Utah Bar Journal

Investigation & Access to Information & Evidence

Investigation and Access to Private Documents
Some criminal practitioners voice concerns that the criminal realm is becoming inundated with our civil colleagues' rules and procedures, which may in the end cause many to forget the special protections guaranteed to criminal defendants through constitutional protections and safeguards. One such imposition of civil procedure standards in the criminal realm surfaced recently in State v. Gonzales, 2005 UT 72. In Gonzales, it came to be known that the alleged victim was undergoing psychological therapy and was on medication for a psychological condition. Therefore, the alleged victim's ability to perceive and tell the truth became a core defense issue. Appointed defense counsel served a subpoena on the University of Utah Neuropsychiatric Institute (UNI) for treatment records. After some correspondence between UNI and counsel, the records were ultimately released directly to counsel. Not long thereafter, however, UNI indicated that the records had erroneously been released and that UNI should have moved to quash the subpoena. The district court agreed, quashed the subpoenas, and further ruled that the information obtained from the records could not be used at the defendant's trial.

On appeal, Mr. Gonzales raised several issues including what the Utah Supreme Court described as the "narrow issue" as to whether the trial court erred in granting the State's motion to quash subpoenas for the mental health records. The Defendant argued that he had no duty to notify either the State or the court of his pending subpoenas, relying on Utah Rule of Criminal Procedure 14, which does not specifically require a criminal party seeking a subpoena to notify anyone of his intention. However, the Utah Supreme Court disagreed and after discussing policy concerns and victim's rights legislation, held that the notification requirement found in the civil rules of procedure applies to criminal matters where privileged information is at stake. See Utah R. Civ. P. 45(b)(1)(A). As such, the Utah Supreme Court found no error in the limited issue concerning the propriety of quashing the defendant's subpoenas.

Investigation and Access to Witnesses
Issues surrounding the questioning of witnesses during a defendant's private investigation have also arisen in a capital prosecution in which the Utah Supreme Court has recently granted an interlocutory appeal. In State v. Wade Maughan, District Court Case No. 051100355, Supreme Court Case No. 20060189-SC, the State moved to disqualify Mr. Maughan's court-appointed capital attorneys from the case.1 Relevant to the scope of this article, the State argued that by questioning potential out-of-state witnesses and allegedly telling them they shouldn't speak with others about the case, the situation presented either an actual or potential conflict of interest as the alleged instruction not to speak to others may amount to "witness tampering."2 The Defendant's attorneys countered that no instruction was ever given to witnesses not to speak about the case and that credible evidence supported their actions as at all times being both lawful and ethical. Defense counsel also asserted that the State could articulate no conflict of interest either actual or possible. Finally, the defense asserted that the investigation and questioning of witnesses is not only a duty of competent defense counsel but a guaranteed part of any accused's defense that will be chilled by the State if allowed to serve as a basis to disqualify aggressive counsel in order to hand-pick the opposition.

The trial court, without holding a requested evidentiary hearing, ultimately ruled that while the court was not making a finding that defense counsel had committed wrongdoing, there was a "reasonable possibility" that a potential conflict existed. However, in an attempt to balance the Defendant's right to be represented by an attorney of his choice, the trial court also found that any possible conflict was waiveable, but ordered the Defendant to choose one of his two appointed attorneys to remain on the case. This decision obviously begs the question that if a conflict is waiveable, it would be waiveable to both counsel and the Defendant need not choose.

Subsequently, both the State and the Defense petitioned the Utah Supreme Court for interlocutory review, which was granted May 24, 2006. This case is one to follow as it raises issues concerning a defense attorney's duty to investigate and interview witnesses and it questions the propriety of State prosecutors in seeking disqualification of those attorneys who seek to fulfill those duties.

Access and Use of Findings Made in Other Legal Arenas
Criminal practitioners know that information with evidentiary value appears in many forms, including parallel litigation involving your client. When findings and rulings favorable to your client are made in administrative proceedings, it is now an "on the books" duty of a criminal defense attorney to seek admission of that information in the client's criminal proceedings. Indeed, it amounts to ineffective assistance of counsel to fail to do so. This is the reasoning in State v. Ison, 2006 UT 26.

As the Utah Supreme Court characterized on certiorari review, the Ison appeal is the latest chapter in the saga of a Caribbean cruise that set sail in November 1995 and the alleged misdeeds of Lew Ison, the man accused of frustrating the vacation plans of would-be passengers on that cruise. Prior to his criminal trial Mr. Ison was investigated by the Utah Attorney General and the State Division of Consumer Protection (the Division) upon complaints of wrongdoing. As a result of that investigation, the Division issued a citation to Mr. Ison, to which Ison exercised his right to an administrative hearing. A hearing was held before an administrative law judge ("ALJ") who, after hearing testimony and evidence, concluded that Ison had not violated the specified statutes, had "made no misrepresentations to any passenger" and had never "assumed responsibility for the cruise and tour bookings in question." Despite the ALJ's findings, criminal charges were filed alleging felony counts of communications fraud and the case went to trial.

On appeal, the Court of Appeals considered whether the ALJ's findings were admissible and, relatedly, whether defense counsel was ineffective for failing to seek admission of those findings under Utah Rule of Evidence 803(8)(C). The appellate court concluded that the ALJ's findings were indeed admissible under the cited rule of evidence based upon a plain language interpretation of the rule. The Court of Appeals then went on to hold that defense counsel was ineffective in failing to move for admission of those findings, reasoning that since counsel was aware of the favorable decision there was simply no strategic reason for not seeking to admit findings that could have helped exonerate the Defendant. The Utah Supreme Court agreed on certiorari review. The importance of this holding is apparent, especially if prior administrative hearings (think, for example, driver's license and DOPL hearings) have rendered findings favorable to your client. As such, in investigating and representing a criminal defendant, the findings of prior or parallel administrative investigations and adjudications may become useful, if not essential, to an effective defense.

Disclosure of Information
All criminal practitioners know of the "Brady" duties which stem from the United States Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. In general, it is a well-established precept that the government is obligated to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. A prosecutor is also bound by both statutory and ethical duties and a prosecutor's failure to disclose material evidence violates a defendant's state and federal constitutional rights to due process. This duty, well-known to the criminal bar, has again been recently applied in Tillman v. State of Utah, 2005 UT 56, wherein the Utah Supreme Court upheld the vacation of the defendant's death sentence and ordered new sentencing proceedings. The Utah Court noted that the State's failure to disclose partial transcripts of interviews with key prosecution witnesses was sufficient to undermine confidence in the death sentence and thus constituted a cognizable Brady violation.

Criminal practitioners are also well aware of their statutory "expert notice" duties in felony cases, of which the State's failure to comply created a reversal in State v. Torres-Garcia, 2006 UT App 45. Therein, the Utah Court of Appeals found that the trial court abused its discretion in refusing to grant Defendant's requested continuance where the State did not substantially comply with the statutory notice requirements for expert witnesses. While the duty to disclose evidence has thus far been noted in the context of prosecutorial violations, the question has been raised as to a Defendant's duty to disclose information to the prosecution, if any exists. State v. McNearney, 2005 UT App 133, brings this issue to light. In McNearney, the prosecutor moved for discovery under Rule 16(c) of the Utah Rules of Criminal Procedure, requesting a broad scope of information including: 1) Names, addresses, telephone numbers, and dates of birth of all witnesses the defense intended to call for trial; 2) Copies of any reports prepared by defense investigators during the course of the investigation; 3) Copies of any reports prepared by defense investigators where the defense intended calling the investigator as a witness; and 4) Copies of that portion of any reports prepared by defense investigators concerning statements made by witnesses the defense intended calling at trial. Defense counsel objected to the requests not only on the grounds of failure to show "good cause" as required by the criminal procedure rule, but also reasoning that if reciprocal discovery such as that requested were ordered, a criminal defense attorney would be impermissibly compelled to provide information against the client and to produce privileged work product. The trial court granted discovery with some modifications.

On the specific facts of the case, the Court of Appeals found that the trial court's order requiring the revelation of the witnesses Defendant intended to call did not violate his right against self-incrimination, nor the work product doctrine based upon the waiver of the privilege in the case. Importantly, however, the Court of Appeals also recognized that a trial court must analyze a prosecutorial discovery request in light of the privileges asserted by the accused and that a defendant's protection against self-incrimination prevents extensive prosecution discovery and is paramount. Moreover, the Court of Appeals did not determine whether the defense witness list is privileged under the work-product doctrine, nor did the appeals court decide whether requiring a defendant to produce witness statements of anticipated witnesses violates a myriad of protections including the work-product doctrine, the right to due process, the right against self-incrimination, the right to full representation of counsel, and the attorney-client privilege. Consequently, this case leaves for another day the question as to whether these types of prosecutorial discovery requests are permissible.

Timing and Use of the Acquired Information
One pervasive and complicated decision a criminal attorney continually faces focuses on what to do with the information acquired through investigation, and whether such information should tactically be disclosed prior to trial. As McNearney above points out, criminal proceedings implicate a number of ethical duties and constitutional protections that must be safeguarded at all stages in the process.

At least with regard to cases involving sexual assaults, the Utah Supreme Court has recently held that if evidence is available that the alleged victim may have made a prior false allegation of rape, a hearing must be held pretrial at which the Defendant has the burden of showing the falsity of the prior allegation. See State of Utah v. Tarrants, 2005 UT 50. While a "Rule 412 hearing"3 has been required by the Utah rules for some time, when it comes to information that the accuser has made prior false accusations of sexual misconduct in the past, the Tarrants Court articulated the specific standard a Defendant must meet pretrial for the admission of that evidence. Specifically, the Court held that allegations of prior false rape claims are inadmissible under Rule 412 unless their falsity can be demonstrated by a preponderance of the evidence. The Court reasoned this must be so because while evidence of false statements of past unrelated sexual assaults are not excluded by the "rape shield rule" per se, any potential probative value these prior allegations hold depends upon them being false.

Additionally, State v. Cornejo, 2006 UT App 215 (slip op.) illuminates the tactical considerations that must be made as to whether to address an issue pretrial, or instead wait until trial and object to the opposition's anticipated lack of evidence. In Cornejo, the accused was charged with various violations including felony DUI. Prior to jury selection on the day of trial, the parties met in chambers and at this time the defense revealed its claim that the blood draw was taken involuntarily. Defense counsel explained that he had not moved to suppress the blood sample earlier because he wanted to use the facts surrounding the involuntary blood draw to demonstrate police misconduct. Defense counsel also made the court aware of his further intent to object to the admissibility of the blood test results.

Based on this legal issue, the court intended to hold a brief evidentiary hearing prior to empaneling the jury. The State objected, contending that the issue had been waived because Defendant had not filed a motion to suppress the blood sample at least five days before trial in accordance with the Rules of Criminal Procedure. The State also requested a continuance, explaining that it was not prepared to present evidence as to the admissibility of the blood sample and had not subpoenaed the individual who had authorized the blood withdrawal. The trial court denied the continuance explaining that the State must be prepared when a trial is set, not only to present its evidence, but also to have a legal basis for the admission of that evidence. The trial court further found that the State wrongfully assumed that Defendant's failure to file a suppression motion meant that Defendant could not simply object to the introduction of the evidence at trial. The Court of Appeals ultimately disagreed and found that denial of the continuance was unreasonable. In doing so, however, the appellate court did note that while Utah Rule of Criminal Procedure 12 states that motions to suppress must be raised at least five days prior to trial or else the issue is waived, the Rule also allows the court to grant relief for cause shown.

A related issue in DUI cases has also arisen in both justice courts and district courts throughout Utah regarding "Crawford motions" objecting to the admission of affidavits which purportedly verify the calibration and proper maintenance of intoxilyzer testing machines. Accord Crawford v. Washington, 124 S.Ct. 1354 (2004). The general defense argument is that intoxilyzer affidavits are inadmissible hearsay under Crawford; therefore, the intoxilyzer test results are inadmissible if the certified breath test technician who maintains and checks the machine is unavailable for trial to lay the proper foundation for the results. The prosecutors argue, as in Cornejo above, that this issue must be raised in a "motion to suppress" at least five days prior to the trial of the matter, or else the issue is waived. The defense then counters that it is the duty of the State to lay the foundation for its own evidentiary admissions, and as such, the defense objection to admission of these affidavits is a proper foundational objection not unlike hundreds of other foundational objections made during trials everyday. At most, the request to exclude the affidavits could be considered a motion in limine, which is not required to be filed prior to trial.

While this timing issue, as well as the more particularized question as to whether Crawford applies to intoxilyzer affidavits, has not yet been decided at the appellate level, justice court and district court decisions have provided mixed results. However, the Utah Court of Appeals has recently granted interlocutory review on the issues and hopefully will provide some guidance soon.

In Sum....
As summarized herein, recent developments in Utah law have placed additional hurdles in the path of an accusedÕs access to information in preparation of his or her defense. The recent developments have also raised questions as to what information a defendant must provide to a prosecutor and the timing of that disclosure. Many questions remain open, however, and criminal practitioners will seek to answer these questions and continue to navigate the criminal process with not only rules of procedure and precedent in mind, but also with an eye toward upholding those inviolate constitutional guarantees afforded to those accused of crimes.

1. In the interest of full disclosure, the author's law firm aided Mr. Maughan's appointed attorneys in the preparation of briefing and argument of these issues in the district court.

2. The situation at issue is both controversial, adamantly denied, and complicated by the fact that one of the defendant's court appointed attorneys and his investigator were arrested out of state based upon their questioning of witnesses. No charges have been filed against either the attorney or his investigator.

3. Utah Rule of Evidence 412 is Utah's "rape shield" protection, and requires that the admissibility of an alleged victimÕs sexual behavior or alleged sexual predisposition be determined prior to trial and in accordance with the specified procedures of the rule.