When is it too late for a prosecutor to change the charges in a criminal case?

November 3, 2022 by stephenh

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.

Can a prosecutor wait to provide discovery until the defense asks for it?
"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…
Does a prosecutor have to provide copies of search warrant affidavits?
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…
Does a prosecutor have to turn over discovery materials in possession of police?
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.
Can police search my car when I am pulled over for speeding?
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…
Can a victim waive the no-contact provisions of a jail release agreement?
A person arrested for a domestic violence charge in Utah is often subject to certain restrictions imposed under a jail release agreement. The victim is allowed, circumstances, to waive the contact and communication provisions of the release agreement before the criminal case has been presented to a judge. The waiver must be in writing and must comply with various statutory requirements to be effective. Consultation with an attorney is strongly advised before attempting to execute a waiver.

When is it too late for a prosecutor to change the charges in a criminal case?

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