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Moved – Effects of an Expungement Order in Utah

May 15, 2023 By stephenh

Utah Code section 77-40a-401 controls what happens once an expungement order has been signed by the court. It sets out rules for distribution of the order by the Bureau (BCI) as well as what agency’s are required to do once they receive a copy of the order.

Individuals and Expunged Records

Two classes of individuals should be considered when addressing the effects of an expungement order in a Utah criminal case: first, the person who is the subject of the expunged records (the arrestee, defendant, etc.); and second, other individuals who may have information about the case.

Answer Like It Never Happened

Subsection (2) of section 401 provides that a person who has had a criminal record expunged “may respond to any inquiry as though the arrest or conviction did not occur.” There are exceptions to this general rule that may be required by other law or by court order. But in the absence of a specific law or court order, if records of an arrest, conviction, or court case have been expunged, those records should not appear on official criminal background history reports and questions about such records can be answered as though the arrest and conviction never happened.

Once expunged records are sealed, destroyed, or erased, they will no longer be available to the public. This can make it easier for individuals to find employment, housing, and other opportunities that may have been restricted due to a prior criminal history record. However, there are certain limitations to expungement, and it may not completely erase any and all traces of the criminal record.

Other Individuals

Individuals who are not part of or employed by a government agency may independently have information about or direct knowledge of the events that led to an arrest, criminal court case proceedings, or conviction or case status information. An expungement order does not directly affect the free speech rights of these individuals or their ability to discuss or disclose information relating to the arrest or case, soo long as the information about the case was obtained from sources independent of privileged access to expunged records.

Agency Responsibilities re. Expunged Records

BCI is the designated record keeper for criminal history reports and information in Utah. Other agencies such as police departments, jails, prosecutor’s offices, probation and parole offices also keep records relating to arrests and criminal convictions.

Bureau of Criminal Identification (BCI)

BCI is required to keep, index, and maintain records of arrests and convictions even after an expungement order has been entered. But Utah’s expungement laws place strict restrictions on the release of expunged records by BCI.

Upon receipt of an expungement order, BCI will normally forward a copy to the FBI. BCI also removes records of the arrest or conviction from its regular database. If all of a person’s criminal charges and arrests have been expunged, then a request for a criminal history report from BCI should yield a “no records found” response.

Agency Action on Receipt of an Expungement Order

An agency that receives an expungement order is required to expunge (delete, erase, destroy, redact, etc.) the individual’s identifying information that may be contained in the records in possession of that agency that relate to the incident affected by the expungement order.

In some circumstances, this will result in complete deletion or destruction of the entire record. In other circumstances, especially when other individuals were also arrested, charged, investigated, etc., the record may still be retained by the agency, but the identifying information of the individual who is the subject of the expungement order must be removed from the agency’s regular records.

Once expunged, the agency is generally prohibited from disclosing the existence of the records (if the records are still retained) or disclosing the identity of the individual whose information was expunged from such records.

Criminal Consequences for Disclosure by Agency Employees

Unless otherwise specifically authorized by law, an individual employee of an agency that retains records of expunged cases is generally not allowed to disclose the existence of or contents of such records without a court order. An employee or agent of such an agency who unlawfully discloses expunged records may be criminally charged with a class A misdemeanor under Utah Code section 77-40a-405.

Moved – Collateral Consequences in Utah Criminal Cases

May 2, 2023 By stephenh

Focusing on the immediate and direct consequences that are possible when a criminal sentencing hearing is approaching is important. However, collateral consequences of a criminal conviction in Utah can extend long after a sentencing hearing is completed and even after jail time is served or probation has been completed.

Defense attorneys should pay particular attention to other potential consequences when advising clients on the possible benefits and risks of accepting or rejecting a plea offer or negotiated resolution.

Advice Tailored to Individual Clients

Preparing to advise a client on collateral consequences is a complicated process, as consequences can vary greatly depending not just on felony or misdemeanor or on the type of criminal charge involved in the case, but also on the specific circumstances, goals, and history of each individual client. Understanding what matters most to each client is important

For example, a client who is a citizen of the United States will not have to worry about immigration consequences that could be a major concern for someone who is a permanent resident or has a student visa. Similarly, even a minor misdemeanor conviction can have significant consequences for a client’s employment if their job requires specific professional licensing or a security clearance.

Being convicted of a crime (or sometimes just being charged) can affect a client’s life in unexpected ways. Possible consequences can include business licensing, driver’s license, employment, educational opportunities, housing options, gun rights, political involvement, offender registries, and more.

Below is a pdf copy of the Utah Sentencing Commission’s 2022 Collateral Consequences Guide. Keep in mind that this guide should be used only as a reference. It does not provide authoritative advice and does not carry the weight of law. Specific statutes or administrative rules should be considered before advising clients.

Getting Help in Utah

The materials presented here are intended for use by Utah criminal defense attorneys in preparing to advise individual clients. Individuals should not rely exclusively on this information. If you are facing prosecution, consultation with an experienced attorney regarding your specific circumstances is strongly advised.

Utah-Collateral-Consequences-Guide-2022-Final

Moved – Discovery Demands in Utah Criminal Cases

May 2, 2023 By stephenh

“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.)

Getting Help

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.