State prosecutors urge statutory safeguards for victim nonpublic data during discovery

Stuart Young, criminal deputy attorney general in the Utah Attorney General’s Office, told the committee on Aug. 20 that the ubiquity of smartphones and wearable devices has broadened the scope of personal, nonpublic data that can be implicated in criminal discovery. “Victim privacy of nonpublic information, information that usually has nothing to do with the case should be paramount,” Young said, summarizing prosecutorial concerns. Young described Rule 16 disclosures, Brady and Giglio obligations and the tension between constitutional discovery duties and protecting victims’ unrelated private information. He gave examples of likely material — such as texts between defendant and victim or a victim’s recorded statement — and of likely nonmaterial material that should ordinarily be withheld from routine copying, such as banking records, a victim’s unrelated journal entries or random social posts. Young described investigative workarounds investigators sometimes use — such as screenshots of relevant material rather than a complete phone download — to limit exposure of irrelevant content. Young reviewed how HB 171 evolved during the legislative session. He said the bill’s initial draft would have required nonpublic victim data to remain in the custody of law‑enforcement or prosecuting agencies and allowed court‑ordered dissemination only after a weighing process; later negotiated versions narrowed scope to victims (not witnesses) and included a mechanism to make the data available for defense counsel review “in a reasonable time, place and manner” without routine duplication. He said the Attorney General’s Office and other prosecutorial agencies supported provisions that would keep nonmaterial, nonpublic data from routine transfer while preserving prosecutors’ constitutional disclosure duties. Young said protective orders alone are not a reliable safeguard because courts and defense counsel practices vary, and prosecutors sometimes cannot guarantee the breadth of protections. He recommended standardized procedures that keep nonpublic victim data in controlled custody, provide defense counsel meaningful review access, and require judicial findings when duplication is ordered. No committee vote occurred on policy language during the briefing.