Article I, 1018 UTBJ, Vol. 31, No. 5. 55

AuthorJeffrey G. Thomson, Jr.
PositionVol. 31 5 Pg. 55

Article I

Vol. 31, No. 5 Pg. 55

Utah Bar Journal

October, 2018

September 2018

A Question Of Procedure: Can a Party to a Criminal Case Take Civil Depositions in That Case?

Jeffrey G. Thomson, Jr.


Over forty years ago, the Utah Supreme Court held that the Utah Rules of Civil Procedure could not be used to take depositions in a criminal case or, for that matter, in anything “pertaining to discovery…in criminal cases.” State v. Nielsen, 522 P.2d 1366, 1367 (Utah 1974). To this day, that holding, at least in the context of the part addressing the taking of a civil deposition in a criminal case, has seemed fairly established, well settled, and putatively understood among most members of the Utah Bar. And this has been so even after the 2005 Utah Supreme Court decision in State v. Gonzales, 2005 UT 72, 125 P.3d 878, which held, in the context of addressing the other part of the holding in Nielsen, that the civil rules of procedure could be used in some discovery matters in criminal cases like in determining the notice requirements for the issuance of a subpoena.

However, in the author’s recent practical experience, the question of whether a civil deposition can be taken in a criminal case – one part of the holding in Nielsen – seems to be reemerging, thus renewing the relevancy of the topic and rendering a review of the law in this area appropriate. What is more, the author has seen the Gonzales decision cited as the authority supporting this suggested proposition. After all, the Gonzales decision did say in a broad verbal stroke that “there now exists no prohibition against using the rules of civil procedure to inform discovery in a criminal matter.” Id. ¶ 36.

So, did Gonzales impliedly undo and overturn Nielsen? More specifically, because the question of this article concerns the taking of depositions in criminal cases, because Rule 81(e) of the Utah Rules of Civil Procedure applies the rules of civil procedure to criminal cases under certain circumstances, and because Rule 30 of the Utah Rules of Civil Procedure provides for the taking of depositions, can parties to a criminal case now, under the Gonzales decision, take civil depositions in the criminal case?

This article concludes that a careful reading of Rule 81(e) of the Utah Rules of Civil Procedure, Rule 14(a)(8) of the Utah Rules of Criminal Procedure, and the Utah Supreme Court’s decisions in Nielsen,

Gonzales, and Parsons v. Barnes, 871 P.2d 516 (Utah 1994), answers this question in the negative. Depositions in criminal cases are permitted only under the “narrow circumstances” set forth under Rule 14(a)(8) of the Utah Rules of Criminal Procedure. Id. at 519. Even though the Gonzales decision acknowledges that the civil rules of procedure may apply in some matters pertaining to discovery in criminal cases, the civil rules still do not apply to the taking of depositions in them, leaving intact the part of Nielsen’s holding “particularly” addressing depositions. Nielsen, 522 P.2d at 1366.

The Interaction Between Criminal and Civil Procedure

The lines between harmful conduct society legislatively labels as criminal and wrongful conduct a private person calls civil – that is, the divisions and distinctions between substantive criminal and civil law – are sometimes blurry. Undoubtedly, there is overlap in these two fields of law. A breach of contract, for example, can become a theft or a fraud at some indefinite point along the spectrum of the law.

In the state of Utah, rules of civil and criminal procedure have been around for a long, long time, even from Utah’s territorial days. E.g., Cast v. Cast, 1 Utah 112, 115 (1873); United States v. Cannon, 7 P. 369, 376 (Utah 1885), aff’d, 116 U.S. 55 (1885). Unsurprisingly, just as substantive criminal and civil law intermingle from time to time, a glimpse into the kitchen sink of criminal and civil procedure reveals a similar admixture. This procedural blending, however, finds a more definite whisk in Rule 81(e) of the Utah Rules of Civil Procedure.

Rule 81(e) of the Utah Rules of Civil Procedure

Rule 81(e) states: “These [civil] rules of procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement.” This interplay between the rules of procedure, however, did not always exist. The Utah Rules of Civil Procedure, which replaced the Code of Civil Procedure previously located at Title 104 of the Utah Code, were promulgated and adopted by order of the Utah Supreme Court on November 30, 1949. Utah R. Civ. P. vi (1950 ed.). They went into effect on January 1, 1950. Id. And they were largely “patterned after the Federal Rules of Civil Procedure ” Bichler v. DEI Systems, Inc., 2009 UT 63, ¶ 24 n.2, 220 P.3d 1203.

Rule 81(e), however, was not among the originally adopted civil rules. Rather, “Rule 81(e) was adopted by the Supreme Court on January 20, 1972.” Utah Code Ann. 1953 Replace. vol. 9B, Comp. Notes, Utah R. Civ. P. 81(e), 456 (1977). This rule, moreover, did not have a federal counterpart “covering this subject matter.” Id. And, paradoxically, the first appellate decision to even cite Rule 81(e) was the 1974 decision in State v. Nielsen, 522 P.2d 1366 (Utah 1974), which rendered the recently adopted “Rule 81(e) inapplicable,” entirely prohibiting the use of “the Rules of Civil Procedure pertaining to discovery…in criminal cases.” Id. at 1367.

State v. Nielsen

The Utah Supreme Court reached this conclusion not because it found some issue with Rule 81(e). Quite to the contrary, the Utah Supreme Court so decided because it correctly interpreted and applied the rule. In Nielsen, the criminal defendant wanted “to take depositions of various witnesses.” Id. at 1366. In support of his position, the defendant cited the civil Rule 30(a), which then and now governs the taking of civil depositions upon oral questions, and the newly adopted Rule 81(e) of the Utah Rules of Civil Procedure. Id. at 1366–67. Rule 81(e) allows a rule of civil procedure, such as Utah Rule of Civil Procedure 30, to supplement the rules of criminal procedure if “there is no other applicable statute or rule” and if there is no “conflict with any statutory or constitutional requirement.”

The Utah Supreme Court had been asked to address two issues in Nielsen: “whether or not [1] the defendant...

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