What Does “Promptly” Mean Under Rule 1102?

Rule 1102 Allows Reliable Hearsay At Preliminary Hearings

At a preliminary hearing the Utah Rules of Evidence allow for the admission of “reliable hearsay,” and further provides a definition of “reliable hearsay.” Part of that definition includes “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.”

In child sexual abuse cases, the child rarely has to attend a preliminary hearing to testify because of this rule. Typically, the prosecution can simply play a video recording of the child interview. This gives the defense a disadvantage because there is no opportunity for cross examination of the child and no opportunity for discovering fats that only the child knows.

So What Does “Promptly” Mean?

No Utah appellate court has ever addressed the issue of what “promptly” means. In absence of any case law on the issue, courts should simply look at the plain meaning of the word “prompt.” See generally Cook v. Dept. of Commerce, 2015 UT App 64 ¶ 13, 347 P.3d 5, 10, (“Utah courts have a long history of relying on dictionary definitions to determine plain meaning.”) Black’s Law Dictionary 1334 (9th ed. 2009) defines “prompt” as “To incite, especially to immediate action.” Merriam-Webster’s online dictionary defines a prompt action as “performed readily or immediately.”

From the dictionary definition, an action is prompt if it is preformed immediately. Therefore, under U. R. Evi. 1102(b)(7), a child victim interview is admissible at a preliminary hearing if the report of the abuse was made immediately after the abuse occurred.

Because case law is lacking as to what is considered prompt under U. R. Evi. 1102(b)(7), Courts should look to other jurisdictions for guidance. Of particular help is how other jurisdictions have interpreted promptness when admitting hearsay evidence under the “prompt outcry rule.” “At common law, the initial complaint of a victim of sexual abuse or child molestation if ‘prompt’ or ‘fresh’ is generally admissible in whole or part, usually but not always, solely to corroborate the in court testimony of the alleged victim.” 48 Crim.L.Bull. 1075, 3 (2012). See e.g., Commonwealth v. King, 834 N.E.2d 1175 (Mass. 2005) (Complaint made one week after assault was prompt), but see Park v. State, 10 A. 219 (Md. 1887) (Complaint made one week after the sexual offense was not prompt.)

Whether an outcry is prompt appears to differ from case to case. Perhaps New York’s high court said it best that “A complaint is timely for purposes of the prompt outcry exception if made at the first suitable opportunity. There can be no iron rule on the subject. The law expects and requires that it should be promptly reported, but there is and can be no particular time specified. Thus, promptness is a relative concept dependent on the facts – what might qualify as prompt in one case might not in another.” People v. McDaniel, 595 N.Y.S. 2d 364, 368. (1993) (Internal citations omitted).

In McDaniel, an eleven year old girl was sexually assaulted in the middle of the night by the defendant on two occasions. In the morning following each assault, the girl reported the incidents to her mother. Two weeks later after the last assault, the child told a detective and a prosecutor of the sexual abuse. The court held that the child’s report to her mother was not considered to be reported “promptly” because it was reported in the morning after the incident, but that the report to the detective and prosecutor was not prompt because it happened several days after the incident. See id.

In another New York case, a minor told her boyfriend in a written note that she was sexually abused by her father. See People v. Rosario, 958 N.E. 93, 96 (N.Y. 2001). This report was made approximately five months after the last incident of sexual abuse. Id. The court ruled that “too much time (perhaps as long as five months) elapsed between the last instance of alleged sexual abuse and the note for this evidence to qualify as a prompt outcry… the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by …” Id. at 100. Because the report was not prompt, the court ruled the evidence of the note was inadmissible. Id.

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Utah Reaffirms Its Liberal Preliminary Hearing Standard

Binding Over a Case at Preliminary Hearing is Easy

Preliminary hearing a rubber stamp for police action.

The Utah Supreme Court recently reiterated how easy it is for the state to get a bind over order at a preliminary hearing.

The preliminary hearing is a “probable cause” hearing that requires the state to put on evidence that would permit the judge to bind over the case for trial, that is, to find there is enough evidence to move forward with trial. This usually requires the prosecutor to call witnesses, introduces documents, pictures, videos and other tangible items, and otherwise provide the court with proof of the crime. The judge then considers all of the evidence in the light most favorable to the state and decides whether the evidence is enough to present to a jury to determine guilt or innocence.

Prior to 2001 the amount of proof a prosecutor had to present to the court in a preliminary hearing had to be enough “from which the trier of fact could conclude the defendant was guilty of the offense as charged.” See State v. Anderson, 612 P.2d 778, 783 (Utah 1980) (emphasis added), overruled by State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300. This placed a pretty high burden on the state and required prosecutors to really present the meat of their case to the judge.

In 2001 the Utah Supreme Court repudiated that standard and altered it to the very low standard required today, which is that the prosecutor need only provide enough evidence “to support a reasonable belief that an offense has been committed and that the defendant committed it.” State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300

Reaffirming the Clark Standard

The Utah Supreme Court again took up the issue of what evidence is required in a preliminary hearing. Some confusion arose because two cases – Maughn and Anderson – contained some language which could lead one to believe that a preliminary hearing requires evidence sufficient to justify a conviction. In response, the Utah Supreme Court stated:

“But to avoid any potential confusion, we now make clear that neither case altered our liberal bindover standard—rather, ―at both the arrest warrant and the preliminary hearing stages, the prosecution must present sufficient evidence to support a reasonable belief that an offense has been committed and that the defendant committed it, not a reasonable basis for a conviction beyond a reasonable doubt.” State v. Schmidt, 2015 UT 65.

So…bad news if you’re a criminal defendant: it’s really easy for the state to get you bound over for trial.

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What is an Armed Career Criminal?

The Armed Career Criminal

“Armed career criminal” – sounds pretty serious, right? Well for purposes of federal criminal law it most definitely is. The term applies to a select group of individuals who the federal government find to need more prison time than other convicted felons. If the moniker “armed career criminal” is applied to a criminal defendant during the sentencing

process the judge is required to impose a mandatory sentence that results in years and years in a federal prisons.

How is “Armed Career Criminal” Defined?

The term “armed career criminal” is defined in the federal sentencing guidelines as a defendant who is subject to the enhanced sentence under the provisions of 18 U.S.C. § 924(e). The requirements are:

  1. The defendant had to have been convicted at least three times under 18 USC 922(g)(1) of
    1. A “violent felony” or
    2. A “serious drug offense”
What is an armed career criminal.

The “armed career criminal” moniker can a minimum of 15 years to a convicted felon’s prison sentence.

A “violent felony” conviction is one which has as an element of the crime “the use, attempted use, or threatened use of physical force against the person of another” and which is punishable by a term of imprisonment of more than one year.

A “serious drug offense” is any state or federal drug crime which can result in a maximum sentence of ten years imprisonment or more.

Additionally, the three separate convictions includes juvenile convictions, which means someone as young as 18 years old could become an “armed career criminal” in a federal court upon a conviction under 18 USC 922(g).

A Criminal Defense Attorney Must Do His Due Diligence

Any time a defendant is being charged under 18 USC 922(g), his attorney must determine whether his client falls under the “armed career criminal” definition if convicted because it will result in a minimum mandatory sentence of 15 years in prison. That is the first thing we look at when we get 922(g) cases. If you feel that you may fall under this category we’re happy to discuss the issue with you.

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Utah Law Reform: Drug Possession No Longer A Felony

Drug Possession Is A Common Offense

Drug possession now only a misdemeanor

Utah has made first and second drug possession charges a misdemeanor, reducing such convictions from felonies.

In a sweeping move which was totally unexpected and unusual (for Utah), the Utah Legislature effectively passed legislation to reduce the population in its jails and prisons by significant numbers. How? By reducing the criminal classification of those who are convicted of drug possession from a felony to a misdemeanor for first and second convictions. This is huge.

Criminal defendants who possessed even a gram of cocaine, heroin, or meth, were on the line to serve 0-5 years in prison. Over the years many judges have demonstrated their reluctance to impose any prison time at all on these individuals for many reasons including (1) prison time did not prevent re-offense in most cases; (2) such punishment did not fit the crime of merely possessing a drug; and (3) the prison population is already too dense.

The Utah Legislature finally codified what lawyers and judges have been saying for years: drug possession penalties are too harsh and sweeping reform is needed.

Now, the federal government needs to change its drug laws which imposes minimum mandatory sentences of years in prison for even first time offenders. The individual states are becoming increasingly aware of the burden that drug laws place on people; the federal government needs to fall in line.

When is the New Law Effective?

The new law is not effective until October 1, 2015, but all intents and purposes it is effective immediately because lawyers will do everything possible to delay their drug possession cases until after October 1, 2015 to allow their clients to take advantage of the new law.

This new law also makes it easier for attorneys to be able to better negotiate with prosecutors since they are now forced to work in the misdemeanor range. Some prosecutors, those who feel they have a moral obligation to place drug users in prison, were never willing to negotiate down from a felony even for first time offenders – now they have no choice.

The relevant text of the law will be found in Utah Code 58-7-8(2)(b)(ii) and states that any person possessing “a substance classified in Schedule I or II, or a controlled substance analog, is guilty of a class A misdemeanor on a first or second conviction, and on a third or subsequent conviction is guilty of a third degree felony.”

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Difficult For A Defendant To Withdraw His Guilty Plea

Requirements to Withdraw a Plea

When a defendant enters into a plea negotiation with the State he has to waive all of his

A defendant can withdraw a plea sometimes.

When a defendant enters a plea he can only withdraw it in certain instances.

pretrial rights such as his right to remain silent, his right to the presumption of innocence, his right to cross examine witnesses, his right to face his accusers, and his right to a jury trial. The accused will stand before a judge to enter his plea and in so doing the judge will ask him if he is entering his plea knowingly and voluntarily and if he his waiving his rights of his own volition. This is important because if the defendant is under the influence of medication or a controlled substance or suffers from a cognitive disability or undue influence the court cannot accept the plea. Once a plea is entered it is nearly impossible to withdraw the plea, but there is an exception.

The Exception to the Rule

A plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made. Utah Code Ann. § 77-13-6(2)(a). A plea is knowing and voluntary ‚only if the defendant is fully aware of the direct consequences’ of his plea. State v. Trotter, 2014 UT 17, ¶ 9. A direct consequence is one that will have a definite, immediate and largely automatic effect on the range of the defendant’s punishment such as lack of eligibility for parole. Id. Both defense counsel and the district court have a responsibility to ensure a defendant is aware of the direct consequences of his or her plea. Id.

In the recent case of State v. Harvey, the defendant argued that he should be allowed to withdraw his plea because he did not understand exactly what his criminal history included and how his criminal history would impact how he would be sentenced and so his plea was not knowing and voluntary because he was not fully aware of its consequences. The court, however, disagreed because the defendant had been advised of the potential for how he could be sentenced and so his own misunderstanding of his criminal history was irrelevant. His plea, therefore, could not be considered unknowing or involuntary.

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When does an informant tip justify a police traffic stop?

Fourth Amendment Requirements With Regards to Traffic Stops

Suppressing a traffic stop based on an informant tip.

Whether an informant tip is sufficient to give law enforcement reasonable suspicion to make a traffic stop is determined by three factors.

The Fourth Amendment’s prohibition of “unreasonable searches and seizures” extends to temporary detentions, such as traffic stops. See U.S. Const. amend. IV; Brendlin v. California, 551 U.S. 249, 255 (2007). To survive constitutional scrutiny, a traffic stop must be (1) “lawful at its inception” and (2) “otherwise executed in a reasonable manner.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). To be lawful at its inception, the traffic stop must be supported by a reasonable suspicion that a person has been, is, or is about to be, engaged in criminal activity. See State v. Roybal, 2010 UT 34, ¶ 14. The reasonable suspicion must be based upon “specific and articulable facts and rational inferences.” State v. Morris, 2011 UT 40, ¶ 16. In reviewing a suppression ruling, Utah courts do not look at the information the officer possessed at the time of the stop in isolation, but “look to the totality of the circumstances to determine whether, taken together, the facts warranted further investigation by the police officer.” State v. Alverez, 2006 UT 61, ¶ 14.

Is an Informant Tip Enough?

The reasonable suspicion standard does not require that the officer actually observe the violation. Morris, 2011 UT 40, ¶ 16. Reasonable suspicion may be based upon a tip. Roybal, 2010 UT 34, ¶¶ 14–20. An informant’s tip creates reasonable suspicion if the information (1) is reliable, (2) provides sufficient detail of the criminal activity, and (3) is confirmed by the investigating officer. State v. Prows, 2007 UT App 409, ¶ 14. When an identified—i.e., non-anonymous—citizen informant provides a tip, Utah courts presume its reliability. Roybal, 2010 UT 34, ¶ 19. Whether a police informant is personally acquainted with the suspect has no bearing on the analysis. Utah courts “find it inappropriate to attach a presumption of either greater or lesser reliability to a tip from a personally involved informant.” Id. ¶ 19.

A number of DUIs and other types of vehicle related crimes result from the tip of an informant, usually someone driving down the road. It makes sense to challenge the tip in many cases depending on whether the three requirements of informant tip reliability are met as outlined above.

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Our Vanishing Rights

illegal traffic stop - violating rightsIn an opinion released early this week the Supreme Court of the United States has yet again ruled against protecting individuals rights and has given law enforcement even more power to harass and torment the masses. The case referred to is Heien v. North Carolina, and the summary of the case is as follows:

“The Court affirmed the decision of the Supreme Court of North Carolina.  The Court held that the police officer’s mistake of law was reasonable and there was a reasonable suspicion justifying the stop under the Fourth Amendment.  The police officer stopped the car for having only one working brake light and in a subsequent search the officer found cocaine.  However, North Carolina law requires only a single functioning brake light.”

Unlawful Search and Seizure

The starting point for a case like this is the Fourth Amendment to the United States Constitution which gives individuals the right to be “secure in their persons, houses, papers, and effects” and protects individuals from unlawful searches and seizures. Due to the Fourth Amendment law enforcement must have a  reasonable articulable suspicion of illegal activity to pull someone over on the roadway and initiate a traffic stop. What this means is that a cop can’t just pull someone over because they feel like it, they must be able to point to some evidence of why they think the individual in the vehicle is breaking the law.This seems like an easy enough rule that is aimed at protecting citizens from unlawful police intrusions but of course that is not the reality of things. The difficulty with this rule is there are not safety measure to insure that law enforcement are telling the truth, for example, an officer can state that the individual was ‘following too close’; committed an ‘unlawful lane change’, ‘failed to yeild’, or they can simply state that the individual was ‘speeding.’ Any of these excuses for pulling someone over are valid and almost entirely impossible to prove the validity thereof. So in practice what this rule means is that if a cop really wants to pull someone over because they look ‘suspicious’ or because they’re of a certain racial class, then all they have to do is make up some offense that they believe they are committing.

Mistakes of Fact and Law

Moving on from the possibility of dishonest law enforcement, there is the next gray area of mistake. What happens if the officer simply makes a mistake about what he thought was a violation of the law and once he has the individual stopped he realizes his mistake? There are two possible mistakes here, the first is a mistake of fact, and the second is a mistake of law. The issue of mistake of fact was handled by the Utah Supreme Court in State v. Morris in which the court determined that when a law enforcement official makes a mistake of fact upon which a traffic stop is based then the office is to advise the individual of the mistake. The important part however is  that the court stated that law enforcement can still request license and registration and can still extend the stop based on newly obtained reasonable suspicion even though the original basis for the stop was a mistake. The example of this from the Morris case is that the officer thought the vehicle was not registered but after the stop was conducted he realized there was a temporary tag on the back window.

A mistake of law on the other hand is when a law enforcement official thinks an action is illegal when it is in fact not illegal. This is what SCOTUS encountered in Heien v. North Carolina. The officer in that case pulled over an individual because the person had a brake light out, however, the law of North Carolina only requires one brake light, so the individual was not doing anything illegal. In the past a mistake of law was not sufficient to provide reasonable suspicion but now under SCOTUS’ new decision a mistake of law is allowed if it was a reasonable mistake. Reasonable of course is a very flexible term and it will most likely be determined on a case by case basis but the main takeaway from this should be that officers are no longer required to know the law as well as they should to be able to get passed the Fourth Amendment. Sadly, the idea of being protected from unlawful searches and seizures is starting to appear more and more like an overly idealistic and Utopian theory that we will never truly enjoy.

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SCOTUS Reviews Felony Gun Ownership Laws

If you are convicted of felony, either a state or federal felony charge, you lose certain rightsfelony gun ownership going forward including the right to own firearms. The felony gun ownership laws in Utah are very harsh. The question then arises, what happens to your firearms in the event you are convicted of a felony. Can you sell them? Trade the firearms? Transfer the firearms to a family member? Currently the law in Utah, along with most other states, and the federal law state a felon simply cannot be in possession of a gun. The law doesn’t necessarily require felons turn over their weapons upon the filing of felony charges against them. Nor does the law expressly prohibit a felon from selling a gun rather than handing them over to law enforcement. Nonetheless, local prosecutors and the U.S. Attorney’s Office have routinely routinely requested courts order felons turn over their weapons as a part of their probation or pre trial release. Additionally, individuals charged with a felony often have their firearms confiscated at the time of the arrest, even if the felony charges were non violent and/or did not involve any weapons. Defendants in cases all over the country have sought court orders allowing them to transfer their weapons or sell them to third parties and courts have issued conflicting opinions on the matter. However, the United Supreme Court has finally decided to resolve the issue by taking up the case of Henderson v. United States, U.S. Supreme Court, No. 13-1487.

Henderson v. United States

Tony Henderson was a former United States Border patrol agent who was convicted of distributing marijuana. As a result of his conviction, he lost the right to possess a firearm. Following his case, Mr. Henderson sought to transfer ownership of his weapons to family members. He owned a considerable amount of firearms, 19 total firearms ranging from rifles and shotguns to handguns and related accessories. Mr. Henderson filed a motion with the circuit court asking the judge to permit him the opportunity to sell his guns or transfer ownership to his wife. The judge denied his motion. Mr. Henderson appealed and the 11th Circuit Court of Appeals also denied his request. Mr. Henderson appealed to the U.S. Supreme Court who agreed to hear the case which case as quite a shock to many in the legal community. The case will be deciding in the upcoming term of the Supreme Court and many expect the court to find in favor of Mr. Henderson.

Felony Charges in Utah

We have dealt with numerous felony charges in Utah in which the prosecutor’s office sought to keep firearms of those convicted and or sought orders requiring defendants to hand over all their firearms. In one recent case, the prosecutor would not agree to any plea bargain which did not permit their office to keep the defendant’s firearms. Many police departments take these weapons and sell them keeping the proceeds for the slush fund of the department. In our opinion this practice needs to stop. We are hoping the Supreme Court in this Henderson case sets a clear precedent allowing felons to sell their weapons as opposed to confiscating for their own benefit.

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Ineffective Assistance of Counsel and Immigration Consequences

Immigration consequences and ineffective assistance of counsel

Entering a guilty plea to a crime can have immigration consequences.

Recently the Utah Court of Appeals addressed whether an attorney was deemed to have given ineffective assistance of counsel to a non-U.S. citizen. In State v. Aguirre-Juarez, the defendant plead guilty to one count of attempted identity fraud, a class A misdemeanor.  She had allegedly used a fake green card, an alien registration number that didn’t belong to her, and someone’s social security number.

Her attorney was able to work out a plea option where one count would be dismissed and she would plea guilty to one reduced count. Under the Immigration and Nationality Act, any alien convicted of a crime of moral turpitude “for which a sentence of one year or longer may be imposed” can be deported. The defendant’s attempted identity fraud conviction was a class A misdemeanor which carries jail time of up to one year, which would make it fall squarely within the purview of the INA language above. The defendant’s attorney was aware of this and thus was able to get the court to sentence his client to only 364 days, with most of that sentence being suspended.  This took her outside the INA one -year language. She agreed to the deal and expressed that she understood her conviction could have immigration consequences.

The problem arose when after the fact it was discovered that another provision of the INA prohibits an individual convicted of a crime of moral turpitude and sentenced to incarceration for six months or more from being able to be readmitted to the United States. Apparently neither defense counsel nor the prosecutor were aware of this. Defendant appealed claiming that her attorney should have known about this and she was entitled to an attorney who was aware of this provision of the INA.

In determining whether the defendant’s attorney had provided ineffective assistance of counsel the court addressed whether (1) the attorney’s performance was deficient and (2) whether the attorney’s performance prejudiced the defendant. The Court of Appeals addressed only the second prong and found that she was not prejudice because even if she had been sentenced to less than six months she still would not have been able to re-enter the United States because of yet another provision of the INA prevents “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa, other documentation, or admission into the United States or other benefit provided under this Act.” The Court found this section of the INA would apply to defendant because she sought to gain employment in the United States (a benefit to which she was not entitled) through fraud.  Thus, the defendant could not show prejudice and her claim was denied.

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Medical Marijuana in Utah Limited Program Begins

Last month was officially the first month where a limited use medical marijuana in Utah license could be obtained by a few select patients in the state. So how many medical marijuana cards were issues in July? Only 11 total licenses were obtained. Compare these number to other states such as California, Nevada, and other western neighbors and it is easy to see Utah is barely providing any medical use marijuana at all. The medical marijuana laws in Utah only currently allow individuals with severe epilepsy to possess cannabis extract oil. Medical marijuana in Utah  is currently not legal for any other use or in any other form. Legislation on this issue successfully passed this year when several mother’s of epileptic children and their support came forward pushing for a bill. Half of the cards issued by the state were for child patients. This is a good step in the right direction but Utah still has quite a ways to go in opening up the medical uses of cannabis.

Distribution Still not Permitted

Medical Marijuana in Utah

Medical Marijuana

Utah’s law is so limited and narrowly tailored, it doesn’t even permit pharmacies or doctors to distribute the cannabis oil. Rather, patients sill have to obtain the oil from another state, the license only allows them to possess it. The current major supplier of the cannabis oil is located in Colorado. There is a waiting list to obtain the oil,  and that list is growing. Therefore, patients in Utah are having a tough time getting any oil even if they have successfully obtained their medical marijuana card. There is a growing demand for the cannabis oil and it doesn’t look like the supply is going to be able to meet the demand anytime soon. Patients hoping for medical marijuana in Utah may be left without for some time.

Future of Medical Marijuana in Utah

Change in drug policy often takes time so many patients are holding out hope the laws will become even more relaxed when it comes to the medical use marijuana. Many are already calling and planning for continued legislation building on the foundation previously set in this area. Additionally, just this year the Justice Department has relaxed enforcement of the federal laws on simple marijuana possession. Utah it seems may follow but surely the changes here will be slow and gradual. Don’t expect full blown medical marijuana use similar to California any time soon.

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