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2012 Utah L. Rev. OnLaw 1 (2012)

handle is hein.journals/utlronla1 and id is 1 raw text is: PROTECTING TAXPAYERS AND CRIME VICTIMS: TiE CASE FOR RESTRICTING UTAH'S PRELIMINARY HEARINGS TO FELONY OFFENSES Paul G. Cassell* & Thomas E. Goodwin** I. INTRODUCTION When prosecutors file serious criminal charges in Utah, the defendant is entitled to a preliminary hearing.' At this hearing, witnesses will testify and be cross-examined to determine if the defendant should be bound over to face trial. For many decades, however, Utah has held such hearings only for felony offenses, not misdemeanors.2 In this respect, Utah practice tracked that of the vast majority of other states, which limit the use of preliminary hearings to more serious felony crimes. The reasons for limiting preliminary hearings to more serious felony cases are easy to understand. Preliminary hearings are costly and time consuming. They can also burden victims of crime with the need to testify and be cross-examined about the details of crimes committed against them. These clear costs are not outweighed by the very limited value that preliminary hearings provide, namely allowing judicial review of a prosecutor's evidence. For misdemeanor prosecutions, a judge can easily decide the question of probable cause based on the information recounted in the charging document without holding an evidentiary hearing. Recently Utah suddenly became the only state in the nation to interpret its constitution to require preliminary hearings for certain classes of misdemeanors. In State v. Hernandez, the Utah Supreme Court held that for Class A misdemeanors (misdemeanors punishable by up to a year in jail), article I, section 13 of the Utah Constitution required preliminary hearings.4 Article I, section 13 provides for preliminary hearings for [o]ffenses heretofore required to be prosecuted by indictment.5 The court concluded that the phrase offenses heretofore required to be prosecuted by indictment referred not only to felony * © 2011 Paul G. Cassell. Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah. I thank the Salt Lake District Attorney's Office and Rick Schwermer of the Administrative Office of the Courts for helpful information. ** V 2011 Thomas E. Goodwin. Class of 2012, University of Utah, S.J. Quinney College of Law. 1 UTAH R. CRIM. P. 7(h)(1)-(2). 2 See Melinda Rogers, Court: Some Misdemeanors Deserve Preliminary Hearings, SALT LAKE TRIB. (Mar. 30, 2011), www.http://archive.sltrib.com/article.php?id=14302714 &itype storylD&keyword=&qtype=. State v. Hernandez, No. 20090080, 2011 WL 5343347 (Utah Nov. 8, 2011). 4 Id. at *9. UTAH CONST. art. 1, § 13. 1

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