Cassell & Goodwin on Preliminary Hearings for Misdemeanors

Paul G. Cassell (pictured) and Thomas E. Goodwin (University of Utah - S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law) have posted Protecting Taxpayers and Crime Victims: The Case for Restricting Utah's Preliminary Hearings to Felony Offenses (Utah Law Review, Vol. 2011, No. 4, 2011) on SSRN. Here is the abstract:

Recently Utah 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.

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.