Testimony and Disappearing Justice: Preliminary Hearings
After State v. Goins
Matthew J. Hansen and Blake R. Hills
have compared losing one’s mobile phone to experiencing
the five stages of grief, also known as the Kübler-Ross
model. See Dean Burnett, Losing Your Smartphone:
The Five Stages of Grief, the Guardian (Dec. 22, 2014)
dec/22/phone-smartphone-loss-damage-grief. In July 2012,
DeSean Goins, apparently fluctuating between the anger and
bargaining phases of the model, believed Gabriel Estrada had
stolen his cell phone. Goins found Estrada and confronted him
while holding a knife. Estrada denied such a charge and fled.
kept up the search and located Jacob Omar, an associate of
Estrada. Goins threatened Omar with a knife and demanded he
disclose the location of Estrada. Goins and Omar came to
blows. Omar had difficulty hearing Goins because during the
fight Goins grabbed onto Omar’s earlobe with his teeth
and bit it off. Goins also stabbed Omar under his left arm.
Eventually, Police arrived and arrested Goins. He was charged
with one count of mayhem and two counts of aggravated
preliminary hearing, Estrada and Omar testified and were
cross-examined by defense counsel without objection by the
state or any apparent restriction by the judge. State v.
not appear for trial and the state moved the court to declare
Estrada unavailable and requested to have his preliminary
hearing testimony read into the record pursuant to Rule
804(b)(1) of the Utah Rules of Evidence. As part of its
argument, the state regaled the court with how it had
utilized police bike patrols, checked jail rosters, and asked
a local pastor to try and locate Estrada.
argued that allowing the state to use Estrada’s
preliminary hearing testimony would violate his
constitutional right to confrontation because his motive for
cross-examination at the preliminary hearing differed from
his motivation to cross-examine at trial. The trial court
found Estrada unavailable and allowed the preliminary hearing
testimony at trial. Goins was found guilty on the aggravated
assault charge and threatening with or using a dangerous
weapon. The Utah Court of Appeals held that the state made
reasonable efforts to find Estrada and affirmed the finding
of unavailability. Id. ¶ 15. In addition, the
court stated that circumstances in a preliminary hearing
closely approximate those in a typical trial and the
Defendant was provided an effective opportunity for
confrontation. Id. ¶¶ 16–17.
Utah Supreme Court reasoned that changes to the Utah
Constitution undermined its previous ruling in State v.
Brooks, 638 P.2d 537 (Utah 1981), that defense
counsel’s motive and interest are the same in
preliminary hearings and trial. The Utah Constitution had
been amended in article I, section 12 to specify that
preliminary hearings were limited to determining probable
cause. The Utah Supreme Court stated:
A defense attorney who assumes that the magistrate will
conduct a preliminary hearing that comports with article I,
section 12 does not have an incentive t o prepare to
thoroughly cross-examine on credibility. An attorney who
believes that the magistrate will not permit questioning that
goes beyond that necessary to establish probable cause has no
guarantee that she can present or develop positive
information concerning her client at the preliminary hearing.
Nor does counsel have a motive to develop affirmative
defenses at a preliminary hearing. In many, if not most,
instances, Brooks’s conclusion either no
longer aligns with the reality of practice, or places
magistrates in the uncomfortable position of choosing between
conducting preliminary hearings in fidelity with article I,
section 12 and permitting the type of examinations that
Id. ¶ 34. The supreme court held that under
this standard, Estrada’s preliminary hearing testimony
was not admissible at trial under Rule 804(b)(1) because
Goins’ attorney did not have the same motive to
cross-examine Estrada about credibility matters as the
attorney would have at trial. Id. ¶¶
question becomes, what is the reality of practice in
preliminary hearings in Utah? Do defense attorneys limit
their questions based on assumptions that magistrates will
limit their questions? Do defense attorneys really have no
motive to develop defenses at preliminary hearings? Most
importantly, should something be done to prevent testimony
from vanishing into thin air if the witness becomes
unavailable for trial?
IS A PRELIMINARY HEARING?
their initial appearance and being arraigned, defendants can
elect to have a preliminary hearing. At this hearing, the
state must present “‘sufficient
evidence…that the crime charged has been committed and
the defendant has committed it.’” State v.
State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995)).
The sole purpose of the preliminary hearing is determining
whether probable cause exists. See State v. Aleh,
2015 UT App 195, ¶ 14, 357 P.3d 12.
utilize a low bindover standard at the preliminary hearing
and for the most part allow the fact finder to determine the
credibility of witnesses and the...