Current through Chapter 133 of the 2023 Legislative Session
Section 24-31-607 - In camera review - confidentiality of materials - criminal penalty(1)(a) The safe2tell program and persons implementing and operating the program shall not be compelled to produce any materials except on the motion of a criminal defendant to the court in which the offense is being tried, supported by an affidavit establishing that the materials contain impeachment evidence or evidence that is exculpatory to the defendant in the trial of that offense.(b) If the defendant's motion is granted, the court shall conduct an ex parte in camera review of materials produced under the defendant's subpoena.(c) If the court determines that the produced materials contain impeachment evidence or evidence that is exculpatory to the defendant, the court shall order the materials to be produced to the defendant pursuant to a protective order that includes, at a minimum, the redaction of the reporting party's identity and limitations on the use of the materials, as needed, unless contrary to state or federal law. Any materials excised pursuant to a judicial order following the in camera review shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. After the time for appeal has expired, the court shall return the materials to the program.(2)(a) Materials created or obtained through the implementation or operation of the program are confidential, and a person shall not disclose the material. The program and persons implementing or operating the program may be compelled to produce the materials only before a court or other tribunal and only pursuant to court order for an in camera review. Any such review shall be limited to an inspection of materials that are material to the specific case pending before the court. The attorney general acting on behalf of the safe2tell program shall have standing in any action to oppose the disclosure of materials in the custody of the safe2tell program.(b) A person who knowingly discloses materials in violation of the provisions of this subsection (2) commits a class 1 misdemeanor.(3) Notwithstanding any provision to the contrary, upon request by a law enforcement agency, the attorney general may disclose to law enforcement personnel any materials or information obtained through the implementation or operation of the program if the attorney general reasonably deems such disclosure necessary for the prevention of imminent physical harm or serious bodily injury to one or more persons.(4)(a)(I) Notwithstanding subsections (2)(a) and (2)(b) of this section, a court may issue a court order for production of records, under seal, on request of a law enforcement agency, public safety agency, or district attorney, for program materials identifying a reporting party if the court, following an in-camera review of an affidavit and any other relevant material or evidence provided under seal by the requesting party, determines probable cause exists that a reporting party to the program knowingly used the program in the commission of false reporting of an emergency, as defined in section 18-8-111(2), and that release of program materials is justified on balance in view of the probable violation and the program purpose of anonymity.(II) Any such request for a court order for production of records may be filed only after reasonable notice is provided to the attorney general. The requesting party shall note any response from the attorney general in the affidavit and the court shall consider the note in reviewing any application for a court order under this section.(b)(I) A court shall order that a warrant issued pursuant to subsection (4)(a) of this section, and any related evidence used to obtain such warrant, be sealed. The program and any law enforcement agency, public safety agency, or district attorney that receives information pursuant to subsection (4)(a) of this section shall keep the information confidential.(II)(A) A court may lift the sealing and confidentiality of the information, prior to the filing of charges, only on a motion of a district attorney upon showing of good cause following an in-camera review of the information. The district attorney shall provide reasonable notice and the opportunity to respond to the department of any motion to lift the seal filed pursuant to this section, prior to filing a motion pursuant to this section.(B) Upon filing of charges against any person for charges that rely on information provided pursuant to a court order under this section, any sealing order will immediately expire and the information is subject to discovery obligations and necessary protective orders to preclude further dissemination of the material.(c) If a district attorney is considering filing any criminal charges as a result of a production of records issued pursuant to subsection (4)(a) of this section, the district attorney shall first consider referring the alleged responsible person for an assessment for suitability to participate in restorative justice practices.Amended by 2021 Ch. 390,§1, eff. 6/30/2021.Added by 2014 Ch. 241,§2, eff. 8/6/2014.L. 2014: Entire part added, (SB 14-002), ch. 891, p. 891, § 2, effective August 6.