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• H.J.R. 13

H.J.R. 13 Joint Resolution Amending Court Rules of Procedure and Evidence Regarding Preliminary Hearings

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Bill Sponsor: Rep. Clancy, Tyler

Floor Sponsor: Sen. McKell, Michael K.

• Substitute Sponsor: Rep. Clancy, Tyler

• Drafting Attorney: Jacqueline Carlton
• Fiscal Analyst: Heidi Jo Tak

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• Bill Text
  • Introduced
  • Enrolled

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  • H.J.R. 13
    Substitute Sponsor:
    

    • Introduced
    • Amended
      • Amended Pages Only
    • Fiscal Note
    • House Transmittal Letter 1
    • Senate Transmittal Letter 1
    • House Committee Amendment 1(passed)

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• Related Documents
  • Fiscal Note
  • HJR013 comparison

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• Information
  • Last Action: 12 Mar 2024, House/ to Lieutenant Governor
  • Last Location: Lieutenant Governor's office for filing

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Enrolled

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H.J.R. 13

4 Rule 7B Rule 1102

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JOINT RESOLUTION AMENDING COURT RULES OF PROCEDURE AND EVIDENCE REGARDING PRELIMINARY HEARINGS 2024 GENERAL SESSION STATE OF UTAH Chief Sponsor: Tyler Clancy Senate Sponsor: Michael K. McKell

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LONG TITLE

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General Description:

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This joint resolution amends court rules of procedure and evidence regarding preliminary

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hearings.

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Money Appropriated in this Bill:

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None

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Highlighted Provisions:

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This resolution:

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▸amends Rule 7B of the Utah Rules of Criminal Procedure to address the use of hearsay

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evidence for a probable cause determination and witness testimony at a preliminary hearing;

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and

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▸amends Rule 1102 of the Utah Rules of Evidence to address the admission of reliable

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hearsay evidence at a preliminary hearing.

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Other Special Clauses:

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This resolution provides a special effective date.

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Utah Rules of Criminal Procedure Affected:

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AMENDS:

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Rule 7B, Utah Rules of Criminal Procedure

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Utah Rules of Evidence Affected:

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AMENDS:

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Rule 1102, Utah Rules of Evidence

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Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each

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of the two houses voting in favor thereof:

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As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend rules of

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procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of all

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members of both houses of the Legislature:

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Section 1. Rule 7B, Utah Rules of Criminal Procedure is amended to read:

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Rule 7B. Preliminary Examinations. (a) Burden of proof. At the preliminary examination, the state has the burden of

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proof and proceeds first with its case. At the conclusion of the state's case, the defendant may

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testify under oath, call witnesses, and present evidence. The defendant may also cross-examine

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adverse witnesses.

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(b) Probable cause determination. If from the evidence the magistrate finds probable cause

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to believe that the crime charged has been committed and that the defendant has committed it,

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the magistrate must order that the defendant be bound over for trial. The findings of probable

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cause may be based on hearsay, but may not be based solely on hearsay evidence admitted

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under Rule 1102(b)(8) of the Utah Rules of Evidence , in whole or in part, on reliable hearsay.

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Objections to evidence on the ground that it was acquired by unlawful means are not properly

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raised at the preliminary examination.

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(c) If no probable cause. If the magistrate does not find probable cause to believe the crime

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charged has been committed or the defendant committed it, the magistrate must dismiss the

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information and discharge the defendant. The magistrate may enter findings of fact,

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conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the

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state from instituting a subsequent prosecution for the same offense.

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(d) Witnesses.

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(d) (1) At a preliminary examination, the magistrate, upon request of either party, may

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exclude witnesses from the courtroom and may require witnesses not to converse with each

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other until the preliminary examination is concluded.

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(d) (2) A prosecutor may present the testimony of any relevant witness at a preliminary

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examination, including the testimony of an investigating peace officer. The prosecutor or the

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defense may introduce, through direct or cross examination, the testimony of an investigating

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peace officer, including testimony from the investigating peace officer on the totality or details

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of the investigation of the crime for which the defendant is charged.

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(e) Written findings. If the magistrate orders the defendant bound over for trial, the

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magistrate must execute a bind-over order and include any written findings in the case record.

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(f) Assignment on motion to quash. If a defendant files a motion to quash a bind-over

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order, the motion shall be decided by the judge assigned to the case after bind-over, regardless

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of whether the judge conducted the preliminary examination in the judge's role as a magistrate.

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Section 2. Rule 1102, Rules of Evidence is amended to read:

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Rule 1102. Reliable Hearsay in Criminal Preliminary Examinations. (a) Statement of the Rule. Reliable hearsay is admissible at criminal preliminary

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examinations.

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(b) Definition of Reliable Hearsay. For purposes of criminal preliminary examinations

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only, reliable hearsay includes:

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(1) hearsay evidence admissible at trial under the Utah Rules of Evidence;

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(2) hearsay evidence admissible at trial under Rule 804 of the Utah Rules of Evidence,

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regardless of the availability of the declarant at the preliminary examination;

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(3) evidence establishing the foundation for or the authenticity of any exhibit;

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(4) scientific, laboratory, or forensic reports and records;

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(5) medical and autopsy reports and records;

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(6) a statement of a non-testifying peace officer to a testifying peace officer;

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(7) a statement made by a child victim of physical abuse or a sexual offense which is

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recorded in accordance with Rule 15.5 of the Utah Rules of Criminal Procedure;

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(8) a statement of a declarant that is written, recorded, or transcribed verbatim which is:

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(A) under oath or affirmation; or

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(B) pursuant to a notification to the declarant that a false statement made therein is

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punishable; and

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(9) other hearsay evidence with similar indicia of reliability, regardless of admissibility at

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trial under Rules 803 and 804 of the Utah Rules of Evidence.

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(c) Continuance for Production of Additional Evidence. If hearsay evidence is proffered or

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admitted in the preliminary examination, a continuance of the hearing may be granted for the

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purpose of furnishing additional evidence if:

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(1) The magistrate finds that the hearsay evidence proffered or admitted is not sufficient

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and additional evidence is necessary for a bindover; or

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(2) The defense establishes that it would be so substantially and unfairly disadvantaged by

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the use of the hearsay evidence as to outweigh the interests of the declarant and the efficient

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administration of justice.

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(d) (1) Except as provided in paragraph (d)(2), a prosecutor, or any staff for the office of

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the prosecutor, may transcribe a declarant's statement verbatim or assist a declarant in drafting

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a statement.

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(2) A prosecutor, or any staff for the office of the prosecutor, may not draft a statement for

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a declarant, or tamper with a witness in violation of Utah Code section 76-8-508.

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(e) A court may not admit reliable hearsay evidence in accordance with this rule unless

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there is testimony presented at the preliminary examination as described in Rule 7B(d)(2) of

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the Utah Rules of Criminal Procedure. The prosecutor is not required to introduce evidence

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that corroborates the substance of a statement submitted under paragraph (b)(8) for the

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statement to be admissible at the preliminary examination. The prosecutor may, but is not

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required to, call the declarant of a statement submitted under paragraph (b)(8) at the

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preliminary examination. This paragraph (e) does not otherwise limit a defendant's right to call

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witnesses under Rule 7B of the Utah Rules of Criminal Procedure.

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Section 3. Effective date. As provided in Utah Constitution, Article VIII, Section 4, this resolution takes

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effect upon a two-thirds vote of all members elected to each house.