PROTECTING TAXPAYERS AND CRIME VICTIMS: THE CASE FOR RESTRICTING UTAH’S PRELIMINARY HEARINGS TO FELONY OFFENSES

Abstract

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. 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. Article I, section 13 provides for preliminary hearings for “[o]ffenses heretofore required to be prosecuted by indictment.” The court concluded that the phrase “offenses heretofore required to be prosecuted by indictment” referred not only to felony offenses but under Utah’s modern classification of offenses, to Class A misdemeanors as well. The court’s analytical approach was quite properly historical. The court noted that the decisive question when interpreting the state constitution is “to ascertain the drafters’ intent.” Yet strong arguments suggest that the drafters did not truly intend to require preliminary hearings for Class A misdemeanors. Section 13 appears to refer to federal law that “heretofore” controlled the Territory of Utah. At the time the Utah Constitution was drafted, the Fifth Amendment to the U.S. Constitution directed that capital and infamous crimes—felonies—be screened through the requirement of a grand jury indictment. [ The framers of the Utah Constitution, it can be argued, simply continued this approach and then authorized a new alternative method for screening such felony prosecutions—a preliminary hearing instead of a grand jury. This was the argument the state advanced in Hernandez , although the court ultimately found it unpersuasive. This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy. This Article concludes that requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys—once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.