State v. Nielsen , 2020 UT 61 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 61IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH and L.L.,
Appellants,
v.
IVAN MICHAEL LOPEZ,
Appellee.
STATE OF UTAH,
Appellee,
v.
DARIN CHASE NIELSEN,
Appellant.
Nos. 20180940, 20180945, 20180952, and 20190272
Heard April 8, 2020
Filed August 18, 2020
On Consolidated Appeal of Interlocutory Orders
Third District, Salt Lake
The Honorable James T. Blanch
No. 181907088
Fourth District, Provo
The Honorable Robert C. Lunnen
No. 181100038
STATE v. LOPEZ
Opinion of the Court
Attorneys:
Sean D. Reyes, Att’y Gen., Tera J. Peterson, Asst. Sol. Gen.,
Clint T. Heiner, Donna Kelly, Lance E. Bastian, Salt Lake City, for the
State of Utah
Paul Cassell, Heidi Nestel, C. Bethany Warr, Salt Lake City,
for appellant L.L.
Alexandra S. McCallum, Salt Lake City, for appellee
Ivan Michael Lopez
Dallas Young, Douglas J. Thompson, Provo, for appellant
Darin Chase Nielsen
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
AND JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Ivan Michael Lopez and Darin Chase Nielsen each stand
accused of engaging in illicit activities with children. Lopez is charged
with furnishing alcohol to, raping, and otherwise sexually abusing a
twelve-year-old girl (L.L.) in the back of his truck. Nielsen is charged
with sexually abusing his five-year-old daughter (A.N.) while alone
with her in a bedroom.
¶2 L.L. and A.N. each participated in interviews about their
alleged abuse at the Children’s Justice Center (CJC). These interviews
were later introduced (along with other evidence) as “reliable
hearsay” at Lopez’s and Nielsen’s preliminary hearings in accordance
with rule 1102 of the Utah Rules of Evidence and rule 15.5 of the Utah
Rules of Criminal Procedure. Both Lopez and Nielsen sought to
compel their alleged victims to testify by way of subpoena, each
asserting a right to do so under rule 7B of the Utah Rules of Criminal
Procedure and the Compulsory Process Clause of article I, section 12
of the Utah Constitution.
¶3 In the Lopez case, the State and L.L. moved to quash the
subpoena, but the magistrate denied the motions, opting instead to
modify the manner in which L.L. would be required to testify. In the
Nielsen case, the magistrate granted the State’s motion to quash the
subpoena. We agreed to hear the cases on interlocutory appeal, in
recognition of the need for guidance from this court on the clash
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Cite as: 2020 UT 61Opinion of the Court
between the rights of defendants and victims in a preliminary hearing.
We resolve both cases in this consolidated opinion.
¶4 We hold that any power a defendant has to subpoena
witnesses at a preliminary hearing—whether under the rules of
criminal procedure or the constitution—must be understood in light
of the prerogative of the court to “quash or modify [a] subpoena if
compliance would be unreasonable.” UTAH R. CRIM. P. 14(a)(2). And
we conclude that the unreasonableness inquiry must account for the
circumscribed function of the preliminary hearing (to determine
whether there is probable cause to justify bindover) as well as the
limited burden of proof on the State and the established rights of
victims at such a hearing. Thus, we hold that once the State has used
a victim’s reliable hearsay to make a prima facie showing of probable
cause, a subpoena compelling the victim1 to give additional, live
testimony will survive a motion to quash only if the defendant
demonstrates that the subpoena is necessary to present specific
evidence that is reasonably likely to defeat the showing of probable
cause. Since neither Lopez nor Nielsen attempted to explain how his
alleged victim’s additional, live testimony would inform the probable
cause determination, we reverse the Lopez court’s refusal to quash
L.L.’s subpoena and affirm the Nielsen court’s decision to quash
A.N.’s subpoena.
¶5 Part I lays out the facts and procedural background of the
Lopez and Nielsen cases. Part II answers a threshold question raised
in the Lopez case—whether an alleged victim has a right to seek an
interlocutory appeal or lodge a direct appeal from a magistrate’s
denial of a motion to quash her subpoena. Part III sets forth the
standard that governs such motions, as informed by the probable
cause standard and the law protecting the rights of crime victims. Part
IV then applies this standard to the facts of the Lopez and Nielsen
cases. Part V concludes.
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1 Throughout this opinion, we sometimes use the term “victim” for
simplicity. We acknowledge that at the preliminary hearing stage, a
victim of a crime is an alleged victim of a crime. See UTAH CODE
§ 77-38-2(9)(a) (“‘Victim of a crime’ means any natural person against
whom the charged crime or conduct is alleged to have been
perpetrated or attempted by the defendant or . . . against whom a
related crime or act is alleged to have been perpetrated or attempted
. . . .” (emphases added)).
3
STATE v. LOPEZ
Opinion of the Court
I. BACKGROUND2
A. Lopez
¶6 Lopez began communicating via phone call and text message
with L.L. and her friend, C.D., by posing as a fifteen-year-old boy
named “Giovanni.” One night, L.L. told Lopez that she wanted to visit
C.D., who was undergoing surgery at the hospital the next morning.
Lopez told L.L. that he had a car and offered to drive her to C.D.’s
house. L.L. accepted the offer and met Lopez for the first time in
person at a local gas station. Instead of taking L.L. to C.D.’s house,
however, Lopez drove to a residential neighborhood in Kearns,
parked on a corner, and locked the doors. L.L. moved to the backseat
to get away from him, but Lopez followed. He then offered L.L.
marijuana and beer, which she later testified that she refused. Lopez
drank a beer himself and threw the can out the window. He then
undressed L.L., undressed himself, and got on top of her, vaginally
penetrating her with his penis and placing his mouth on her breasts.3
¶7 A homeowner called the police after noticing two people
sitting in the back of a parked truck and seeing something thrown
from the vehicle. When the responding officer arrived, she found a
beer can near the truck, the windows steamed up, and Lopez (then
twenty-seven years old) and L.L. (then twelve years old) in the
backseat. Both were shuffling their clothing, and Lopez had his
underwear around one of his ankles under his pants. 4 The officer
testified that both occupants had their shirts inside out and smelled of
beer. L.L. told the officer that they had been drinking.
¶8 After talking with the officer, L.L. received a sexual assault
exam, in which she related some of the details of this encounter to a
nurse. The nurse took photographs of red marks she noticed on L.L.’s
breasts. Later, an investigating detective interviewed L.L. at the CJC,
where L.L. gave the full story. The investigating detective also
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2 When relating the evidence presented at a preliminary hearing,
we state the facts “in the light most favorable to the prosecution, with
all reasonable inferences in its favor.” State v. Jones, 2016 UT 4, ¶ 2 n.1,
365 P.3d 1212 (citation and internal quotation marks omitted).
3L.L. also told the CJC interviewer that her shirt and bra stayed on
throughout the encounter.
4L.L. testified that Lopez told her to hurry and get her clothes back
on when he noticed the officer approach.
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interviewed C.D., who said that L.L. had told her that she (L.L.) and
Lopez had had sex.
¶9 The State charged Lopez with (1) rape of a child,5
(2) aggravated sexual abuse of a child,6 and (3) furnishing alcohol to a
minor.7 Before his preliminary hearing, Lopez served L.L. with a
subpoena compelling her to testify. L.L. moved to quash the subpoena
on the ground that forcing her to testify at the preliminary hearing
would be “unreasonable” in light of her statutory and constitutional
rights as a victim. Lopez responded that “[c]rime victims do not have
a right under Utah law to refuse to testify at court hearings when they
have been lawfully served with a subpoena.” The court took L.L.’s
motion under advisement and proceeded with the preliminary
hearing.
¶10 In the State’s case-in-chief, both the responding officer and
investigating detective testified. Lopez cross-examined both. The
State then played a video recording of L.L.’s CJC interview and
introduced the results of L.L.’s sexual assault exam.
¶11 Once the State rested, the court heard arguments on L.L.’s
motion to quash. Lopez argued that he was not required to explain
what he expected L.L.’s live testimony to provide because he was
“entitled” to “find out some more of the details” even if L.L.’s
testimony ultimately supported rather than undermined probable
cause.
¶12 The court agreed with Lopez and denied the motion to quash,
holding that the subpoena was “not unreasonable under the facts and
circumstances of this case.” In particular, it noted L.L.’s “mature
demeanor” and the fact that the courtroom would be relatively empty.
The court admitted that it did not “see a likely basis that questioning
the child victim in this case would defeat probable cause . . . where the
State has met its burden for bindover during its prima facie case,” but
held that the defendant “need not show a particular likelihood that
calling the child victim will defeat probable cause prior to exercising
his right to call the child victim.” The court justified its decision by
reasoning that, under the low probable cause standard, “if defendants
were required to make such a showing prior to subpoenaing and
questioning witnesses, the Court would be required to quash defense
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5 UTAH CODE § 76-5-402.1.
6 Id. § 76-5-404.1(4).
7 Id. § 32B-4-403.
5
STATE v. LOPEZ
Opinion of the Court
witnesses’ subpoenas in every case and defendants’ right to call
witnesses under rule 7B . . . would be illusory.”8 Still, the court
modified the subpoena so that Lopez would remain in the holding cell
while L.L. testified, and it indicated that it might make further
accommodations later on.
¶13 The parties agreed to continue the proceedings and both L.L.
and the State petitioned for interlocutory review of the denial of the
motion to quash. L.L. also filed a timely notice of direct appeal. We
provisionally granted L.L.’s interlocutory appeal, granted the State’s,
and consolidated them with L.L.’s direct appeal (deferring a
determination on our jurisdiction over the direct appeal).
B. Nielsen
¶14 The State’s probable cause statement alleges that Nielsen
“engaged in sex acts with his daughter, A.N.” Specifically, the State
claims that in a forensic interview at the CJC, A.N. described a
“naughty game” that she and Nielsen would play on a bed. In this
game, Nielsen would allegedly touch A.N.’s “bottom” with a “part”
that was “round,” the “color of skin,” and close to his belly button, as
well as touch A.N. between her legs with his hands. The State is
charging Nielsen with two counts of aggravated sexual abuse of a
child with a prior grievous sex offense.9
¶15 Prior to the preliminary hearing, Nielsen moved to subpoena
various witnesses (including A.N.), while the State moved to admit
A.N.’s CJC interview and quash her subpoena. In opposing the latter
motion, Nielsen argued that while he had an express right to call
witnesses under rule 7B of the Utah Rules of Criminal Procedure and
article I, section 12 of the Utah Constitution, nothing in the rules or
constitution granted victims a right to “avoid legal process” or “not
be required to testify.” He also argued that subpoenaing A.N. would
not destroy the State’s ability to use reliable hearsay at preliminary
hearings in its case-in-chief.
_____________________________________________________________
8 Elsewhere, however, the court also expressed the view that
quashing a subpoena might be appropriate “where it’s purely and
entirely speculative about whether or not a witness’s testimony could
potentially defeat bindover, and we [a]re dealing with a very, very
young child where it [i]s apparent to the Court that it would be a
traumatic experience for the alleged victim in the case to testify.”
9 UTAH CODE § 76-5-404.1(4). At the time, Nielsen was on parole
for a prior conviction of aggravated sexual abuse of a child.
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¶16 The court began the preliminary hearing by granting the
State’s motion to quash the A.N. subpoena. In so doing, the court cited
Utah’s policy of allowing reliable hearsay in preliminary hearings as
laid out in rules 7B and 15.5 of the Utah Rules of Criminal Procedure,
rule 1102 of the Utah Rules of Evidence, article I, section 12 of the Utah
Constitution, and this court’s opinion in State v. Timmerman, 2009 UT
58, 218 P.3d 590. Nielsen objected to this ruling, asserting that “[n]o
witness except [A.N.] can eviscerate and make incredible the State’s
alleged claims to probable cause,” that “[w]ithout context, the State’s
inference of the ‘naughty game’” would “stretch the legal fabric past
it[]s sure point,” and that he had a right to “test the State’s evidence.”
But Nielsen never explained what clarification he expected A.N. to
offer, and the court reaffirmed its ruling.
¶17 The State then called the forensic interviewer, A.N.’s mother,
and the investigating detective to testify. The interviewer explained
how he had avoided asking leading questions or suggesting A.N.’s
answers. A.N.’s mother testified that Nielsen was alone with A.N.
sometimes. The investigating detective testified that A.N.’s
step-grandmother had first reported the abuse to the police. Nielsen
cross-examined all these witnesses, but never about the content of
A.N.’s CJC interview or the manner in which it was conducted.10
Finally, the State introduced Nielsen’s 2005 conviction for aggravated
sexual abuse of a child.
¶18 At the close of the preliminary hearing, Nielsen offered no
evidence. Instead, he asked that the magistrate hear argument on the
“strengths and weaknesses” of the CJC video once he (Nielsen) had
seen the video and conferred with counsel “as to the presence or lack
of presence of probable cause.” The State and the court agreed. But
before the next scheduled hearing could occur, Nielsen obtained new
counsel, who asked the court to clarify its ruling on the motion to
quash so that Nielsen could have a clean record on which to seek
interlocutory appeal of the decision pre-bindover. In a telephone
conference, defense counsel admitted that “one of the difficult issues”
in the case was that they did not know “precisely what [A.N.] would
say.”
¶19 The magistrate then issued a written ruling reaffirming the
original decision, holding that “[d]efendant’s assertion that he has an
unrestrained right to call A.N. as a witness at his preliminary hearing
_____________________________________________________________
10Nielsen asked the forensic interviewer about his notes, for
example, but not his questioning of A.N.
7
STATE v. LOPEZ
Opinion of the Court
is entirely inconsistent with the overall intent expressed in the rules
and statutes governing preliminary hearings,” and that the purpose
of the Victims’ Rights Amendment was to “excuse victims from
having to appear at the preliminary examination.” In particular, the
court noted victims’ constitutional rights to “be treated with fairness,
respect, and dignity, and to be free from harassment and abuse
throughout the criminal justice process.” UTAH CONST. art. I,
§ 28(1)(a). The court also concluded that if Nielsen’s subpoena were
“characterized as an effort to exercise his right to cross-examination,”
then “Timmerman [2009 UT 58] and Crawford [v. Washington, 541 U.S.
36 (2004)] have explicitly rejected that argument.”
¶20 Nielsen petitioned for interlocutory review of the order,
which we granted. As the parties had agreed, the magistrate stayed
the proceedings and delayed any decision on bindover.
II. L.L.’S RIGHT TO APPEAL
¶21 A threshold question in the Lopez case concerns the proper
avenue for challenging a decision on a motion to quash a defendant’s
preliminary-hearing subpoena. Lopez’s alleged victim, L.L., filed a
direct appeal of right, apparently on the theory that the decision in the
Lopez case was effectively “final” under our law. As an apparent
backup, L.L. also petitioned for interlocutory appeal—a petition
which we “provisionally” granted, subject to briefing on whether L.L.
has standing to seek appellate review.
¶22 We undoubtedly have jurisdiction to hear the case, having
granted the State’s petition for interlocutory appeal. See UTAH CODE
§ 78A-3-102(3)(h) (“The Supreme Court has appellate jurisdiction . . .
over . . . interlocutory appeals from any court of record involving a
charge of a first degree or capital felony.”). And L.L. clearly has both
the standing and right to pursue an interlocutory appeal from the
denial of her motion to quash, as she would be forced to testify
otherwise and has a statutory right to seek an appeal from an
“[a]dverse ruling[]” on her motion “under the rules governing
appellate actions.” UTAH CODE § 77-38-11(2)(b).11 Yet L.L. urges us to
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11 See also Haik v. Jones, 2018 UT 39, ¶ 18, 427 P.3d 1155 (holding
that the traditional standing test “requires a plaintiff to show some
distinct and palpable injury that gives rise to a personal stake in the
outcome of the dispute.” (citation and internal quotation marks
omitted)); State v. Brown, 2014 UT 48, ¶ 16, 342 P.3d 239 (holding that
“[t]he traditional parties to a criminal proceeding are the prosecution
and the defense,” but that “does not eliminate the possibility that a
(continued . . .)
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decide whether she also has a right to file a direct appeal, emphasizing
the upsides of our providing clarity on the matter.
¶23 We agree with the need to address this issue but disagree
with the notion that L.L. has a right to a direct appeal. Clarity in our
articulation of the law of appellate jurisdiction is important. See Utah
Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT 86,
¶ 16, 293 P.3d 241 (explaining that “certainty is critical” and “bright-
line rules” are helpful on matters of appellate jurisdiction). And for
that reason we exercise our discretion to resolve the question
presented despite the fact that our decision is not required.
¶24 We conclude, however, that the proper mechanism for appeal
in this circumstance is a petition for interlocutory appeal. Our rules,
as interpreted in our case law, provide only for a discretionary
petition for interlocutory appeal, not a direct appeal of right.
¶25 Federal case law endorses the notion of a “collateral order”
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546–47
(1949). This doctrine treats as final (and appealable) a ruling that is
otherwise interlocutory but conclusively determines a “claim[] of
right” that is ”separable from” and “collateral to” the underlying
action, and that would be “effectively” unreviewable on appeal from
a final judgment. Id. at 546. The terms and conditions of this doctrine
could potentially be established here, where the refusal to quash a
subpoena compelling victim testimony is conclusive and separate
from the criminal charges against the accused and could be deemed
“effectively” unreviewable on appeal from a final judgment. But we
have thus far declined to adopt the collateral order doctrine as a
matter of Utah law. See Mecham v. Frazier, 2008 UT 60, ¶ 12, 193 P.3d
630 (“[I]n Utah, there is no collateral order doctrine.”); Tyler v. Dep’t of
Human Servs., 874 P.2d 119(Utah 1994) (per curiam) (declining to
adopt the federal collateral order doctrine on the ground that Utah
law provides sufficient avenues for obtaining review of nonfinal
orders). And we have identified three specific avenues for appeal
from a nonfinal judgment in our courts: petition for interlocutory
appeal under appellate rule 5, certification under civil rule 54(b), and
petition for extraordinary relief under civil rule 65B(e). Tyler, 874 P.2d
at 120. We have determined that these avenues provide Utah courts
_____________________________________________________________
victim may qualify as a limited-purpose party—with standing to
assert a claim”); State v. Casey, 2002 UT 29, ¶ 22, 44 P.3d 756(recognizing that “crime victims possess the right to appeal rulings on
motions related to their rights as a victim”).
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STATE v. LOPEZ
Opinion of the Court
with “ample power” to consider granting “immediate review” where
“appropriate.” Id. (“Our rules allowing discretionary review provide
parties an opportunity to convince an appellate court that the issue
raised is so important that review prior to full adjudication of the case
is justified or that the order will escape review altogether if an appeal
is not allowed.”).
¶26 These principles control our decision here. There is no final
judgment in the case before us on review—indeed, the case is at a very
preliminary stage. For that reason, the appellate avenues available to
L.L. are those set forth under our case law.12 L.L accordingly has no
direct appeal available of right and is limited to a discretionary appeal
under appellate rule 5. Because she properly pursued that avenue and
undoubtedly has standing, we affirm our jurisdiction to hear her
appeal in addition to the State’s.
III. THE STANDARD FOR JUDGING THE QUESTIONS
PRESENTED ON APPEAL
¶27 We turn next to the standard for judging a motion to quash a
subpoena directed to an alleged victim in a preliminary hearing. This
is a complex question of first impression that requires us to balance
defendants’ rights under our rules and constitution against victims’
rights under the same—in particular, the Victims’ Rights Amendment
adopted in 1995.
¶28 In asserting a right to subpoena their alleged victims to testify
at their preliminary hearings, the defendants rely first on rule 7B(a) of
our rules of criminal procedure—a provision that states that a
defendant in a preliminary hearing “may testify under oath, call
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12 Our cases have recognized a direct appeal of right from the entry
of at least one form of non-final order—an order denying a motion to
intervene. See Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT
17, ¶ 17, 156 P.3d 782; Commercial Block Realty Co. v. U.S. Fid. & Guar.
Co., 28 P.2d 1081, 1082 (Utah 1934). But this case does not involve that
kind of non-final order, and L.L. has neither cited these cases nor
suggested that they are implicated by the denial of a motion to quash.
For that reason we need not and do not decide whether or how our
cases on intervention may be reconciled with our general rejection of
a collateral order doctrine. Instead we hold that L.L. has not
established a right to an appeal of right in a case like this one. And we
leave any questions about our precedent on denial of a motion to
intervene for a case in which these cases are squarely presented and
briefed by the parties.
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witnesses, and present evidence.” They then invoke their right to
“compulsory process” under article I, section 12 of the Utah
Constitution.13
¶29 The magistrate in the Lopez case endorsed the defendants’
general view. In denying the motion to quash, the magistrate noted
that Lopez had an “explicit right to call witnesses” under rule 7B(a)
and concluded that no constitutional provision, statute, or procedural
rule “explicitly provides that a child sex abuse victim cannot be called
to testify at a preliminary hearing.” The magistrate acknowledged that
it could not “see a likely basis” for concluding “that questioning the
child victim in this case would defeat probable cause . . . where the
State has met its burden for bindover during its prima facie case.” But
it nonetheless ruled that Lopez was not required to “show a particular
likelihood that calling the child victim [would] defeat probable cause
prior to exercising his right to call the child victim.” In light of the
“low probable cause standard,” the magistrate thought that “if
defendants were required to make such a showing prior to
subpoenaing and questioning witnesses, the Court would be required
to quash defense witnesses’ subpoenas in every case and defendants’
right to call witnesses under rule 7B . . . would be illusory.” The court
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13 In the proceedings below, Lopez did not even quote the
Compulsory Process Clause, opting instead to make a vague reference
to article I, section 12 of the Utah Constitution. This is insufficient. See
Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196 (“A party must
cite the legal authority on which its argument is based and then
provide reasoned analysis of how that authority should apply in the
particular case . . . .”). We address the issue only with respect to
Nielsen, since he did grapple with and make an argument respecting
the text of the Compulsory Process Clause.
On appeal, Lopez—and, in more vague terms, Nielsen—also seek
to base their right to compel testimony of the alleged victims in the
Due Process Clause. But neither Lopez nor Nielsen preserved this
claim below—either in their memoranda opposing the motions to
quash the subpoenas or in argument before the court. Lopez’s counsel
did mention “due process” once while arguing in the court below, but
that was in connection with an argument over a defendant’s right to a
preliminary hearing. And Nielsen made only a vague insistence that
his subpoena protected a “substantial right.” These vague allusions to
due process are not enough to preserve the due process claim pursued
in the briefs on appeal. And we decline to reach this claim on
preservation grounds.
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STATE v. LOPEZ
Opinion of the Court
thus recognized its authority to “quash or modify [a] subpoena if
compliance would be unreasonable” under the terms of criminal rule
14(a)(2), but held that the subpoena at issue was “not unreasonable
under the facts and circumstances of [the] case,” including the
“mature demeanor” of the alleged victim and the fact that the
courtroom would be relatively empty during the preliminary hearing.
Still, the court modified the subpoena by requiring that Lopez remain
in a holding cell while L.L. testified and indicating that further
accommodations might be added as required.
¶30 The court in the Nielsen case granted the motion to quash. In
so doing, the magistrate concluded that Nielsen’s “assertion that he
has an unrestrained right to call” an alleged victim “as a witness at his
preliminary hearing is entirely inconsistent with the overall intent
expressed in the rules and statutes governing preliminary hearings.”
The court also cited Utah Rule of Evidence 1102(b)(7) and Utah Rule
of Criminal Procedure 15.5, which open the door to the admission of
hearsay testimony by victims under fourteen years of age in certain
circumstances.14 It further held, quoting State v. Nguyen, that these
rules are aimed at “prevent[ing] child victims from being further
traumatized by the experience of testifying of their abuse in court.”
2012 UT 80, ¶ 22, 293 P.3d 236. And it noted that article I, section 28 of
the Utah Constitution provides that “victims of crime have their own
independent rights to justice and due process, and demands that they
‘be treated with fairness, respect, and dignity, and to be free from
harassment and abuse throughout the criminal justice process.’”
Finally, the court ruled that to the extent the Nielsen subpoena was an
attempt “to exercise [a] right to cross[-]examination,” that argument
was foreclosed by State v. Timmerman, 2009 UT 58, ¶ 9, 218 P.3d 590,
and Crawford v. Washington, 541 U.S. 36, 40 (2004).
¶31 We appreciate and commend the work of the magistrates for
their careful attention to the difficult questions presented in the two
cases before us in this consolidated opinion. Their reasoned analysis
has helped to sharpen the questions presented for our review—
questions that require a careful balance of seemingly competing
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14 UTAH R. EVID. 1102(b)(7) (“For purposes of criminal preliminary
examinations only, reliable hearsay includes[] . . . a statement made
by a child victim of physical abuse or a sexual offense which is
recorded in accordance with Rule 15.5 of the Utah Rules of Criminal
Procedure”); UTAH R. CRIM. P. 15.5 (laying out the proper procedures
for recording such testimony).
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provisions of law and that have never before been considered by this
court.
¶32 We conclude that the key to balancing these various
provisions is the insight that any general ability a defendant may have
to compel his alleged victim to testify in a preliminary hearing must
be understood in light of the court’s authority to “quash or modify [a]
subpoena if compliance would be unreasonable.” UTAH R. CRIM. P.
14(a)(2). And we hold that that reasonableness inquiry must account
for a range of limitations on a defendant’s ability to compel an alleged
victim to testify—the constitutionally limited purpose of a
preliminary hearing, the State’s ability to rely on reliable hearsay, the
low bar that applies in a decision to bind a defendant over for trial,
and other victim protections set forth in the 1995 Victims’ Rights
Amendment to the Utah Constitution. With these provisions in mind,
we hold that once the State has used a victim’s reliable hearsay to
make a prima facie showing of probable cause, a subpoena compelling
the victim to give additional, live testimony will survive a motion to
quash only if the defendant demonstrates that the subpoena is
necessary to the presentation of specific evidence that is reasonably
likely to defeat the showing of probable cause.
¶33 We develop the basis for our holdings in the paragraphs
below. We first discuss a defendant’s ability to call witnesses at a
preliminary hearing and identify an important limitation—the power
of a court to quash a subpoena where “compliance would be
unreasonable.” We then consider a series of provisions in our law that
inform the inquiry into the reasonableness of a subpoena compelling
an alleged victim at a preliminary hearing. And we conclude by
articulating the governing standard in greater detail.
A. The Defendant’s Ability to “Call Witnesses” at a Preliminary
Hearing
¶34 The threshold question concerns the existence of an alleged
“right” to subpoena a witness to testify at a preliminary hearing.
Defendants’ first-cited basis for the existence of such a “right” is
criminal rule 7B. That rule governs preliminary hearings. It provides
in relevant part that “[a]t the conclusion of the state’s case, the
defendant may testify under oath, call witnesses, and present
evidence.” UTAH R. CRIM. P. 7B(a) (emphasis added). The Lopez court
cited this language, noted the absence of an “explicit[]” protection for
alleged victims, and concluded that the “right” to “call witnesses”
would be “illusory” if it were conditioned on a requirement of proof
of a “particular likelihood” that a subpoenaed witness would defeat
probable cause.
13
STATE v. LOPEZ
Opinion of the Court
¶35 Defendants also invoke the Compulsory Process Clause of
article I, section 12 of the Utah Constitution. They note that this
provision states that “the accused shall have the right” to “compulsory
process to compel the attendance of witnesses” in “criminal
prosecutions.” UTAH CONST. art. I, § 12 (emphasis added). And they
assert that this provision applies to a preliminary hearing, presumably
as the first step in a “criminal prosecution[].”15 Id.
¶36 The State and Lopez’s alleged victim (L.L.) challenge this
latter proposition. They contend that the constitutional compulsory
process right applies with limited force, if at all, in a preliminary
hearing—especially after the adoption of the Victims’ Rights
Amendment. They likewise challenge the breadth of any rule-based
right to “call witnesses” at a preliminary hearing, asserting that rule
7B(a) says only that the defendant “may” call witnesses, and
contending that any such authority must be limited by other
provisions of the criminal rules and by the terms and conditions of the
Victims’ Rights Amendment to the Utah Constitution.
¶37 The State and L.L. cite our decision in State v. Timmerman,
2009 UT 58, 218 P.3d 590, in support of their position. They note that
in that case we held that the 1995 Victims’ Rights Amendment “clearly
removed confrontation rights from the preliminary hearing stage” of a
criminal case and overruled our prior decision in State v. Anderson, 612
P.2d 778, 784–85 (Utah 1980), on this point. Timmerman, 2009 UT 58,
¶ 15 (emphasis added). And the State asks us to hold that the cited
legal grounds for the purported right to compel an alleged victim to
testify at a preliminary hearing are nothing more than an attempted
end run around Timmerman.
¶38 The governing provision of the Victims’ Rights Amendment
expressly states that “[n]othing in this constitution shall preclude the
use of reliable hearsay evidence as defined by statute or rule in whole
or in part at any preliminary examination to determine probable cause
. . . if appropriate discovery is allowed as defined by statute or rule.”
_____________________________________________________________
15 Defendants’ amicus, the Utah Association of Criminal Defense
Lawyers (UACDL), makes a similar argument by pointing to Utah
Code section 77-1-6(1)(e), which provides that “[i]n criminal
prosecutions the defendant is entitled . . . [t]o have compulsory
process to insure the attendance of witnesses in his behalf.” UACDL
asks us to uphold the statutory right to “compulsory process” and to
hold that it applies at the preliminary hearing stage. Our analysis on
the Compulsory Process Clause applies with equal force to this
statutory argument.
14
Cite as: 2020 UT 61Opinion of the Court
UTAH CONST. art. I, § 12. Citing this provision, the State and L.L. ask
us to conclude that there can be no blanket “right” to subpoena victim
testimony at a preliminary hearing. They argue that if defendants can
compel their alleged victims to undergo adverse questioning simply
by calling them as their “own” witnesses, then the State’s authority to
rest on reliable hearsay will never be of any practical effect, and we
will rob the constitutional proviso of its intended effect.
¶39 We think both sides overplay their hand to some degree. The
cited provision of the Victims’ Rights Amendment, for one thing, is
not dispositive. It says only that “[n]othing in this constitution shall
preclude the use of reliable hearsay” in the determination of
“probable cause.” Id. (emphasis added). That leaves room for the
revival of a right to compel and confront witnesses as a matter of
legislative or judicial policy. See id. (allowing the “use of reliable
hearsay evidence as defined by statute or rule” (emphasis added)). And
that leaves open the questions whether and to what extent the terms
of the code or our rules preserve a defendant’s right to subpoena
witnesses.
¶40 Yet the governing rules and statutes cannot be read to
enshrine an unfettered “right” to subpoena victim witnesses to testify
at a preliminary hearing. Rule 7B(a) speaks to the general authority of
a defendant to make his own case at a preliminary hearing. See UTAH
R. CRIM. P. 7B(a) (“At the conclusion of the state’s case, the defendant
may testify under oath, call witnesses, and present evidence.”). And
the ability to “call witnesses” at least arguably encompasses the
general power to subpoena witnesses.16 But any such power is
expressly subject to limitation—by the rules themselves as well as the
terms and conditions of the Utah Constitution. The threshold
limitation appears in criminal rule 14(a)(2), which provides that “[t]he
court may quash or modify [a] subpoena if compliance would be
unreasonable.” Id. 14(a)(2) (emphasis added). This reasonableness
standard vests a degree of discretion in the court. But that discretion
must be exercised in light of legal standards that speak specifically to
the question presented. And here those standards include provisions
that appear both elsewhere in our rules and in the terms and
conditions of the 1995 Victims’ Rights Amendment. See UTAH R. CRIM.
_____________________________________________________________
16Alternatively, the ability to “call witnesses” may just encompass
the defendant’s right to present evidence through witnesses who
agree to appear. We do not resolve this question conclusively here
because it is unnecessary to our decision.
15
STATE v. LOPEZ
Opinion of the Court
P. 14 advisory committee notes (noting the need to consider “a
victim’s state constitutional right ‘[t]o be treated with fairness, respect,
and dignity, and to be free from harassment and abuse throughout the
criminal justice process’” in assessing the parallel terms of rule 14(b)
(alteration in original)).
¶41 We elaborate on the governing limits informing the
“unreasonableness” inquiry in Part III(B). Here, we conclude only that
(a) neither Timmerman nor the constitutional proviso that “[n]othing
in this constitution shall preclude the use of reliable hearsay,” UTAH
CONST. art I, § 12, forecloses limitations on the admissibility of hearsay
set forth by rule or statute, but (b) a subpoena of a victim witness may
be quashed as “unreasonable” in light of governing provisions of our
law that speak to the limited purpose of the preliminary hearing, the
low burden of proof that governs the bindover decision, and victims’
rights under the Utah Constitution.
¶42 These holdings preserve a meaningful, non-illusory role for a
defendant’s ability to “call witnesses” at a preliminary hearing under
criminal rule 7B.17 They also obviate the need for us to conclusively
resolve the question whether a defendant has a rule-based, statutory,
or constitutional “compulsory process” right to subpoena witnesses
to testify at a preliminary hearing. We can assume for the sake of
argument that such a right exists because even if it does, there is no
basis for the conclusion that it is categorical or unlimited. Defendants
and their amicus identify no persuasive basis for such a
determination. For that reason, we hold that any authority a
defendant has to subpoena witnesses at a preliminary hearing—
whether by rule, statute, or the constitution—is subject to rule
14(a)(2)’s “unreasonableness” limitation. And we conclude that the
unreasonableness inquiry must be performed in light of the
provisions set forth below.
_____________________________________________________________
17 We see at least two potential problems with the Lopez court’s
conclusion that a decision granting the motion to quash would render
a defendant’s ability to “call witnesses” illusory. First, it assumes that
“call” equates to “compel.” See supra ¶¶ 40, 40 n.16. Second, it
conflates “witnesses” in general with “alleged victims.” A defendant
may be limited in his ability to subpoena his alleged victim (for the
reasons laid out in this opinion) without being deprived of a right to
“call witnesses” at all.
16
Cite as: 2020 UT 61Opinion of the Court
B. Legal Principles Informing the Inquiry into “Unreasonableness”
¶43 The inquiry into the unreasonableness of a subpoena directed
at an alleged victim in a preliminary hearing is informed by a series
of important tenets of Utah law.
1. The Purpose of the Preliminary Hearing
¶44 The first relevant principle is found in limitations on the
purpose of the preliminary hearing. Prior to the ratification of the 1995
Victims’ Rights Amendment to the Utah Constitution, this court had
held that a preliminary hearing was at least in part “a discovery
device”—a “means by which” the defendant could “discover and
preserve favorable evidence.” State v. Anderson, 612 P.2d 778, 784
(Utah 1980). But that “ancillary” function of the preliminary hearing,
id., was eliminated by the constitutional amendment ratified in 1995.
Under that amendment, the “function” of the preliminary hearing “is
limited to determining whether probable cause exists unless
otherwise provided by statute.” UTAH CONST. art. I, § 12. This
amendment was thus a direct override of Anderson on this point. See
State v. Goins, 2017 UT 61, ¶ 44, 423 P.3d 1236 (acknowledging that
past cases might need to be revisited if they were decided before the
1995 amendment “limited the purpose of preliminary hearings”). The
amendment eliminated the ancillary discovery purpose of the
preliminary hearing and limited that proceeding to the determination
of probable cause.
2. Hearsay Evidence in the Preliminary Hearing
¶45 The 1995 amendment also established that the Utah
Constitution would not stand as a bar to “the use of reliable hearsay
evidence as defined by statute or rule . . . at any preliminary
examination to determine probable cause.” UTAH CONST. art I, § 12.
This was again an override of an element of our decision in Anderson.
Anderson had established a confrontation right at the preliminary
hearing—a right “not only of testing the recollection and sifting the
conscience” of an adverse witness, but also “of compelling him to
stand face-to-face” with the defendant in court. 612 P.2d at 785. But
by “allowing hearsay” evidence to establish probable cause, the 1995
amendment “removed confrontation rights from the preliminary
hearing stage and overruled Anderson’s holding on this point.” State v.
Timmerman, 2009 UT 58, ¶ 15, 218 P.3d 590. This left the “[a]dmission
of evidence at preliminary hearings . . . exclusively governed by the
reliable hearsay language in the Utah Constitution and rule 1102 of
the Utah Rules of Evidence.” Id. ¶ 16. And rule 1102, in turn, defines
“reliable hearsay” to encompass “statement[s] made by a child victim
17
STATE v. LOPEZ
Opinion of the Court
of physical abuse or a sexual offense” that are “recorded in accordance
with [r]ule 15.5 of the Utah Rules of Criminal Procedure.” UTAH R.
EVID. 1102(b)(7).
3. The Burden of Proof at the Preliminary Hearing
¶46 The State bears the burden of establishing the basis for
binding a defendant over for trial. State v. Jones, 2016 UT 4, ¶ 11, 365
P.3d 1212. But the burden is “light.” Id. ¶ 12. The only “question at the
preliminary hearing is whether the prosecution has presented
evidence sufficient to sustain ‘probable cause.’” Id. To make this
showing, the prosecution need not produce evidence sufficient to
“support[] a finding of guilt at trial” or even to “eliminate alternative
inferences that could be drawn from the evidence in favor of the
defense.” Id. ¶ 13 (citations and internal quotation marks omitted). All
that is necessary is a presentation of “evidence sufficient to support a
reasonable belief that an offense has been committed and that the
defendant committed it.” State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d
1204 (citation and internal quotation marks omitted).
¶47 Accordingly, it is generally “inappropriate for a magistrate to
weigh credible but conflicting evidence at a preliminary hearing . . . .”
State v. Virgin, 2006 UT 29, ¶ 24, 137 P.3d 787. This hearing “is not a
trial on the merits” but “a gateway to the finder of fact.” Id. (citation
and internal quotation marks omitted). With this in mind, the
magistrate may “disregard or discredit” evidence only if it is “wholly
lacking and incapable of creating a reasonable inference regarding a
portion of the prosecution’s claim.” Id. (citation and internal quotation
marks omitted).
¶48 Under this low bar, it may be difficult for the defense to
overcome a prima facie showing of probable cause. Even an alleged
victim’s recantation may sometimes be insufficient, given that the
magistrate “must view all evidence in the light most favorable to the
prosecution and draw all reasonable inferences in favor of the
prosecution.” See Schmidt, 2015 UT 65, ¶ 4 (footnote and internal
quotation marks omitted). The governing standard is the one we
articulated in Schmidt: The magistrate is not “to evaluate the totality
of the evidence in search of the most reasonable inference at a
preliminary hearing”; instead, the “magistrate has discretion to
decline bindover only where the facts presented by the prosecution
provide no more than a basis for speculation.” Id. ¶ 18 (citations and
internal quotation marks omitted).
4. The Rights of Victims at the Preliminary Hearing
¶49 Finally, crime victims have extensive rights in criminal justice
proceedings in Utah. The 1995 amendment to the Utah Constitution
18
Cite as: 2020 UT 61Opinion of the Court
established a right of crime victims “[t]o be treated with fairness,
respect, and dignity,” and a right to “be free from harassment and
abuse throughout the criminal justice process.” UTAH CONST. art I,
§ 28(1)(a). These rights are further delineated by statute. Under Utah
Code section 77-38-2, the victim’s right to “fairness” encompasses the
right to be treated “reasonably, even-handedly, and impartially,” id.
§ 77-38-2(3), the right to be free from “abuse” is a right to be free from
treatment that would “injure, damage, or disparage,” id. § 77-38-2(1),
and the right to be free from “harassment” is the right to be free from
being treated “in a persistently annoying manner,” id. § 77-38-2(4).
Also relevant to this case is the neighboring provision that states that
“[c]hildren have the right to protection from physical and emotional
abuse during their involvement with the criminal justice process.” Id.
§ 77-37-4(1).
C. The Standard for Determining Whether a Subpoena of a Victim
Witness at a Preliminary Hearing is “Unreasonable”
¶50 The above sets the stage for our articulation of the standard
for judging whether a subpoena directed to an alleged victim at a
preliminary hearing is unreasonable. Four principles inform our
statement of the standard: (1) the sole purpose of the preliminary
hearing is the determination of probable cause; (2) reliable hearsay
evidence—including statements made by a child victim of abuse
under the terms of rule 1102—may be sufficient to establish probable
cause; (3) the probable cause standard—requiring evidence sufficient
to support a reasonable belief that an offense has been committed and
that the defendant committed it—leaves little room for the magistrate
to judge witness credibility and is difficult for a defendant to
overcome; and (4) crime victims have a right to be treated with
“fairness, respect, and dignity,” and to “be free from harassment and
abuse throughout the criminal process.” UTAH CONST. art I, § 28(1)(a).
¶51 These legal principles foreclose the defendants’ assertion of a
“right” to compel a victim to testify at a preliminary hearing without
showing how such testimony could affect the prosecution’s prima facie
showing of probable cause. A subpoena in service of such a right
would be unreasonable in light of the principles set forth above. It
would exceed the bounds of the constitutional purpose of the
preliminary hearing, effectively override the law endorsing the
sufficiency of hearsay evidence in establishing probable cause,
supersede the governing standard for establishing probable cause,
and ultimately intrude on the constitutional and statutory rights of
victims.
19
STATE v. LOPEZ
Opinion of the Court
¶52 The last point is sustained by extensive social science material
put forward in the briefing submitted by L.L. That material identifies
some patterns that typically appear in the interactions between a
perpetrator and victim of child sex abuse: a perpetrator who
“desensitize[s]” a child victim after “befriend[ing]” her by increasing
levels of abuse from minimal acts to more “invasive” ones; a child
who becomes so emotionally traumatized that she finds it difficult to
resist or disclose the abuse; and a period of delay in reporting that
may cause the child to feel somehow responsible for the abuse or
believe that it has become consensual. See Thomas D. Lyon & Julia A.
Dente, Child Witnesses and the Confrontation Clause, 102 J. CRIM. L. &
CRIMINOLOGY 1181, 1203–12 (2012). The social science literature also
establishes that the experience of testifying about past abuse may
cause substantial emotional trauma for victims of child sex abuse. See
Jim Henry, System Intervention Trauma to Child Sexual Abuse Victims
Following Disclosure, 12 J. INTERPERSONAL VIOLENCE 499, 501, 508
(1997). And it indicates that forcing such victims to “continually
repeat their abuse stories” can “connect[] children with painful
memories and may reinforce the internalization of guilt and shame
experienced in sexual abuse,” id. at 508, and “reduce the child’s
resilience and make the child more susceptible to distress.” L.
Christine Brannon, The Trauma of Testifying in Court for Child Victims of
Sexual Assault v. The Accused’s Right to Confrontation, 18 L. & PSYCHOL.
REV. 439, 442 (1994).
¶53 The above points are controlling. A defendant has the general
authority to “call witnesses” at a preliminary hearing, but a subpoena
compelling alleged victims to testify is per se “unreasonable” when it
seeks testimony that is immaterial to the probable-cause
determination, would obviate the legal sufficiency of hearsay
evidence, and would unnecessarily intrude on the rights of victims.
¶54 With this in mind, we conclude that the starting point for
assessing the reasonableness of a subpoena aimed at compelling an
alleged victim of sex abuse to testify at a preliminary hearing is a prima
facie determination of probable cause. See UTAH R. CRIM. P. 7B(a) (“At
the conclusion of the state’s case, the defendant may . . . call witnesses[]
and present evidence.” (emphasis added)). A decision on whether to
quash such a subpoena, in other words, should come after the
prosecution presents its case and the magistrate is able to determine
whether the prosecution has presented evidence that at that stage
would sustain a determination of probable cause. See id.; see also UTAH
CONST. art. I, § 12 (“Where the defendant is otherwise entitled to a
preliminary examination, the function of that examination is limited
to determining whether probable cause exists unless otherwise
20
Cite as: 2020 UT 61Opinion of the Court
provided by statute.”). If the magistrate determines that this is so, the
inquiry then turns to whether the subpoena of the alleged victim is
unreasonable. UTAH R. CRIM. P. 14(a)(2) (“The court may quash or
modify the subpoena if compliance would be unreasonable.”). That
assessment should be made on the basis of the defendant’s showing
that additional, live testimony from the victim is necessary to present
evidence on a specific point material to the probable-cause
determination, and that is reasonably likely to defeat the State’s prima
facie showing of probable cause.18
¶55 The above sequencing of this inquiry will best balance the
competing interests and rights of both the defendant and the alleged
victim. On one hand, it will preserve the defendant’s opportunity to
“call witnesses” under criminal rule 7B(a). On the other hand, it will
maintain the court’s power to quash a subpoena that would be
“unreasonable” as applied to a given victim after accounting for the
circumscribed function of the preliminary hearing, the low
probable-cause standard, and victims’ rights.
¶56 Our standard speaks to the grounds on which a subpoena
should be quashed as a matter of law—where a prima facie showing of
probable cause has been established through a victim’s reliable
hearsay, and where the defendant is unable to identify a need to
present additional, live testimony from the victim on a specific point
that is material to the probable-cause determination and reasonably
likely to defeat the State’s prima facie showing. But this standard is not
exhaustive. It should not be read to exclude other means and
measures that a court might undertake under criminal rule 14(a)(2).
That rule speaks of the power of the court to “quash or modify” a
subpoena “if compliance would be unreasonable.” Id. (emphasis
added). And the court may see a need to further modify or limit a
subpoena on a case-by-case basis.
IV. DISPOSITION
¶57 We now have only to dispose of the cases at issue. Applying
the above standard, we reverse the Lopez court and affirm the Nielsen
court.
¶58 In the Lopez case, the court denied the motion to quash on
the basis of an essentially unfettered right to subpoena witnesses
_____________________________________________________________
18 Such a showing would be difficult, if not impossible, for
example, where the grounds to be covered by the live witness could
just as effectively be presented by other means.
21
STATE v. LOPEZ
Opinion of the Court
under criminal rule 7B(a). That was error. We reverse that decision on
the ground that Lopez made no attempt to show that additional, live
testimony from the alleged victim was material to the probable-cause
determination—let alone that there was no other way to present that
evidence or that such testimony was reasonably likely to defeat the
State’s prima facie showing of probable cause. Instead, he claimed that
he did not need to justify the subpoena in any way—he was simply
“entitled” to “find out some more of the details,” even if L.L.’s
compelled testimony ultimately supported rather than undermined
the State’s probable-cause showing. Because Lopez refused to explain
why compelling L.L.’s testimony was necessary and reasonably likely
to defeat the State’s prima facie showing of probable cause, we reverse
the court’s denial of L.L.’s motion to quash.
¶59 We affirm the Nielsen court on similar grounds. Admittedly,
the Nielsen court granted the State’s motion to quash A.N.’s subpoena
at the start of the preliminary hearing, before the State had even
presented its evidence. But when Nielsen objected, he did not name
anything specific that he hoped A.N.’s testimony would provide. He
just baldly asserted that he was entitled to “test the State’s evidence.”
This point was further reinforced in a telephone conference in which
Nielsen’s counsel openly acknowledged that “one of the difficult
issues” in the case was that they did not know “precisely what [A.N.]
would say.”
¶60 Nielsen’s all-or-nothing position—that he had “an
unrestrained right” to call the alleged victim “as a witness at his
preliminary hearing”—was wrong. And the magistrate was
accordingly correct to grant the motion to quash under these
circumstances. We affirm the decision in the Nielsen case on that
limited basis, without any intent to influence any future bindover
decision under the probable cause standard.
V. CONCLUSION
¶61 These cases arise at the difficult intersection between the
rights of defendants and the rights of alleged victims in preliminary
hearings. We hold that any power a defendant has to compel a victim
witness to testify at a preliminary hearing is limited by the court’s
authority to quash unreasonable subpoenas. And we conclude that
that reasonableness inquiry must be informed by the standards that
govern preliminary hearings and the rights that our law guarantees
for crime victims.
22