EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 8, 2017

Supreme Court of Utah Finds Preliminary Hearing Testimony Inadmissible Under Former Testimony Hearsay Exception

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) provides a hearsay exception for former testimony that

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B)   is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

In State v. Goins, 2017 WL 3909332 (Utah 2017), the Supreme Court of Utah addressed a question of first impression in the Beehive State that has led to disparate results across the country: Is testimony from a preliminary hearing admissible under the former testimony exception? 

In Goins, DeSean Goins was charged with multiple crimes, including a class A misdemeanor for threatening Gabriel Estrada with a knife. Estrada testified at Goins's preliminary hearing but was nowhere to be found at trial. Therefore, over objection, the prosecution introduced Estrada's preliminary hearing testimony under the former testimony exception.

Defense counsel's argument was 

the motive in developing testimony is different at a preliminary hearing than it is at trial. We frequently ask questions during preliminary hearings that we would not ask at trial because evidence...admissible at...a preliminary hearing [is not necessarily] admissible in a trial. The rules of evidence are different and...we don't ask question[s] that we might ask at a trial because credibility determinations are not being made [at] a preliminary hearing. The court making the probable cause determination is not assessing the credibility of a witness, therefore we do not ask questions to get that information out.

Goins later made this same argument to the Supreme Court of Utah, which noted that there are three approaches across the country to introducing preliminary hearing testimony under the former testimony exception: (1) always allow it; (2) never allow it; and (3) determine whether to allow it on a case-by-case basis.

The Supreme Court of Utah went with option #2, concluding that

it is apparent on the record before us that Goins's counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial. Estrada's testimony referenced concerns with Goins and a prior incident between Goins and Estrada. Goins's trial counsel had a motive to develop this testimony and question Estrada's credibility that went beyond a preliminary hearing's constitutionally limited purpose. Without Brooks's per se rule, we have no basis to conclude that Goins's counsel's preliminary hearing motive to cross-examine was similar to what would have existed at trial.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/09/like-its-federal-counterpart-utah-rule-of-evidence-804b1-provides-a-hearsay-exception-for-former-testimony-that-awa.html

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