Criminal Defendant Rights in Utah

Right of Confrontation and Cross-Examination Under Attack

Over the past 20 years, I’ve personally witnessed the rights of defendants being attacked. Virtually every politician swears that he or she will "get tougher on crime". Often that means that the rights of defendants will get ignored. I have never once heard a politician say that if he or she were to be elected, he or she would fight to preserve the rights of criminal defendants. And never forget that ANYBODY can become accused of a crime.

Even the right of cross-examination is coming under attack. For example, recently, a colleague of mine subpoenaed witnesses to testify at a preliminary hearing. The County Attorney’s Office filed a motion to quash the subpoenas. They argued that a defendant is not entitled to cross-examination witnesses pursuant to State v. Rhinehart, 2006 UT App. 517, which states, in part:

• B. Whether State Law Provides the Right to Confrontation at Preliminary Hearings
• 
  ¶15 Defendant relies on State v. Anderson, 612 P.2d 778 (Utah 1980), for the proposition that the right to confrontation exists at preliminary hearings under state law. In Anderson, the Utah Supreme Court acknowledged the "critical character" of the preliminary hearing, and thus held that the Confrontation Clause applies. . . . However, this decision was expressly abrogated first, by amendment to Article I, Section 12 of the Utah Constitution, see Utah Const. art. I, § 12, and subsequently, by rule 1102 of the Utah Rules of Evidence. See Utah R. Evid. 1102 advisory committee’s note ("To the extent that State v. Anderson prohibited the use of hearsay at preliminary examinations, that case has been abrogated."). Defendant argues that rule 1102 is invalid because Crawford supersedes the state’s evidence rules—and that under Crawford she is entitled to cross-examine declarants at a preliminary hearing. However, as previously discussed, Crawford does not address preliminary hearings, and therefore, does not invalidate rule 1102.

In other words, the Court said that your right to cross-examine witnesses BEFORE the case become an official district court matter is very limited. How unfair is this? Instead of nipping it in the bud, you must pay a lot of money to fight it at trial, and may have no idea what the accuser will say. In other words, you cannot prepare your cross-examination. In a civil matter you can certainly do this through "discovery", but the court says you don’t have this right in a criminal matter, where your rights should be greater than they are in a civil matter. So, in Utah, it can be argued that property rights (i.e. money and land) are held to be more precious than liberty. The police and prosecutors have full access to your accusers up to that point, but you do not.

But Article I, section 12 was changed to permit reliable hearsay . . . if appropriate discovery is allowed. So this doesn’t explicitly prohibit one from subpoenaing witnesses.

And Rule 1102, Advisory Committee Notes, bottom sentence, states that:

• "Either party is at liberty to subpoena and call any live witnesses whose testimony would be germane to the determination of probable cause."

To deny the Defendant of the opportunity to cross-examine witnesses at a preliminary hearing is analogous to the case Pointer v. Texas, 380 U.S. 400 (1965).

At issue the Sixth Amendment, which provides in part that:

• In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the Assistance of Counsel for his defense.

The Pointer case was decided two years following the Gideon v. Wainwright landmark decision concerning the application of the Sixth Amendment against the States through the Fourteenth Amendment. In Pointer, that facts were similar to the case described above. In that case, the state put a witness named Phillips on the stand to testify at a preliminary hearing. A co-defendant of Pointer attempted to cross-examine the witness, but Pointer did not. Later, as the case proceeded to trial, Phillips the State’s chief witness moved to California and the state attempted to introduce the transcript from the preliminary hearing. Pointer objected on the grounds that the evidence violated the Defendant’s right of confrontation. The trial judge overruled the objection claiming since the defendant was present at the preliminary hearing he was accorded an opportunity to cross-examine, therefore, he was not denied his Sixth or Fourteenth Amendment rights. The Texas Court of Appeals upheld the conviction. The U.S. Supreme Court accepted the appeal and Justice Black reversed and remanded the decision declaring, in part:

• The Sixth Amendment is a part of what is called our Bill of Rights. In Gideon v. Wainwright, supra, in which this Court held that the Sixth Amendment’s right to the assistance of counsel is obligatory upon the States, we did so on the ground that a provision of the Bill of Rights which is "fundamental and essential to a fair trial" is made obligatory upon the States by the Fourteenth Amendment.
• 372 U.S. at 342. And last Term, in Malloy v. Hogan, 378 U.S. 1, in holding that the Fifth Amendment’s guarantee against self-incrimination was made applicable to the States by the Fourteenth, we reiterated the holding of Gideon that the Sixth Amendment’s right to counsel guarantee is "‘a fundamental right, essential to a fair trial,’" and "thus was made obligatory on the States by the Fourteenth Amendment." 378 U.S. at 6. See also Murphy v. Waterfront Comm’n, 378 U.S. 52. We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right, and is made obligatory on the States by the Fourteenth Amendment.
• It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e.g., 5 Wigmore, Evidence § 1367 (3d ed.1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts [*] throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. This Court, in Kirby v. United States, 174 U.S. 47, 55, 56, referred to the right of confrontation as "[o]ne of the fundamental guarantees of life and liberty," and a right long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union.

The Court suggested a different conclusion may have resulted had the circumstance been different where the court did conduct a "full-fledged hearing which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U.S. at 474."

Some times a court error will occur, and the chances of having a defective trial increases if that witness cannot later attend when a trial does occur. And that is why it is critical to object regardless, so that a record can be made of the perceived error.