State v. Lopez, 474 P.3d 949

Background

Two consolidated Utah Supreme Court cases involving preliminary hearings where child-victim forensic interviews (CJC videos) were admitted as "reliable hearsay": State v. Lopez (victim L.L., age 12) and State v. Nielsen (victim A.N., age 5).
Both defendants subpoenaed their alleged victims to testify live at preliminary hearings; each victim (and the State) moved to quash the subpoena in light of victim-protection rules and the Victims’ Rights Amendment.
In Lopez the magistrate denied the motion to quash (with accommodations), reasoning defendants need not show a likelihood the testimony would defeat probable cause; in Nielsen the magistrate granted the motion to quash.
The Supreme Court accepted interlocutory review (and addressed whether a victim may seek direct appeal) to resolve the legal tension between a defendant’s right to call witnesses and victims’ constitutional protections plus the availability of reliable hearsay at preliminaries.
The Court held that subpoenas compelling victim testimony at a preliminary hearing are subject to Utah R. Crim. P. 14(a)(2)’s "unreasonable" standard and established that, once the State has made a prima facie probable-cause showing using reliable hearsay, a defendant must show the victim’s live testimony is necessary to present specific evidence reasonably likely to defeat probable cause; applying that standard the Court reversed Lopez and affirmed Nielsen.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a victim may pursue a direct appeal from denial of a motion to quash a subpoena	L.L.: direct appeal of right	State: discretionary interlocutory review is the proper route	Victim has standing but no direct appeal of right; must use discretionary interlocutory appeal (Utah R. App. P. 5)
Whether defendants have an unfettered right to subpoena an alleged victim at a preliminary hearing (rule 7B / Compulsory Process)	State: defendant's ability to call witnesses is limited by Rule 14(a)(2) and the Victims' Rights Amendment	Lopez / Nielsen: rule 7B and compulsory-process guarantee entitlement to subpoena victim witnesses	Any rule/statutory/constitutional authority to subpoena is subject to Rule 14(a)(2)'s "unreasonable" limitation and must be read in light of preliminary hearing purpose and victim protections
Standard for quashing a victim subpoena after State presents reliable hearsay at prelim.	State: where reliable hearsay establishes prima facie probable cause, subpoena should be quashed absent a showing of necessity	Defendants: need not show a particular likelihood the victim's testimony would defeat probable cause before issuing subpoena	Once State uses reliable hearsay to make a prima facie showing, defendant must demonstrate the victim's live testimony is necessary to present specific evidence reasonably likely to defeat probable cause
Application to Lopez and Nielsen	State: quash appropriate because defendants gave no specific showing	Lopez / Nielsen: entitled to call victims and obtain live testimony	Lopez: reversed (magistrate erred denying quash); Nielsen: affirmed (magistrate properly quashed)

Key Cases Cited

State v. Timmerman, 218 P.3d 590 (Utah 2009) (confirmed hearsay may be used at preliminary hearings and limited confrontation at that stage)
State v. Schmidt, 356 P.3d 1204 (Utah 2015) (articulated scope of probable-cause standard at preliminary hearing)
State v. Jones, 365 P.3d 1212 (Utah 2016) (described the State's light burden to establish probable cause for bindover)
State v. Anderson, 612 P.2d 778 (Utah 1980) (pre-1995 case recognizing broader discovery/confrontation at preliminary hearings; superseded in part by Victims' Rights Amendment)
State v. Virgin, 137 P.3d 787 (Utah 2006) (explained magistrate should not weigh conflicting credible evidence at preliminary hearings)
Mecham v. Frazier, 193 P.3d 630 (Utah 2008) (addressed Utah's non-adoption of the federal collateral-order doctrine)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (on confrontation-right limits relevant to testimonial hearsay)