*1 Utah, Plaintiff STATE of Respondent, NIELSEN, Defendant Glenn G. Appellant. Richard Maughan, City, Salt Lake J. defendant-appellant. Gen., Romney, Atty. Vernon B. Salt Harris, Lake Burton H. Cache Coun- ty Atty., Logan, plaintiff-respondent.
TUCKETT, Justice: The State commenced these seeking district court a declaration by the court as to whether or not the de- pursue Utah was entitled to dis- relating Rules of Procedure Civil particularly the claimed take various witnesses.
The defendant Nielsen was Glenn G. offenses, one be- funds, felony ing public misuse of provisions under the of Section 76-8— amended, using and with position his as a member a Board of Logan City Commissioners of secure privileges exemptions which is a misde- meanor under of Section pro- In the criminal ceedings the defendant served notice of intention to take the of various prospective and in connection subpoena therewith duces tecum caused a produce to be served requiring notes, pertinent memoranda, documents, compilations, writings, and data relating the criminal offenses possession complaints the wit- nesses. defendant claims the production and for the reason materials Rules Civil Procedure which
vides as follows: Application in criminal These rules of aspect in any of criminal where there is no other rule, provided, so statute or *2 1367 to the applied does not conflict with effect that neither statutes nor rules of civil providing discovery for inspection the of evidence posses- depositions in taking of criminal cases sion of an party adverse ap- be made by statutes hereinafter set governed plicable to criminal cases.1 forth: a defendant U.C.A.1953. When We are opinion that until answer a for has been held to such time as the statutes above referred to may, before or public offense he either are repealed modified by legislature the information, have after an indictment or this court would power be without witnesses examined vide for discovery proceedings by court behalf as rule. The defendant calls our attention to [Emphasis not otherwise. 25 by added] the Uniform Rules of Criminal Procedure Advisory Committee. U.C.A1953. adoption the of such a rule is about to the defendant witness for promote justice, the ends of nevertheless ill or infirm or is so until the barrier of the statutes is removed appre- grounds for to afford reasonable power adopt court to such a rule hending be unable to attend that he will is without a sound basis. may apply for an trial, examined con- The judgment order of the court below af- ditionally. firmed. No costs awarded. wording of the statutes
It inappli- set forth makes above CALLISTER, J.,C. HENRIOD, J., the Rules of Civil Procedure cable and that concur. may not be used pertaining criminal cases. ELLETT, language noted that the It respectfully dissent. U.R.C.P., is so broad 30(a), This defendant does not seek to take a criminal cases scope application to that its deposition so, for use at trial. If he did prob grave constitutional present then prevailing opinion would be cor- “any the rule lems. Under rect. What wishes do is to make dis- including a covery before trial in order to be able to upon examina
party, by deposition present his charge against defense to the rule in accord If the were tion.” provide him. Since statutes do not deposition of de ance with its terms a this procedure, there is no conflict between involv might be taken and cases 81(e) the Rules of Civil Procedure ing multiple door would defendants the and the statute. open attempts one defendant to take The state has statute1 at allowed total An co-defendants. prosecuting attorney, tempt to take a of a defendant jus- it would seem to be in the interest of right against would violate his self-incrim 2 permit tice to an innocent man who is ac- right to ination and his remain silent cused privilege of crime also the to make I, 12 of Article discovery and find not wait until trial to Utah Constitution. The 1. Redmond v. People Abbatiello, 148, City v. 46 Misc.2d 259 Court of Salt Lake 95, 964; Lack, N.Y.S.2d 203. 17 Utah 404 P.2d 852; 118 Utah v. Jef State Chapter 1. Title amend- U.C.A.1953 as fries, 873; Hameyer Kan. P. 232 v. (1973 Supplement). ed Pocket Nebraska, State of 148 Neb. 29 N.W.2d presumed 2. All men are innocent until State District Court and for Dela proved beyond guilty reasonable doubt. County, ware Iowa N.W.2d Fox, 169 A.2d State Vt.
out what evidence he will need to meet grounds afford appre- reasonable prove his order to innocence. hending will be attend may apply for an afforded cases order the witness be examined con- of per- led to abuses or increased the use ditionally. testimony, jured and I do not think plication to criminal cases is submitted that if these sections are *3 different. together, they be, would be looked at as it will they clearly unequivo- be seen that judgment I would reverse the rendered cally special apply only to situations below. taking perpetuation of the testimo- ny of CROCKETT, witnesses is where there “reasonable grounds for apprehending” they that will gainsaid the amenda- It is that not to be trial; and, not be able to attend the more- U.R.C.P.,1 pur- tory which was over, equal clarity it with and cer- Rules of Procedure posed to make the Civil tainty, they apply that do not other matters, except where applicable criminal circumstances; especially they do not law, a has created otherwise apply taking for dis- provides: problem. That rule proposed by as here. defendant proceedings. Application in criminal importance It is of the utmost to note rules of These that are not the statutes referred to above any aspect of criminal prohibition, contrary, on the are an applicable there no other where is authorisation, depositions only to take un- rule, any rule so provided, or that statute exigent der certain Section circumstances. does not conflict provides defendant 77-46-1 “as prescribed have witnesses examined argues dispute this: The defendant The chapter [461, not otherwise.” depositions for proposal that his to take section, following The deals with purposes is neither covered when examination of a witness applicable any “other nor in conflict made, is, a material witness that “when rule”; county attor- statute whereas the or state, or the defendant is about leave contrary. ney contends to bewill is so ill or . that he . . infirm emphasized portions of the statutes ” . . . to attend the trial being county attorney as upon by relied Moreover, subsequent section that should be statutes” “other if at the that provides chapter, carefully noted: designated the satis- time “it shown to be- On 77-46-1, U.C.A.19S3. Section . that magistrate, faction of the offense charged with half of defendant infirm, ill or is not he [the witness] or in office—Of malfeasance shall not take the examination within state.—When the next place. significant that charge pub- been held to answer for a chapter, sections 77-47-1 in office lic malfeasance offense or taking of tes- purpose similar authorize the an indictment or after may, either before timony of nonresident witness. examined or have inescapably me Consequently it seems to as his behalf statutes, authorize which clear that these otherwise. testimony, only there taking be un- that the witness will Applica- is a likelihood 77-46-2, U.C.A.1953. trial, “and not other- able to attend tion for examination.—When reasonably deemed cov- cannot is about wise” any oth- under taking er the ill or is so infirm Adopted effective Jan. circumstances, deposi procedures criminal er such new Criminal policy against arbitrary Code’s oppres- tions authorized U.R.C.P.2 persons.7 sive treatment of accused clear to it thus seems me only spe- statutes referred to deal permit- Fears expressed have been that a witness will be cial circumstance where ting before trial the newly at unavailable abuses; in criminal cases lead to and I application opens of all readily acknowledge years recent discovery depo- been abuses in have some cases, sitions, if it applied in criminal to be rejoinders to that some ambiv- supposed exists that there First, are these: that the statutes situation, it then becomes alence in the established; and the rules are and it is the permissible both to invoke desirable and duty of the courts see that both the de- construction, principles com- statutory *4 fendant and the state are accorded the ben- considerations, to de- policy bined with the efits, and are bound restrictions prob- termine the solution to the correct Second, therein. in whether fact lem.3 be abuses is conjectural. They well these The interaction of real;8 imagined than and this light therefore be considered prehension cannot the meaning affect of fundamental rule: of the time-honored and Third, the statutes the trial court anyway. crime when one proceedings control of the before it ri- to unfavorable subjected should not be powers and can pre- invoke its inherent but gidities interpretation of the law Fourth, vent such abuses. the courts applied in to have it should be entitled making also have control of the rules of light to his interests.4 most favorable change and can them as neces- this, seem that if Consistent it would sary or desirable.9 this But should be done advantages of the a man is entitled regular manner, in a and advised and the discovery procedure in existing rules should be neither distorted money property, he involving case in, changed nor an case. individual fortiori, ought, it in a criminal to have apprehension “grave constitution- precious things one even more problems” suggested by al liberty reputation are at stake.5 allowing the depo- defendant to take these Allowing depositions in this sitions gives me no undue No alarm. one consistent would supposes any procedural de- could spirit (e); with the with the na- prive person rights; of his constitutional trend;6 tional correlate 81(e) clearly so indicates. “ (a) U.R.C.P., provides: 2. Rule a serious offense State v. depositions may commence- Geurts, particu- taken. After 11 Utah 2d action, any larly take the emphasis placed ment of the thereon Mr. Jus- party, tice Henriod his dissent. by deposition upon examination procedure 6. is of interest to note that Statutory Sutherland, Construction, 3. See 2A inis accordance Rule 25 of the Uniform (4th 1973). prepared by Sec. 58.06 Ed. Rules of Criminal Procedure National Commissioners Uniform Laws. O’Day People, 4. See 114 Colo. 166 P. Tapp, 2d 76-1-104, (Supp.1973). 7. Sec. U.C.A.1953 P.2d Am.Jur.2d see Langrock, Experiment 8. See Vermont’s replaced now See. 76-1-106 of Discovery, Criminal 53 A.B.A.J. 733-34 July 1, New Criminal effective Code (1967). Statutory Sutherland, Also see 2A Construc tion, 9. See. Sec. 58.04. concerning desirability 5. See statements affording to one herein,
Upon the basis of discussion proceed would allow the defendant proposed,
with the supervision subject to the control and emphasis
of the district add- court. [All
ed.] SALT
REDEVELOPMENT AGENCY OF CITY, Appellant, Plaintiff and LAKE INC., corporation,
MITSUI INVESTMENT Respondent. Defendant and