Rules of Criminal Procedure

This proposed amendment should not be passed because it will violate defendant’s constitutional rights.
Article I, section 12 of Utah’s Constitution guarantees the right of the accused to “demand the nature and cause of the accusation against him.”
Our Supreme Court has held that this right “entitles the accused to be charged with a specific crime, so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.” State v. Burnett, 712 P.2d 260, 262 (Utah 1985).
This has always been the Court’s interpretation of Article I, section 12. In 1963, the Court noted the following regarding a defendant’s right to be charged with a specific crime:
“No apology can be offered for the defendant’s lack of honesty, nor for his disloyalty to his employer. As to transactions where it might be ascertained that he cheated others, he is undoubtedly guilty of wrong. But the manner in which he may be held accountable therefor is not our concern here.
In a criminal proceeding it is not sufficient to show merely that the accused has been dishonest, or that he is a cheater, or otherwise of bad character. He is entitled to be charged with a specific crime so that he may know the ‘nature and cause of the accusation against him.’ And the State must prove substantially as charged the offense it relies upon for conviction.
The judgment must stand or fall upon the proof, or lack thereof, of the crime with which the State charged the defendant, essayed to prove, and of which he stands convicted . . .” State v. Taylor, 378 P.2d 352, 353 (Utah 1963).
Just as no apology can be offered for a defendant’s bad acts, so too can no apology be offered for the State’s failure to perfect its case before prosecuting it.
I acknowledge that this is an idyllic position that demands a reasonable compromise. That compromise was made in the rule which this proposal seeks to amend. I know that new evidence sometimes arises during the investigation of a case, but it is not unreasonable to ask the State to conclude its investigation by the preliminary hearing!
The State of Utah has nearly unlimited resources available to them in the prosecution of criminal offenses. The State also has until, and through, the preliminary hearing to decide what charges the accused shall face. Furthermore, at the preliminary hearing the State can present as much, or as little, evidence as it sees fit. If the State feels that there might be more investigation necessary, fine, put on more evidence at the preliminary hearing and explore the case in more detail before submitting it to the magistrate for a bindover determination. But once submitted to the magistrate, that ought to be the end of the State’s ability to charge a defendant!
In juxtaposition with the State’s unlimited resources and multiple opportunities to investigate a case is the defendant who appears to defend himself against the State of Utah with as much, or as is most often the case as little, resources available to him (or to his court appointed attorney). These meager resources, and the rights wisely guaranteed by our State and Federal Constitutions, are all that stand between defendants and the prosecutorial arm of the State of Utah.
Please do not handicap defendants further by passing this amendment to rule 4.
It is the State’s burden to prove their case, and it is the defendant’s right to know what they are being charged with. The proposed rule change will ease the State’s burden, and violate this right of the accused. The proposed rule change will leave all criminal prosecutions a guessing game where a defendant’s right to demand the nature and cause of the allegation against him will never be secure. By doing so, it will violate article I, section 12.

I am concerned about what this proposed amendment means for a Defendant’s right to speedy trial. By rule, the Defendant is allowed to force the prosecution to trial within 120 days. If the prosecutor can amend after 90 days (which I know for a fact some prosecutors will, after settlement discussions appear to be failing), it gives the prosecutor the ability to give Defendant a “poison pill” with respect to the decision of whether to force the prosecutor to bring the matter to trial within the 120 days, because the Defendant now has to deal with new charges. This is especially concerning where Defendant is incarcerated, and every day the Defendant cannot get to trial is a day in jail.
SUGGESTION: If this amended rule is to be passed, I suggest the following three limitations to protect the right of speedy trial:
– The prosecutor may not amend or add unless (1) the Defendant waives the right to speedy trial within 120 days or (2) the prosecutor amends or adds charges within 30 days after filing.
– In no event may the prosecutor amend or add charges after a date is set for a preliminary hearing, unless the right to preliminary hearing is waived by the Defendant.
P.S.: It is noteworthy that Utah’s speedy trial rule is not as speedy as our sister states. California, for example, requires misdemeanors to be brought to trial within 30 days and felonies within 60 days if Defendant does not waive the statutory time.