“Can” and “should” are two very different matters. Prior to 2021, Rule 16 of Utah’s Rules of Criminal Procedure suggested that a prosecutor’s obligation to provide discovery was triggered only when the defense asked for it. The rule stated, “[T]he prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge….” Utah R. Crim. Pro. 16(a) (2020).

Constitutional principles of due process have long been interpreted as requiring that a prosecutor disclose certain discovery materials, even if the defense did not make a request. The 2021 amendments to Utah’s Rule 16 made it clear that the disclosure of these materials is mandatory without any requiring any request.

Under Rule 16 of the Utah Rules of Criminal Procedure (2022), a prosecutor is required to disclose and provide the defense with a copy of any warrant relating to the case. This includes any search warrants. The rule also requires prosecutors to turn over copies of any warrant affidavits filed in support of such warrants.

When a judge signs a search warrant in Utah, the court should require an affidavit from the officer seeking the warrant. The affidavit is supposed to set out the facts believed to establish probable cause to justify the warrant. That affidavit must also be provided by the prosecutor to the defense in the criminal case. Just providing a copy of the warrant by itself does not meet the standards required under Rule 16.

Constitutional due process and double jeopardy protections affect the question of when a prosecutor can file new or different charges in a criminal case. Utah’s Rule 4(d) of the Rules of Criminal Procedure provides that a prosecutor can file an amended information with new, additional, or different charges any time prior to the beginning of a criminal trial, “so long as the substantial rights of the defendant are not prejudiced.” Jeopardy is considered to “attach” to a case once a jury is empaneled or, in a bench trial, when the first witness is called and sworn.

In order to comply with constitutional principles of due process, Rule 4 also requires that if the prosecutor files additional or different charges before trial, the defense is entitled to a continuance (additional time) to prepare to meet the new charges, and, if the new charges involve the right to a preliminary hearing (preliminary examination), that the court must grant a new preliminary hearing on the new or additional charges.

Police conduct during a traffic stop is limited by Fourth Amendment protections against unreasonable search and seizure. If police observe a traffic violation, they can stop the vehicle and question the driver. The scope of their conduct is restricted to an investigation of the crime or violation that they believe has occurred. Searching a vehicle is an escalation of the scope of the stop (seizure) and also extends the duration of the stop.

Unless the police have a reasonable articulable suspicion of other criminal activity, their conduct during a traffic stop is restricted to investigating only the traffic offense. If police ask for “permission” to search your vehicle, you should be free to say no. If police have a search warrant or if they say that they are going to search with or without your permission, you should not physically interfere with them.

There can be benefits to affirmatively stating that you have not consented to the police search. But each situation will have different facts affecting what will make the most sense. If you have the ability to use your phone, calling an attorney for advice can be your best course of action.

A preliminary hearing (“preliminary examination” under the Utah State Constitution) is an opportunity for the court to determine whether the prosecution has enough evidence to justify moving the case forward to trial. If the court finds that the evidence establishes probable cause to believe that a charged crime has occurred and that the defendant is the person who committed the crime, the judge (acting as magistrate) will enter a “bindover” order requiring further proceedings moving toward trial. A preliminary hearing (“examination”) or a waiver by both parties is required in all felony cases, and also in any class A misdemeanor case. Misdemeanor cases involving only class B or class C level misdemeanors do not require a preliminary hearing.

Pursuant to State v. Knight, 734 P.2d 913 (Utah 1987), constitutional principles of due process dictate that a prosecutor’s obligation to provide discovery materials extends to materials known to, in possession of, or under the control of any member of the prosecution team. Prosecutors sometimes erroneously believe that they are only responsible for providing discovery materials in their direct possession. But the prosecution team includes police officers or agencies involved in the investigation or prosecution of the criminal case.

A durable power of attorney becomes invalid upon the death of the principle. A durable power of attorney differs from a standard power of attorney in that it continues to be effective even after the principle has become incapacitated. But no power of attorney exists following the death of the principle. In order to act on behalf of a deceased individual, Utah law normally requires the appointment of a personal representative.

Certified copies of the death certificate can normally be obtained through mortuaries, funeral directors or directly from the Utah Department of Health. Before going to the effort of getting copies, it is generally a good idea to determine how many copies you think you will need, and then get a couple of extra just in case.

The maximum penalty for a third-degree felony in Utah is a prison term of up to five years and a fine of up to $5,000 plus a surcharge of 90%. In most cases, the court has discretion to suspend the prison sentence and place a person on probation. If placed on felony probation, the judge can still impose up to a year in jail as a “condition” of probation.

Utah law provides a minimum prison term of one year and a maximum of 15 years for most second-degree felony convictions. The Board of Pardons and Parole ultimately determines how much of that prison term is served. In most cases, the judge has the option of suspending the prison term and placing the person instead on probation. Felony probation can also include up to a maximum of one year in jail as a condition of probation.