Rules of Criminal Procedure – Comment period closed November 13, 2020

Rule 10 line 13 – this line doesn’t read well. “If the defendant has been released pretrial prior to arraignment…” Is this supposed to be referring to pretrial release conditions? If it’s just referring to any release prior to a trial occurring, then it is redundant, since an arraignment is prior to trial. I also don’t think it should matter if the defendant fails to appear before or after arraignment, once he has been released. If the defendant has been released and fails to appear, shouldn’t a warrant of arrest be available?

In Rule 27, 27A, 27B the language switches back and forth between “any other individual, property and the community” and then in other paragraphs it says “any other person, property, or the community.” And then in Rule 27 it talks about posing “danger to the physical, psychological, or financial and economic safety or well-being….” Again, it seems that when considering the dangers, it is the same regardless of which paragraph it is in. So either refer back to the subsection in Rule 27, or incorporate the language so it is consistent across all of the rules.

Having now dealt with initial appearances under the new statue and some issues related to detention hearings, I think there are few things that could be improved. I apologize for having written something of a dense essay.

A. Notice of ability to make bail argument prior to the hearing

The first time a defendant is notified that she has a right to address bail or release is *during* the initial appearance. Utah R. Crim. P. 7(a)(4). By that point, there is no opportunity to prepare. The rule states that a pretrial status order must be addressed unless either party needs a continuance, giving no indication that the defendant has the right to address the court, request release, present evidence, and make arguments, nor does it indicate that the defendant has the right to be represented by counsel in addressing the pretrial status order. The defendant may not even know what the bail amount is until she is facing the judge.

This process clashes with both the constitutional principles of notice elaborated above and Utah caselaw regarding bail hearings. State v. Kastanis, 848 P.2d 673, 675 (Utah 1993) (referring to hearings for which bail may be denied: “Defendant must be given adequate notice to prepare for the bail hearing.”).

This problem has been noted in other jurisdictions, e.g. Schultz v. State, 330 F. Supp. 3d 1344, 1370 (N.D. Ala. 2018). In order for a defendant to prepare for the bail hearing, he must be given “constitutionally adequate notice.” Id. at 1370. Schultz elaborates that such a notice “must be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard, to insure that they are given a meaningful opportunity to present their case.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 349 (1976)) (quotation marks omitted).

Notice must also be given prior to the hearing, not at it. In Wolff v. McDonald, the U.S. Supreme Court held that notice to a parolee about a revocation proceeding was inadequate for three reasons: the notice was not written (it was given orally at the beginning of the hearing), the prisoner was not given the evidence to show what the revocation proceeding would be based on, and the notice did not explain the reasons for why the proceeding was initiated. 418 U.S. 539, 563-64 (1974). The Court held that written notice with sufficient information must be given 24 hours in advance to prepare for the proceeding. Id. The Court pointed out, “Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact.” Id. Such notice would be no less important for a pretrial detainee preparing to argue for his release.

Utah R. Crim. P. 4(c)(1) requires that defendants charged with felonies and class A misdemeanors be provided a written Information that gives the reasons for requesting a warrant. Because the information for requesting a warrant relates to the same factors as the bail determination, see Utah R. Crim. P. 9(a)(2)(C)(i)-(iv), the reasons would presumably tell a defendant what the court will use to determine whether bail should remain. But even still, the rule falls short of ensuring actual notice: it does not set forth how early the Information should be provided to the defendant and in reality, most in-custody defendants are not provided the information until mere minutes before appearing before the judge.

Either this rule or another should provide for a defendant to be given notice of being able to address the pretrial status order *before* the hearing so that the defendant can prepare to address the court and make arguments on her behalf.

B. Appointment of Counsel Before Initial Appearance

The U.S. Supreme Court has held “that the right to counsel attaches at the initial appearance before a judicial officer.” Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 199 (2008). By initial appearance, the Supreme Court meant a proceeding in which “the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings, and determines the conditions for pretrial release.” Id. (cleaned up); see id. at 213 (Concluding with: “We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance . . . trigger[s] attachment of the Sixth Amendment right to counsel.”). Notably, Nevada recognized this right in their recent decision on the constitutional requirements for bail hearings. Valdez-Jimenez v. Eighth Judicial Dist. Court in & for Cty. of Clark, 460 P.3d 976, 987 (Nev. 2020).

By comparison, Utah R. Crim P. 7 gives the appointment of counsel at the initial appearance. Because appointment of counsel does not occur prior to the hearing, counsel must prepare immediately to address bail or release. That’s not possible in our world of remote hearings and sometimes lengthy Initial Appearance calendar. Although the procedure contemplates giving counsel a continuance to prepare for the hearing on a later date, the point of having counsel would necessarily be vitiated if the court did not give the defendant a reasonable opportunity to meet and discuss with counsel his evidence and theory for arguing release. To the extent that the rule is ambiguous in allowing appointed counsel a meaningful opportunity to confer with an indigent defendant to address bail or release at the initial appearance, that ambiguity should be clarified so as not to be construed to give a court discretion to appoint counsel and delay addressing release if counsel indicates that he isn’t immediately prepared to address release.

I understand that appointment of counsel prior to the Initial Appearance is a complicated issue, all-the-more-so because Utah fails to invest in public defense to the degree that other states do (even Idaho spends more than Utah does!). If the rule at least gave an option to have appointment occur prior to Initial Appearances so that courts may consider implementing a policy of pre-hearing appointments in some jurisdictions then that would be a clear improvement that would step towards a constitutionally adequate Initial Appearance.

C. Scheduling of Detention Hearings

Utah Code § 77-20-1(6)(b) requires that after a detention motion is filed, the court must schedule the hearing “as soon as practicable.” Other jurisdictions have given more concrete directions. Helpfully, in February 2020, The National Center for State Courts published a white paper surveying five specific jurisdictions who have created detailed pretrial detention reforms. Pretrial Preventative Detention, NCSC, https://nvcourts.gov/AOC/Committees_and_Commissions/Evidence/Documents/Reports_and_Studies/Pretrial_Preventive_Detention_White_Paper_4_24_2020/ (February 2020).

These five jurisdictions—California, New Jersey, New Mexico, Arizona, and the District of Columbia—were surveyed for their robust statutory and rule requirements as models for Nevada to follow as it develops its pretrial detention reforms. Id. at 4.

In California, a pretrial detention hearing must be held within three days of the detention motion’s filing. Cal. Penal Code § 1320.19(a) With good cause the prosecutor may receive up to three days for a continuance. Id. Same goes for New Jersey, also allowing the prosecutor up to three days. N.J. R. CR. R. 3:4A(b)(1). New Mexico requires that it be held within five days of the prosecutor’s motion. NM R DIST CT RCRP 5-409(F)(1)(a). The prosecutor may receive a three-day extension either for extraordinary circumstances or if the preliminary hearing can also be done within three days of the extension. Id. at (b). Arizona also requires that the hearing be held within five days of the prosecutor’s motion, allowing for only a 24-hour continuance for the prosecution if good cause is shown; if the motion is made orally at the Initial Appearance, the detention hearing must be held within 24 hours of the oral motion. AZ ST § 13-3961(E). In the District of Columbia, the detention hearing must be heard at the Initial Appearance, but the prosecution can receive up to a three-day continuance with good cause shown. D.C. Code Ann. § 23-1322 (d)(1). All of the above jurisdictions also allow for defense to request a continuance with varying limitations.

Rule 7 should give strict guidance on how late a detention hearing may be scheduled. It should also have specifications on how soon they must be scheduled in cases where the State files a motion at a later time than the Initial Appearance. I’d also recommend looking at each of those rules and statutes more closely because they include more nuance than I’ve described here (such as differing times if a more relevant beginning point of the case is the arrest, rather than the filing of the motion). In any case, something along the lines of those jurisdictions should be implemented in Utah with a detention hearing occurring within either 3 or 5 days of the prosecutor’s motion being filed.

D. Discovery Prior to Detention Hearings

Utah Code § 77-20-1 states nothing about a prosecutor’s discovery obligations prior to detention hearings. And neither U. R. Crim. P. 7 nor rule 16 have been updated to specifically address discovery before detention hearings. Rule 16 does, however, state “The prosecutor shall make all disclosures as soon as practicable following the filing of charges. . .”.

Other jurisdictions have created more detailed requirements. They are instructive because the right to an evidentiary means, under due process, a right to a meaningful hearing. More broadly, the right to a meaningful hearing includes the right to disclosures of evidence intended to be used at that hearing. Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). The Supreme Court specifically noted:

“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”

The rules in other jurisdictions are instructive to the degree that they set the standard for what a meaningful hearing must be under a standard of “fundamental fairness.” See State v. Tiedemann, 2007 UT 49, ¶ 44 (noting that “fundamental fairness” is at the heart of due process under Utah Const. art. I, § 7).

Looking again to the same jurisdictions in section C. supra: New Jersey requires disclosures 24 hours in advance of the hearing all evidence it intends to introduce and all exculpatory evidence. N.J. R. CR. R. 3:4A(b)(1); 3:4-2. New Mexico has the same requirements as New Jersey but allows for additional evidence to be presented after the deadline if the evidence is discovered after the deadline. NM R DIST CT RCRP 5-409(F)(2). Arizona has nothing on disclosures in its statute for detention hearings, but it does state, “Testimony of the person charged that is given during the hearing shall not be admissible on the issue of guilt in any subsequent judicial proceeding,” which lessens the potential harm of not being given the prosecutor’s discovery. AZ ST § 13-3961(E). For the District of Columbia, the Jencks Act applies, requiring the government to disclose all “Jencks Act statements” prior to the hearing unless there is good cause not to. D.C. Super. Ct. R. Crim. P. 46; 26.2

For Utah, there’s no reason for the prosecutor to be unable to send discovery to the defense at least 24 hours prior to a detention hearing (and having any evidence that isn’t disclosed by then be excluded at the detention hearing). And the rule should also take other favorable aspects of other states, such as an explicit requirement to disclose exculpatory evidence prior to the hearing, and also a prohibition on using a defendant’s testimony at a detention hearing against them at trial. Obviously, any testimony a defendant may give at a detention hearing can be used as impeachment evidence, but it shouldn’t be permitted for use as substantive evidence. That protection saves a defendant from making the horrible decision of having to choose between speaking at a detention hearing in order to avoid pretrial detention but risk self-incrimination prior to trial versus staying silent at the detention hearing in order to preserve her fifth amendment privilege against self-incrimination but risk being held in custody because of her failure to speak up and mitigate the relevant detention standards.

E. Ability to challenge the prosecutor’s motion to detain at the Initial Appearance

In order to delay a pretrial status order, 77-20-1(3)(c) requires that the prosecutor file a motion that “states a reasonable case for detention; and detaining the defendant until after the motion is heard is in the interests of justice and public safety.” What the statute doesn’t make clear is that the defense can challenge a motion that fails to meet this prima facie showing. LDA has seen a number of prosecutor’s motions that don’t go anywhere near articulating the things stated in this requirement. It stands to reason that defense can object to a deficient motion and move to strike it, allowing the defendant to appear at his detention hearing while out of custody if the court agrees with defendant’s objection. Of course, if detention hearings happen fairly quickly (under two weeks), then the typical timelines for motion litigation wouldn’t apply. In other words, this requirement in the statute is potentially meaningless.

Rule 7 should specify that the court at Initial Appearance should have to rule on the prosecutor’s motion to detain and ensure that it comports with the requirements of 77-20-1(3)(c). It’s not as though the prosecutor’s burden is particularly high with their motions to detain, but there should be some mechanism that instruct courts to determine whether the prosecutor has complied with the statute. That would be particularly important because of how new all of this is for the culture of our judicial system.

F. Timing Issues

Utah R. Crim P. 9 requires that a defendant be given an Initial Appearance within three days of arrest. Utah R. Crim P. 9A does not specify how soon an Initial Appearance must be given after arrest. I don’t understand the rationale here. I will say that in my experience, it is not uncommon (even pre-COVID) to see a defendant sit in jail for a period greater than three days before seeing the judge. I suspect that the lack of a deadline for an Initial Appearance in Utah R. Crim P. 9A is partly the reason for this.

The committee should take this opportunity to change what appears to be an unexplained issue in the rule.

Final point: I’m excited to see the implementation of Rule 41!