1. (1) As used in this section, "adverse inference instruction" means an instruction that:

   1. (a) is provided to a jury in accordance with Utah Rules of Criminal Procedure, Rule 19; and
   2. (b) directs the jury that an officer's failure to comply with a requirement of Section 77-7a-104 may give rise to an adverse inference against the officer.

2. (2)

   1. (a) A court presiding over a jury trial may provide an adverse inference instruction if the defendant seeking the adverse inference instruction establishes by a preponderance of the evidence that:

      1. (i) an officer intentionally or, with reckless disregard of a requirement of Section 77-7a-104, failed to comply with a requirement of Section 77-7a-104; and
      2. (ii) the officer's failure to comply with the requirement of Section 77-7a-104 is reasonably likely to affect the outcome of the defendant's trial.

   2. (b) In considering whether to include an adverse inference instruction under Subsection (2)(a), the court shall consider:

      1. (i) the degree of prejudice to the defendant as a result of the officer's failure to comply with Section 77-7a-104;
      2. (ii) the materiality and importance of the missing evidence in relation to the case as a whole;
      3. (iii) the strength of the remaining evidence;
      4. (iv) the degree of fault on behalf of the officer described in Subsection (2)(a)(i) or the law enforcement agency employing the officer, including whether evidence supports that the officer or the law enforcement agency displays a pattern of intentional or reckless disregard of the requirements of Section 77-7a-104; and
      5. (v) other considerations the court determines are relevant to ensure just adjudication and due process.

   3. (c) If a court includes an adverse inference instruction, the prosecutor shall, after the conclusion of the trial, send written notice of the instruction to the law enforcement agency that employed the officer described in Subsection (2)(a)(i) at the time of the offense, including:

      1. (i) the written order or a description of the order allowing for the instruction;
      2. (ii) the language of the instruction; and
      3. (iii) the outcome of the trial.

Enacted by Chapter 404, 2020 General Session