S.B. 290 Victim and Witness Privacy Amendments: transcript

Thank you. Um, this bill is of victim and witness privacy amendments. I'd like you to think about everything that you have on your phone, every personal thing that you have on that device. Photos, passwords, frequently visited locations, contacts, banking info, et cetera. Now imagine that the cost of reporting a crime is that everything on your phone will be given to the defendant and their attorney to view, to use against you in any way they want. And potentially to save. When victims report crimes, law enforcement often must download entire cell phones, gathering far more private information than any investigation truly needs. Because of this, significant amounts of private and sensitive data are being collected and turned over to defense attorneys and defendants subjecting victims to re-victimization through the criminal justice system. In 2018, university of Utah student, Lauren McCluskey, reported she was being stalked. During the investigation, a law enforcement officer found her nude photos, viewed them on his personal phone, and shared them with others, showing how this data can be misused. Victims who come forward to report crimes should not have to give unrestricted access to their entire private lives, to law enforcement attorneys, and the person who harmed them. What this bill does, it defines a right to privacy and non-public electronic data collected from victims and witnesses. It requires prosecutors to turn over only data that is relevant and necessary to the case. It requires all other data to be held by law enforcement or prosecution in a controlled manner. Directly addressing the Lauren McCluskey problem provides defense attorneys the ability to review any data possessed by law enforcement in a controlled environment, and permits defense attorneys to receive a copy of sensitive data upon us showing that the data is relevant and admissible. What this bill does not do limit defense attorneys from reviewing any data received from a victim or witness limit the defendant's ability to conduct independent research, permit prosecutors or law enforcement to refuse to disclose any information. So this bill, um, ends the digital fishing trip for too long. The discovery process has been used as a weapon to intimidate victims into dropping charges. If a woman is assaulted her private text to her mother or photos from her vacation shouldn't be handed over to our attacker's legal team just because they might find something embarrassing. So, Senate Bill two 90 draws a line in the sand because justice is about the facts of the crime, not the privacy of the victim. And with that, it can conclude my presentation. Thank you very much. I hate it when I turn off my own mic.

Good afternoon, Mr. Chairman. My name is Stuart Young. I'm the Criminal Deputy Attorney General at the Office of the Utah Attorney General. Uh, this bill, there's several different versions that are kind of floating around right now. We've got the original and we've got sub two. What this bill And sub one And sub one. Thank you. That's True in my name. Fair enough. Uh, the original and sub two are essentially track more of what the federal rules do require. And as you know, um, I come from 17 years of the federal practice. And in terms of what this bill frankly does is it puts more of the onus on the prosecutor and the prosecution team to ensure that the evidence gets turned over what is real evidence, not just a fishing expedition for the defense. And then there are mechanisms that allow the defense to potentially, uh, access the rest of that other, uh, material that that is not defined as evidence. And so we believe that this is a bill that is necessary, especially when you look at the amount of data that is now available in different types of crimes and so forth, that was not available even five or 10 years ago. Um, putting the onus more on the prosecutor, but also on the defense to provide at least some resistance for both parties that provides, uh, essentially more, uh, protections for victims and witnesses in their private information that has zero re relevance to the case. On that, I'll submit unless there's questions.

If they wanted to, yes. Okay. There, there was no protective orders ever issued in federal court that would protect witness or victim information. Protective Orders would be issued on the information that was provided.

Uh, the first sub, I have actually not looked as much at the first sub. I've been working on the original end sub two.

Um, but, uh, one second So I can address protective orders. That's fine. Protective orders are, uh, are a relevant tool. However, protective orders don't necessarily ensure that privacy issue. Uh, in terms of one of the things that we were talking with the defense counsel about earlier, uh, for instance, CJC interviews are usually subject to a protective order. That's one specific thing. Say the interview that is actually, you know, the interview that's actually been done a protective order for an entire phone, uh, phone dump that may have 26,000 pictures or whatnot. Those are more difficult to police. And additionally, with protective orders, you don't know if the protective order has been violated until you find out there's a violation. What this does is it puts the onus on the, on the, on the prosecutor and the defense counsel, rather than putting the onus on, hoping that a protective order is not violated. When a protective order is violated, then there is potentially some remedy. But there's oftentimes, there's no ability to know whether that protective order has been violated or not in order to even go to the judge about that, uh, about that violation.

Not necessarily actually what the bill says. What the bill, what the, one of the things that we're actually discussing today was about trying to create virtual rooms as well.

Well, actually, with the protective orders, especially with intimate images and stuff, uh, those types of things, you shouldn't actually be showing that to the defendant. That's definitely part of

As I said, uh, in terms of, uh, in terms of protective orders, protective orders are a useful tool, but we cannot guarantee, uh, victim privacy or witness privacy. Now, you are a terrific defense counsel and you would not violate those protective orders. Uh, there are, as you have said, there's bad prosecutors and there's bad defense counsel out there. The protective order is not sacrosanct, sacrosanct, and we can't guarantee that privacy.

Uh, thank you Chair Weiler and members of the committee. Excuse me. My name is Josh Nith with Libertas Institute. Uh, I just recently joined Libertas, um, this session, and my job was more just to sit, learn, listen and learn. Um, but a, after reviewing this bill and, and recognizing that the competing interests were, uh, I recognize that Libertas is really the only lobbying voice in the room that seems to be advocating for both the privacy rights of victims and for the due process rights of criminal defendants. Um, coming from prosecution, working in prosecution for 10 years, I'd always have to remember that conviction is not the actual goal. It's getting the right conviction. And sometimes it's easy to forget that justice belongs not just to victims, but also to criminal defendants. Now our system builds in protections for the accused because we know that the cost of convicting an innocent person is too high and open disclosure of state evidence is one of those core protections that should not be eroded. Uh, we agree with all the goals that were set out, uh, by the senator regarding the, the purpose of this bill. Uh, the bill tackles a real problem, and I've seen defendants use discovery to harass victims. And sometimes even just the fear of that happening can deter victims from crop cooperating. So we do need to attack that problem. Uh, but how we solve that problem matters. The, the way that we saw that was that the original bill somewhat inverts our discovery rules. Uh, so out of concern for the privacy rights of both victims and due process rights for defendants, we worked with Senator Weiler and Senator Baldry on sub two, or sorry, sub one, uh, which, which attempts to accomplish both goals. Defense attorneys get the evidence that they need to prepare their defense with the protection of a protective order, um, and, and victims have those privacy rights protected. So that lines up with how Rule 16 already works. It protects victim privacy without compromising the constitutional framework that protects the innocent and it maintains trust and transparency in the criminal justice system. So we are, we're essentially advocating for a friendly amendment, uh, that, that sub one be adopted so that, uh, both those interests can be forwarded.

Marise Jones, director of the Victim Services Commission. We are in support of the original bill by Senator Baldry. Uh, the VSC did discuss sub one when it came out before it was adopted. We're in support of that as well. With all due respect, we prefer Senator Balderree because of the higher standard of privacy afforded to victims in protecting that material. Um, but I've had good conversation with, uh, Mr. Burton about the, the practicality of it for defense counsel. What we would like to see happen is the highest level of privacy that can come out of this. And us policymakers have the discretion to decide what that is to protect that information. The downside form the victim's perspective on a protective order is that if there is a bad player and that information gets out, there's no way to get it back. You know, at that point, when we recognize that it's failed, it's failed and the damage is done. And so that's our concern with that. The Senator Balder's version would be more of avoidant of having those issues. So we support, we support increased victim privacy at whatever level that this committee determines. Thank you very much, Mr. Chairman, the committee.

My name is Carl Holland. I'm the Executive Director of Statewide Association of Prosecutors. I want to thank Senator Balderree for bringing this important issue forward. We strongly support, uh, a passage of this bill to address an important problem. And I wanna make clear that the reality is this isn't a theoretical problem. This is a real problem. I have personally had a friend of mine call and ask what to do when she was the victim of a sexual crime. And when I explained to her the process, she asked what would happen to her phone data when she reported, and I explained what would happen. She chose not to report because she did not want her images given to people when it wasn't relevant to the case. And that is the reality that we deal with in our criminal justice system. I presented on this issue at the Regional ICAC Conference in Seattle, Washington last October. And it was surprising to me that other states like Washington, Oregon were confused about why we have engaged in a practice of handing over irrelevant information of victims to defendants in these cases. And we do it out of a hope for transparency. We're trying to strike a balance. We believe that this bill does, and we would urge support, but we will continue to work on it with the good sponsor. Thank you. A couple questions.

No. Uh, under Brady Giglio, a prosecutor has an obligation to disclose all evidence. Yes. Whether it's exculpatory inculpatory. And if a judge determines later that that exculpatory evidence was not turned over, that prosecutor faces sanctions and that, uh, conviction could be reversed.

Um, and I think that the concern with sub one specifically is that it doesn't distinguish between what is relevant to the case and what is not Relevant. And who makes that decision? Well, ultimately I think that multiple people make that decision under a lot of criminal investigations. Law enforcement makes an initial decision and defense attorneys can challenge that in court. And how do defense attorneys know what to challenge if they can't see what they're not seeing? Well, that becomes a question of what is relevant, what it is there.

No, that's not what I'm saying. Mr. Chairman,

The problem with sub one is it doesn't distinguish between what is relevant and what it is not.

Well, the first step is law enforcement and decides what is relevant, what is not similar to any other criminal investigation.

Well, sub one, there is no discern, there is no distinguish between what is relevant and what is not. All data gets turned over, whether or not it is relevant. Sub two attempts to show that prosecutors and law enforcement have an obligation which already exists under the rules to turn over all relevant evidence.

That is an initial matter, but they can, the defense attorneys have avenues to challenge that. How would they challenge it if they don't know what you haven't turned over? Uh, The same way that they do in any other criminal investigation where a prosecutor has already made these kinds of determinations.

Yes. Steve Burton representing the Utah Defense Attorney Association. And I, I think that Mr. Chair, you have hit on the crux of the problem. Um, we do believe that, uh, data should be protected and if a victim is going to come forward, that their data should be protected. Um, the sub one that you mentioned, uh, attempts to do that by requiring a mandatory protective order on all of that data that's disclosed to the defense attorney. The reason that there, that it strikes a good balance is that we, as defense attorneys, were able to do a, a good job looking into the evidence and determining what is and is not relevant. And ultimately it would be the court that would decide whether or not to allow that to be presented to, uh, a jury as relevant or ill irrelevant information also as to sub one. Uh, if the information is turned over under protective order, we would not be allowed to share that with our clients. So it is protected from the people that need to, uh, need to have it protected from.

Yep. Yeah. I'm Seth Stewart. Thank you for the opportunity to speak. I rep representing myself. Um, I guess my, my main concern here, obviously we want to avoid over disclosure of private information. Um, generally speaking, there are privacy concerns that should be protected under the Fourth Amendment and so on. I think, think my primary issue with this bill is the presupposition that someone is a victim before a finding of fact has been issued. Uh, I see that as a procedural difficulty. And as we've been discussing here, the assignment of who makes the determination of whether information is relevant to a case is vitally important. And, uh, under the, under certain versions of the bill, it would be, uh, the judge or the prosecutor. Um, I would submit that the, the jury as the sole finder, uh, and trier of fact would actually be in the best position to do that rather than having our, uh, I guess currently traditional system of, um, tailoring and spoonfeeding what to, you know, gatekeeping well, which information is allowed to, uh, to reach a jury in the first place. But, uh, I believe it logically follows from the jury's exclusive fact finding role that they would also be the best, uh, in the best position to make the determination of what is and what is not relevant, uh, including to be entered into the formal record of the court. Um, so that's, that would be my recommendation. Thank you.

Yeah, I would recommend favorably, uh, SB one 90 and I would speak to that.

Yeah, I don't know that I, that I'm ready to adopt either sub.

I don't, I don't think that we've found our Goldilocks on this. Um, it is late in the session, so I'm willing to, to move it through. Um, I I think that there's still some balancing that needs to happen with, I I'm not sure that it should always, that, uh, you know, going to opposing counsel's office for defense attorneys being the prosecutor's office, I don't think that that's, uh, something that is the correct way to do this. Um, you know, there needs to be search tools and there needs to be the ability to look at things, uh, with, with some efficiency. And if you go to their office, rarely do you have the ability to do a control f search and all of that. At the same time, I can see the concerns with just turning it over. I can see the concerns with relevance. Um, what I would, what I've, what what has been floated about, and I think that's a a pretty good idea because we use it, is a data room where you have a read-only room that is essentially accessible electronically. You enter into the room and as long, and the prosecution would have the duty to OCR the, the, the data, which is common practice, identify it either by bates numbers or make it identifiable file so that they can know how to refer to what they're looking at. And then, uh, both sides have access. The relevance determination is made by the various sides in according to how they want to do it. And they can ask for possession of relevant evidence and make their own determination without receiving custody of relevant evidence. And that's what the data room would be for. So we use this all the time in business transactions where one business is acquiring another business and they need to do due diligence as to the documents and, and things that are going on in the other business. And they don't want to take custody of it because it's a business transaction that they, if they don't fulfill, they shouldn't own that information or have that information. So you use a data room, and that's common practice. You know, this is a, a newer technology, you know, it's, it's not that new, but it's, it's relatively new and it's not particularly expensive and it's not difficult to administrate. It's not difficult to secure. And it's, and these are electronic documents already, or electronic data already. So, you know, I would recommend that, that the parties look deeply into that as a proposed solution. So I'll be yes on this to move it forward with the understanding that we are not there yet, and I wanna see the parties find a better solution than what we found so far between the original sub one and sub two. Not happy with any of those. There's a better, there's a better path on this, but I think they can find it if we keep going.

Thank you. I, I appreciate the, the motion and, and the sponsor of the motion, what was said. Um, with that said, I have similar concerns and so I make a substitute motion that we adopt substitute one. Uh, the reason being is I, I do think it's closer to the gold Goldilocks moment and, and maybe still has some work to do, but I think it's, I think it gets us, uh, closer in the negotiations as this bill continues to move forward. So that would be my motion.

Thank you. Uh, Senate Bill two nine Private data. I don't know that that microphone's working. I'll come Over here. Sorry. Alright. Okay. Thank you. Um, Senate Bill two 90 ensures that a victim's private data is used for justice and not for secondary trauma or intimidation. Um, as a woman, we have what's known as a Jane Doe barrier. Um, and the number one reason, it was mentioned earlier that victims of sexual assault don't come forward is the fear that their character will be put on trial. And when we tell a victim that their entire digital history will be handed over to their attackers legal team, we're essentially telling them to stay silent. So this restores the trust that their privacy will be protected. You know, we talked about Lauren McCluskey, the case. The sad news is there are plenty of other cases at BYU. We had, uh, Maddie Barney and Madeline McDonald cases in 2016 where these students were reported being sexually assaulted. However, because they're police reports or digital communications contained evidence of honor code violations such as drinking or being in a bedroom with a member of the opposite sex, the university opened investigations into the victims rather than the crimes. So, um, this, this bill addresses that. And, you know, I I, I tried to get to a place, but we're running out of time. I worked, I, I talked multiple times with the defense attorneys. I, I, you know, talked with Senator Weiler, I talked with the Attorney General's office, and I agree with Senator Brammer that we don't have the right one. That's why I would reject either sub and, and say, let's go to the original and work on that third sub that Senator Brammer mentioned that has a data room. And, um, so with that, with that, I guess I would reject, um, either, either sub in, in hopes that we can get to one that both parties agree on.

This bill would determine what the defense counsel got, not what the police got. Right. And I'm just saying these are instances of not being able to trust, whether it's attorneys, police officers, et cetera, anyone who has access. Yeah.

Uh, I don't really care which sub we do. I'm, I wanna see the bill advance. I'm probably not in favor on the floor of any of the subs or the original. Um, but I think it's a policy that we need to get right. And so I want to keep it moving so I'm not opposed to this substitute motion. Um, I just wanna keep the negotiation going.

I'm in favor of the sub, mostly because I keep hearing that the prosecutors are not willing to negotiate on this. Um, I don't like to hear that. And I hope this isn't gonna be the characteristics of the Derrick Brown Attorney General's office. I expect the prosecutors to come up with a solution with the defense attorneys like they've done every other session. I've been here. I don't know what they think is different this session. Why they don't have to negotiate. And that's the primary reason I'm voting for the sub.

I'll just echo my same thoughts before I think we've got work to do on it. Thanks.

Thank you. Thank you. I appreciate you moving that order. I have another committee to present, and this is super helpful to me. So thank you very much. So this bill, um, is I want you to think about everything that you have on your phone, every personal thing you have on that device. Photos, passwords, frequently visited locations, banking, uh, information contacts. Now, imagine that the cost of reporting is a crime, is that it is a crime. Uh, everything on your phone, if you commit a crime, everything on your phone will be given to the defendant and their attorney to view, to use against you in any way that they want. And potentially to save. When victims report crimes, law enforcement often must download entire cell phones, gathering far more private information than any investigation truly needs. And because of this, significant amounts of private and sensitive data are being collected and turned over to defense attorneys and defendants subjecting victims to re-victimization through the criminal justice system. In 2018, university of Utah student, Lauren McCluskey, reported she was being stalked. During the investigation, a law enforcement officer found her nude photos, viewed them on his personal phone, and shared them with others, showing how this data can be misused. Victims who come forward to report crimes should not have to give unrestricted access to their entire private lives, to law enforcement attorneys, and the person who harmed them. What the bill does, it establishes the first statutory safeguards in Utah for how law enforcement and prosecutors handle non-public victim and witness data such as intimate images, personal communications, and electronic records on devices. It draws a clear line between evidence and non-public victim witness data, ensuring all directly related evidence and exculpatory evidence is disclosed to the defense while protecting private data that is not relevant to the crime. It requires law enforcement to proactively segregate evidence from non-public data, creating a predictable and accountable process. It preserves preserves full rule 16 disclosure. Every piece of electronic evidence required on a rule 16 must still be turned over to the defense. It mandates written policies within law enforcement and prosecutorial agencies to ensure sensitive data is used only for legitimate purposes and stored securely. And you'll be happy to note that this reflects a bipartisan balance negotiation, both prosecution and defense attorneys collaborated line by line on the draft. What the bill does not do, it does not limit any constitutional rights of the accused. All Utah, US constitutional protections remain fully intact, including Brady obligations. It does not restrict defense access to evidence. Anything directly related to the charged crime must still be disclosed along with all exculpatory EV material, it does not create a new or burdensome discovery system. It works entirely through existing Rule 16 procedures, does not mirror victim veto systems in other states, it does not give victims or prosecutors the power to block discovery. And finally, it does not hinder defense attorneys. It actually helps them avoid ethical pitfalls by establishing clear standards for handling sensitive materials. And with that, I conclude my presentation.

Mm-hmm. I wondered if you or someone from the prosecutor's, uh, defense or maybe the ags office, I understand the theory and and agree with the theory. H how does this, how is this gonna work in practice when you have evidence on a digital device and that, uh, uh, how is that evidence going to be, um, not, not released? Could somebody, could somebody speak to that?

Yes. I'll turn the time now, uh, over to, um, Carl Holland and he'll tell you about a digital room.

Uh, Mr. Chair, members of the committee, my name is Carl Holland, executive Director of Statewide Association of Prosecutors. Uh, to answer the question, what what happened is law enforcement receive a digital device into their possession. And, and one of the problems we have is the technology only allows for you to download all of the data. You can't figure out what data is what, unless you get it all. They'll get the data, they'll go through the data and they'll find the data that is directly related to a crime, and that data will be sequestered, it'll be pulled out, and then that data is going to be provided to discover, to defense in discovery in every single case. And what happens to the rest of the data? All the other things, the, the Rest of the data has to be held by law enforcement. Uh, and per this statute, they're going to have to have some requirements to make sure it's only used for law enforcement purposes and that it's maintained in a way that maintains the privacy of the victim. But defense then might come and say, we think that there's additional information on this that we need to search. And this gives them options. They can come and they can say, we think this is relevant. Maybe a conversation between a victim and their roommate. And the prosecution can just turn that over subject to a protective order and allow them to have it. Or they can say, you're right, there's more evidence here. We found it and we're giving it to you pursuant to discovery. It would allow them to view it at a law enforcement facility and determine whether it's relevant evidence or not. It would also, we're gonna be exploring an option technologically possible. It allows them to view it remotely in a way that they can't copy or download it. And again, determine is this relevant? Is this important for the case? And if so, they'll receive that copy. But it also preserves this opportunity that if all of those methods fail, they can go to the court and the court can weigh in and decide whether or not this is important to turn over.

Thank you. That's very helpful.

Thank you. Mr. Sorry. There you go. Thank you, Mr. Chair and thank you Senator for your good work on this. Um, who, my question is who decides what counts as, uh, the two categories, evidence and then kind of the witness data, non-public information?

Uh, Mr. Chair, thank you for the question. Uh, the, the decision about whether this is a, whether, whether this is evidence or not evidence, like in all criminal cases, is gonna depend initially on a law enforcement, look, law enforcement already investigates, and let's say that they show up on a crime scene, they're gonna look and they're gonna see what they think is evidence or not, and they're gonna collect that. Now, we recognize not all law enforcement is gonna be perfect in every instance, and that's why we preserve these avenues where defense can come in and say, we think you missed something, and we wanna look at it too. And this preserves those as well. So initially it's done by law enforcement, but defense has the ability to make sure law enforcement has, has gotten all of the relevant evidence. And if there's a disagreement, let's say defense views something, they say, we think this is evidence. The prosecution just refuses to relent, then the court gets to come in and say, this is evidence and you will turn it over.

So will they have access? Because if, if I don't see the information and data at all, how would the defense know that there's something that, that, that might be missed? Right? There's tons of data and information on our phones. And if I'm just sent what, you know, police thinks relevant as evidence, how would I know that something might be on the phone that would prove innocence of my client?

Yeah. Thank you for the question. Uh, the, the way that they're gonna be able to determine that is one, they can just say, mi you know, Mr. Prosecutor, Ms. Prosecutor, I think that there's more things, and this is what I think it is. And maybe the prosecutor just agrees and turns that over. The other option that is still available under this is the prosecutor can say, I'm just gonna give you the whole phone, but we're gonna subject it to limitations on how it can be copied, how it has to be stored, what has to be done with it on the backend. Or maybe the prosecutor says, this is really sensitive. We don't wanna release the whole phone. You can come and look at it in a law enforcement facility. So they get to come in and look at those other areas as long as they're doing in these controlled environments.

Thank you, Mr. Chair, members of the committee. Carl Holland, executive Director of Statewide Association of Prosecutors, this bill matters. This bill matters a lot. Um, I told the chair about my experience and, and I want, I think it's important for the arrest of the committee to hear as well. Three years ago, the first bill that I worked on when I was at the Attorney general's office was a bill that dealt with how we deal with child sex abuse material that's found on devices. And at that time, um, my first committee hearing ever, uh, the chair came out of the committee, pulled me aside in the hall and asked me, does this solve the problem of Lauren McCluskey? I said, no, but we're working on it. This is the solution to that problem. This is gonna hold law enforcement and prosecutors accountable to how we handle sensitive data that's given to us by victims, but it's also gonna preserve the rights of defendants to get access to the evidence they need. This is extremely important. It's been a long time coming. Swap wholeheartedly supports this, and we urge your support as well. Thank you.

Good afternoon, Stuart Young, criminal Deputy Attorney General at the Office of the Attorney General. Um, I echo, uh, Mr. Holland's comments. This is a very important bill, uh, and we are very grateful to, uh, the good senator for, uh, putting this together. Uh, with this, uh, we've negotiated this extensively with the defense counsel to the point of spending hours in our room here at the Attorney General's office with the bill on the big screen, going line by line and making sure that, you know, everybody is okay with, uh, each, uh, each provision and whatnot. I will also, uh, say that this bill, uh, essentially does a lot of what, uh, the federal government already does. Uh, I was a prosecutor on the Fed side for 17 years, and this is generally how we actually approach discovery with, uh, large devices and whatnot. The discovery, the initial cut is made. It is sent over to defense counsel, and then the option is given to the defense counsel to come and view it, uh, at the US Attorney's Office. This bill actually provides, uh, more options than what the, uh, federal government does. And so this is, this is actually, uh, a, a more helpful bill both to defense, but also, uh, for the prosecutors. Uh, for these reasons, we, uh, sincerely urge, uh, the committee, uh, to pass this bill favorably. Thank you.

Hello Committee, Steve Burton with the Defense Attorney Association. Um, yes, uh, as was mentioned, this was a bill that the original version, um, was difficult because as Representative Fiefia you mentioned, it was hard for us defense attorneys to imagine how do we know if there's evidence on there that we might need if we can't see it. And so this was a long process where we kind of went from one extreme to the other extreme. And this is the middle ground where both sides are trying to come together and figure out how do we strike that balance between protecting a victim of, excuse me, protecting privacy of witnesses, but also allowing the defense attorneys to, to do their jobs and see if there is evidence that could potentially prove someone's innocence. So, uh, we do appreciate the work that's been done, and we also support the bill.

Yeah. Thank, thank you Chair Committee. Uh, Nate Mutter, chair of the Law Enforcement Legislative Committee. Apologize for my tire. I didn't plan on speaking today, but, uh, just, uh, with some of the questions, uh, asked by the committee, uh, I wanted to make myself available. The Law Enforcement Legislative Committee does support this bill. Uh, it's an important, um, bill to, to help protect, uh, sensitive information for victims and witnesses. And, and again, we, we wholeheartedly, uh, support it. Um, and if there are any questions I can answer on behalf of, you know, the investigation side or law enforcement side, I'm happy to do so. Uh, we urge the support. Thank you.

Thank you, Mr. Chair. I would make a motion. We pass out SB two 92nd sub victim and witness privacy amendments with a favorable recommendation. Or do we need a third sub? Oh, third, is this currently the third sub? Yeah. Is it already adopted? Third sub. Yeah, I, so we're just, yeah. All right, lemme start over again. Okay. I move, we pass out third sub H HB two 90, victim and witness privacy Amendments. Okay. So

I just wanted to, um, to congratulate the sponsor on doing such a great job of getting both sides to look at the bill. So thank you.

Thank you. I echo Representative Hansen sentiments. Uh, this bill, uh, is better because of the multiple stakeholders who came to the table and stayed at the table and came back to the table. Uh, but the number one reason victims of sexual assault do not come forward is the fear that their character will be put on trial. And when we tell a victim that their entire digital history will be handed over to their attackers legal team, we're essentially telling them to stay silent. It has a chilling effect. And Senate Bill two 90 restores that trust that their privacy will be protected. Again, thanks to everyone, uh, who made this bill better. And with that, I'll, I'll conclude.

I'll waive mo uh, summation has been waived.

Thank you very much. So now we'll go back

Is this where I make a motion to move the third substitute two 90? I'd like to delete ti. The motion is, Can we have that? Yep. Entitle and body, um, first substitute Senate bill two 90 and replace it with third substitute Senate Bill two 90. Discussion. That motion saying none. All in favor say aye.

Thank you. So, um, as you can see from the minute, many iterations of this bill, um, this has gone through a lot of, um, a lot of compromise. It reflects a bipartisan balance negotiation between prosecution and defense attorneys. Um, where we collaborated line by line on this third substitute. First of all, think about everything that you have on your phone, every personal thing you have on that device. Photos, passwords, frequently visited locations, contacts, banking information, et cetera. Now imagine that the cost of reporting a crime is that everything on your phone will be given to the defendant and their attorney to view, to use against you in any way that they want and potentially to save. When victims report crimes, law enforcement often must download entire cell phones, gathering far more private information than any investigation truly needs. Because of this significant amounts of private and sensitive data are being collected and turned over to defense attorneys and defendants subjecting victims to re-victimization through the criminal justice system. In 2018, the University of Utah student, Lauren McCluskey, reported that she was being stalked. During the investigation, a law enforcement officer found her nude photos, viewed them on his personal phone and shared them with others, showing how this data can be misused. Victims who come forward to report crimes should not have to give unrestricted access to their entire private lives, to law enforcement attorneys and the person who harm them. What this bill does is establish the first statutory safeguards in Utah for how law enforcement and prosecutors handle non-public victim and witness data such as intimate images, personal communications, and electric electronic records on device. Uh, it draws a clear line between evidence and non-public victim or witness data ensuring that all directly related evidence and exculpatory evidence is disclosed to the defense while protecting private data that is not relevant to the crime. It requires law enforcement to proactively segregate evidence from non-public data, creating a predictable and accountable process. And it preserves full rule 16 disclosures. Every piece of electronic evidence required under rule 16 must still be turned over to the defense. It creates a clear court process for the defense to request access if they believe directly related evidence is in the non-public data. And it mandates written policies within law enforcement and prosecutorial agencies to ensure sensitive data is used only for legitimate purposes and stored securely. What this bill does not do, it does not limit any constitutional rights of the accused. All Utah and US constitutional protections remain fully intact, including Brady obligations. It does not restrict defense access to evidence. Anything directly related to the charged crime must still be disclosed along with all exculpatory material. It does not create a newer burdensome discovery system. It works entirely through existing Rule 16 procedures. It does not mirror victim veto systems in other states. It does not give victims or prosecutors the power to block discovery. It does not hinder defense attorneys. It actually helps them avoid ethical pitfalls by establishing clearer standards for handling sensitive materials. Uh, basically Senate Bill two 90 ensures that electronic evidence is maintained in a controlled manner to minimize the harm victims suffer at the hands of the criminal justice system. It prevents the kind of abuse seen in the Lauren McCluskey case where intimate images were inappropriately as shown leading to a 13 and a half million dollars settlement. This bill ensures those failures cannot happen again. It prevents abuse by defense counsel as it creates procedures for ensuring that non-public data will not be left in their computer drives or in their possession long term. It strengthens public trust. When victims know their non-public data will be safeguarded. They're more willing to come forward, cooperate and support prosecutions. It reinforces due process by creating a fair transparent path for defense counsel to request additional materials. The bill enhances not limits defense rights and it modernizes Utah's legal framework. Existing rules were not sufficient to prevent misuse of non-public data. Senate Bill two 90 fill that gap with clear statutory duties and accountability. And lastly, it provides a balance Utah driven solution that protects victims while maintaining strong procedural safeguards for defendants. And with that, um, I'll waive summation and move that Senate bill. Let me, let me take some discussion first if, oh, Sorry. I get ahead. Thank

Thank you. You um, I wanted to uh, say I appreciate the sponsors good work on this third sub. I think this third, third sub really lands the bill in a good place. And, uh, I need to apologize. I kind of called out, uh, I was frustrating committee 'cause I had the feeling that, um, the negotiations that should be taking place on a bill that's important weren't taking place. So I wanna apologize. I probably use some strong language but, and I, I, I now want to commend especially the Attorney General's office and the prosecutors in general for working with the defense attorneys and coming up with what I think is a very, very good, uh, solution to a difficult problem. And I think the sponsor's done a good job outlining the problem. So I'll be voting. Aye all of my concerns have been resolved with the third sub and I would encourage my colleagues to vote. Aye, thank you.

Thank you. Uh, thank you for your support. Uh, grateful for all uh, all parties who weighed in on this bill. Bill's become better with more input. And uh, with that I will move, uh, the under the suspension of the rules third substitute Senate Bill two 90 pass.

Senator Vickers Baldy Aye. Lein Aye. Brammer Aye. Boss Cu Moore es Fillmore Aye. Grover Aye. Harper Aye. Kinins Aye. Ipson Aye. Johnson Aye. Wan McKay Aye. Macl Aye. Milner Aye. Wo Musman Aye. Owens pitcher Plum Rebe Sandal Aye. Stevenson Stratton Bickers Stevenson Aye. Aye. Weiler Aye. Wilson Aye.

consideration matter. Meeting clerk Third substitute Senate Bill two 90 victim and witness privacy amendments by Senator Balderree. This bill was heard in economic development and were for services with the vote of 9 0 1. The house sponsors Representative Defay.

Thank you Mr. Speaker. Colleagues, I want you to think about everything that you have on your cell phones, um, photos, places you've been banking information and imagine having to turn that over to law enforcement and have everything revealed. Um, that is the cost of reporting a crime for some victims. Um, and because of the significant amounts of private data and sensitive data that are being collected and turned over to defense attorney, defense attorneys and defendants were subjecting victims to re-victimization through the criminal justice system. Um, in 2018, U of U student, Lauren McCluskey turned over her data and nude photos of her were copied and shared by officers showing how this can be abused. So what this bill does is it defines a right to privacy. It requires pos prosecutors to turn over only data, uh, that is relevant and necessary to the case. And it requires all other data to be held by law enforcement or prosecution in a controlled manner to, um, address the Lauren McCluskey problem. And with that, I am happy to answer any questions. Thank you.

for summation. Colleagues, This is an important bill and I urge your support. Thank you. Thank