The Appellate Group

State v. Lopez, State v. Nielsen

State v. Lopez, State v. Nielsen, consolidated on appeal of interlocutory orders, 2020 UT 61 (Lee, A.C.J.)


Lopez and Nielsen were separately charged with sexually abusing children (ages five and twelve). In both cases, at the preliminary hearing stage, the State sought to meet its burden of persuasion through admitting their Child Justice Center interviews (CJC) under rule 1102 of the Utah Rules of Evidence rather than having the alleged victims testify. In both cases, defense counsel filed subpoenas attempting to compel the alleged victims to testify at the respective preliminary hearings, asserting the defendants’ rights under rule 7B of the Utah Rules of Criminal Procedure and under article 1, section 12 of the Utah Constitution. The State filed a motion to quash the subpoenas in both cases. In Lopez, the district court denied the State’s motion to quash and elected to call the witness to testify in a modified manner; in Nielsen, the district court granted the State’s motion to quash. Both defendants filed interlocutory appeals, which the Utah Supreme Court granted. Neither defendant argued that the subpoena was necessary to present specific evidence reasonably likely to defeat a showing of probable cause. For that reason, the Utah Supreme Court affirmed the district court’s grant of the motion to quash in Nielsen and reversed the district court’s denial of the motion to quash in Lopez, holding:

  • The Utah Supreme Court has jurisdiction to hear Lopez’s alleged victim L.L.’s interlocutory appeal. The court lacks jurisdiction to consider her direct appeal. But L.L. also preserved her right to appeal under rule 5 of the Utah Rules of Appellate Procedure.
  • Neither party preserved a due process argument below, and the court declines to consider it on interlocutory appeal.
  • Once the State has used a victim’s reliable hearsay to make a prima facie showing of probable cause, a subpoena compelling the victim to give additional, live testimony will survive a motion to quash only if the defendant demonstrates that the subpoena is necessary to the presentation of specific evidence that is reasonably likely to defeat the showing of probable cause. Rule 14(a)(2) of the Utah Rules of Criminal Procedure provides that “[t]he court may quash or modify [a] subpoena if compliance would be unreasonable.” Neither State v. Timmerman, 2009 UT 58, nor article 1, section 12 of the Utah Constitution stating that “[n]othing in this constitution shall preclude the use of reliable hearsay” at a preliminary hearing forecloses limitations on the admissibility of hearsay set forth by rule or statute. Nevertheless, a subpoena of a victim witness may be quashed as “unreasonable” in light of governing provisions of our law that speak to the limited purpose of the preliminary hearing, the low burden of proof that governs the bindover decision, and victims’ rights under the Utah Constitution. Any authority a defendant has to subpoena witnesses at a preliminary hearing is subject to rule 14(a)(2)’s “unreasonableness” limitation and must be performed in light of the above considerations.
  • A defendant has the general authority to “call witnesses” at a preliminary hearing, but a subpoena compelling alleged victims to testify is per se “unreasonable” when it seeks testimony that is immaterial to the probable-cause determination, would obviate the legal sufficiency of hearsay evidence, and would unnecessarily intrude on the rights of victims.
  • In Lopez, the district court erred when it denied the motion to quash on the basis of an essentially unfettered right to subpoena witnesses under criminal rule 7B(a).
  • In Nielsen, the district court correctly granted the motion to quash. Nielsen cited only an “unrestrained right” to call the alleged victim and baldly asserted that he was entitled to “test the State’s evidence” without identifying anything specific he hoped the alleged victim’s testimony would provide.

Read the full court opinion