph, or
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otherwise reproduce an intimate image, the court shall include in the order limitations
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on:
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(i) the number of copies, photographs, or reproductions that the defendant's attorney
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is permitted to make;
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(ii) who may view the intimate image;
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(iii) how the image may be stored; and
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(iv) the disposition of the intimate image upon the completion of the criminal
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prosecution against the defendant.
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(10) At the request of a victim, witness, or a representative of a victim or witness, the court
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may:
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(a) conduct an ex parte in camera review of nonpublic victim or witness data that the
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victim or witness does not believe should be made available to the defendant or the
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defendant's attorney; and
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(b) enter an order prohibiting the inspection, review, or examination of the nonpublic
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victim or witness data if the nonpublic victim or witness data is:
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(i) not relevant or material evidence in the criminal case; or
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(ii) evidence of sexual behavior by the victim or witness that is inadmissible under
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Rule 412 of the Utah Rules of Evidence.
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(11) A law enforcement agency and a prosecuting agency shall establish a policy that
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ensures nonpublic victim or witness data is:
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(a) used solely for legitimate law enforcement and prosecutorial purposes; and
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(b) maintained in a manner that protects the privacy of a victim or witness.
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(12) This section does not:
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(a) limit the rights of a defendant under the Constitution of the United States or the Utah
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Constitution;
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(b) create a right for a defendant that is beyond the rights created by the requirements of
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Rule 16 of the Utah Rules of Criminal Procedure, the Utah Constitution, and the
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United States Constitution; or
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(c) prevent a law enforcement agency or prosecuting agency from providing information
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to the Utah Office for Victims of Crime that is necessary to provide victim services to
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a victim.
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Section 2. Section 77-37-3 is amended to read:
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77-37-3 . Bill of rights.
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(1) The bill of rights for victims and witnesses is:
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(a) Victims and witnesses have a right to be informed as to the level of protection from
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intimidation and harm available to them, and from what sources, as they participate
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in criminal justice proceedings as designated by Section 76-8-508, regarding
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tampering with a witness, and Section 76-8-509, regarding extortion or bribery to
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dismiss a criminal proceeding. Law enforcement, prosecution, and corrections
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personnel have the duty to timely provide this information in a form which is useful
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to the victim.
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(b) Victims and witnesses, including children and their guardians, have a right to be
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informed and assisted as to their role in the criminal justice process. All criminal
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justice agencies have the duty to provide this information and assistance.
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(c) Victims and witnesses have a right to clear explanations regarding relevant legal
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proceedings; these explanations shall be appropriate to the age of child victims and
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witnesses. All criminal justice agencies have the duty to provide these explanations.
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(d) Victims and witnesses should have a secure waiting area that does not require them
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to be in close proximity to defendants or the family and friends of defendants.
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Agencies controlling facilities shall, whenever possible, provide this area.
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(e) Victims may seek restitution or reparations, including medical costs, as provided in
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Title 63M, Chapter 7, Criminal Justice and Substance Abuse, Title 77, Chapter 38b,
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Crime Victims Restitution Act, and Section 80-6-710. State and local government
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agencies that serve victims have the duty to have a functional knowledge of the
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procedures established by the Crime Victim Reparations Board and to inform victims
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of these procedures.
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(f) Victims and witnesses have a right to have any personal property returned as
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provided in Chapter 11a, Seizure of Property and Contraband, and Chapter 11d, Lost
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or Mislaid Property. Criminal justice agencies shall expeditiously return the property
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when it is no longer needed for court law enforcement or prosecution purposes.
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(g) Victims and witnesses have the right to reasonable employer intercession services,
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including pursuing employer cooperation in minimizing employees' loss of pay and
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other benefits resulting from their participation in the criminal justice process.
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Officers of the court shall provide these services and shall consider victims' and
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witnesses' schedules so that activities which conflict can be avoided. Where conflicts
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cannot be avoided, the victim may request that the responsible agency intercede with
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employers or other parties.
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(h) Victims and witnesses, particularly children, should have a speedy disposition of the
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entire criminal justice process. All involved public agencies shall establish policies
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and procedures to encourage speedy disposition of criminal cases.
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(i) Victims and witnesses have the right to timely notice of judicial proceedings they are
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to attend and timely notice of cancellation of any proceedings. Criminal justice
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agencies have the duty to provide these notifications. Defense counsel and others
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have the duty to provide timely notice to prosecution of any continuances or other
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changes that may be required.
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(j) A victim or a witness in a criminal proceeding has a right to privacy in nonpublic
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victim or witness data, as defined in Section 77-4-202, that is collected during the
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course of the criminal investigation or action.
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(2) In addition to the rights of a victim described in Subsection (1), a victim of a sexual
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offense has the right to:
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(a) request voluntary testing for themselves for HIV infection as described in Section
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53-10-803;
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(b) request mandatory testing of the alleged sexual offender for HIV infection as
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described in Section 53-10-802;
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(c) not to be prevented from, or charged for, a medical forensic examination;
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(d) have the evidence from a sexual assault kit, or the contents of the sexual assault kit,
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preserved for the time periods described in Title 77, Chapter 11c, Retention of
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Evidence, without any charge to the victim;
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(e) be informed whether a DNA profile was obtained from the testing of the evidence in
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a sexual assault kit or from other crime scene evidence;
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(f) be informed whether a DNA profile developed from the evidence in a sexual assault
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kit, or from other crime scene evidence, has been entered into the Utah Combined
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DNA Index System;
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(g) be informed of any result from a sexual assault kit or from other crime scene
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evidence if that disclosure would not impede or compromise an ongoing
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investigation, including:
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(i) whether there is a match between a DNA profile developed from the evidence in a
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sexual assault kit, or from other crime scene evidence, and a DNA profile
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contained in the Utah Combined DNA Index System; and
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(ii) a toxicology result or other information that is collected from a sexual assault kit
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as part of a medical forensic examination of the victim;
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(h) be informed in writing of policies governing the collection and preservation of a
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sexual assault kit;
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(i) be informed of the status and location of a sexual assault kit;
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(j) upon written request by the victim, receive a notice of intent from an agency, as
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defined in Section 53-10-905, if the agency intends to destroy or dispose of evidence
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from a sexual assault kit;
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(k) be granted further preservation of the sexual assault kit if the agency, as defined in
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Section 53-10-905, intends to destroy or dispose of evidence from a sexual assault kit
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and the victim submits a written request as described in Section 53-10-905;
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(l) designate a person of the victim's choosing to act as a recipient of the information
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provided under this Subsection (2) or Subsections (3) and (4); and
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(m) be informed of all the enumerated rights in this Subsection (2).
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(3) Subsections (2)(e) through (g) do not require that the law enforcement agency
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communicate with the victim or the victim's designee regarding the status of DNA
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testing, absent a specific request received from the victim or the victim's designee.
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(4) A law enforcement agency investigating a sexual offense may:
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(a) release the information indicated in Subsections (2)(e) through (g) upon the request
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of the victim of the sexual offense, or the victim's designee and is the designated
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agency to provide that information to the victim or the victim's designee;
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(b) require that the victim's request be in writing; and
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(c) respond to the victim's request with verbal communication, written communication,
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or by email if an email address is available.
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(5) A law enforcement agency investigating a sexual offense shall:
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(a) notify the victim of the sexual offense, or the victim's designee, if the law
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enforcement agency determines that DNA evidence will not be analyzed in a case
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where the identity of the perpetrator has not be confirmed;
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(b) provide the information described in this section in a timely manner; and
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(c) upon request of the victim or the victim's designee, advise the victim or the victim's
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designee of any significant changes in the information of which the law enforcement
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agency is aware.
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(6) The law enforcement agency investigating the sexual offense is responsible for
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informing the victim of the sexual offense, or the victim's designee, of the rights
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established under this section.
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(7) Informational rights of the victim under this chapter are based upon the victim
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providing the current name, address, telephone number, and email address, if an email
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address is available, of the person to whom the information should be provided to the
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criminal justice agencies involved in the case.
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Section 3. Effective date.
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This bill takes effect on May 7, 2025.
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