Rule 1102. Reliable Hearsay in Criminal Preliminary Examinations

(a)      Statement of the Rule. Reliable hearsay is admissible at criminal preliminary examinations.

(b)      Definition of Reliable Hearsay. For purposes of criminal preliminary examinations only, reliable hearsay includes:

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

(2)   hearsay evidence admissible at trial under Rule 804 of the Utah Rules of Evidence, regardless of the availability of the declarant at the preliminary examination;

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

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

(5)   medical and autopsy reports and records;

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

(7)   a statement made by a child victim of physical abuse or a sexual offense which is promptly reported by the child victim and recorded in accordance with Rule 15.5 of the Utah Rules of Criminal Procedure;

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

(A)   under oath or affirmation; or

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

(9)   other hearsay evidence with similar indicia of reliability, regardless of admissibility at trial under Rules 803 and 804 of the Utah Rules of Evidence.

(c)      Continuance for Production of Additional Evidence. If hearsay evidence is proffered or admitted in the preliminary examination, a continuance of the hearing may be granted for the purpose of furnishing additional evidence if:

(1)   The magistrate finds that the hearsay evidence proffered or admitted is not sufficient and additional evidence is necessary for a bindover; or

(2)   The defense establishes that it would be so substantially and unfairly disadvantaged by the use of the hearsay evidence as to outweigh the interests of the declarant and the efficient administration of justice.

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

ADVISORY COMMITTEE NOTE

Rule 1102 applies only in criminal preliminary examinations, and implements language added by amendment to Article I, section 12 of the Utah Constitution, effective July 1, 1995:

Where the defendant is otherwise entitled to a preliminary examination, the function of that examination is limited to determining whether probable cause exists unless otherwise provided by statute. Nothing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary examination to determine probable cause or at any pretrial proceeding with respect to release of the defendant if appropriate discovery is allowed as defined by statute or rule.

Discovery is allowed under Rule 16, Utah Rules of Criminal Procedure, as well as by case law and other statutes.

Accordingly, paragraph (a) provides for admissibility of "reliable hearsay" evidence in criminal preliminary examinations (commonly called "preliminary hearings"). To the extent that State v. Anderson, 612 P.2d 778 (Utah 1980), prohibited the use of hearsay evidence at preliminary examinations, that case has been abrogated.

Paragraph (b) defines "reliable hearsay" in subparagraphs (1) through (8). Evidence which is admissible under any other law or rule of evidence is not rendered inadmissible by anything in paragraph (b).

Subparagraph (b)(2) specifically incorporates hearsay that would be admissible under U.R.E. 804 but eliminates the foundational element of unavailability.

Subparagraph (b)(3) permits the admission of exhibits in preliminary hearings even though the necessary foundation for admissibility is by hearsay only. For example, proving the chain of custody for controlled substances may be accomplished under this section without calling the witnesses in the chain.

Subparagraphs (b)(4) and (b)(5) permit the specified types of reports and records to be admitted without the testimony of the person who prepared the report or record or the custodian of the record. If there is special reason for exploring foundation or authenticity, subparagraph (c) gives the magistrate power to require additional evidence after a continuance.

Subparagraph (b)(6) is similar to the "fellow officer" rule applicable to search or arrest warrant affidavits as providing sufficiently "reliable" evidence.

Subparagraph (b)(7) requires that a child victim's hearsay report be close in time to the event reported and that it be recorded in compliance with the conditions prescribed in Utah Rules of Criminal Procedure 15.5(1)(a) through (d). This subparagraph does not necessitate a hearing under Utah Rules of Criminal Procedure 15.5 (1)(e) through (h) as a prerequisite to admission at a preliminary examination.

Under subparagraph (b)(8), written, recorded, or transcribed testimony of non-testifying witnesses is admissible if it is sworn, affirmed, or given under notification that false statements are prosecutable. The potential for prosecution under perjury or other criminal provisions tends to ensure the reliability of such testimony.

Subparagraph (b)(9) provides catchall admissibility for other forms of hearsay of similar reliability, not unlike U.R.E. Rules 803(24) and 804(5) provide under existing hearsay exceptions. Unlike U.R.E. Rules 803(24) and 804(5), there is no requirement that advance notice be given to the adverse party of evidence offered under subparagraph (b)(9). If there is special reason for exploring foundation or authenticity, subparagraph (c) gives the magistrate power to require additional evidence after a continuance.

Paragraph (c) provides for continuances in the preliminary examination to enable a party to provide live witnesses or a more reliable form of hearsay where a party is substantially disadvantaged by the admission or exclusion of hearsay evidence proffered under this rule.

Under subparagraph (c)(1), the prosecution can get a continuance where hearsay evidence is not admitted and would be necessary to get the case bound over.

Under subparagraph (c)(2), a defendant may obtain a continuance by demonstrating that he is substantially and unfairly disadvantaged by a particular proffer of evidence that would be otherwise admissible under the rule and the disadvantage outweighs the interests of the witness and the efficient administration of justice. In making a decision as to whether the defendant is substantially and unfairly disadvantaged by the use of reliable hearsay evidence, a magistrate may, among other factors, take into consideration the limitations on discovery available to the defendant.

Either party is at liberty to subpoena and call any live witnesses whose testimony would be germane to the determination of probable cause.