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Rule 14 – Subpoenas

May 14, 2021 | Criminal Procedure, Utah

(a) Subpoenas requiring the attendance of a witness or interpreter and production or inspection of records, papers, or other objects.

(a)(1) A subpoena to require the attendance of a witness or interpreter before a court, magistrate or grand jury in connection with a criminal investigation or prosecution may be issued by the magistrate with whom an information is filed, the prosecuting attorney on his or her own initiative or upon the direction of the grand jury, or the court in which an information or indictment is to be tried. The clerk of the court in which a case is pending must issue in blank to the defendant, without charge, as many signed subpoenas as the defendant may require. An attorney admitted to practice in the court in which the action is pending may also issue and sign a subpoena as an officer of the court.
(a)(2) A subpoena may command the person to whom it is directed to appear and testify or to produce in court or to allow inspection of records, papers or other objects, other than those records pertaining to a victim covered by Subsection (b). The court may quash or modify the subpoena if compliance would be unreasonable.
(a)(3) A subpoena may be served by any person over the age of 18 years who is not a party. Service must be made by delivering a copy of the subpoena to the witness or interpreter personally and notifying the witness or interpreter of the contents. A peace officer must serve any subpoena delivered for service in the peace officer’s county.
(a)(4) Written return of service of a subpoena must be made promptly to the court and to the person requesting that the subpoena be served, stating the time and place of service and by whom service was made.
(a)(5) A subpoena may compel the attendance of a witness from anywhere in the state.
(a)(6) When a person required as a witness is in custody within the state, the court may order the officer having custody of the witness to bring the witness before the court.
(a)(7) Failure to obey a subpoena without reasonable excuse may be deemed a contempt of the court responsible for its issuance.
(a)(8) If a party has reason to believe a material witness is about to leave the state, will be too ill or infirm to attend a trial or hearing, or will not appear and testify pursuant to a subpoena, the party may, upon notice to the other, apply to the court for an order that the witness be examined conditionally by deposition. The party must file an affidavit providing facts to support the party’s request. Attendance of the witness at the deposition may be compelled by subpoena. The defendant shall be present at the deposition and the court will make whatever order is necessary to effect such attendance. A deposition may be used as substantive evidence at the trial or hearing to the extent it would otherwise be admissible under the Rules of Evidence if the witness is too ill or infirm to attend, the party offering the deposition has been unable to obtain the attendance of the witness by subpoena, or the witness refuses to testify despite a court order to do so.
(b) Subpoenas for the production of records of victim.

(b)(1) No subpoena or court order compelling the production of medical, mental health, school, or other privileged records pertaining to a victim shall be issued by or at the request of any party unless the court finds after a hearing, upon notice as provided below, that the records are material and the party is entitled to production of the records sought under applicable rules of privilege, and state and federal law.
(b)(2) The request for the subpoena or court order shall identify the records sought with particularity and be reasonably limited as to subject matter.
(b)(3) The request for the subpoena or court order shall be filed with the court as soon as practicable, but no later than 28 days before trial, or by such other time as permitted by the court. The request and notice of any hearing shall be served on counsel for the victim or victim’s representative and on the opposing party. Service on an unrepresented victim must be facilitated through the prosecutor. The prosecutor must make reasonable efforts to provide a copy of the request for the subpoena to the victim or victim’s representative within 14 days of receiving it.
(b)(4) If the court makes the required findings under subsection (b)(1), it must issue a subpoena or order requiring the production of the records to the court. The court will then conduct an in camera review of the records and disclose to the defense and prosecution only those portions that the requesting party has demonstrated a right to inspect.
(b)(5) Any party issuing a subpoena for non-privileged records, papers or other objects pertaining to a victim must serve a copy of the subpoena upon the victim or victim’s representative. Service on an unrepresented victim must be facilitated through the prosecutor. The prosecutor must make reasonable efforts to provide a copy of the subpoena to the victim within 14 days of receiving it. The subpoena may not require compliance in less than 14 days after service on the prosecutor or victim’s representative.
(b)(6) The court may, in its discretion or upon motion of either party or the victim or the victim’s representative, issue any reasonable order to protect the privacy of the victim or to limit dissemination of disclosed records.
(b)(7) For purposes of this rule, “victim” and “victim’s representative” are used as defined in Utah Code § 77-38-2.
(b)(8) Nothing in this rule alters or supersedes other rules, privileges, statutes or caselaw pertaining to the release or admissibility of an individual’s medical, psychological, school or other records.
(c) Applicability of Rule 45, Utah Rules of Civil Procedure. The provisions of Rule 45, Utah Rules of Civil Procedure, will govern the content, issuance, objections to, and service of subpoenas to the extent those provisions are consistent with the Utah Rules of Criminal Procedure.

Utah. R. Crim. P. 14

Amended effective January 1, 2020.

Advisory Committee Note

The adoption of subsection (b) is not intended to change existing rules, privileges, statutes, or caselaw pertaining to the release or admissibility of an individual’s medical, psychological, school, or other records. Subsection (b) is intended only to adopt a procedure consistent with current applicable law that balances a victim’s state constitutional right “[t]o be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process,” with a defendant’s constitutional right to due process. Utah Const. art. I, § 28(1)(a). Requiring a defendant to apply to the court for the production of a victim’s records ensures that a victim or his or her representative will have an opportunity to assert any privileges or reasons why the records should not be subject to either release or in camera review. It also avoids the problem presented in State v. Gonzales, 2005 UT 72, 125 P.3d 878, in which the victim’s mental health records holder mistakenly released privileged records directly to the defense in response to a subpoena that had not been served on either the victim or the prosecution.

Subsection (b)(4) provides that once the defendant has made the threshold showing under subsection (b)(1), records must be sent directly to the court for an in camera review by the court, whereupon the court will release any information material to the defense. This is consistent with current caselaw, which requires a defendant to make a threshold showing that no privilege applies and of materiality before obtaining even an in camera review. See State v. Blake, 2002 UT 113, 63 P.3d 56; State v. Gomez, 2002 UT 120, 63 P.3d 72; State v. Cardall, 1999 UT 51, 982 P.2d 79; Ritchie v. Pennsylvania, 480 U.S. 39 (1987).

Subsection (b)(5) permits the court, if it releases any records to the parties, to issue reasonable orders to further protect the victim’s right to privacy.

The adoption of subsection (c) clarifies the applicability of Rule 45, Utah Rules of Civil Procedure, as addressed in State v. Gonzales, 2005 UT 72, 125 P.3d 878.