Rules of Appellate Procedure – Comment Period Closed January 29, 2023

RE: URAP057. Record on appeal; transmission of record.

(a) The record on appeal consists of the legal file, any documents and exhibits considered by the court, and any transcripts.

As a Clerk of Court, I think the proposed language is going to be problematic. It is the clerical department’s responsibility to compile the record to submit to the Court of Appeals and “any documents and exhibits considered by the court” may not be something a member of the clerical department would be able to ascertain; only a judge would know what they considered as part of their decision. When I discussed this with my Bench, there was some agreement that this would create some practical issues. Our lead public defender was also in attendance at the meeting and she suggested that defense counsel could/should list the specific documents that they would like submitted as part of their notice of appeal. That might be a feasible workaround? If the judicial support team has a specific list of documents requested, outside of the already-required legal documents and evidence, that would make the process much more clear.

The proposed amendments to Rule 4(f) would require motions to reinstate an appeal in a criminal case to “be filed within one year, or within a reasonable time, whichever is later, from the day on which the defendant personally knew, or should have known in the exercise of reasonable diligence, of evidentiary facts forming the basis of the claim that the defendant was deprived of the right to appeal.” “If the prosecutor opposes the motion on the ground that the defendant filed it beyond” this time limit, then “the prosecutor must prove, by a preponderance of the evidence, that the defendant’s delay was unreasonable.” “The court can deny the motion as untimely only if the court finds that the prosecutor has carried this burden.”

The addition of a time limitation is a welcome one. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality op.). And “‘[n]o one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.’” Id. (quoting Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part)).

But allocating the burden on the prosecution to affirmatively prove “the defendant’s delay was unreasonable” is likely to prove unworkable in practice. The better approach would be to allocate the burden of justifying any delay on the defendant because the defendant is in the best position to offer that explanation.

The burden of proof and persuasion is typically placed “on the party or parties with best access to evidence or information that can be used to sustain the burden.” Kearns-Trib. Corp., Publisher of Salt Lake Trib. v. Lewis, 685 P.2d 515, 523 (Utah 1984); accord Staheli v. Farmers’ Co-op. of S. Utah, 655 P.2d 680, 683 (Utah 1982); 31A C.J.S. Evidence § 190 (Nov. 2020 update). And sensibly so. If it were otherwise, then the burden would “either doom [the party’s] efforts to automatic failure (by requiring proof without access to evidence) or necessitate cumbersome” litigation. Kearns-Trib., 685 P.2d at 523.

That is precisely the situation that the proposed amendments would likely create. Whether a defendant’s actions were “reasonable” will necessarily depend on circumstances that are primarily within the defendant’s knowledge. A prosecutor cannot reasonably be expected to know when “the defendant personally knew” about their claims, or “should have known” about them, or what obstacles stood in the defendant’s way and what actions—if any—the defendant took to overcome them.

Placing the burden on the prosecution will thus make the proposed limitations period extraordinarily difficult to enforce. The prosecution will effectively be required to preemptively investigate—and affirmatively rebut—any conceivable potential reasonable basis for the defendant’s delay. By necessity, this will require burdensome investigations into months or even years’ worth of the defendant’s conduct. And perversely, these burdens will increase the more presumptively unreasonable the defendant’s delay has been. A one-year delay will require an investigation into a year’s worth of conduct, a two-year delay will require an investigation into two years’ worth of conduct, and so on. Any invocation of the one-year limitations period will thus be “doom[ed] … to automatic failure” or will require “cumbersome” litigation. Kearns-Trib., 685 P.2d at 523. And in many cases, the burdens of that litigation are likely to be so onerous that the limitations period will not be enforced at all.

Placing the burden on the prosecution to prove “that the defendant’s delay was unreasonable” will also likely create significant intrusions into defendants’ attorney-client relationships. In essentially every case, the reasonableness of a defendant’s delay will significantly depend on (1) what the defendant confidentially told their attorney and (2) the advice that the defendant confidentially received from their attorney in response. So if the burden is on the prosecution to prove in every case that the delay was unreasonable, then essentially every case will require the prosecution to intrude into privileged attorney-client conversations. A defendant who wishes to protect their attorney-client confidences might, of course, seek to prevent this by making clear that any delay in filing was not the fault of their counsel. But that fact only proves the broader point. It is the defendant—not the prosecution—who is best positioned to understand the universe of relevant evidence about the defendant’s reasons for their own delay. And so it is the defendant—not the prosecution—who should be expected to come to court with that evidence and to articulate those reasons.

The better approach is therefore to place the burden on the defendant to prove that their delay was reasonable. This approach squares with the general presumption that burdens should be placed “on the party or parties with best access to evidence or information that can be used to sustain the burden.” Kearns-Trib., 685 P.2d at 523. It squares with the historical expectation under rule 4(f) and common law writs of coram nobis that the defendant will bear the burden to prove entitlement to reinstatement. See State v. Stewart, 2019 UT 39, ¶3, 449 P.3d 59; Manning v. State, 2005 UT 61, ¶18, 122 P.3d 628. And it also squares with how exceptions to time limitations periods are applied in other areas of law. See, e.g., Utah Code § 78B-9-107(3) (“The petitioner has the burden of proving” any tolling of the limitations period under the Post-Conviction Remedies Act.); Bright v. Sorensen, 2020 UT 18, ¶42, 463 P.3d 626 (once a defendant in a civil case has shown that a complaint is “facially untimely,” “the plaintiff has the burden of establishing a factual basis for tolling the statute [of limitations]”); Alarm Prot. Tech., LLC v. Crandall, 2021 UT 26, ¶20, 491 P.3d 928 (the district court “properly denied” a motion under Rule of Civil Procedure 60(b) “as untimely” because the party who filed the motion “offered no justification for his failure to challenge the judgment sooner”).

Finally, this approach squares with fundamental principles of fairness. Defendants should not be denied their rights to appeal through no fault of their own. But courts must also seek “to prevent abuse by those seeking to circumvent the timeliness requirements for appeals.” Manning, 2005 UT 61, ¶18. If a defendant has delayed for a year (or more) before attempting to reinstate their appeal, it is entirely reasonable to presume that the defendant is trying to circumvent the timeliness requirements rather than trying to vindicate their rights. A defendant might nevertheless rebut that presumption. But if they seek to do so, it is sensible to place the burden on the defendant—and not the prosecution—to proffer that rebuttal.