Utah Law Developments, 0419 UTBJ, Vol. 32, No. 2. 32

• Author: Matthew J. Hansen and Blake R. Hills
• Position: Vol. 32 2 Pg. 32

Utah Law Developments

Vol. 32 No. 2 Pg. 32

Utah Bar Journal

April, 2019

March,

2019

Vanishing

Testimony and Disappearing Justice: Preliminary Hearings

After State v. Goins

Matthew J. Hansen and Blake R. Hills

INTRODUCTION

Some

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)

available at

https://www.theguardian.com/science/brain-flapping/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.

Goins

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

assault.

At the

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.

Goins, 2017 UT 61, ¶ 7, 423 P.3d 1236. Estrada did

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.

Goins

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.

The

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

Brooks presupposes.

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. ¶¶

46–47.

The

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?

WHAT

IS A PRELIMINARY HEARING?

After

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.

Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (quoting

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.

Magistrates

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...