Rules of Criminal Procedure – Comment Period Closed August 5, 2018

Provided are comments to specific proposed changes. No objection is intended for other proposed changes.

(1) Problematic language proposed: Striking “When a magistrate has good cause to believe” and replacing it with “If it appears from an affidavit filed by a party”.

The original language of the rule, subparagraph (a) (“When a magistrate has good cause to believe”), would allow for the judge to issue a material witness warrant for good cause. For example, a witness does not appear to testify at a 1- or 2-day trial. This change to subparagraph (a) would potentially require a recess/continuation of the trial, so a party could draft an affidavit, instead of the court expeditiously considering proffered information, proof of service, or statement under oath as to the grounds for a material witness warrant, from which it could find good cause.

(2) Problematic language proposed: “The witness shall be entitled to be represented by counsel. The court shall appoint counsel for an indigent witness if required to protect the rights of the witness.”

The justification for changing Rule 7C of the Utah Rules of Criminal Procedure is not necessarily accurate, depending on how the additional clause to subparagraph (b) is interpreted; the proposed changes do not always represent current practice, nor makes the appointment of counsel less clear in respect to witnesses in a criminal action.

As recent at 2 weeks ago, a Third District Court judge denied defense counsel’s motion to appoint counsel to 2 separate witnesses, at risk of being subject to a material witness warrant. [All witnesses could be considered to be at risk of being the subject of a material witness warrant (i.e., if they are not inclined to comply with a properly served subpoena or cannot be located or served].] The Third District judge relied on the arguments of the parties and the following:
“As for the facts asserted in the Defendant’s motion, in preparing for trial, the State intends to utilize its subpoena power in assuring its witnesses appear at trial. The State will only be requesting a material witness warrant if/when acquiring service of a subpoena on an individual witness has been attempted in good faith and failed (possible after multiple attempts), [when service of a subpoena is not possible (e.g., the location of a witness is unknown),] or if/when the properly served witness fails to appear when required [after proper service]. The Court will then pass upon the issue and determine whether a material witness warrant is justified and proper. Mentioning the use of a material witness warrant was not a threatened measure by the State in communicating with defense counsel, but rather a statement of purpose and procedure in attempting to secure the appearance of the two named witnesses…”
“Under Utah Law, a person is only eligible for appointment of counsel if they are (1) indigent and (2) are under ‘…arrest for or charged with a crime in which there is a substantial probability that the penalty to be imposed is confinement in either jail or prison…’ U.C.A. 77-32-302. The Utah Supreme Court has also held that “the Sixth Amendment right to appointed counsel attaches when an indigent defendant is charged with a felony . . . [or] in misdemeanor cases [] if the defendant actually has been imprisoned or received a suspended sentence.’ State v. Von Ferguson, 169 P.3d 423, 426–27 (Utah 2007).”

Under the proposed language change, counsel may argue the need to appoint counsel more routinely, even though the material witness has not been arrested, nor a material witness warrant even issued or considered. At a minimum, it should be clear that the court only considers this appointment after the witness has been arrested pursuant to a material witness warrant (i.e., because it is only at that stage that their liberty has been restricted; anytime prior to arrest; e.g., the witness may also simply comply with a properly served subpoena, or accept service, prior to a material witness warrant being issued or executed).

You would presume that the placement of this provision in subparagraph (b) would be sufficient to indicate the stage at which a court would consider appointment (i.e., only at a hearing, after arrest). However, without further clarification, it may create a potential ambiguity as currently worded/proposed, which then may fuel inappropriate motions and undue costs to the jurisdiction responsible for providing the appointed counsel (arguably prematurely in the process).

I would suggest either: (1) not including the additions to subparagraph (b); (2) clarify the provision being proposed in subparagraph (b); or (3) create a separate subparagraph in which clarifying language related to a court considering appointment of counsel to an indigent witnesses (i.e. to be considered after arrest, pursuant to a material witness warrant).