Advisory Committee Note: The adoption of subsection (b) is not intended to change existing rules, privileges, statutes, or caselaw pertaining to the release or admissibility of an individual's medical, psychological, school, or other records. Subsection (b) is intended only to adopt a procedure consistent with current applicable law that balances a victim's state constitutional right "[t]o be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process," with a defendant's constitutional right to due process. Utah Const. art. I, § 28(1)(a). Requiring a defendant to apply to the court for the production of a victim's records ensures that a victim or his or her representative will have an opportunity to assert any privileges or reasons why the records should not be subject to either release or in camera review. It also avoids the problem presented in State v. Gonzales, 2005 UT 72, 125 P.3d 878, in which the victim's mental health records holder mistakenly released privileged records directly to the defense in response to a subpoena that had not been served on either the victim or the prosecution.
Subsection (b)(4) provides that once the defendant has made the threshold showing under subsection (b)(1), records must be sent directly to the court for an in camera review by the court, whereupon the court will release any information material to the defense. This is consistent with current caselaw, which requires a defendant to make a threshold showing that no privilege applies and of materiality before obtaining even an in camera review. See State v. Blake, 2002 UT 113, 63 P.3d 56; State v. Gomez, 2002 UT 120, 63 P.3d 72; State v. Cardall, 1999 UT 51, 982 P.2d 79; Ritchie v. Pennsylvania, 480 U.S. 39 (1987).
Subsection (b)(5) permits the court, if it releases any records to the parties, to issue reasonable orders to further protect the victim's right to privacy.
The adoption of subsection (c) clarifies the applicability of Rule 45, Utah Rules of Civil Procedure, as addressed in State v. Gonzales, 2005 UT 72, 125 P.3d 878.