This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Earlier this week, the Utah Supreme Court concluded that Utah's already overburdened criminal justice system is now going to be required to hold preliminary hearings for all Class A misdemeanor cases.
In State v. Hernandez, the court held that the Utah Constitution extended to criminal defendants a right to a preliminary examination not only (as is traditionally done) for felony cases, but also for Class A misdemeanors. The decision's harm to taxpayers and crime victims promises to be substantial.
Accordingly, the Utah Legislature should quickly send a constitutional amendment to the voters that would change the constitutional provision on which Hernandez relies.
In Hernandez, a criminal defendant charged with Class A misdemeanors argued that he was entitled to a preliminary hearing before the case could move forward. Under Utah's modern offense-classification system, preliminary hearings have never been held for such misdemeanors.
But in Hernandez, the Utah Supreme Court held that at the time of the state Constitution's adoption in 1896, preliminary hearings were available for any offense punishable by more than six months in jail. (A Class A misdemeanor is punishable by up to a year in jail.) The Court concluded that this practice for certain offenses in 1896 now applies to the initiation of Class A misdemeanors in 2011.
Without debating the decision's historical accuracy, it will immediately create a tremendous burden on the courts, police agencies and crime victims. Currently, it appears that somewhere in the neighborhood of 8,000 Class A misdemeanors are filed in Utah's courts annually. Today, those cases start by way of a "criminal information" that is, a charging document prepared by a prosecutor that is reviewed by a judge.
Under Hernandez, defendants in these thousands of cases will now be entitled to preliminary hearings. Those hearings can only be held if the taxpayers pay to expand the criminal justice system or if the system gives short shrift to its other business.
Hernandez promises to be especially harmful for crime victims. The decision will mean that some victims of, for example, that victims of misdemeanor sexual assaults or aggravated domestic violence will be required to testify twice once at the preliminary hearing and again at the trial.
Testifying at preliminary hearings can often be particularly difficult for victims because the crime has happened so recently. And defense attorneys sometimes unfairly question victims at preliminary hearings since the restraining influence of a jury is absent.
It might be worth forcing the taxpayers to pay millions of dollars and forcing crime victims to suffer through traumatizing cross-examination if something valuable were gained in return. But preliminary hearings are, as the name suggests, merely a preliminary review of the evidence to determine whether a case should be bound over for trial. Certainly for misdemeanor cases, that determination can be made as easily by a judge reviewing a criminal information as by hearing live witnesses.
Utah has used this system since at least 1978 without any noticeable complaint and it ought to be renewed. The Legislature ought to send to the voters a proposed constitutional amendment, giving the voters an opportunity to decide whether they want to saddle the courts with the constitutional requirement of holding new preliminary hearings in thousands of misdemeanor cases every year.
Utah prosecutors also ought to give consideration to ways of streamlining the existing preliminary hearing process.
In the federal courts and most other states, crime victims are not called to testify at preliminary hearings. Instead, judges make the bindover determination based on the testimony of a single police officer who briefly recounts the case file.
In 1994, Utah's voters passed the Victims' Rights Amendment to make Utah's preliminary hearings like the streamlined hearings in the federal system. But despite some progress in this area, too many victims and other citizen witnesses are still being forced to testify in person at preliminary hearings.
It is entirely appropriate to call victims and witnesses to testify and be cross-examined at trial. But when the issue is simply whether there is probable cause to bind over a defendant for trial, the U.S. Supreme Court has repeatedly held that the full-blown machinery of a criminal trial is not required.
Both Utah prosecutors and the Utah Legislature should take the occasion of the Hernandez decision to ensure that what is supposed to be a preliminary screening device is not converted into an undue obstacle to bringing guilty criminals to justice.
Paul G. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the University of Utah S.J. Quinney College of Law and a former federal judge.