Utah will become one of the worst states in America to be a victim of crime if the Utah Legislature adopts two proposed pieces of legislation allowing crime victims to be deposed. The Legislature should reject this ill-conceived idea.
Victims of crimes in Utah already go through an ordeal in the legal system that may require them to recount multiple times what is likely the most horrendous event in their lives. Depending on the case, they may be required to give graphic details of their assault to a dispatcher, to a responding police officer, to detectives, to a forensic examiner and to a prosecutor — and that’s before the case even gets to court.
As if this is not enough trauma, the proposed legislation, SB87 and Senate House Resolution 6, would also mandate that victims and witnesses in criminal cases would be compelled to submit to depositions in felony and serious misdemeanor cases. In a defense attorney’s office, they will be cross-examined. And, unlike criminal defendants, most victims cannot afford an attorney and thus will not have legal counsel during the ordeal.
The supposed rationale for adding this new step to Utah’s criminal justice process is that defense attorneys need “discovery” to defend a case. But Utah’s court rules already provide for elaborate discovery. And in many cases, victim statements are already recorded by police and made available to the defense.
Only a small handful of states allow depositions of victims and witnesses in criminal cases. And even in these few states, there is usually the restriction that the deposition must be approved by a judge. The vast majority of states follow an approach that does not subject victims to cross-examination during the early stages of a criminal case.
Here in Utah, we have long had a preliminary hearing process for determining whether criminal cases can move forward toward trial. At these hearings, defendants and their attorneys are present and ask questions of the investigating police officer or other key witnesses. But the victim is not required to testify in person and be cross-examined. In the vast majority of states and the federal system, that right to cross-examination — the right to “confront” witness — is reserved for trial. But under Utah’s preliminary hearing system, there is already more information made available to defendants than in most states.
Utah’s voters had the opportunity to review Utah’s preliminary hearing system during the 1994 general election. The issue on the ballot was a constitutional amendment to presented the choice of whether to allow prosecutors to move a case forward to trial with police testimony at a preliminary hearing or whether victims should be forced to testify. Given that choice, 70% of Utah voters approved Utah’s preliminary hearing system without victim testimony and specifically mandated that preliminary hearings were not to be used for “discovery” by defendants wishing to engage in fishing expeditions.
Utah voters overwhelmingly decided that the sole purpose of those hearings is to establish that the crime probably happened and that the prosecution is not “baseless.” Preliminary hearings are not to be used as a battering ram to attack already traumatized victims and witnesses.
The proposed legislation would subvert the will of the voters and will cause unnecessary trauma to victims and witnesses. And, significantly, the legislation serves no legitimate purpose. Prosecutors are already required to provide to defendants every piece of evidence they have — every photograph, every forensic report, every police report, all recorded interviews, all text messages. In short: everything. The defense, on the other hand, does not provide anything to the prosecution. Indeed, in preparing to defend a case, the defense has access to a key witness in the case that the prosecution is not allowed to interview: the defendant.
Ninety-five law enforcement, victim service and prosecuting agencies oppose this proposed disastrous legislation. Those 95 agencies include all district and county attorneys in the state, the attorney general’s office, the Utah Crime Victims Council, law enforcement agencies and victim advocacy groups.
Prosecuting and law enforcement agencies are adamantly opposed to the idea, because it will mean that officers will be taken off the streets to be deposed and prosecutors will have to be reassigned to cover the new depositions. The estimated cost to prosecutor’s offices alone is more than $15 million.
Since (at least) 1994, Utah’s preliminary hearing system has protected victims — while giving defendants the information that they need through other channels. If it ain’t broke, don’t fix it.
Paul Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah. Donna Kelly recently retired after 32 years as a special victims unit prosecutor and now represents victims in criminal court for the Utah Crime Victims Legal Clinic.