Utah Supreme Court Changes Course on Admissibility of Preliminary Hearing Testimony at Trial
by Christopher Zoukis
In a significant decision regarding Rule 804 of the Utah Rules of Evidence, the Utah Supreme Court reversed itself in a case involving the use of hearsay testimony from a preliminary hearing at trial in a criminal prosecution.
The September 6, 2017 opinion considered the criminal case brought against DeSean Goins for two instances of assault. In July 2012, Goins confronted Gabriel Estrada, who he believed had stolen his phone. When Goins brandished a knife, Estrada fled. But Goins wasn’t done looking for his phone.
Later that day, Goins confronted Jacob Omar, a friend of Estrada’s. A fracas ensued, and Goins bit Omar’s earlobe off. He also stabbed Omar in the arm. Goins was arrested and charged with mayhem and two counts of aggravated assault.
At the preliminary hearing, both Estrada and Omar testified. Goins’ lawyer cross-examined Estrada. About two months later, the trial commenced, but the prosecution announced that Estrada had not appeared for the trial and moved that he be declared unavailable, and that his preliminary testimony be admitted and read to the jury.
The prosecution detailed for the court various steps it took in attempting to procure his appearance at trial. Nevertheless, Goins argued that the prosecution’s efforts were insufficient under Rule 804 of the Utah Rules of Evidence, which permits the admission of form testimony when a witness is unavailable. Goins also argued that admission of Estrada’s testimony from the preliminary hearing would violate his constitutional right to confrontation because the motive for cross-examination at the preliminary hearing differed from the motivation to cross-examine at trial.
The district court determined that Estrada was unavailable under Rule 804. The court also ruled that Goins had a meaningful opportunity for cross-examination at the preliminary hearing, and thus Estrada’s testimony could be used at trial without violating Goins’ constitutional rights. He was convicted of felony aggravated assault and misdemeanor threatening with a dangerous weapon.
Goins appealed to the Court of Appeals, which affirmed the lower court’s finding of unavailability with respect to Estrada. The court also affirmed the admission of Estrada’s preliminary hearing testimony. Although it sympathized with Goins that the limited purpose of the preliminary hearing (determination of probable cause) meant that trial counsel had a different motive in conducting cross-examination at a preliminary hearing than at trial, the court ruled that the argument was foreclosed by the Utah Supreme Court’s decision in State v. Brooks, 638 P.2d 537 (Utah 1981).
Goins then appealed to the Utah Supreme Court, arguing that the Court of Appeals erred in affirming the admission at trial of Estrada’s preliminary hearing testimony. He based his argument on both Rule 804 and the Confrontation Clause.
The Supreme Court began its analysis by separating the two arguments and addressed the Rule 804 claim first. Rule 804 provides an exception to the rule against hearsay. Under the rule, preliminary hearing testimony may be admitted if (1) the witness is unavailable and (2) the testimony is given at a proceeding where the party against whom the testimony is now offered had “an opportunity and similar motive to develop it.”
In finding for Goins on this issue, the Supreme Court disavowed its holding in Brooks. The Court did this because Brooks was decided before Article I, Section 12 of the Utah Constitution was amended to limit “the function of [preliminary] examination ... to determining whether probable cause exists.” Once so limited, wrote the court, “Goins’s counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial.” As a result, admission of Estrada’s testimony from the preliminary hearing violated Rule 804.
The Court announced that it disavows the blanket rule in Brooks that defense counsel’s motive and interest are always the same in both a preliminary hearing and at trial. Instead, the Court instructed that prospectively a “district court should examine the preliminary hearing testimony to ensure that the defendant possessed a similar motive before admitting the testimony under” Rule 804.
Canons of judicial restraint limited the Court’s analysis to the violation of Rule 804. Because the issue was resolved by focusing on the rule of evidence alone, the potential violation of Goins’ constitutional right to confrontation was not reached.
Unfortunately for Goins, the Court’s lengthy and carefully reasoned opinion did not help him much. Because Rule 804 was violated with respect to Estrada’s testimony, the Court reversed his misdemeanor conviction. But Estrada’s testimony had nothing to do with the felony conviction, so the felony conviction was affirmed. See: State v. Goins, 2017 UT 61 (2017).
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Related legal case
State v. Goins
| Year | 2017 |
|---|---|
| Cite | 2017 UT 61 (2017) |
| Level | State Supreme Court |
