This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 37
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
DEREK J. WILLDEN,
Petitioner.
No. 20220747
Heard February 7, 2024
Filed September 5, 2024
On Appeal of Interlocutory Order
Third District, Salt Lake County
The Honorable Elizabeth A. Hruby-Mills
No. 211911155
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher A. Bates,
Andrew F. Peterson, Deputy Solics. Gen., Salt Lake City,
for respondent
Dain E. Smoland, Salt Lake City, for petitioner
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUSTICE HAGEN, and JUSTICE POHLMAN joined.
JUSTICE HAGEN authored a concurring opinion, in which
JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 In 2021, Derek Willden was charged with several counts of
physical and sexual assault. While preparing for Willden’s trial, the
State asked the district court to order Willden to disclose certain
information pursuant to Utah Rule of Criminal Procedure 16(b).
STATE v. WILLDEN
Opinion of the Court
One category of items that the State sought—audio recordings of
interviews that Willden’s counsel had conducted with witnesses—
is relevant to this appeal.
¶2 Willden objected to the State’s discovery motion, arguing
that the recordings were attorney work product. Compelled
disclosure of those documents would, Willden argued, violate the
protection that rule 16(b)(4) affords to attorney work product, as
well as his rights under the Utah and United States Constitutions.
The district court was unpersuaded and gave Willden thirty days
to turn over the recordings. Willden petitioned for interlocutory
appeal of that decision, the court of appeals granted his petition,
and we recalled this case to hear it directly.
¶3 This case is our first opportunity to consider the language
of rule 16(b) following its amendment in 2021. As amended, the
rule states that a criminal defendant’s “disclosure obligations do
not include . . . attorney work product.” 1 We take that language at
face value. The recorded interviews the district court ordered
Willden to disclose are attorney work product, and rule 16(b)(4)
protects attorney work product from compelled disclosure.
Accordingly, we reverse the district court’s order. Because we
resolve this case based on rule 16(b), we do not reach Willden’s
constitutional arguments.
BACKGROUND 2
¶4 In October 2021, Derek Willden was charged with several
crimes based on allegations that he physically and sexually
assaulted his domestic partner. Willden and his partner have two
sons, and both Willden and the State suggest that the sons may
have witnessed parts of the alleged assault.
¶5 To prepare for trial, Willden’s defense counsel and an
investigator interviewed the sons regarding their memories of the
night in question. Willden’s counsel made and kept audio
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1 UTAH R. CRIM. P. 16(b)(4).
2 “Because this case comes to us on an interlocutory appeal, the
allegations we recite have not been tried and therefore remain
allegations.” State v. Stewart, 2018 UT 24, ¶ 2 n.1,
438 P.3d 515.
Accordingly, “we recount the facts as alleged and in a light most
favorable to the ruling below.” State v. Taylor,
2015 UT 42, ¶ 2 n.2,
349 P.3d 696.
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Opinion of the Court
recordings of those interviews. After Willden was bound over for
trial, but before any trial date was set, the State moved for discovery
under Utah Rule of Criminal Procedure 16(b). Among other things,
the State asked for a list of the witnesses that Willden intended to
call at trial and any statements made by those witnesses. Later
events show that this request was in part designed to elicit the
recordings of the sons’ interviews.
¶6 Willden opposed the State’s motion, arguing that the
request would violate rule 16(b)(4), as well as his rights under the
Utah and United States Constitutions. Willden also contended that
the request was premature, as he could not know what witnesses
he would call or what statements he would elicit from them until
after the State had presented its case in chief. The State countered
that its request was permitted by rule 16(b), that the request
wouldn’t violate any of Willden’s constitutional rights, and that it
was disingenuous for Willden to claim that he was wholly ignorant
of what witnesses and statements he intended to use at trial.
¶7 The district court heard oral argument on the issue. During
that hearing, the State suggested it would call the sons as
prosecution witnesses and accordingly broadened its discovery
request to include any statements Willden intended to use for
impeachment. After listening to both sides, the district court orally
granted the State’s discovery motion. The judge reasoned that the
requested recordings could be redacted so that they did not contain
any of defense counsel’s “opinion . . . analysis . . . [or] strategy,” but
instead contained “simply the statements made by the
witness[es].” So edited, the judge believed, the recordings would
not contain any attorney work product and thus would not be
protected by rule 16. The district court then issued a written order
that gave Willden thirty days to disclose the recordings. 3
¶8 Before the thirty-day deadline expired, Willden sought
permission to file an interlocutory appeal challenging the discovery
order. After the court of appeals granted Willden’s request, we
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3 When the district court issued its oral ruling at the end of the
hearing, trial had been set for less than thirty days out. But that trial
date had been stricken without a replacement when the district
court issued its written order some time later.
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STATE v. WILLDEN
Opinion of the Court
recalled the case. We have jurisdiction under Utah Code subsection
78A-3-102(3)(j).
STANDARD OF REVIEW
¶9 Willden contends that the district court’s discovery order
violates Utah Rule of Criminal Procedure 16, as well as his rights
under the Utah and United States Constitutions. “As a general rule,
we grant district courts . . . deference in matters of discovery . . . .”4
But the proper interpretation of a rule of procedure or
constitutional provision is a question of law. 5 Because Willden
challenges the district court’s interpretation of rule 16, we review
its decision for correctness. 6
ANALYSIS
¶10 Before we reach the merits of Willden’s challenge, we first
address the burden he bears on appeal. The State argues that it is
not enough for Willden to prove that the district court’s order was
in error; he must also show that the order will cause him prejudice.
In support, the State cites our harmless error rule, which provides
that “an erroneous decision by a trial court cannot result in
reversible error unless the error is harmful.” 7 We agree that a party
seeking an interlocutory appeal under rule 5 of the Utah Rules of
Appellate Procedure must show that the alleged error merits
review. But we disagree with the State about when that showing
must occur.
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4 Dahl v. Dahl, 2015 UT 79, ¶ 63,
459 P.3d 276.
5 See State v. Bybee,
2000 UT 43, ¶ 10,
1 P.3d 1087 (“The proper
interpretation of a rule of procedure is a question of law. . . .”
(cleaned up)); Dexter v. Bosko,
2008 UT 29, ¶ 5,
184 P.3d 592 (“We
review de novo a district court’s interpretation of constitutional
provisions, granting it no deference.” (cleaned up)).
6 See In re United Effort Plan Tr.,
2013 UT 5, ¶ 18,
296 P.3d 742.
7 State v. Lafferty,
2001 UT 19, ¶ 42,
20 P.3d 342 (cleaned up); see
also UTAH R. CRIM. P. 30(a) (“Any error, defect, irregularity or
variance which does not affect the substantial rights of a party shall
be disregarded.”).
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Opinion of the Court
¶11 “As a general rule only final judgments are subject to an
appeal.” 8 But where a party believes that an interlocutory 9 decision
made by a court should be subject to immediate appellate review,
the party may file “a petition for permission to appeal from the
interlocutory order with the appellate court with jurisdiction over
the case.” 10 The decision to grant or deny such a petition rests with
the discretion of the appellate court: a rule 5 appeal is “not an
appeal as a matter of right.” 11 And permission to appeal “may be
granted only if it appears that the order involves substantial rights
and may materially affect the final decision or that a determination
of the correctness of the order before final judgment will better
serve the administration and interests of justice.” 12 This means that,
for an interlocutory appeal to be heard at all, an appellate court
must decide that the issue on appeal “involves substantial rights,”
and that it either will “materially affect the final decision” or that
the interests of justice otherwise warrant granting the petition.
¶12 Indeed, that was the case here. Willden argued in his
petition for interlocutory review that the district court’s discovery
order involved his substantial rights, and that interlocutory review
was warranted because “the unique type of harm threatened by
[the order] cannot be remediated with an appeal after trial.” By
granting Willden’s petition, the court of appeals seems to have
agreed with those assertions. We see little merit in requiring
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8 Washington Townhomes, LLC v. Wash. Cnty. Water Conservation
Dist., 2016 UT 43, ¶ 5,
388 P.3d 753.
9 See Interlocutory, BLACK’S LAW DICTIONARY (12th ed. 2024)
(“[I]nterim or temporary; not constituting a final resolution of the
whole controversy.”).
10 UTAH R. APP. P. 5(a). Our cases note two other ways of
obtaining review of an interlocutory decision: “appeals that are
expressly authorized by statute” and “appeals under rule 54(b) of
the Utah Rules of Civil Procedure.” Mellor v. Wasatch Crest Mut. Ins.,
2012 UT 24, ¶ 16,
282 P.3d 981. Because Willden sought
interlocutory review under rule 5, neither of those alternative
avenues are at issue in this case.
11 Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB,
2018
UT 56, ¶ 14,
428 P.3d 1133.
12 UTAH R. APP. P. 5(g).
5
STATE v. WILLDEN
Opinion of the Court
Willden to again demonstrate that the error he claims is worthy of
review. Thus, appellants on interlocutory review are not required,
as part of their burden on appeal, to show prejudice flowing from
the error.
¶13 Turning to the merits of the case, we first consider the
amended language of rule 16(b) and how it protects a criminal
defendant’s attorney work product. We then apply the language of
the rule to the facts of this case and conclude that the district court’s
order violates rule 16(b).
I. RULE 16(b)
¶14 Rule 16 of the Utah Rules of Criminal Procedure provides
a framework for determining the discovery obligations of parties in
a criminal case. Its layout is relatively simple: subparagraphs (a)
and (b) describe the disclosure obligations of prosecutors and
defendants respectively; subparagraphs (c) through (f) describe the
procedures, limitations, and potential sanctions that apply to those
obligations. 13
¶15 Subparagraph 16(b), at issue in this case, has a similar
structure to the larger rule. It first enumerates a defendant’s
disclosure obligations. Subparagraph (b)(1) states the general rule
that “[t]he defense must disclose to the prosecutor any item of
evidence which the court determines on good cause shown should
be made available to the prosecutor in order for the prosecutor to
adequately prepare the prosecutor’s case for trial.” 14 Subparagraph
(b)(2) states that defendants who intend to raise a defense of alibi
or insanity “must disclose to the prosecutor such information as
required by statute.” 15 And subparagraph (b)(3) requires
defendants to disclose a list of the witnesses “whom the defense
intends to call” at trial and “[a]ny exhibits that the defense intends
to introduce at trial” no later than fourteen days, “or as soon as
practicable, before trial.” 16
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13 UTAH R. CRIM. P. 16.
14 Id. R. 16(b)(1).
15
Id. R. 16(b)(2); see also UTAH CODE § 77-14-2 (requiring
defendants to submit notice of an alibi defense); id. § 77-14-4
(requiring defendants to submit notice of an insanity defense).
16 UTAH R. CRIM. P. 16(b)(3)(A)–(B).
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Opinion of the Court
¶16 Subparagraph (b)(4) states that a “defendant’s disclosure
obligations do not include information or material that is privileged
or attorney work product.” 17 This language creates a clear
hierarchy; subparagraphs (b)(1)–(3) create disclosure obligations,
and subparagraph (b)(4) limits those obligations. This means that
subparagraphs (b)(1)–(3) cannot be used to compel a defendant to
disclose information or material protected by (b)(4). 18 So, for
example, if a prosecutor requests that a defendant disclose
evidence under rule 16(b)(1), the defendant could defeat that
request by showing that the evidence in question is “privileged or
attorney work product.” 19
¶17 At issue in this case is the protection that subparagraph
(b)(4) provides to attorney work product in particular. We
provided the governing definition of attorney work product in Gold
Standard v. American Barrick. 20 Under Gold Standard, attorney work
product refers to “(1) . . . documents and tangible things otherwise
discoverable, (2) prepared in anticipation of litigation or for trial,
(3) by or for another party or by or for that party’s representative.”21
¶18 Though this definition is broad, we expect that in most
cases the disclosure obligations created by rule 16(b)(1)–(3) will not
intersect with the protection that subparagraph (b)(4) provides to
work product. For example, subparagraph (b)(2) references the
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17 Id. R. 16(b)(4). This subparagraph also notes that “[a]ttorney
work product protection is not subject to the exception in Rule
26(b)(6) of the Utah Rules of Civil Procedure.”
Id.
18 Because of the limited issue on appeal in this case, we do not
reach the question of whether rule 16(b)(4) limits disclosure
obligations that stem from other sources, such as the Utah Rules of
Evidence, or a court’s inherent authority to manage a trial. See, e.g.,
UTAH R. EVID. 612 (requiring parties to turn over documents used
to refresh a witness’s memory either while the witness is testifying,
or “before testifying, if the court decides that justice requires the
party to have those options”).
19 See UTAH R. CRIM. P. 16(b)(4).
20 Gold Standard, Inc. v. Am. Barrick Res. Corp.,
805 P.2d 164 (Utah
1990).
21
Id. at 168.
7
STATE v. WILLDEN
Opinion of the Court
disclosures required by the alibi statute. 22 That statute obligates a
defendant “who intends to offer evidence of an alibi” to provide
the prosecutor with a written notice including “the place where the
defendant claims to have been at the time of the alleged offense”
and “the names and addresses of the witnesses by whom [the
defendant] proposes to establish alibi.” 23
¶19 While this sort of notice may nominally be considered
work product under the Gold Standard definition, there is a
commonsense difference between an attorney’s work product and
documents created solely for the purpose of being filed with the
court or disclosed to an opposing party. The work product doctrine
is designed to allow an attorney to “assemble information, sift what
he considers to be the relevant from the irrelevant facts, prepare his
legal theories[,] and plan his strategy without undue and needless
interference.” 24
¶20 That process often takes the form of “interviews,
statements, memoranda, correspondence, briefs,” and other
documents. 25 If those documents were “open to opposing counsel
on mere demand, much of what is now put down in writing would
remain unwritten,” and “the interests of the clients and the cause
of justice would be poorly served.” 26 In contrast, documents
produced for the sole purpose of complying with a party’s pre-trial
disclosure obligations are categorically different. They are created
with the knowledge that they will be viewed by opposing parties,
and there is thus no loss of privacy when such documents are
turned over. 27
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22 UTAH R. CRIM. P. 16(b)(2).
23 UTAH CODE § 77-14-2(1).
24 Hickman v. Taylor, 329 U.S. 495, 511 (1947).
25
Id.
26
Id.
27 This logic also suggests that preparatory drafts of documents
are attorney work product and, as a result, are subject to rule
16(b)(4)’s protection.
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Opinion of the Court
II. THE DISTRICT COURT’S ORDER VIOLATED RULE 16(b)
¶21 With that framework in mind, we turn to examine whether
the district court’s pretrial discovery order in this case violated rule
16(b). This analysis requires that we ask two questions. Did the
court’s pre-trial discovery order align with the discovery
obligations placed on Willden by rule 16(b)(1)–(3)? And if so, did
the order require Willden to disclose attorney work product?
¶22 As to the first question, the district court concluded that
the State’s request for disclosure of the witness recordings satisfied
the requirements of rule 16(b)(1), which obligates defendants to
“disclose to the prosecutor any item of evidence which the court
determines on good cause shown should be made available to the
prosecutor in order for the prosecutor to adequately prepare the
prosecutor’s case for trial.” 28 Willden does not directly challenge
that conclusion on appeal, and we assume, without deciding, that
it is correct.
¶23 As to the second question, the State argues that “verbatim
witness statements . . . are not attorney work product.” This is
because, in the State’s eyes, the work product doctrine is designed
to protect the thoughts and impressions of an attorney, not the facts
that an attorney observed. Accordingly, the “factual record of what
a witness said during an interview” doesn’t contain anything that
deserves the protection of the work product doctrine. The district
court offered a similar analysis when it ordered Willden to turn
over the interview recordings. The court acknowledged that the
recordings contained attorney work product, but it suggested that
the attorney work product could be removed if the recordings were
edited so that they contained only the factual statements made by
the witnesses.
¶24 While these arguments may have succeeded under the
pre-amendment version of rule 16, they fail to gain purchase under
the current version. 29 Our court of appeals had interpreted the old
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28 UTAH R. CRIM. P. 16(b)(1).
29 Compare id. R. 16(c) (2010) (“Except as otherwise provided or
as privileged, the defense shall disclose to the prosecutor such
information as required by statute . . . and any other item of
evidence which the court determines on good cause shown should
(continued . . .)
9
STATE v. WILLDEN
Opinion of the Court
version of rule 16 as permitting reliance upon a distinction drawn
by the Utah Rules of Civil Procedure. 30 Under that distinction,
courts could distinguish between “core” attorney work product,
which contains the thoughts and impressions of an attorney, and
“factual” work product, which does not.31 The amendments to rule
16(b) now explicitly forbid such reliance: “Attorney work product
protection is not subject to the exception in Rule 26(b)(6) of the Utah
Rules of Civil Procedure.” 32 With that connection severed, rule
16(b) no longer provides a way to distinguish between different
classifications of attorney work product.
¶25 Because we reject the State’s argument on this point, we
determine whether the interview recordings are work product
based on the definition of attorney work product we set out in Gold
Standard. 33 Under that definition, work product is defined as
“(1) . . . documents and tangible things otherwise discoverable,
(2) prepared in anticipation of litigation or for trial, (3) by or for
another party or by or for that party’s representative.” 34 The
interview recordings satisfy each element of that standard. The
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be made available to the prosecutor . . . .”), with id. R. 16(b)(4) (2024)
(“The defendant’s disclosure obligations do not include
information or material that is privileged or attorney work product.
Attorney work product protection is not subject to the exception in
Rule 26(b)(6) of the Utah Rules of Civil Procedure.”).
30 See, e.g., State v. Steffen,
2020 UT App 95, ¶ 32 n.9,
468 P.3d 568.
31 See S. Utah Wilderness All. v. Automated Geographic Reference
Ctr.,
2008 UT 88, ¶ 24,
200 P.3d 643 (interpreting the attorney work
product protections provided by Utah Rule of Civil Procedure 26).
32 UTAH R. CRIM. P. 16(b)(4); see UTAH R. CIV. P. 26(b)(6) (allowing
discovery of attorney work product that does not contain “the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party” upon a showing “that
the party seeking discovery has substantial need of the materials
and that the party is unable without undue hardship to obtain
substantially equivalent materials by other means”).
33 Gold Standard, Inc. v. Am. Barrick Res. Corp.,
805 P.2d 164 (Utah
1990).
34
Id. at 168.
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Hagen, J., concurring
audio files at issue (1) are tangible things capable of being
discovered, (2) were created in preparation for trial, and (3) were
created for Willden’s legal representative by an investigator
retained by that representative.
CONCLUSION
¶26 Given our interpretation of rule 16, the determination that
the interview recordings are work product resolves this appeal.
Because these witness recordings are attorney work product, they
are protected by rule 16(b)(4). And because rule 16(b)(4)’s
protection of work product trumps the discovery obligations that
may be created by the other subparagraphs of rule 16(b), the district
court erred by ordering Willden to disclose the recordings under
rule 16(b)(1). Accordingly, we reverse the district court’s discovery
order and remand this case for further proceedings.
JUSTICE HAGEN, concurring in the Opinion of the Court:
¶27 We fully join in the opinion of the court. The plain
language of rule 16(b) of the Utah Rules of Criminal Procedure,
coupled with our caselaw defining attorney work product, compels
the conclusion that witness statements gathered by the defense in
anticipation of litigation are exempt from disclosure. We write
separately to note that a majority of states do impose a reciprocal
discovery obligation on the defense to turn over witness
statements. Those state rules were driven by a series of
developments in federal law beginning nearly seventy years ago.
¶28 The prosecution’s duty to turn over witness statements
originated in Jencks v. United States, 353 U.S. 657 (1957). In Jencks,
two of the prosecution’s witnesses testified on cross-examination
that they had made prior oral and written statements to the FBI.
Id.
at 665. The defense sought an order requiring the prosecution to
produce those statements, but the trial court denied the request.
Id.
at 665–66. The Fifth Circuit Court of Appeals affirmed, holding that
disclosure was not required because the defense had not made a
preliminary showing that the statements were inconsistent with the
witnesses’ testimony. See
id. at 666 & n.11.
¶29 The Supreme Court reversed, holding that the trial court
should have ordered the prosecution to produce the witnesses’
statements. Id. at 672. Because “the accused is helpless to know or
discover conflict without inspecting the reports,” the Court held
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HAGEN, J., concurring
that the defense is not required to make a preliminary showing of
inconsistency. Id. at 668–69. Instead, the defense is entitled to
inspect any statements that “are shown to relate to the testimony of
the witness.”
Id. at 669. “Only after inspection of the reports by the
accused, must the trial judge determine admissibility—e.g.,
evidentiary questions of inconsistency, materiality and relevancy—
of the contents and the method to be employed for the elimination
of parts immaterial or irrelevant.”
Id.
¶30 The Court’s holding in Jencks was later codified as the
Jencks Act. See 18 U.S.C. § 3500. The Act requires federal
prosecutors to disclose any statement a witness made or adopted
that “relates to the subject matter as to which the witness has
testified.” 35
Id. § 3500(b). A court will order the prosecution to
produce these statements upon the defendant’s motion, but only
after direct examination of the witness concludes. Id.
¶31 After the Jencks Act was passed, the Supreme Court
decided United States v. Nobles,
422 U.S. 225 (1975). In that case, a
defense investigator had conducted pretrial interviews of two
prosecution witnesses and memorialized those conversations in a
written report.
Id. at 227. Defense counsel relied on that report
when cross-examining the witnesses and then called the
investigator to testify about the interviews. 36
Id. at 227–29. The trial
court ordered the defense to produce a copy of the report for the
court to inspect and redact in camera, after which the court would
provide the report to the prosecution.
Id. at 229. When the defense
refused to produce the report, the court prohibited the investigator
from testifying.
Id. On appeal, the Ninth Circuit Court of Appeals
reversed, holding, in part, “that the Fifth Amendment prohibited
the disclosure condition imposed in this case.”
Id. at 229–30.
¶32 The Supreme Court granted certiorari and reversed the
Ninth Circuit’s decision.
Id. at 227. The Court rejected the idea “that
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35 The term “statement” includes a written statement signed or
adopted by the witness, a recording or “substantially verbatim
recital of an oral statement made by” the witness, and any
statement made by the witness to a grand jury.
18 U.S.C. § 3500(e).
36 In contrast to the present case, the defense in United States v.
Nobles,
422 U.S. 225 (1975), waived any work product privilege by
using the reports at trial. See
id. at 239–40.
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HAGEN, J., concurring
the Fifth Amendment renders criminal discovery basically a oneway street.” See id. at 233 (cleaned up). The Court explained that
the defendant’s Fifth Amendment right against self-incrimination
is “personal to the defendant” and “does not extend to the
testimony or statements of third parties called as witnesses at trial.”
Id. at 234.
¶33 The Court also rejected the argument that the trial court
violated the defendant’s Sixth Amendment right to compulsory
process and cross-examination by conditioning the investigator’s
testimony on disclosure of the report. See id. at 241. The Court
explained that “[t]he Sixth Amendment does not confer the right to
present testimony free from the legitimate demands of the
adversarial system; one cannot invoke the Sixth Amendment as a
justification for presenting what might have been a half-truth.” Id.
¶34 In reaching those conclusions, the Court emphasized how
the adversarial system serves to accomplish the “dual aim of our
criminal justice system[,] . . . that guilt shall not escape or innocence
suffer.” Id. at 230 (cleaned up). Quoting its decision in United States
v. Nixon, 418 U.S. 683 (1974), the Court continued:
“The need to develop all relevant facts in the
adversary system is both fundamental and
comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial
or speculative presentation of the facts. The very
integrity of the judicial system and public confidence
in the system depend on full disclosure of all the facts,
within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the
function of courts that compulsory process be
available for the production of evidence needed
either by the prosecution or by the defense.”
Nobles, 422 U.S. at 230–31 (quoting Nixon, 418 U.S. at 709).
¶35 Five years after deciding Nobles, the Supreme Court
promulgated rule 26.2 of the Federal Rules of Criminal Procedure.
See generally FED. R. CRIM. P. 26.2 (1980). The rule not only imported
the substance of the Jencks Act into the criminal rules, but also
imposed a reciprocal discovery obligation on the defense, which
has come to be known as “reverse Jencks.” See, e.g., United States v.
Hsia,
24 F. Supp. 2d 14, 29 (D.D.C. 1998) (referring to “reverse
Jencks material” under rule 26.2). The adoption of rule 26.2
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STATE v. WILLDEN
HAGEN, J., concurring
reflected two policy judgments: “(i) that the subject matter—
production of the statements of witnesses—is more appropriately
dealt with in the criminal rules; and (ii) that in light of . . . Nobles
. . . , it is important to establish procedures for the production of
defense witnesses’ statements as well.” FED. R. CRIM. P. 26.2
advisory committee’s note to 1979 addition. Rule 26.2 was
“designed to place the disclosure of prior relevant statements of a
defense witness in the possession of the defense on the same legal
footing as is the disclosure of prior statements of prosecution
witnesses in the hands of the government under the Jencks Act.”
Id.
¶36 By the time rule 26.2 was adopted, several state courts had
already “concluded that witness statements in the hands of the
defense at trial should be disclosed on the same basis that
prosecution witness statements are disclosed, in order to promote
the concept of the trial as a search for truth.” See id. (citing cases).
And today, twenty-nine states have adopted rules of criminal
procedure that require the defense to turn over “reverse Jencks”
material. 37
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37 See ARIZ. R. CRIM. P. 15.2(c)(1) (requiring the defense to
provide the prosecution with any written or recorded statement of
each person the defense intends to call as a witness at trial); CAL.
PENAL CODE § 1054.3(a)(1) (requiring the defense to disclose any
relevant written or recorded statements of those the defense
intends to call as witnesses at trial); CONN. PRACTICE BOOK §§ 40-
13(b), -15 (allowing the prosecution access, upon request, to
statements of witnesses other than the defendant in the defense’s
possession relating to the subject matter about which each witness
will testify, including written, recorded, transcribed, or
substantially verbatim content); DEL. SUPER. CT. CRIM. R. P.
16(d)(1)(E) (allowing the prosecution access, upon request, to any
relevant written or recorded statements of witnesses); FLA. R. CRIM.
P. 3.220(d) (requiring any defendant who elects to participate in
discovery to disclose the statements of all witnesses the defense
expects to call at trial); GA. CODE § 17-16-7 (requiring the defense to
produce any statement of any witness the defense intends to call at
trial if that statement is in the possession of the defense and relates
to the subject matter of the witness’s testimony); HAW. R. PENAL P.
16(c)(2)(i) (requiring the defense to disclose relevant written or
(continued . . .)
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HAGEN, J., concurring
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recorded statements—except statements recorded by defense
counsel—of those witnesses the defense intends to call at trial); ILL.
SUP. CT. R. 413(d)(1) (allowing the prosecution access, upon filing
of a written motion, to relevant written or recorded statements—in
the defense’s possession—of those witnesses the defense intends to
call at trial); IND. R. CRIM. P. 2.5(C)(1)(a) (requiring the defense to
produce relevant written or recorded statements of witnesses the
defense intends to call at trial); IOWA R. CRIM. P. 2.14(2)(a)
(requiring the defense to turn over statements in the defense’s
possession that are not privileged, other than those of the
defendant, if the court orders the prosecution to permit the defense
to inspect certain discretionary discovery items in the prosecution’s
possession); LA. CODE CRIM. P. 725.1(B)(1) (allowing the
prosecution access, upon request, to any written or recorded
statements of any witness the defense intends to call at trial); MASS.
R. CRIM. P. 14(a)(1)(B) (requiring the defense to disclose the
statements of those witnesses the defense intends to call at trial);
MICH. CT. R. 6.201(A)(2) (allowing the prosecution access, upon
request, to any written or recorded statement—including
electronically recorded statements but excluding any statement
made by the defendant—relating to the case by those witnesses the
defense may call at trial); MINN. R. CRIM. P. 9.02 subd. 1(4) (allowing
the prosecution access, upon request, to relevant written or
recorded statements of witnesses the defense intends to call at trial,
statements of prosecution witnesses obtained by the defense,
written summaries known to the defense of the substance of any
oral statements made by prosecution witnesses to the defense, and
the substance of any oral statements that relate to the case made by
witnesses the defense intends to call at trial); MISS. R. CRIM. P.
17.3(1) (requiring any defendant that requests discovery to disclose
to the prosecution the contents of any statement that is written,
recorded, or otherwise preserved of all witnesses-in-chief that the
defense may offer at trial); MO. SUP. CT. R. 25.05(a)(2) (allowing the
prosecution access, upon request, to written or recorded statements
of witnesses the defense intends to call at trial, as well as existing
memoranda reporting or summarizing part or all of their oral
statements); MONT. CODE ANN. § 46-15-323(4), (6)(a) (requiring the
defense to disclose all written reports or statements made by
witnesses that the defense intends to use at trial); NEB. REV. STAT.
(continued . . .)
15
STATE v. WILLDEN
HAGEN, J., concurring
¶37 The question of whether we should follow the lead of
those jurisdictions is not before us today. In a pending appeal such
as this, we apply our rules as they are. See, e.g., In re Discipline of
Steffensen, 2016 UT 18, ¶ 11,
373 P.3d 186 (commenting that “a
policy argument is a perfectly respectable basis for a request for a
forward-looking amendment to our rules,” but such an argument
“falls far short as a ground for overriding the clear terms of an
existing rule” because “[o]ur rules . . . are entitled to respect unless
__________________________________________________________
§ 29-1916(1) (allowing the court to require the defendant to grant
the prosecution access to items comparable to written or recorded
statements); NEV. REV. STAT. § 174.245(1)(a) (allowing the
prosecution to request written or recorded statements of witnesses
that the defense intends to call during the defendant’s case-inchief); N.H. R. CRIM. P. 12(b)(4)(C) (requiring the defense to provide
the state with all statements, including written, recorded, or
transcribed statements, from witnesses that the defense anticipates
calling at trial); N.J. CT. R. 3:13-3(b)(2)(C) (requiring the defense to
provide the state with written statements or summarized oral
statements made by witnesses that the state may call as a witness
at trial); NMRA, RULE 5-502(A)(3) (requiring the defense to disclose
any statements made by witnesses the defendant intends to call at
trial);
N.Y. CRIM. PROC. § 245.20(4) (requiring the defense to disclose
all written, recorded, or summarized statements of witnesses that
the defense intends to call at trial); OHIO CRIM. R. 16(H)(5)
(requiring the defense to provide the prosecution with any written
or recorded statements from witnesses in the defendant’s case-inchief or in surrebuttal); OKLA. STAT. tit. 22, § 2002(B)(1) (allowing
the state to request the defense to disclose written, recorded, or
summarized witness statements); OR. REV. STAT. § 135.835(1)
(requiring the defense to disclose relevant written or recorded
statements or memoranda of oral statements from witnesses the
defense intends to call at trial); R.I. SUPER. CT. R. CRIM. P. 16(b)(5)
(allowing the state to request all written or recorded verbatim
statements of witnesses that the defense expects to call at trial, or a
summary of the testimony that witnesses are expected to give at
trial); WASH. SUPER. CT. CRIM R. 4.7(b)(1) (requiring the defense to
disclose the substance of oral statements or any written or recorded
statements made by witnesses); WIS. STAT. § 971.23(2m)(am)
(allowing the prosecution to demand that the defense disclose any
relevant written or recorded statements from witnesses).
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HAGEN, J., concurring
and until we amend them”). But in addition to our appellate review
responsibilities, this court is charged with promulgating rules of
procedure. UTAH CONST. art. VIII, § 4. And, as far as we can tell, our
court has never considered whether to amend the Utah Rules of
Criminal Procedure to adopt a “reverse Jencks” requirement.
¶38 Anyone wishing to propose a potential rule change may
petition this court to refer the matter to our Advisory Committee
on the Rules of Criminal Procedure or may contact the committee
directly. That committee consists of members appointed by this
court to represent a cross-section of interests and is charged with
studying proposed rule changes, gathering input from various
stakeholders, considering public comment, and making
recommendations to this court. That is the appropriate forum in
which interested parties can advance policy arguments for and
against adopting a “reverse Jencks” requirement. And that process
will enable this court to make the most informed decision as to
whether an amendment to rule 16(b) is warranted.
17
