“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.