77-4-202. Production of nonpublic electronic data or information related to a victim or witness.
(1) As used in this section:
(a) "Electronic evidence" means electronic data or information that is directly related to the case and must be disclosed in accordance with Utah Rules of Criminal Procedure, Rule 16, the Utah Constitution, and the Constitution of the United States.
(b) "Intimate image" means the same as that term is defined in Section 76-5b-203.
(c) "Law enforcement agency" means a public or private agency having general police power and charged with making arrests in connection with enforcement of the criminal statutes and ordinances of this state or any political subdivision of this state.
(d)
(i) "Nonpublic victim or witness data" means electronic data or information:
(A) provided by or obtained from a victim or witness;
(B) that is not electronic evidence;
(C) that is otherwise not available to the public; and
(D) for which a reasonable person would believe that the victim or witness has a reasonable expectation of privacy.
(ii) "Nonpublic victim or witness data" includes electronic data or information described in Subsection (1)(d)(i) that is provided or obtained in the course of a criminal investigation.
(e) "Pro se defendant" means a defendant in a criminal proceeding:
(i) who is not represented by an attorney and has elected to represent oneself; or
(ii) who has not yet retained or been appointed an attorney.
(f) "Prosecuting attorney" means:
(i) the attorney general or an assistant attorney general;
(ii) a district attorney or deputy district attorney;
(iii) a county attorney or assistant county attorney;
(iv) a city attorney or assistant city attorney; or
(v) an attorney authorized to commence an action on behalf of the state.
(g) "Victim" means the same as that term is defined in Section 77-37-2.
(h) "Virtual room" means a secure web-based platform that:
(i) is used for storing and sharing nonpublic victim or witness data; and
(ii) does not allow for any copying or duplication of nonpublic victim or witness data that is shared or viewed on the platform.
(i) "Witness" means the same as that term is defined in Section 77-37-2.
(2)
(a) A prosecuting attorney shall disclose any electronic evidence in accordance with Utah Rules of Criminal Procedure, Rule 16.
(b) There is a rebuttable presumption that a prosecuting attorney may not disclose an intimate image that is contained within nonpublic victim or witness data.
(3) A law enforcement agency or prosecuting agency shall:
(a) reasonably ensure that electronic evidence is collected from a victim or witness during the course of a criminal investigation;
(b) make reasonable efforts to identify any electronic evidence and segregate the electronic evidence from nonpublic victim or witness data;
(c) work towards implementing a virtual room to facilitate review of nonpublic victim or witness data by a defendant's attorney in a manner that protects the privacy of a victim or witness and ensures adequate preparation by the defense; and
(d) make reasonable efforts to implement access to a virtual room when technically and operationally feasible.
(4) Upon disclosure of electronic evidence to a defendant in accordance with Utah Rules of Criminal Procedure, Rule 16, the prosecuting attorney shall inform the defendant:
(a) of any device that has been received, searched, or downloaded by a law enforcement agency in the course of the criminal investigation of the offense for which the defendant is charged;
(b) whether any electronic evidence was obtained from the device; and
(c) of the origin of the device.
(5) If a defendant seeks nonpublic victim or witness data that is not in the possession of a law enforcement agency or the prosecuting agency, the defendant may only obtain the nonpublic victim or witness data:
(a) as described in Utah Rules of Criminal Procedure, Rule 14(b)(5); or
(b) if the victim or witness voluntarily provides the nonpublic victim or witness data to the defendant or the defendant's attorney.
(6) Except as otherwise provided in this section, any nonpublic victim or witness data related to a victim or witness that is in the possession of a law enforcement agency or prosecuting agency shall remain in the care, custody, and control of:
(a) the law enforcement agency;
(b) the prosecuting agency; or
(c) the court.
(7)
(a) If a defendant's attorney is seeking to search nonpublic victim or witness data that is in the possession of a law enforcement agency or prosecuting agency, the defendant may:
(i) request that the law enforcement agency or prosecuting attorney:
(A) subject to Subsection (7)(b), provide the defendant's attorney with a copy or duplicate of the nonpublic victim or witness data;
(B) allow the defendant's attorney to search or view the nonpublic victim or witness data in a virtual room; or
(C) allow the defendant's attorney to search or view the nonpublic victim or witness data at the facility where the nonpublic victim or witness data is held with reasonable accommodations for searching or viewing the nonpublic victim or witness data; or
(ii) bring a motion under Utah Rules of Criminal Procedure, Rule 16(a)(4), that demonstrates good cause for allowing the defendant's attorney to view, or obtain a copy or duplicate of, the nonpublic victim or witness data.
(b) If a prosecuting attorney provides a defendant's attorney with a copy or duplicate of some or all portions of nonpublic victim or witness data under Subsection (7)(a)(i)(A), the prosecuting attorney shall provide the copy or duplicate with a stipulated protective order that governs the use, dissemination, and return or disposal of the copy or duplicate.
(c) A defendant's attorney may not copy, photograph, or otherwise reproduce nonpublic victim or witness data during the viewing or search of nonpublic victim or witness data under Subsection (7)(a)(i)(B) or (C).
(d) If a defendant's attorney believes that some or all of the nonpublic victim or witness data is electronic evidence during the viewing or search of nonpublic victim or witness data under Subsection (7)(a)(i)(B) or (C), the defendant's attorney may request a copy or duplicate of any portion of the nonpublic victim or witness data that the defendant's attorney believes is electronic evidence.
(8)
(a) The court may grant a motion under Subsection (7)(a)(ii) and enter an order for a defendant's attorney to be:
(i) allowed to view some or all portions of nonpublic victim or witness data if a law enforcement agency or prosecuting attorney has not granted a request under Subsection (7)(a)(i) or (d) and the defendant shows good cause under Utah Rules of Criminal Procedure, Rule 16(a)(4); or
(ii) subject to Subsection (8)(c), given a copy or duplicate of some or all portions of nonpublic victim or witness data if the defendant shows good cause under Utah Rules of Criminal Procedure, Rule 16(a)(4).
(b) In making a determination as to whether there is good cause under Subsection (8)(a)(ii), the court shall consider:
(i) whether there is a reasonable likelihood the nonpublic victim or witness data contains electronic evidence that is necessary to adequately prepare a defense or for trial;
(ii) whether requiring a search of the nonpublic victim or witness data at a facility where the nonpublic victim or witness data is held or in a virtual room is an undue burden for adequate preparation of a defense or preparation for trial;
(iii) whether the defendant's due process rights and interest in receiving a copy or duplicate of the nonpublic victim or witness data outweighs the privacy rights and interests of the victim or witness, including a victim's right to be free from harassment under Utah Constitution, Article I, Section 28; and
(iv) any other factor that demonstrates good cause for allowing the defendant's attorney to obtain a copy or duplicate of the nonpublic victim or witness data.
(c) If the court grants a motion to copy or duplicate nonpublic victim or witness data under Subsection (8)(a)(ii), the order shall include limitations on:
(i) the number of copies, photographs, or duplicates of the nonpublic victim or witness data that the defendant's attorney is permitted to make;
(ii) who may view the nonpublic victim or witness data;
(iii) how the nonpublic victim or witness data is stored; and
(iv) the procedures for disposing of the nonpublic victim or witness data upon the completion of the criminal prosecution against the defendant.
(9)
(a) A pro se defendant may not access, view, search, or copy nonpublic victim or witness data.
(b) Upon a motion by the pro se defendant or the court, the court shall appoint an attorney for a pro se defendant for the limited purpose of searching some or all portions of nonpublic victim or witness data for electronic evidence in accordance with Subsection (7), or obtaining a copy or duplicate of some or all portions of nonpublic victim or witness data that is electronic evidence in accordance with Subsections (7) and (8), if:
(i) the pro se defendant seeks to access, view, search, or obtain a copy or duplicate nonpublic victim or witness data; and
(ii) the court determines that a search of the nonpublic victim or witness data for electronic evidence is necessary to ensure a fair proceeding.
(c) An attorney appointed under this Subsection (9) shall be compensated for any representation under this section in accordance with Title 78B, Chapter 22, Indigent Defense Act, regardless of whether the defendant qualifies for the appointment of counsel under Title 78B, Chapter 22, Indigent Defense Act.
(d) The appointment of an attorney under this Subsection (9) does not:
(i) constitute a general appearance on behalf of the defendant; or
(ii) obligate the appointed attorney to represent the defendant in the criminal prosecution unless the attorney is retained or appointed to represent the defendant.
(10) A law enforcement agency and a prosecuting agency shall establish a policy that ensures nonpublic victim or witness data is:
(a) used solely for legitimate law enforcement and prosecutorial purposes; and
(b) maintained in a controlled environment and in a manner that protects the privacy of a victim or witness.
(11) This section does not:
(a) limit the rights of a defendant under the Utah Constitution or the Constitution of the United States;
(b) create a right for a defendant that is beyond the rights created by the requirements of Rule 16 of the Utah Rules of Criminal Procedure, the Utah Constitution, and the Constitution of the United States; or
(c) prevent a law enforcement agency or prosecuting agency from providing information to the Utah Office for Victims of Crime or the Board of Pardons and Parole that is necessary to provide victim services or notification to a victim.
Enacted by Chapter 285, 2026 General Session
