Utah State Courts

The creation of the first court is not recorded. Many historians believe that some form of quasi-judicial process, involving a hearing and adjudication, took place in primitive cultures. The Code of Hammurabi, which dates back 4,000 years, described the duties and obligations of judges in that society.

The beginning of our particular form of justice is traced to the Roman Empire, 2,000 years ago. From that point in time, the concept of justice expanded. Elements of wisdom and experience created a basis for the development of common law. The Roman conquest of Great Britain brought concepts of justice that eventually affected much of the English-speaking world. William the Conqueror’s arrival in 1066 added to the evolution of common law.

In 1155, after years of wars, anarchy, riots, and disorder, Richard I issued a proclamation which created procedures to maintain public order. The proclamation required all men to obey the law. The King assigned knights to sit in judgment on persons who committed breaches of the "King's Peace." These knights were the first "conservators" of the peace, the ancestors of justice court judges. Although they were not officially recognized as judges in the sense that we understand the word today, the knights were commissioned by the king and they heard regular reports from the local constables and reported to the chief justiciar.

Creation of the Justice of the Peace

In the turbulent years following the creation of the peace keeping office, social unrest and violence lead to the enactment of a statute by Edward III in 1360. The office of justice of the peace is believed to have been created by this statute. The provision called for one lord and several of the “most worthy” to become justices to “administer the King's law,” “restrain offenders, rioters and all other barrators,” and “to hear and determine at the king's suit all manner of felonies and trespasses done in the same county.” Justices of the Peace Act of 1361. After many centuries of growth and evolution, the office reached a pinnacle of prestige and importance during the early eighteenth century in Great Britain.

American Development

The early America colonies brought the British common and statutory law, and with it, the office of justice of the peace. The Charter of 1663, issued by Charles II, granted to proprietors of the colonies the right to appoint justices and other officials.

The colonial version of the justice of the peace reflected the needs of the area. Riots, civil disturbances and violence demanded the majority of the justices' time. As America grew and colonization pushed westward, the justice of the peace heard an increasing variety of cases, and the common law expanded as it adapted to American conditions. For more information on the history of the justice of the peace, consult resources such as en.wikipedia.org/wiki/justice-of-the-peace

The Justice of the Peace in Utah

The duties of the justice of the peace in the Utah Territory were outlined in an act passed in 1852. In 1874, an act was passed creating the foundation for the current justice court system. The Constitution of Utah, when ratified in 1895, provided for the office of the justice of the peace, using the basic statutory concepts found in the 1874 act. The Constitution made the office of the justice of the peace an integral part of our judicial system. {Utah Const. Art. VIII, Section 8}

In 1985 this article of the Utah Constitution was amended to read, "Courts not of record shall also be established by statute." In 1986, the portion of the Judicial Code dealing with justices' courts was amended to read, "Under Article VIII, Section 1 of the Utah Constitution, there is created a court not of record known as the justices' court. The judges of this court are justices of the peace." {UCA 78A-7-101}

In 1989, the name of the court system was changed to the "justice court” system and the justice of the peace became the justice court judge.

The Justice Court Judge

The Utah Code delegates to the justice court judge responsibilities far beyond the original duties of the office. The justice court judge is the guardian of justice in the community which the judge serves. The justice court judge presides over cases involving such matters as domestic violence, assaults, drug possession, and small claims. The justice court judge also hears cases involving one of the nation’s significant and numerous problems--that of traffic safety and the reduction of highway accidents.

The justice court judge enforces traffic laws by punishing offenders and emphasizing the dangers which the offenders pose to themselves and the community. This responsibility includes DUI cases. The justice court judge has the opportunity and responsibility, through effective punishment and wise admonition, and through the dignified conduct of the court, to reform the violator by ordering appropriate punishments and giving the violator an understanding of the importance of traffic safety.

Despite the great importance of traffic cases, this manual is not limited to traffic matters. The manual outlines criminal law and procedure, which includes traffic and other criminal cases. The manual also addresses the less ordinary matters such as preliminary hearings and small claims.

The purpose of this manual is to help answer questions which a justice court judge, especially a recently appointed judge, may have about the office.

Note: The following abbreviations are used throughout the book:

AOC: Administrative Office of the Courts
UCA: Utah Code Annotated
URCrP: Utah Rules of Criminal Procedure
URCP: Utah Rules of Civil Procedure
URE: Utah Rules of Evidence
URJA: Utah Rules of Judicial Administration
UCJC: Utah.Code of Judicial Conduct
URSCP: Utah Rules of Small Claims Procedure

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General Information

1. Types of Justice Court Judges

Classification
Justice court judges are classified as either county judges or municipal judges.
Jurisdictions
County judges hold office county-wide or in precincts, which are created by county commissioners. Municipal judges hold office in municipalities. A judge may hold both offices, with consent of the governing bodies. {UCA 78A-7-204}
Magistrates
All justice court judges are magistrates. Utah Code Ann. § 77-1-3(4) defines “magistrate” to include a “judge of a court of record or not of record.” The duties of magistrates are found in Utah Code Ann. § 78A-2-220.

2. Creation of Justice Courts

Utah Code Ann. § 78A-7-102 covers the process for creating a justice court. Justice courts are divided into four classes based on the number of filings per month. Municipalities or counties which qualify for Class I (501 filings or more per month) or Class II (201 to 500) courts may create a justice court after filing a written declaration with the Judicial Council and showing that the court will comply with the operating standards established by statute and rule. These standards include requirements for courtrooms, staffing, security, and legal materials. Municipalities and counties which qualify for Class III (61 to 200) or Class IV (60 or fewer) courts must demonstrate a need for a court, in addition to showing an ability to comply with the operating standards. A declaration for a Class I or II court must be filed at least two years before the court begins operations. A declaration for a Class III or IV court must be filed at least one year prior. The Judicial Council can shorten the time requirements upon request. The application for certification and the operational standards are found at http://www.utcourts.gov/just/resources.htm.

3. Court Support Requirements

Facilities
A justice court judge must conduct all official court business in a courtroom or office located in a public facility. The facilities must be conducive and appropriate to administering justice. {UCA 78A-7-213(1)} Each county or city must provide adequate courtroom and auxiliary space for the court. {UCA 78A-7-213(2)} A judge may not hold court in the judge’s home. The justice court judge may hold arraignments at the jail. {UCA 78A-7-212}
Legal Resources
Each city or county must provide current copies of the Utah Code, Justice Court Benchbook, local ordinances, and other legal reference materials determined to be necessary by the judge. {UCA 78A-7-214} The judge should also have the current softbound edition of the Utah Court Rules, all local ordinances, and a legal dictionary, such as Black’s Law Dictionary. It is also helpful to have the annotated version of the Utah Code and books on evidence and criminal procedure. Another excellent resource is the Utah Law on Disc, a computer CD-ROM which includes the full text of the Utah Code Annotated, Utah Court Rules, appellate court decisions, Utah Administrative Law, and other searchable databases. The Utah Law on Disc is available free of charge to the justice courts. Contact the Administrative Office of the Courts for details.

The internet also provides many legal resources for judges. The Utah State Courts’ website (http://www.utcourts.gov) includes links to court rules, forms, appellate court opinions, jury instructions, and other useful information. Judges should review the website on a regular basis to keep up with rule changes and recent appellate decisions. The Utah State Legislature’s website (http://www.le.utah.gov) includes the Utah Code, bill files, and legislative histories.
Clerical Personnel
The county or city must provide and compensate clerical personnel to conduct the business of the court. The local governmental unit hires clerks according to their local personnel policies. The county or city is responsible for the costs of clerical personnel when they travel to training sessions conducted by the Judicial Council. The State law regarding employment of relatives applies to the employment of court personnel. {UCA 78A-7-211 and 52-3-1}
Prosecution and Defense Costs
Each county or city must provide public prosecutors to attend the court and prosecute cases and also provide adequate funding for the defense costs of indigent persons charged with criminal offenses. {UCA 78A-7-209 and 77-32-306}
Security
Each county or city must provide enough peace officers to attend the court and provide security when required. {UCA 78A-7-209} Each court must also have a local court security plan on file at the court and with the Administrative Office of the Courts. {URJA 3-414(2)(c)}

4. Place of Holding Court

Where Court May be Held
The law states that a county justice court judge may hold court anywhere in the county as directed by the county commission. The court facility can be located outside of the precinct, but the judge may only hear cases which arise within the judge’s precinct. A municipal justice court judge must hold court within the municipality, except that a municipal justice court judge may conduct hearings at the county or municipal jail. {UCA 78A-7-212}
Residency
A municipal justice court judge must be a resident of the county where presiding or an adjacent county. A county justice court judge must reside in that precinct. {UCA 78A-7-201} Beginning January 2009, both types of justice court judges must be residents of either the county in which the court is located or an adjacent county.

5. Calling in a Replacement

Absence or Disqualification
If a judge is absent or disqualified, the mayor, county executive, or county commission chair must appoint another justice court judge or active senior justice court judge to temporarily replace the absent or disqualified judge. {UCA 78A-7-208} The appointing authority often appoints replacement judges in advance so that a judge can fill-in quickly when a situation arises.
Procedure of the Attending Judge
The temporary judge acts in all cases in which the original judge is disqualified. The proceedings before the temporary judge are entered in the docket of the original court.

6. Criminal and Civil Cases

Subject Matter of the Cases
Civil cases involve private claims. Criminal cases involve public offenses. Justice courts have limited jurisdiction over both case types.
Civil Proceedings
Most civil actions involve money claims, either to enforce private rights based on a contract or to obtain damages for injuries against a person or a person’s property. In a civil case, both parties, plaintiff and defendant, are usually private citizens or corporations.
Criminal Proceedings
Criminal actions are proceedings in which a person is charged with a public offense and held to answer. The person is punished if found guilty. In a criminal case, the plaintiff is the State in the case of offenses in the Utah Code, or the county or city in the case of an ordinance violation.
When a Civil and a Criminal Action Develop From the Same Incident
A traffic accident might result in a reckless driving or speeding charge in violation of the Motor Vehicle Code. At the same time, the victim ("injured party”) might bring a civil action for personal injuries or damages to the victim’s property based on the defendant’s alleged negligent operation of the vehicle. A judge may have to explain to the victim that the person cannot recover damages in the criminal proceeding for the injury suffered by the victim, except as the judge is able to order that restitution be paid as part of the offender’s sentence.¹ If the judge does not order restitution, the judge should tell the victim that a separate civil action must be filed in order to obtain compensation for damages. If the damages requested in a civil case are more than $7,500, including attorney fees but exclusive of court costs and interests, the justice court does not have jurisdiction. {UCA 78A-7-106 and 78A-8-102}
Different Standards of Proof
It is important for the justice court judge to understand the differences between civil and criminal actions because of the different procedures and standards of proof (often referred to as “burdens of proof”) that must be followed and the different remedies available.
- In a criminal case, the defendant can only be committed if the evidence shows guilt beyond a reasonable doubt.
- In a civil case, a party must show that the preponderance of the evidence (which means the greater weight of the evidence) is in that party’s favor. In some civil cases the evidence must be clear and convincing for a party to win.
Defendants’ Rights
In a criminal case, the defendant has important constitutional and statutory rights, such as the right to remain silent by not testifying. The defendant also has the right to an attorney. If a defendant cannot afford an attorney and there is a probability that the defendant will be sentenced to jail, the defendant has the right to court-appointed counsel. A person does not have these rights in a civil action.
Defenses for Damages
Sometimes a defendant in a criminal traffic case will claim that the other driver was negligent, that the defendant or the defendant’s insurance company has already paid for the damages, or that no harm was done. All these might be relevant in a civil negligence action, but are not relevant in a criminal case. The judge in a criminal case must only determine whether the defendant is guilty beyond a reasonable doubt of violating a specific provision of State law or a local ordinance.

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PART I - The Justice Court

CHAPTER 1: Selection and Tenure of Judges

The method of selecting justice court judges was altered by the 1989 Justice Court Act. Prior to this change, county justice court judges were selected in non-partisan contested elections and municipal justice court judges were appointed by the mayor or city council. Under current law, vacancies in both county and municipal justice courts are filled by following an appointment process. {UCA 78A-7-202} The appointment process was changed again in 2008.

1. Rules and Procedures

Vacancies
When a vacancy occurs in the office of justice court judge, the appointing authority of the county or municipality must advertise the vacancy and solicit applications for the position. When the applications are submitted, they are reviewed and the appointing authority must appoint the most qualified candidate. The appointment must be confirmed by the local legislative body within thirty days of submission. If the appointment is not confirmed, the appointing authority must either appoint another applicant or reopen the vacancy. {UCA 20A-1-506}

Once the judge has been confirmed by the appropriate legislative body, the judge’s name is reported to the Judicial Council. The judge is required to complete the orientation program created by the Judicial Council and be certified before performing judicial duties. {UCA 78A-7-202(3))}

Beginning in 2009, the appointment process will change and all judges will be subject to the same appointment process. Each county will have a nominating commission for every court within the county. When a vacancy arises, the vacancy will be advertised in a newspaper of general circulation and by other means. The nominating commission will evaluate the applicants and submit at least two names to the appointing authority. The appointment authority will select the most qualified from among the candidates.
Term of Office
The term of office for both county and municipal justice court judges is four years. {UCA 78A-7-203} Beginning in 2012, the term of office for all justice court judges will be six years.
Retention Election
Beginning in 2012, all justice court judges will stand for an unopposed retention election. Both county and municipal court judges will be subject to the voters in the country where their court is located. Justice court judges who are retained in office will serve six year terms. There is no limit on the number of terms a judge may serve. However, a justice court judge may not be older than 74 years of age and must retire upon turning 75. {UCA 78A-7-201}
Eligibility for Office
To be eligible to become a justice court judge a person must be:
- a citizen of the United States;
- 25 years of age or older;
- a resident of Utah for at least three years immediately preceding the appointment;
- a resident of the county or an adjacent county for at least six months immediately preceding the appointment; and
- a qualified voter in the county in which the judge resides.{UCA 78A-7-201(1)}
A justice court judge is not required to be admitted to the practice of law. A judge must have at least a high school diploma or the equivalent. {UCA 78A-7-201(2)}

A justice court judge must be a person of demonstrated integrity and maturity of judgment, and have the ability to understand and apply the law with impartiality. {UCA 78A-7-201(3)} The state nepotism law, regarding the appointment of relatives, applies to the appointment of justice court judges. {UCA 52-3-1 et seq.}
Contracting for Services
If a vacancy occurs in an unexpired term of office in a municipal justice court, the municipality can contract with a county justice court judge or a justice court judge of another municipality in the county or an adjacent county to complete the unexpired term. The municipality must notify the AOC of the contract. The municipality can also follow the regular appointment process to fill the vacancy. {UCA 20A-1-506} The new appointee will complete the term of office of the former judge.

A vacancy in an unexpired term of office of a county justice court judge may be filled by following the regular appointment process in Utah Code Ann. § 78A-7-202. A county may appoint a temporary judge to act until a permanent replacement is appointed.
Absence or Disqualification of a Justice Court Judge
When a justice court judge is absent or disqualified from hearing a case, the appointing authority (the mayor, county executive or county commission chair) may appoint another justice court judge currently holding office within the judicial district to serve as a temporary justice court judge. The appointing authority also has the option of appointing a retired justice court judge who has been certified as an active senior judge under the rules of the Utah Supreme Court. {UCA 78A-7-208 and URJA 11-203}

Justice court judges are generally flexible about assisting in other courts. Appointing authorities usually designate alternate justice court judges in advance so that a replacement judge is readily available. In cases where the judge is disqualified or absent, the temporary judge travels to the court of the disqualified judge. The case is not transferred to a different court because the original court still has jurisdiction.
Judicial Discipline Including Removal from Office
A justice court judge is subject to discipline through the Judicial Conduct Commission and the Utah Supreme Court. {UCA 78A-11-101 et seq.}The Judicial Conduct Commission is a constitutional body composed of eleven members, including four legislators, two members of the bar, three lay members, one member of the Utah Court of Appeals, and one judge of a trial court of record. {UCA 78A-11-103} The Judicial Conduct Commission has the authority to recommend removal from office, suspension, censure, involuntary retirement, or reprimand for any of the following:
- Willful misconduct in office;
- Final conviction of a crime punishable as a felony under state or federal law;
- Willful and persistent failure to perform judicial duties;
- Disability that seriously interferes with the performance of judicial duties; or
- Conduct prejudicial to the administration of justice which brings a judicial office into disrepute.
{UCA 78A-11-105} The Judicial Conduct Commission looks to the Utah Code of Judicial Conduct to determine whether the statute has been violated.

The Judicial Conduct Commission may also take action against a justice court judge who fails to attend the continuing education program sponsored by the Judicial Council. {UCA 78A-7-205}.

The Judicial Conduct Commission receives written complaints against judges and then conducts an investigation. {UCA 78A-11-109} The judge might be contacted by letter to provide a response to the allegations. The Commission may then either dismiss the complaint or proceed with a formal hearing. After the hearing, the Commission might find either no misconduct or recommend a sanction such as reprimand, censure, suspension, retirement, or removal. {UCA 78A-11-110} The Commission recommendation is then reviewed by the Utah Supreme Court. The Court may receive additional evidence before making a final decision. The Supreme Court may accept the commission recommendation and enter a final order which reprimands, censures, suspends, retires, or removes the judge. {UCA 78A-11-111}. The court may also reject or modify the commission recommendation.

The proceedings of the Judicial Conduct Commission are confidential. If the Commission recommends discipline, the recommendation becomes public when it is filed with the Supreme Court, although a judge can request that the file remain confidential. The judge would have to present significant reasons for closure. The Commission cannot stipulate to or order any type of private discipline. {UCA 78A-11-112}.

2. Impeachment of a Judge

In addition to removal through Judicial Conduct Commission proceedings, justice court judges can be impeached for high crimes and misdemeanors or malfeasance in office. Impeachment resolutions are initiated in the Utah House of Representatives and impeachments are tried in the Utah Senate. If a justice court judge is subject to impeachment proceedings, the judge will be presented with a copy of the articles of impeachment and given an opportunity to respond to the allegations. {UCA 77-5-1 et. seq.}

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CHAPTER 2: Administration of the Justice Courts

The justice court judge is responsible for more than making correct judicial decisions. A justice court judge is responsible for ensuring that:

the court is well run;
the paperwork is handled efficiently;
the money collected by the court is properly allocated
the court clerks are pleasant and efficient; and
the entire court operation promotes public confidence in the justice system.

A justice court judge must ensure that the judge and court personnel comply with applicable county or municipal rules and regulations related to personnel, budgets, and other administrative functions. {UCA 78A-7-210}. A justice court judge is also ethically required to ensure that court personnel are faithful to the duties of the judiciary and that they behave ethically. {UCJC Canon 3C}.

1. Judicial Council and the Rules of Judicial Administration

Justice courts are funded by local governments and function within the judicial branch of government. The Utah State Constitution places responsibility for administering the courts with the Judicial Council. The Judicial Council is chaired by the Chief Justice and is composed of one Supreme Court judge, one Court of Appeals judge, five district court judges, two juvenile court judges, three justice court judges, and one representative from the State Bar Commission. The State Court Administrator serves as staff to the Judicial Council. The judicial representatives to the Council are elected by the judges of that court level. {UCA 78A-2-104}

2. Boards of Judges

The Judicial Council has established boards of judges for each court level. There is a Board of Appellate Court Judges, a Board of District Court Judges, a Board of Juvenile Court Judges, a Board of Justice Court Judges, and a Board of Senior Judges. The Boards focus on problems and questions which directly impact their respective court levels. The Boards provide input to the Council on a variety of issues including budget allocation, administrative and procedural rules, legislative initiatives, and court operations in general. {URJA 1-301 and 1-304}

3. The Board of Justice Court Judges

The Board of Justice Court Judges is a ten member board. The chair and six other members are elected at the annual conference. The three Judicial Council representatives are also members. The members serve two-year terms, with the exception of the Judicial Council representatives who serve for the length of their Council terms. The Board members must meet at least quarterly, but usually meet monthly. One member of the AOC is assigned to staff the Board. {URJA 9-301}

4. The Rules of Judicial Administration

The Judicial Council has established a process to adopt uniform administrative rules and policies, and to communicate the rules and policies to all members of the judiciary and other interested individuals. The Council has adopted Rules of Judicial Administration, which are updated bi-annually on April 1 and November 1 of each year. The Rules of Judicial Administration are part of the Utah Court Rules book, which is published by the same company that publishes the Utah Code Annotated. The Rules of Judicial Administration and other court rules are also found on the judiciary’s web page at www.utcourts.gov/resources/rules/.

The Rules of Judicial Administration are divided into chapters. The first two chapters deal with the composition and procedures of the Council and the Boards. The third and fourth chapters deal with general court operations. Every court level then has a chapter for rules which originate from the Boards and are ratified by the Council. Chapter 9 of the Rules of Judicial Administration contains the Justice Court Rules. The Uniform Fine/Bail Schedule and the records retention schedule are contained in the Appendix to the Rules.

5. Compliance with the Rules of Judicial Administration

The rules of court operation in chapters 3 and 4 are very important to justice court judges. Many of the rules apply to all courts. These chapters include rules on such topics as the duties of justice court clerks, maintaining exhibits, court file security, records dissemination, court interpreters, the use of signature stamps, and processing citations and small claims cases. Justice court judges must comply with those rules which apply specifically to courts not of record and those which apply to all courts.

The Rules of Judicial Administration can be amended by the Council based upon input and recommendations received from judges, boards of judges or other interested individuals. Rules of the Council are usually circulated for comment prior to final adoption. {URJA 2-203} In rare circumstances, the Council might adopt a rule on an emergency basis, subject to later public comment. {URJA 2-205} All judges are urged to participate in the rulemaking process by communicating concerns and suggestions to the members of the Board of Justice Court Judges.

6. Justice Court Standards

In the 1989 Justice Court Act, the Judicial Council was given responsibility to establish minimum requirements for the creation of new justice courts and for the re-certification of existing courts. The Council has established the Justice Court Standards Committee to make recommendations on the minimum requirements for creating a justice court. The Committee makes recommendations based on factors such as population, case filings, public convenience, availability of law enforcement agencies, court support services, and proximity to other courts. The Judicial Council reviews the recommendations of the Committee and promulgates and publishes the minimum requirements for establishing and certifying justice courts. {URJA 3-112}. The certification standards can be found at http://www.utcourts.gov/just/resources/htm.

7. Judicial Performance Evaluation

The Judicial Council is responsible for establishing standards for judicial competence and to implement a program for evaluating judicial performance. Prior to a retention election, the Council publishes whether a judge standing for retention has met the evaluation criteria during the judge’s term of office. {RJA 3-111.01 to 3-111.04}

In 2008, the Legislature established a Judicial Performance Evaluation Commission. The Commission will conduct performance evaluations for all judges beginning with the 2012 retention election. The evaluations will be published in the voter information pamphlet. The Commission will make recommendations to voters on whether a judge should be retained.

8. Administrative Office of the Courts

The Administrative Office of the Courts is created by statute and is headed by the State Court Administrator. The AOC implements the policies of the Judicial Council. The AOC is responsible for the non-judicial activities of the courts. The State funded courts are all administered from the AOC. Each level of court has a designated staff person who serves as the court level administrator. An Assistant Court Administrator provides staff support to the Board of Justice Court Judges and implements the priorities of the Board. In addition, the Assistant Court Administrator coordinates State services for the justice courts, including education and training, technical support services, legislative initiatives, and contacts with agencies such as Wildlife Resources, Parks and Recreation, and the Department of Public Safety, which includes the Driver License Division and the Bureau of Criminal Identification.

The AOC has statutory responsibility to conduct orientation and continuing education programs for justice court judges. The individual courts are required to submit to the AOC statistical and financial information on their courts.

9. AOC Audits of Justice Court

Utah Code Ann. §63I-5-201 requires the AOC to conduct audits in courts not of record. Internal audits provide guidance to justice courts and help ensure fiscal and programmatic accountability. The audits identify areas that are working and those that are not. Although justice courts are not part of the State-operated court system, they handle over hundreds of thousands of cases a year. Members of the public are more likely to interact with justice courts than other courts. The integrity of each justice court reflects on the entire judicial branch of government and these audits help promote public confidence in the justice court system.

Audits by the AOC do not replace the statutory requirement for counties and municipalities to conduct an independent audit each year. The audit must be conducted in accordance with the State of Utah Legal Compliance Audit Guide - Justice Court Compliance.

A representative of local government may be present during the audit entrance conference conducted by the AOC audit department. In addition, a copy of the final audit report will be provided to a local government representative. {URJA 3-415}

Questions regarding the audit process should be directed to the Internal Audit Director or the Justice Court Internal Auditor at the Administrative Office of the Courts.

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CHAPTER 3: Days and Hours of Holding Court

1. Days and Hours of the Court

Rule 9-105 of the Utah Rules of Judicial Administration establishes the minimum hours of operation for justice courts. Depending on the number of monthly filings, justice courts are required to be open anywhere from 1 to 8 hours a day, Monday through Friday. Check the rule for the number of hours your court must be open. Utah Code Ann. § 78A-7-213 requires court hours to be conspicuously posted at the court and in local public buildings.

2. Holding Court on Sundays, Election Days, and Holidays

A justice court judge is not permitted to transact judicial business on a Sunday, a general election day², or a legal holiday except to perform the following:

Give, upon their request, instructions to a jury when deliberating on their verdict;
Receive a jury's verdict or discharge a jury;
Exercise the powers of a magistrate in a criminal action or in a proceeding of a criminal nature (e.g. - issue warrants of arrest, etc.);
Judicial business not involving a trial or hearing; or
Judicial business involving a trial or hearing if the judge finds it necessary for the fair administration of justice

{UCA 78A-2-212}

As early as 1903, the Utah Supreme Court strictly enforced this provision and held that it was improper for a court to hear contempt proceedings on a legal holiday because the court lacked jurisdiction, rendering the court's proceedings null and void. See Davidson v. Munsey, 27 Utah 87, 74 P. 431 (1903). The Supreme Court was not quite as strict in State v. Estes, 52 Utah 572, 176 P 271 (1918), where they held that when a criminal defendant voluntarily went to trial, contested every step taken by the state during the trial, was afforded every right to defend against the charge, and his counsel insisted upon every right which the law entitled him, the conviction and judgment would not be reversed merely because the defendant's plea was entered on a legal holiday. The Court held that, although there was error in accepting a plea on a legal holiday, it was not prejudicial error. Despite this decision, it is a much safer practice for all justice court judges to refrain from conducting any legal business on Sundays, general election days, and legal holidays, unless they are certain that their actions fall within one of the approved exceptions.

3. Compliance with Court Operational Standards

The Judicial Council will consider whether a local government has complied with the rule on the hours of operation in determining whether to certify a court. It is important for the court to be a professional forum for deciding disputes and to be supported at an adequate level. The justice court judge should help ensure compliance with applicable standards.

4. Holding Court at Night

The law does not prohibit judicial business during the night. Many judges do a great deal of judicial work in the late evening and very early morning hours. For example, a judge might be awakened by an officer who seeks an arrest or search warrant. Some justice courts are now holding criminal or small claims sessions in the evening to provide access to the courts for those who cannot attend during the day.

5. Probable Cause Determinations

When a law enforcement officer arrests an individual without a warrant, Rule 7 of the Utah Rules of Criminal Procedure states that the individual must be brought before a magistrate for the setting of bail. In many misdemeanor cases, the county jail, through a bail commissioner, will use the Uniform Fine/Bail Schedule to set bail for an arrested person, without a formal appearance before a magistrate. In other cases, the officer will request a probable cause review by a magistrate. These reviews might occur at any time during the day, and on any day during the week.

If a law enforcement officer wants to continue to detain a person arrested without a warrant, a magistrate must determine whether there was probable cause for the arrest. This determination must be made within 48 hours after the arrest. {URCrP 7(c)} This determination is usually made without the defendant personally appearing before the magistrate. The law enforcement officer presents a written probable cause statement to the magistrate. If the magistrate determines that there was probable cause for the arrest, the county jail can continue to detain the suspect. The magistrate must also set bail at that time. If the magistrate determines that there wasn’t probable cause, the suspect must be released. This process is also discussed in Chapter 4.

Justice courts should now be equipped with technology that allows hearings to be conducted through a live video feed from the jails. This allows arraignments and bail hearings with a defendant at the jail, while the judge remains at the court.

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CHAPTER 4: Compensation

1. Fixed Compensation

Prior to 1971, justice court judges were paid pursuant to an antiquated and detailed fee schedule which was enacted in 1898. These statutes were repealed in 1971when the State Legislature provided that justice court judges are to be paid a "fixed compensation" determined by the governing body of the city or county, taking into consideration recommendations by the AOC. {UCA 78A-7-206.}

2. Salary

Utah Code Ann. § 78A-7-206 states that a judge’s compensation shall be a monthly salary and must be based on the number of hours, days or other periods of time that the judge is available to perform judicial functions. The salary for a justice court judge may not be greater than 85% of a district court judge's salary. A judge’s salary cannot be reduced during the judge’s term of office.

Beginning in 2009, a justice court judge’s compensation will be set in accordance with a formula created by statute. A full-time justice court judge’s salary must be no less than 50% and no more than 90% of a district court judge’s salary. A part-time justice court judge’s salary will be determined by the judge’s workload, which will be expressed as a percentage of a full-time judge’s workload and then by applying the 50%/90% formula.³ {UCA 78A-7-206}

3. Retaining Court Fees for Compensation

A judge may not retain any fees collected by the court for the judge’s own use or compensation.

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CHAPTER 5: Collection of Fines and Reporting

1. General Fine and Fee Allocations in Municipal Courts

Utah Code Ann. § 78A-7-121(1) states:

(1)(a) Municipal justice courts shall deposit public funds in accordance with Section 51-4-2. [Section 51-4-2 requires funds to be deposited daily when practicable, but not later than three days.]

(b) The treasurer shall report to the city recorder the sums collected and deposited. The recorder shall then apportion and remit the collected proceeds as provided in Section 78A-7-120.

(c) The municipality shall retain all small claims filing fees including the governmental filing fee for actions filed by the municipality as provided in Section 78A-8-105.

2. Fines and Forfeiture in County Courts

Utah Code Ann. § 78A-7-121(2) states:

(2)(a) County justice courts shall deposit public funds in accordance with Section 51-4-2. [Section 51-4-2 requires funds to be deposited daily when practicable, but not later than three days.]

(b) The treasurer shall report to the county auditor the sums collected and deposited. The auditor shall then apportion and remit the collected proceeds as provided in Section 78A-7-120.

(c) The county shall retain all small claims filing fees including the governmental filing fee for actions filed by the county as provided in Section 78A-8-105.

3. In Both Municipal and County Courts

Fines and forfeitures collected for violations of the Wildlife Resources Act are allocated 85% to the Division of Wildlife Resources and 15% to the general fund of the city or county responsible for the justice court. {UCA 78A-7-120(2)} Fines and forfeitures collected for violations of the State Boating Act and provisions governing off-highway vehicles are allocated 85% to the Division of Parks and Recreation and 15% to the general fund of the city or county responsible for the justice court. Sixty percent of the fines and forfeitures collected for second or subsequent violations of Utah Code Ann. § 41-6a-713 (littering) and § 72-7-109(8) (securing a load) are paid to the State Transportation Fund. The remaining forty percent is distributed in accordance with § 78A-7-120. Other distributions are governed by Utah Code Ann. § 78A-7-120. Other collections are usually distributed ½ to the government responsible for the court and ½ to the government which prosecuted the offense.

4. Small Claims

Small claims filing fees are retained by the county in county justice court actions and by the municipality in municipal justice court actions.

5. Criminal Victim Surcharge

All criminal violations, with the exclusion of non-moving traffic violations, are subject to a surcharge which is remitted to the State. {UCA 51-9-401} This money is used to fund victim reparations and for public safety programs such as emergency medical services. The surcharge is imposed in addition to the fine, and no reduction may be made in the fine due to the surcharge.

85% surcharge
An 85% surcharge applies to violations of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving, and to class B misdemeanors that are not within Title 41, Motor Vehicles. As money is collected on criminal fines, penalties, and forfeitures subject to the 85% surcharge, the money is divided pro rata so that the local government retains 54% of the collected money and the state is sent 46% of the money. {UCA 51-9-402(2)(a)}
35% surcharge
A 35% surcharge applies to other offenses handled by justice courts except non-moving violations.⁴ As money is collected on criminal fines, penalties, and forfeitures subject to the 35% surcharge, the money is divided pro rata so that the local government retains 74% of the collected money and the state is sent 26% of the money. {UCA 51-9-401(2)(b)}

6. Court Security, Education and Technology surcharge

A $32 surcharge on all moving violations and other violations with the 35% or 85% surcharges took effect in May 2004. Twenty percent of this surcharge remains with the court collecting the surcharge. Of the remaining 80%, 62.5% goes to the county where the court is located, 25% is allocated to a court security fund {UCA 78A-2-602} and 12.5% is for a technology, security and training account. {UCA 78A-7-122 and 78A-7-301}

7. Reporting

Each justice court must make a monthly accounting to the Administrative Office of the Courts. The accounting must include financial information as well as case filings and dispositions. Utah Code § 51-9-402 directs that:

(3) Courts of record, courts not of record, and administrative traffic proceedings shall collect financial information to determine:

(a) the total number of cases in which:

(i) a final judgment has been rendered;

(ii) surcharges and fines are paid by partial or installment payment; and

(iii) the judgment is fulfilled by an alternative method upon the court's order;

(b) the total dollar amounts of surcharges owed to the state and fines owed to the state and county or municipality, including:

(i) waived surcharges;

(ii) uncollected surcharges; and

(iii) collected surcharges.

(4) The courts of record, courts not of record, and administrative traffic proceedings shall report all collected financial information monthly to the Administrative Office of the Courts. The collected information shall be categorized by cases subject to the 85% and 35% surcharges.

Reports must be sent to the Administrative Office of the Courts within 10 days after the last day of the preceding month. The reports should also include information on the $32 surcharge. The reports must be submitted on-line. Forms can be obtained on the internet at http://www.utcourts.gov/courts/just/resources.html

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CHAPTER 6: Educational and Training Requirements

1. Continuing Education

Participating in continuing educational opportunities is a vital part of being a judge. In 1989, the Legislature made the new judge orientation course a prerequisite to taking the bench. {UCA 78A-7-205} In 1992, the Judicial Council approved Rule 3-403, Utah Rules of Judicial Administration, which requires that “all judges shall complete 30 hours of pre-approved education annually.” Judges’ educational hours are reported yearly to the Administrative Office of the Courts. The Judicial Conduct Commission may be notified if a judge fails to complete the 30 hour requirement.

The Board of Justice Court Judges has stated that Justice Court Education:

...should provide appropriate legal, non-legal, and administrative skill training for judges at all stages of their careers, with the primary goal of developing increasingly capable, efficient, and professional judges. It should have a practical focus, with a variety of mandatory and elective programs readily available and easily accessible to judges statewide. It should be evaluated regularly to improve its effectiveness. The content should provide intellectual challenge for judges, opening them to change and encouraging them to stretch their capabilities, while also enhancing their enthusiasm for serving as Justice Court Judges.

In 1999, a Justice Court Education Committee was created. The Committee is comprised of justice court judges who serve as educational liaisons from all eight judicial districts. The Education Committee is responsible for initiating and monitoring the planning, implementation, and approval of all educational programs provided for justice court judges. Education Committee members are elected to two-year terms by the judges in their districts, with the chairperson serving as the justice courts’ representative on the Standing Committee on Judicial Branch Education.

2. Education Programs

The following educational programs are offered for justice court judges:

New Judge Orientation Part I and Part II
The Legislature requires all justice court judges to successfully complete Phase I of the new judge orientation before a judge can take the bench. Phase II is usually completed approximately six months later. The orientation is a training program offering instruction in judicial ethics, criminal and civil law, legal terminology, court operation and management, fiscal responsibility, working with the media, working with linguistic minorities in the courtroom, domestic violence, and court security. The new judge must pass a written exam at the end of the Phase I training.
Spring Conference
The three-day Spring Conference is held each year in March or April, following the end of the Legislative session. Justice court judges are required to attend the Spring Conference, where judges receive updates on new laws enacted by the Legislature. The conference includes training on such topics as legal ability (analysis of legal issues, judicial decision-making, court rules and procedures), comportment and demeanor (Code of Judicial Conduct, practices and philosophies on bias, cultural awareness, decisiveness, and judicial temperament), judicial management skills (trial and jury management, settlement skills, personnel management skills, coping with the growth of litigation and the complexity of legal issues and procedures and court system planning and administration), contemporary and interdisciplinary issues (updates on scientific and behavioral science issues, and knowledge of contemporary social issues, the law, and the humanities), and personal development (revitalization and rededication to public service, awareness of the need to maintain high levels of personal well-being and stress management).
The Legal Institute
The Legal Institute is a unique and exciting learning experience designed specifically for justice court judges who have been on the bench for at least a year and who desire further training in the law. The Legal Institute provides an opportunity for justice court judges to be given a broad introduction to legal doctrine, providing them a base of legal knowledge in relevant subject areas such as civil and criminal law and procedures, torts, evidence, and constitutional law. The institute is an intense academic program that gives judges the background, education, and skills necessary to advance in their professional development.
Other Educational Opportunities
Other statewide educational opportunities are offered periodically. There are also out-of-state training opportunities for justice court judges, including the intensive training offered at the National Judicial College in Reno, Nevada. The National Judges Association also provides national seminars for non-attorney judges. The AOC sponsors training programs and seminars for both judges and clerks.

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CHAPTER 7: Judicial Ethics

When an individual is appointed to become a justice court judge, the individual accepts a position of public trust. The responsibility of administering this trust fairly and impartially, and of conforming to ethical standards of conduct, is essential to the success of your office.

Most of this chapter is devoted to principles outlined in the Code of Judicial Conduct. Each justice court judge should become familiar with the applicable canons of ethics and apply them in the day-to-day routine. The Code of Judicial Conduct is found in the Utah Court Rules volume and on the judiciary’s website. Failure to comply with the canons is considered conduct prejudicial to the proper administration of justice and could be grounds for discipline, including removal from office.

1. Canons of Judicial Ethics

Canon 1: A judge shall uphold the integrity and independence of the judiciary.

Canon 2: A judge shall avoid impropriety and the appearance of impropriety in all activities.

Canon 3: A judge shall perform the duties of the office impartially and diligently.

Canon 4: A judge shall so conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations.

Canon 5: A judge shall refrain from political activity inappropriate to the judicial office⁵

A justice court judge is a public servant. The court exists for the public. A judge must be courteous to those appearing before the court. The judge must be clean, well-dressed, and in a good mood. The justice court judge should wear a robe while conducting court. A robe gives the court proceedings an atmosphere of professionalism and responsibility. By following these suggestions, persons appearing in court will have respect for the judge and the court.

The judge should establish a set schedule for holding court and adhere to it. The judge should promptly appear at each court session and should require the same promptness from those appearing in court. The judge should strictly follow all rules of procedure. In doing so, justice will be swift and efficient.

A judge's out-of-court conduct is held to the same high standards that apply on the bench. A judge should not engage in activities that might undermine public confidence in the judiciary. A judge should never engage in an ex parte (one-sided) conversation with a party to litigation, and a judge should never publically comment on the judge’s cases. A judge should not accept gifts or favors from litigants or their attorneys. A judge should not permit the use of the judge’s name for commercial advertising.

A judge’s impartiality is indispensable to the proper administration of the law. There are five general situations that require a judge’s disqualification:

personal bias or prejudice against a party or a party’s attorney;
personal knowledge of disputed facts;
a current or former professional relationship with a party or a party’s attorney;
a relative within the third degree of relationship is a party or attorney; or
the judge or a judge’s family member has an economic interest that might be affected by the outcome of the case.

Along with the above situations, a judge should evaluate any other situation which would prevent a fair and impartial hearing or trial or would reasonably create the appearance that the judge cannot be impartial. If even a reasonable appearance exists, the judge should enter a disqualification order. A party has the right to file an affidavit seeking the disqualification of the judge. If an affidavit is filed and the judge agrees with the allegations, the judge should enter a disqualification order. If the judge disagrees with the allegations in the affidavit, the judge must refer the affidavit to another judge for a determination of whether disqualification is necessary. The judge can refer the affidavit to any other justice court judge. The judge should not take any action until a decision is made on the affidavit. {URCP 63, URCrP 29.}

A judge should review the Code of Judicial Conduct for other restrictions on the off-the-bench activities of judges. Depending on whether a judge works full or part-time, there may be restrictions on a judge’s service to the community, business and legal practices, and financial dealings. {UCJC Canon 4}

2. Ethics Advisory Opinions

Judges might have questions about whether certain conduct is allowed or prohibited by the Code of Judicial Conduct. The Judicial Council has the authority to advise judicial officers and employees concerning ethical issues and to issue formal and informal advisory opinions on these issues. The Judicial Council has created an Ethics Advisory Committee to review opinion requests and to issue informal opinions. If a judge relies on an informal opinion, the reliance will be considered evidence of good faith compliance with the Code. The Judicial Council can review informal opinions and issue them as formal opinions. According to the Utah Code, a formal opinion is a binding interpretation of the Code of Judicial Conduct. {UCA 78A-2-104(a)}

Justice court judges are urged to request opinions when they have questions about the applicability of the Code to a proposed action. If a judge has a question, the judge should submit a written request with as much detail as possible. The request should be submitted to: Ethics Advisory Committee, 450 South State Street, Salt Lake City, Utah 84114-0241. The Ethics Advisory Committee annually distributes summaries of opinions. The opinions are available on the Utah State Courts Website: http://www.utcourts.gov/resources/ethadv/.

Judicial Conduct Handbook
Each justice court judge should be aware of and become familiar with the current Judicial Conduct handbook published by the Utah Judicial Conduct Commission. The handbook can be obtained by contacting the Judicial Conduct Commission, 2540 Washington Blvd., 7th Floor, Ogden, Utah 84401, phone: (801) 626-3369.

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CHAPTER 8: Requesting Legal Opinions

This manual attempts to answer questions that a justice court judge, especially a new judge, may have about the duties of the office and the laws of this State. This book is not intended to be exhaustive and a judge must review the Utah Code, court rules, and case law for the answers to many questions that might arise. There will be occasions when this book and the other laws will not cover particular problems which need to be resolved by a judge. In these instances a judge can seek outside help from city, county, or State officials. Utah Code Ann. § 17-18-1(7)(C) requires the county attorney to issue, without fee, written opinions to a judge when the judge asks for legal help on matters relating to the duties of the judge's office. Municipal justice court judges should consult their city attorneys.

If the opinion of the city or county attorney is inadequate, or if these attorneys suggest, an opinion may be requested from the State Attorney General's Office. The city or county attorney should request the opinion. A judge may not directly request an opinion. The request from the local attorney should be formally written and be as concise and explicit as possible. Telephone requests are not permitted.

Opinion requests will be researched and if an existing opinion adequately covers the question, the judge will be furnished a copy of that opinion. If an opinion does not exist on the subject, the request will either be answered in an informal letter opinion, or if the issue is considered to be of sufficient importance to affect the general application of the law, the Attorney General will issue a formal opinion which will be released for State-wide distribution.

Unlike judicial opinions, opinions from the State Attorney General's Office do not have the force of law and are strictly advisory.

If a judge has a question concerning this manual or a matter of procedure, the question should be directed to the Administrative Office of the Courts. The office is located at 450 South State Street, P.O. Box 140241, Salt Lake City, Utah. 84114-0241 (801) 578-3800.

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PART II: Criminal Procedures

CHAPTER 1: Criminal Jurisdiction

Jurisdiction means the power to act as a court. The word has at least three relevant meanings:

the power to try and decide certain types of cases, which is called subject matter jurisdiction
the power to exercise judicial authority in a certain locality or territory, which is called territorial jurisdiction
the power to bring the defendant before the court or judge, which is called personal jurisdiction.

A justice court judge must have all three kinds of jurisdiction in every case, both civil and criminal, before proceeding.

1. Criminal Offenses Triable by Justice Court Judges

Subject Matter Jurisdiction
One of the first jurisdictional questions a justice court judge must consider is whether the court has subject matter jurisdiction. Justice courts have subject matter jurisdiction over infractions and class B and C misdemeanors committed by persons 18 years of age or older. Justice courts also have subject matter jurisdiction over offenses committed by 16 and 17 year olds under the following Code sections:
- Title 23, Wildlife Resources
- Title 41, Chapter 1a, Motor Vehicles
- Title 41, Chapter 6a, Traffic
- Title 41, Chapter 12a, Motor Vehicle Financial Responsibility
- Title 41, Chapter 22, Off-Highway Vehicles
- Title 73, Chapter 18, Safe Boating
- Title 73, Chapter 18a, Boating - Litter and Pollution Control
- Title 73, Chapter 18b, Water Safety
- Title 73, Chapter 18c, Financial Responsibility of Motor Boats
Juvenile Courts have exclusive jurisdiction over the following offenses that are within the above titles:
- Title 41, Chapter 6a, Part 5, Driving under the Influence and Reckless driving.
- Section 73-18-2, reckless operation.
{UCA §78A-6-103 and §78A-7-106}
Territorial Jurisdiction
Territorial jurisdiction is often discussed in conjunction with subject matter jurisdiction. A court has territorial jurisdiction over crimes committed within the territorial boundaries of the court. A court also has subject matter jurisdiction over crimes committed within the boundaries of the municipality or county covered by the court. See Roosevelt City v. Gardner, 852 P.2d 1004 (Utah App. 1992) (“Because the defendant committed the crimes in Roosevelt, Utah . . . the circuit court had subject matter jurisdiction.”)
Personal Jurisdiction
Personal jurisdiction is also related to territorial jurisdiction. A court has personal jurisdiction over an individual who allegedly commits a crime within the territory governed by the court. See James v. Galetka, 965 P.2d 567 (Utah App. 1998) (“To try a person for the commission of a crime, the trial court must have jurisdiction of the subject matter and the person of the defendant.”)
Determining Jurisdiction
A judge can determine whether the court has jurisdiction to try an offense by considering the offense charged and where the offense occurred. Utah Code Ann. § 78A-7-106(5) lists the circumstances under which a justice court has territorial jurisdiction. For example, a justice court has jurisdiction over an offense as long as at least one of the elements happened within the court’s territorial boundaries. Justice Court judges should review this statute for the other circumstances under which a court will have jurisdiction.
Consequences for Errors in Jurisdiction
If a justice court judge tries a case over which the justice court does not have jurisdiction, the proceedings are void and the judge may, under certain circumstances, become liable for damages. If a justice court judge does not take jurisdiction over a case which is exclusively triable by the justice court, the judge and the court might be subject to a petition for extraordinary relief directing the court to take the case.

2. Classification of Offenses

a. General Classifications
Offenses under the Utah Criminal Code {UCA 76-3-102} are designated as:
- felonies,
- misdemeanors, and
- infractions
Offenses charged as “attempted” will lower the category by one degree. This will result in attempts of class A misdemeanors being charged as class B misdemeanors, which will vest jurisdiction of those offenses in justice courts. {UCA 76-4-102}
b. Felonies and Class A Misdemeanors
Felonies and class A misdemeanors are not within the justice courts’ subject matter jurisdiction and the justice courts cannot try such cases. {UCA 76-3-204, 301, and 302}
c. Misdemeanors and Infractions
A justice court judge has subject matter jurisdiction over class B and C misdemeanors as well as infractions. {UCA 78A-7-106}

3. Criminal Code

The Criminal Code and Jurisdiction
In order to determine whether the justice court has jurisdiction, the judge may look up the law and check the statutory designation or the punishment that has been established for the offense. The judge may also rely on the prosecutor to designate the appropriate classification in the information. Occasionally the court’s jurisdiction depends on the number of times the person has been charged with the offense. For example, a person who allegedly commits a DUI and who has been convicted of at least two DUIs within the past ten years, can be charged with a felony. Those offenses are referred to as enhanceable offenses.

The Utah Criminal Code in Title 76 contains most of the crimes that have been defined by the Legislature (other offenses are scattered throughout the Utah Code - e.g. controlled substances are in Title 58, Chapter 37). The offenses are listed as follows:
- Inchoate (incomplete) offenses {76-4-101, et seq.}
- Offenses Against Persons {76-5-101, et seq.}
- Sexual Exploitation of Children {76-5a-1, et seq.}
- Offenses against Property {76-6-101, et seq.}
- Pyramid Schemes {76-6a-1, et seq.}
- Offenses against the Family {76-7-101,et seq.}
- Offenses against the Administration of Government {76-8-101, et seq. }
- Offenses against Public Order and Decency {76-9-101, et seq.}
- Offenses against Public Health, Safety, Welfare, and Morals {76-10-101, et seq.}
Crimes Outside the Utah Criminal Code
Traffic violations, controlled substance violations, wildlife resource offenses, public utility law violations, etc., are described in other titles of the Utah Code and can most conveniently be found by using the index to the Code. The judge can also search electronic sources such as Utah Law on Disc to find relevant crimes.
Misdemeanors With no Prescribed Punishment
Utah Code Ann. § 76-3-104(2) provides that any offense designated as a misdemeanor without specification as to punishment or category is a class B misdemeanor.
Traffic Offenses with no Designation.
Utah Code Ann. § 41-6a-202 states that offenses within the traffic code that do not include a specific classification are considered class C misdemeanors. The exceptions to this are parts 2, 11, 17, and 18 which designate offenses as infractions, unless otherwise designated. {UCA 41-6a-202(2)}
Where No Classification is Prescribed
Some sections of the Utah Code, and some local ordinances, describe an unlawful act but do not prescribe the punishment. Utah Code Ann. § 76-3-105 states that any offense defined outside of the Criminal Code which is not designated as a felony or misdemeanor, and for which no penalty is stated, is an infraction. A defendant charged with an infraction is not subject to a jail term but may be fined the same as a class C misdemeanor up to $750 plus surcharges. {UCA 76-3-205(2) and 301(1)(e)}

4. Ordinance Violations

Municipal and county ordinances may not impose punishment greater than that for a class B misdemeanor - i.e. a fine of up to $1,000, plus surcharge, and a jail term of up to six months. {UCA 10-3-703 and 17-53-223}

5. Criminal Offenses Heard as a Magistrate

Powers as a Magistrate
As a magistrate, a justice court judge has authority to: 1) commit a person to jail before trial, 2) set bail and other conditions of release, 3) issue arrest warrants, 4) issue search warrants and authorize administrative checkpoints within the district, 5) appoint attorneys, 6) order presentence reports, and 7) perform any other function specifically authorized by statute or rule. {UCA 78A-2-220} A justice court judge may act as a magistrate in felony cases and conduct first appearances, preliminary hearings, and arraignments, if the judge is certified by the Judicial Council and appointed by the district court. {URJA 4-610}
Preliminary Hearings
A preliminary hearing is not a trial. The hearing is held to determine whether there is probable cause that a crime has been committed and whether there is probable cause indicating that the defendant committed the crime. If, at the end of the hearing, the judge is not convinced that there is probable cause that an offense has been committed and that the defendant committed it, the justice court judge must discharge the defendant. If there is probable cause, the justice court judge holds the defendant to answer in the District Court, or, in other words, binds the defendant over for trial. {URCrP 7} See Chapters 13 and 14 for further information regarding preliminary hearings.
For Whom Preliminary Hearings are Provided
The Rules of Criminal Procedure state that preliminary hearings are only held in felony cases. {URCrP 7}

6. Responsibilities of Judges in Criminal Cases

Roles as a Magistrate and as a Judge
In some circumstances the judge will have to decide which of the two roles is involved. If the crime is designated as an infraction or if it is either a class B or C misdemeanor, the justice court has jurisdiction. {UCA 78A-7-103} Otherwise, the justice court judge may act only as a magistrate exercising the authority explained above.
Overview of Utah Law
It will be helpful to the new judge to study Utah law including:
- Criminal Code (Title 76)
- Utah Rules of Criminal Procedure
- Motor Vehicle Laws (Title 41)
- Code of Criminal Procedure (Title 77)
- Article I of the Utah Constitution
- Code of Judicial Conduct
- Utah Administrative Code
- Wildlife Offenses (Title 23, Chapter 13)
- Controlled substances (Title 58, Chapter 37)
- Judiciary and Judicial Administration (Title 78A)
- Judicial Code (Title 78B)
- Rules of Judicial Administration
- Utah Rules of Evidence
- Judicial Ethics Advisory Opinions

7. Territorial Jurisdiction in Criminal Cases

Territorial Jurisdiction

Utah Code Ann. § 78A-7-105 states that the territorial jurisdiction of a municipal justice court extends to the corporate limits of the municipality. The territorial jurisdiction of a county justice court extends to the limits of the precinct but does not include municipalities which have a justice court. Territorial jurisdiction extends beyond these boundaries when a justice court judge is acting in the role of magistrate. {UCA 78A-2-220 and 77-7-23(2)}

A municipal justice court has exclusive jurisdiction to hear violations of the municipality's local ordinances. A county justice court judge may hear municipal ordinance violations if the municipality has not created a justice court. {UCA 78A-5-102(8)} A district court has jurisdiction over offenses committed within the county if a county has not created a justice court. A district court only has jurisdiction over these misdemeanors and infractions if there is no justice court with jurisdiction or the district court is located in a municipality that has never formed a justice court. {UCA 78A-5-102(8). The district court also assumes jurisdiction over these misdemeanors and infractions if they are charged in a class A or felony information.
Exceptions

Exceptions to the general territorial jurisdictional limits are:

(i) Arrests Made Without Warrants

When an arrest is made without a warrant, a peace officer or private person must, without unnecessary delay, take the accused to the magistrate sitting in the court which has jurisdiction over the offense. If the magistrate is unavailable, the arrested person must be taken before the magistrate who is nearest to the scene of the alleged offense or nearest to the jail. {Utah Code Section 77-7-23} This appearance is to set bail. This situation does not otherwise confer jurisdiction outside normal parameters. If the person is not admitted to bail and the defendant is delivered to a magistrate without territorial jurisdiction, the case must be filed in the correct jurisdiction. See State v. Humphrey, 823 P.2d 464 (Utah 1991) (For a discussion on the role of a magistrate in relation to the role of a judge and the jurisdiction of a court.)

(ii) Higher Education Statute Violations

Any district court or any justice court of any city or county in which property owned or controlled by a state institution of higher education is located has jurisdiction to hear and determine cases involving an alleged violation of Title 53B, Chapter 3. {Utah Code 53B-3-109}

8. Jurisdiction Over a Defendant

General Rule

A justice court has jurisdiction over an individual who commits a class B or C misdemeanor or an infraction within the territorial jurisdiction of the court. If a person charged with an offense voluntarily appears or is taken before the judge by an arresting officer, the judge has jurisdiction over the defendant. In some circumstances a defendant can be tried in the defendant’s absence ( “in absentia”). {URCrP 17}
Rule 17, Utah Rules of Criminal Procedure

(a) In all cases the defendant shall have the right to appear and defend in person and by counsel. The defendant shall be personally present at the trial with the following exceptions:

(1) In prosecutions of misdemeanors and infractions, defendant may consent in writing to trial in his absence;

(2) In prosecutions for offenses not punishable by death, the defendant's voluntary absence from the trial after notice to defendant of the time for trial shall not prevent the case from being tried and a verdict or judgment entered therein shall have the same effect as if defendant had been present; and

(3) The court may exclude or excuse a defendant from trial for good cause shown which may include tumultuous, riotous, or obstreperous conduct.

See State v. Wanosik, 2003 UT 46, 79 P.3d 937, for a discussion on when a court may sentence a defendant in the defendant’s absence. The same principles will apply for trying a defendant in the defendant’s absence. The defendant can be tried if the defendant is voluntarily absent from the proceedings. The court must conduct an inquiry to determine whether the defendant’s absence is voluntary.
Procedure

A criminal case is commenced when a prosecutor files an information. When an information is filed, the court can then issue either a summons or warrant of arrest for the accused to appear in court.

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CHAPTER 2: The Information

1. Purpose and Importance of The Information

Filing of the Information

Criminal proceedings begin when the prosecutor files an information. The information informs the defendant of the charges. It also informs the judge or jury of the alleged criminal activity which must be proved beyond a reasonable doubt in order to find the defendant guilty.
Accusatory Document

An information is a written accusation charging a person with a public offense. The information is signed by the prosecutor then filed with the court. {UCA 77-1-3(3)} Citations are used for many misdemeanors and infractions, and may be used in lieu of an information with the consent of the defendant. {UCA 77-7-18 and 77-7-21} An information not only starts a criminal case which the justice court judge has jurisdiction to try, but also a case for which the justice court judge might conduct a preliminary hearing as a magistrate. See Chapter 1, Section 6. The latter information is filed in the district court, and not the justice court.

2. Who May Draft the Information

Attorneys and Law Enforcement Officers

A prosecuting attorney must authorize and sign all informations {UCA 77-2-1.1} Private citizens as well as law enforcement officers may request the filing of a criminal information by a prosecutor. However, those individuals may not file an information on their own. The prosecuting attorney makes the decision on whether to file an information and the prosecutor must draft the formal written document.
Amending the Information

A prosecutor can amend an information any time before the verdict as long as no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. The prosecutor must make a motion to amend before an information can be amended. {URCrP 4}
Citations

In many cases a law enforcement officer issues a citation to an alleged offender. Whenever a citation is issued and filed with the court, it may be used, with the defendant’s permission, instead of an information. {UCA 77-7-21(1)} A citation must be signed by the issuing officer. A defendant’s signature, although helpful, is not required for the citation to be valid.
Multiple Offenses

An information may contain more than one offense. Utah Code Ann. § 76-1-402 states that a person may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. A "single criminal episode" means “all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.” {UCA 76-1-401} Therefore, an information may contain several offenses if they arise during a "single criminal episode." Former Utah law allowed a separation of offenses stemming from a "single criminal episode" if the offenses would normally be charged in courts with different subject matter jurisdiction - e.g. district and justice courts. The Justice Court Act of 1989 amended those provisions and provides that the offenses will be heard in the court with jurisdiction over the most serious offense. {UCA 78A-5-102(8)(c)} Utah Code Ann. § 77-8a-1 discusses other instances where more than one offense can be contained in an information
Witnesses

An information must include the names of all persons who provided evidence in support of the information. These persons may later be subpoenaed as either prosecution or defense witnesses. {URCrP 4 and 14}

3. Testing the Validity of an Information

Swearing of the Information

An information must be sworn to by a person having reason to believe that the offense has been committed. {URCrP 4(a)}

The person who swears to the information should have some personal knowledge of the occurrence of the offense, but need not have been an eyewitness to the crime. {URCrP 4(a)} Suspicion alone is not sufficient. The individual must have knowledge of some facts on which the informant bases the belief that a crime has been committed. For example, a police officer who is called to the scene of a traffic accident usually has enough personal knowledge of the facts to swear to an information even though the officer did not witness the accident. A prosecutor may also swear to an information based on facts and allegations the witnesses provide to the prosecutor.
The Oath

There is no longer a requirement that, before an information is filed, the magistrate personally administer an oath to the complainant or that the complainant speak an oral oath or affirmation in the presence of a magistrate. The complainant can have the oath administered by a clerk, notary or other person authorized by law to administer oaths.

4. Time Limitations (Also see Chapter 29 on Statutes of Limitations)

Misdemeanors

An information for a misdemeanor must be filed no later than two years after the alleged commission of the offense. {UCA 76-1-302(1)(b)}
Infractions

An information for an infraction must be filed no later than one year after the alleged commission of the offense. {UCA 76-1-302(1)(c)}
Felonies

For most felonies, an information must be filed no later than four years after the alleged commission of the crime. Some felonies are subject to later or no limitation periods. {UCA 76-1-302(1)(a)}

5. Security to Keep the Peace (Peace Bond)

Purpose of a Complaint

Under Title 77, Chapter 3 of the Utah Code, an individual may file a complaint with a magistrate alleging that another individual has threatened to commit an offense against the person or property of another individual. {UCA 77-3-1} This type of complaint does not begin a criminal prosecution. An individual files the complaint to obtain an injunction against the person who threatens to commit a crime.

The complaint is a written statement which sets forth jurisdictional facts, specifies the threatened offense, and is subscribed and sworn to by the complainant before the magistrate.{UCA 77-3-3} The magistrate may examine under oath the complainant and any witnesses which the complainant produces. {UCA 77-3-2}

If a magistrate determines that a complaint gives reasonable cause to fear the commission of the threatened offense, the magistrate may issue a warrant of arrest directing a peace officer to bring the accused before the court or the nearest accessible magistrate. The magistrate may also issue a temporary restraining order against the accused, prohibiting the commission of the threatened crime and ordering the accused to immediately appear before the judge for a hearing. {UCA 77-3-4} If the complaint does not establish a threatened offense, the complaint should be dismissed.
Peace Bond

At the hearing, if it appears that there is no reasonable ground to fear the commission of the alleged offense, the accused must be discharged. The court may order the complainant to pay the costs of the proceedings if the magistrate determines that the complaint was unfounded and frivolous.

If there is reasonable ground to fear the commission of the alleged offense, the court may enter an order permanently restraining the accused from engaging in illegal conduct or acting in any manner that could result in illegal conduct. The court may require the accused to post an undertaking in a sum not to exceed $3,000 to help keep peace toward the people of the state and particularly toward the persons endangered by the threatened conduct. The conditions of the undertaking must be in writing and effective for six months. The court may extended the period on good cause shown. The court may also increase the amount of the bond or require a new undertaking.
- If the undertaking is given, the accused must be released without further penalty.
- If the undertaking is not given, the magistrate must commit the accused to jail, specifying in the warrant of commitment the requirement to give security, the amount, and the effective period of time.
- A person committed for not giving the required undertaking may be released by any magistrate when the accused provides the undertaking.

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CHAPTER 3: Screening and Diversion

1. Screening

Purpose

A prosecuting attorney is responsible for deciding the course of criminal prosecutions. Law enforcement officers investigate allegations against an accused. The officers then present evidence to the prosecuting attorney. The prosecutor screens each case to decide whether to continue the investigation, drop the investigation, or file an information. The prosecutor’s decision on whether to file a case is not and cannot be reviewed by the court. {UCA 77-2-3}
Dismissal of the Prosecution

After an information is filed, there may be times when a prosecutor will move to dismiss the information. If reasonable grounds are shown, the magistrate may order dismissal, stating the reasons for dismissal in the order. {UCA 77-2-4} Rule 25 of the Utah Rules of Criminal Procedure lists some of the bases for dismissal:
- unconstitutional or unreasonable delay in bringing the defendant to trial;
- the prosecution is barred by the statute of limitations; or
- the allegations of the information, together with a bill of particulars⁶, do not constitute the offense charged.
The judge may also dismiss a prosecution on its own motion on these some grounds. The judge must enter the reasons for such dismissal in an order and enter it into the minutes. {URCrP Rule 25(c)} If the court dismisses the action because the right to a speedy trial has been violated, or the statute of limitations has run, the case cannot be refiled. In other circumstances the prosecutor may refile. {URCrP 25(d)}

2. Diversion

Alternate Programs for the Defendant

After an information is filed, the prosecutor may seek to divert a defendant into a rehabilitation program. Diversion is an option for the prosecution, not a right of the defendant. A prosecutor's decision not to offer a diversion program to a defendant is not subject to judicial review. {UCA 77-2-5(4)} There are offenses for which diversion may not be offered. {UCA 77-2-9}

The Utah Code of Criminal Procedure outlines the basic principles of diversion programs and options. The development of specific programs has been left to the individual courts and prosecuting attorneys.
Court Approval

The court is required to approve any diversion of a defendant. The defendant must either be represented by counsel or have knowingly and intelligently waived the right. {UCA 77-2-5} (See Rights of the Accused, Chapter 16.) The right to counsel exists during the negotiations for diversion and at the time the diversion agreement is signed and approved.
The Agreement

A diversion agreement must be written and must be commenced prior to conviction. It must contain a full and detailed statement of the diversion requirements agreed to by the defendant and the reasons why the prosecution is being diverted. Participation in a diversion program cannot be required beyond two years. A diversion cannot be approved by a judge unless the defendant, both in the presence of the judge and in the written agreement, knowingly and intelligently waives the constitutional right to a speedy trial. {UCA 77-2-5} A diversion agreement may include a requirement that the defendant pay the costs of the rehabilitation program. The court may not order a defendant to pay a fine, court costs, or other penalty.
When Diversion is not an Option

Diversion is not available for a defendant charged with:
- a capital or a first degree felony; {UCA 77-2-9(1)(a)(b)}
- a sexual offense against a victim under age 14; {UCA 77-2-9(1)(c)}
- a motor vehicle offense involving alcohol or drugs; {UCA 77-2-9(1)(d)}
- any case involving the use of a motor vehicle in the commission of a felony; {UCA 77-2-9(1)(e)}
- driving a motor vehicle or commercial motor vehicle on a revoked or suspended license; {UCA 77-2-9-(1)(f)}
- any case involving operating a commercial motor vehicle in a negligent manner causing the death of another including the offenses of manslaughter under Section 76-5-205; or negligent homicide under Section 76-5-206.{UCA 77-2-9(1)(8)}
- traffic violations if the proposed diversion involves traffic school or other rehabilitation program (UCA 77-2-4.2}⁷
- domestic violence {UCA 77-36-2.7(6)}
Completion of the Diversion Program

When a defendant complies with the requirements of the diversion program, the court dismisses the charges. The dismissal means that the defendant is not subject to further prosecution for the offense named in the information along with any lesser included offense. A diversion is not a conviction and when the program is completed the matter is treated as if the defendant had never been charged. A defendant may at that point seek an expungement of the court record.
Violation of the Diversion Agreement

(i) The Order to Show Cause

If either the prosecuting attorney or the court receives information that the defendant has violated the terms of the diversion agreement, the case may proceed to prosecution. In order to recommence prosecution, the prosecuting attorney or the court must serve the defendant with an order to show cause. The order, or an affidavit in support, must specify the facts relied upon by the prosecuting attorney or court in terminating diversion. The order must also set the time and place for a hearing to determine whether the defendant has violated the diversion agreement. {UCA 77-2-8}

(ii) Reinstatement of the Case

If the court finds that the defendant has violated the conditions of the diversion, the court may authorize the prosecuting attorney to proceed with prosecution of the original offense. If the act which violated the diversion agreement is unlawful in itself, reactivation of the prosecution of the original offense does not prevent additional prosecution for the act which constituted a violation of the diversion agreement. {UCA 77-2-8}
Conclusion
Diversion agreements add flexibility to the criminal justice system. The justice court judge must consider the best interests of the community as well as the interests of justice and the rights of the defendant in deciding whether to approve any diversion agreement.

3. Plea in Abeyance

Purpose

Another prosecutorial option is to seek a plea in abeyance agreement. {UCA 77-2a-1 et seq.} In a plea in abeyance, a guilty or no contest plea is entered, but the defendant is not sentenced and judgment is not entered pending completion of the plea agreement. This procedure is available only by motion of the prosecutor and the defendant, and the terms of the plea in abeyance must be contained in an agreement. The plea agreement must be in writing if the information contains a felony or a combination of felonies and misdemeanors. {UCA 77-2a-2} The agreement must also be in writing if the defendant does not personally appear before the judge, which can occur in traffic cases. A traffic citation may be resolved through a plea in abeyance, but not through a diversion. {UCA 77-2-4.2}
Procedure

Before accepting a guilty or no contest plea, the defendant must be advised of and waive the constitutional and other rights listed in Rule 11 of the Utah Rules of Criminal Procedure. This can be done in the plea in abeyance agreement itself as long as the judge asks the defendant whether the defendant understands and voluntarily signs the agreement.⁸ The plea in abeyance agreement describes the conditions that must be met by the defendant. Upon successful completion of those conditions the charges may be reduced or dismissed. The court may also require the defendant to pay a plea in abeyance fee, which is treated and distributed the same as a fine. In traffic cases, the plea in abeyance fee may not be more than $25.00 over the amount established as the fine for that offense in the Uniform Fine/Bail Schedule. In those cases, a report of the plea in abeyance must be sent to the Driver License Division. In addition, all enhanceable offenses disposed of by a plea in abeyance must be sent to the Bureau of Criminal Identification, both when the plea in abeyance agreement is executed and when it has a final disposition (either dismissed or plea entered and defendant sentenced).
Violations

When the court receives information that the defendant has violated the terms of the plea in abeyance agreement, the plea may be entered and the defendant may be sentenced. Prior to entering the plea, the court must serve the defendant with an order to show cause. This order, or an affidavit in support, must specify the facts relied upon by the prosecuting attorney or judge in terminating the agreement. The order should also set the time and place for a hearing. A hearing requires the same due process safeguards required in parole or probation revocations. The court must give the defendant an adequate opportunity to refute the allegations.

According to statute, a plea may not be held in abeyance for longer than 18 months. {UCA 77-2a-2} However, in State v. Turnbow, 2001 UT App 59, 21 P.3d 249, the Utah Court of Appeals stated that a plea in abeyance case “remains open until the trial court takes further action to either enter a conviction for the pleaded-to crime or a lesser crime, or dismisses the case.” A court may thus keep a plea in abeyance case open until it determines whether the defendant violated the terms of the agreement during the term of the plea in abeyance. If the violation occurred later than 18 months (or other term set by the agreement) after the agreement was approved, then the plea probably cannot be entered as a conviction.

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CHAPTER 4: Criminal Summons and Arrest With and Without Warrant

A defendant must appear or otherwise respond to the court upon receiving a citation. A law enforcement officer might take a defendant to jail or bring the defendant before the court after arrest without a warrant. If the defendant does not appear in one of these two ways, the judge must use process that compels the defendant to appear. The court may use either a criminal summons or a warrant of arrest.

1. Summons

A criminal summons is a court notice to appear. It is issued and signed by the judge⁹ and is directed to the defendant. The defendant must be personally served. The summons commands the defendant to appear in court at a certain time and date to answer the charges in the information. A criminal summons is served upon a defendant in the same manner as a civil summons. {URCrP 6(c)(3)} The rules of civil procedure permit a defendant to be served by certified mail as long as the defendant personally signs the mail certificate. {URCP 4} The summons can be served anywhere in the State. {UCA 78A-7-109}

Rule 6(b) of the Utah Rules of Criminal Procedure states that in all cases where it appears to the magistrate that the accused will appear on a summons, and there is no substantial danger of a breach of the peace, injury to persons or property, or danger to the community, the court should issue a summons instead of a warrant. A judge should consider a summons instead of a warrant for any traffic offense. The prosecutor must file an information before a summons may issue. A corporate defendant must be served by summons and not a warrant of arrest. A summons is often the best way to bring to court the many offenders who are not serious criminals but who have violated traffic laws, fish and game laws, etc., and who will in most instances comply with the notice to appear. An arrest warrant should be used when the summons is not successful or is likely to be futile from the start.

2. Warrant of Arrest

Purpose and Service

The court may issue a warrant of arrest in cases where a defendant has failed to appear in response to a summons or citation. {URCrP 6} The court may also issue a warrant if it is apparent that a defendant will not respond to a summons. A warrant of arrest orders a peace officer to arrest a particular person and bring the person to court or book the person in jail. The warrant must be served by a peace officer. The warrant can be served anywhere in the State. {URCrP 6}
Time of Arrest and Service of Warrant

If the warrant involves a felony, the arrest can be made on any day, at any time of the day or night. If it is a misdemeanor, the judge must endorse special permission on the warrant to allow arrest at night. {UCA 77-7-5} The judge may also, by an endorsement on the warrant, authorize a warrant over the telephone or by other electronic means. {UCA 77-7-10}
Getting Arrested Person to Court Pursuant to a Warrant

When a justice court judge issues a warrant, the judge should set bail at that time. A justice court judge cannot deny bail. {78A-2-220(2)(b)} A justice court judge may, however, set bail in an amount calculated to ensure a defendant’s appearance at court. The judge should follow the Uniform Fine/Bail Schedule, but may deviate from that schedule when a defendant has shown a lack of reliability or under other extraordinary circumstances.

When a defendant is arrested on a warrant, the defendant will be taken to a county jail. The defendant will have an opportunity to bail out of jail based on the amount of bail set on the warrant. If the defendant is unable to post bail, the defendant will remain in jail. The local government must make arrangements for transporting the defendant to the court. If the defendant is able to post bail, the defendant will be released from jail and given a notice to appear before the court on or before a particular date.
Arrest in Another County

If the arrest is made in a county other than where the offense was committed, the officer must take the prisoner without unnecessary delay to a magistrate in the county where the crime was committed. {URCrP 7(d)(1)} If the warrant was issued by a court outside of the county, and the offense is a misdemeanor for which a defendant may voluntarily forfeit bail, the defendant may forfeit bail, which is then sent to the court which issued the warrant. {URCrP 7(d)(2)(3)(4)} The voluntary bail forfeiture is treated as a conviction. {77-7-21(1)(c)}
Approval of Warrant by County Attorney

Under prior Utah law, a justice court judge could issue a warrant of arrest only after obtaining the approval of the county attorney. The Rules of Criminal Procedure enacted in 1980 do not include the same provision. The warrant of arrest, however, must be based on an indictment or an information which shows probable cause that the crime was committed and that the accused committed it. {URCrP 6(a)}
Use of Summons or Warrant of Arrest

A warrant of arrest should not be issued unless an information is filed. A citation issued by a law enforcement officer does not necessarily give the right or authority to subsequently issue a warrant without an information. Before issuing a warrant the judge must determine that there is probable cause to believe that an offense has been committed and that the accused committed it. The information will provide the facts upon which probable cause can be determined. {UCA 77-7-5}

3. Taking Arrested Person to Court When Arrest is Made Without a Warrant

Arrest without warrant

When an arrest is made without a warrant, a peace officer or private person¹⁰ must, without unnecessary delay, take the accused to the nearest or most accessible magistrate for setting bail. If an information has not been filed, one should be filed without delay. {URCrP 7 and UCA 77-7-23 } The prosecutor sometimes does not promptly file an information because it takes time to sort through the evidence and decide on the appropriate charges. This is certainly permissible.

The duty to deliver the defendant to the nearest and most accessible magistrate is accomplished by delivering the defendant to the jail in the county in which the defendant is arrested. The defendant is then admitted to bail according to the Uniform Fine/Bail Schedule.¹¹ If the defendant does not make bail, the jail must transport the defendant to the court with jurisdiction. If the defendant makes bail, the jail usually gives the defendant a date and time to appear before the court.

If an individual is arrested without a warrant and the jail does not or cannot set bail, a law enforcement officer must prepare and present a probable cause statement to the court. The purpose of the probable cause review is to determine whether the jail can continue to hold the individual. The judge reviews the probable cause statement to determine whether there was probable cause for the arrest. Probable cause is found when the facts and circumstances support a reasonable belief that a crime was committed and the defendant committed it. State v. Worwood. 2007 UT 47, 164 P.3d 397. If there was probable cause, the magistrate immediately determines the amount of bail. The defendant may then be held at the jail unless and until the defendant posts bail. If the magistrate determines that there was no probable cause for the arrest, the magistrate orders the immediate release of the individual. {URCrP 7(c)(2)}.
Utah Code on Warrantless Arrests

The judge will find the general law on arrests in Title 77, Chapter 7 of the Utah Code. Utah Code Ann. § 77-7-2 provides:

A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:
1. for any public offense committed or attempted in the presence of any peace officer; "presence" includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses;
2. when he has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it;
3. when he has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may:
  1. flee or conceal himself to avoid arrest;
  2. destroy or conceal evidence of the commission of the offense; or
  3. injure another person or damage property belonging to another person.
An arrest made contrary to law may make the officer liable in damages for false arrest.
When the Misdemeanor is not Committed in the Presence of an Officer

Warrantless arrests are often made in domestic violence and DUI cases. For many other misdemeanors, warrantless arrests are rare. The officer will typically investigate the alleged offense and then issue a citation or refer the case to the prosecutor. The prosecutor will then determine whether an information should be filed. If an information is filed, the court may then issue a summons or an arrest warrant as explained above.
Special Provisions

There are special provisions on arrest in the Wildlife Resources Code {UCA Title 23, Chapter 20} and the Alcoholic Beverage Control Act {UCA 32A-13-102}, but generally it is safe for an officer to follow, and for the judge to be familiar with, the general law of arrest in Title 77, Chapter 7 of the Code of Criminal Procedure.

4. Lineups

Suspects

A magistrate may also order a suspect to appear in a lineup. This is appropriate in a case where there is probable cause to believe a crime has been committed and that the suspect may have committed it. This type of order is necessary to force a suspect, not under arrest, to participate in the lineup. Any suspect who has been arrested and is in custody may be required to participate in a lineup without a court order. {URCrP 16(h)} If a suspect requests a lineup and makes a showing of good cause, the magistrate can order law enforcement to provide a lineup. {UCA 77-8-1}
Suspects’ Rights

A suspect has the right to have an attorney present at the lineup. The magistrate must inform a suspect of this right when ordering the lineup. Since this is a critical phase of a criminal prosecution, a court appointed attorney is available to the defendant, whether or not the accused has been arrested for the crime. {UCA 77-8-2} (See also Rights of the Accused, Chapter 16.)

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CHAPTER 5: Search Warrants

A search warrant is an order issued by a magistrate in the name of the State, directed to a peace officer, which describes with particularity the thing, place or person to be searched and the property or evidence to be seized. {URCrP 40(a)(3)} Justice court judges have authority to issue search warrants that are executed within their judicial districts. {UCA 78A-2-220(2)(c)}

An application for a search warrant, unlike a criminal information, does not begin a criminal proceeding. A judge can issue a search warrant even if there isn’t a pending case. The search warrant itself does not contemplate the arrest of a person, but an arrest could occur during the search if illegal materials are discovered. The search warrant authorizes the seizure of articles illegally held, such as stolen goods, gambling devices, controlled substances, or property used in committing a crime. A search warrant may also be requested to seize such things as bodily fluids, fingerprints, and hair.

1. Constitutional Guaranty and Requirements

Except under special circumstances, a peace officer’s entry into a person's home or other property to make a search without a warrant can be a violation of the constitutional provision that, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated..." {Utah Constitution, Article 1 Section 14} A search warrant is an exceptional and extraordinary measure which may be used only upon compliance with all the safeguards provided by law. The constitutional provision above quoted continues:

...and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

Also see United States Constitution, Amendment IV, which has language that is essentially the same as the Utah Constitution.

2. Requirements for Issuing a Search Warrant

Utah Code Ann. § 77-23-201 et seq., Rule 40 of the Utah Rules of Criminal Procedure, and appellate court decisions explain the process that must be followed to comply with Constitutional requirements. A search warrant may only be issued upon probable cause, supported by oath or affirmation. The warrant must particularly describe the person or place to be searched and the person, property or evidence to be seized. {URCrP 40(c)}

The Affidavit

The sufficiency of the affidavit is the most important legal requirement for issuing a search warrant. The warrant must be based on evidence that the property to be seized is subject to search. The affidavit must indicate that there is probable cause to believe that 1) the property was unlawfully acquired or is unlawfully possessed, 2) has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense, or 3) is evidence of illegal conduct. {URCrP 40(b)}

If the property is sought as evidence of illegal conduct but there is insufficient evidence to believe that the person possessing the evidence is a party to the alleged illegal conduct, the court usually should not issue a search warrant. A subpoena is the proper way to obtain that evidence. The court can issue a subpoena in a pending case, but subpoenas are also available before a case is filed. An example would be issuing a subpoena for records from a bank to support the offense of issuing bad checks. These types of “investigative subpoenas” are only issued out of a district court. {UCA 77-22-1 et. seq.}

In the event that a magistrate finds that the evidence possessed by a third person cannot be subpoenaed or may be concealed, destroyed, damaged or altered if it is sought by subpoena, the magistrate may issue a search warrant. The magistrate must include conditions on the warrant that protect the rights of the third person. The warrant should not unreasonably interfere with normal business. It should protect against the loss or disclosure of confidential information. It should also protect against any restraints on constitutionally protected rights. A justice court judge may issue this type of search warrant. {URCrP 40(c)(2)}

(i) Affiant’s Background

In order for a magistrate to determine probable cause, the magistrate must be able to evaluate the credibility of the affiant. The affiant should provide sufficient information regarding his/her experience as a law enforcement officer and with the type of crime being investigated. The statement should include information regarding training, commendations, investigations and prior warrants served which should all relate in some way to the subject of the search. The magistrate must have sufficient information and detail to make an informed decision. An example would be a drug case where the affiant would recite specific training and experience in the detection and investigation of drug-related offenses, the number of arrests made, warrants requested and served, etc. Only the magistrate can assess this information. The officer’s credibility and the credibility of any information upon which the officer relies should be evident before the court issues a warrant. See Illinois v. Gates, 462 U.S. 213 (1983) for a discussion on warrant and affidavit requirement.

(ii) Probable Cause

In reviewing the affidavit, the judge must decide whether there is probable cause to believe that the named evidence is illegally held at the described place. State v. Romero, 660 P.2d 715 (Utah 1983). As the Supreme Court of Utah stated in Allen v. Trueman, 100 Utah 36, 110 P.2d 355, 359 (Utah 1941), a “search and seizure warrant shall issue only when the court, not the affiant, nor anyone apart from the court, shall have found that there is probable cause to believe that the property described is unlawfully in the possession of any person.” The justice court judge must look at the “totality of the circumstances” to determine if there is probable cause to issue a warrant. “The judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him...there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983); quoted in State v. Bailey, 675 P.2d 1203, 1205 (Utah 1984). If the judge is not convinced by the affidavit itself, the warrant should not be authorized. See also Salt Lake City v. Trujillo, 854 P.2d 603 (Utah App. 1993); and Kaysville City v. Mulcahy, 943 P.2d 231 (Utah App. 1997).

The following is an example of facts that might be alleged in support of a warrant. Suppose that an applicant states that the officer personally investigated the theft of a television. The owner of the television told the officer that the television was kept in her living room; that when she entered her living room in the morning she saw that the set had disappeared; and that she has reason to believe that Johnson took it and has it in his house. This would not be sufficient to show probable cause because it does not supply facts which show that Johnson is likely to have the set. It is mere speculation. It would be inappropriate to issue a search warrant based on this information. If the officer states that the victim saw Johnson (1) enter her house, (2) take her television set, and (3) enter a certain house with it, this may be sufficient to establish probable cause. The affidavit must also meet the requirements of specificity of place and property described in sections (iv) and (v) below.

(iii) Hearsay

The information upon which probable cause is determined may be hearsay if there is substantial information which helps validate that hearsay. See State v. Treadway, 499 P.2d 846 (Utah 1972); State v. Bankhead, 514 P.2d 800 (Utah 1973); State v. Jordan 665 P.2d 1280 (Utah 1983); and Illinois v. Gates, 462 U.S. 213 (1983). A warrant might also be based on double hearsay. State v. Neilsen, 727 P.2d 188 (Utah 1986) (“Double hearsay between police officers is not fatal on its face to the validity of a warrant.”) The magistrate must find that the hearsay is credible. In order to assess the reliability of the hearsay statements, the magistrate must assess the credibility of the maker of those statements, and the credibility of the individual relaying the statements.

(iv) The Place to be Searched

The affidavit must particularly describe the place to be searched. {URCrP 40(c)(1)} The description must be so clear that the warrant does not leave the officer executing it in doubt as to where the search is to be conducted. (In the above example, if the house Johnson entered has a street name and number, that information should appear in the affidavit.) See State v. South, 932 P.2d 622 (Utah App. 1997); State v. Anderson, 701 P.2d 1099 (Utah 1985). An incorrect street number will not invalidate a warrant. State v. Valle-Flores, 2005 UT App 290, 117 P.3d 1069.

(v) The Property to be Seized

The affidavit must describe with particularity the property to be seized. {URCrP 40 (c)(1)} The description of the property should be so detailed that it will be identifiable by the officer without the use of discretion. In the example above, the make of the television set, its model (e.g. tube or LCD), the serial number, and other characteristics which distinguish it from similar sets should be used if the information is available. A general description is sufficient in the case of gambling devices, contraband, illegal drugs, and other items when possession of the item is itself illegal. See Allen v. Holbrook, 135 P.2d 242 (Utah 1943) and State v. McIntire, 768 P.2d 970 (Utah App. 1989). A court may issue an “all records” search warrant if “there is probable cause to believe that the business to be searched is permeated with fraud.” State v. Norris, 2001 UT 104, 48 P.3d 872 (Utah 2001).

(vi) Informants

Informants are used extensively by law enforcement. If law enforcement officers could not use informants, many crimes would not be solved. However, the use of informants and hearsay present special issues for a magistrate. Informants generally fall into one of two categories: citizen informants and police or confidential informants.

Citizen informants are average citizens whose only interest in the criminal investigation is the protection of their communities. A citizen informant does not receive anything from the police in exchange for the information. State v. Purser, 828 P.2d 515 (Utah App. 1992). (“Reliability and veracity are generally assumed when the informant is a citizen who receives nothing from the police in exchange for the information.”) “Generally, an ordinary citizen-informant needs no independent proof of reliability or veracity.” State v. Deluna, 2001 UT App 401, P14, 40 P.3d 1136. A citizen-informant is “an average citizen who is in a position to supply information by virtue of having been a crime victim or witness.” State v. White, 851 P.2d 1195, 1199 (Utah App. 1993)(quotations and citations omitted.) If an informant falls into this category, the information is generally considered to be reliable and the magistrate can depend on it to determine probable cause. The affidavit must be sufficiently specific for the magistrate to determine that the informant is an ordinary citizen and that the information constitutes probable cause.

A police or confidential informant is generally considered to be less reliable than a citizen informant. “A police-informant (or criminal informant) is ‘one who gains information through involvement in criminal activity or who is ‘motivated...by pecuniary gain,’” and thus is “lower on the reliability scale.” Kaysville City v. Mulcahy, 943 P.2d 231 (Utah App. 1997) See State v. Saddler, 2004 UT 15, 104 P.3d 1265. A confidential informant’s statements against the informant’s penal interests might enhance the informant’s reliability. Reliability can also be bolstered by the officer’s independent investigation of the confidential informant’s statements.

A magistrate faced with an affidavit containing hearsay statements must evaluate the reliability of the individuals who made the statements. The affidavit should identify with specificity the type of person making the statements, and establish the reliability of the informants. In State v. Saddler, 2004 UT 105, 104 P.3d 1265, the Utah Supreme Court discussed the standard for determining the reliability of police informants. The Supreme Court rejected a rigid test and stated that a magistrate must review the totality of the circumstances to determine whether an informant is reliable. The court stated:

An informant’s “reliability” and “basis of knowledge” are but two relevant considerations, among others, in determining the existence of probable cause under a “totality of the circumstances.” They are not strict, independent requirements to be rigidly exacted in every case. A weakness in one or the other is not fatal to the warrant as long as in the totality there is a substantial basis to find probable cause. The indicia of veracity, reliability, and basis of knowledge are non-exclusive elements to be evaluated in reaching the practical, common sense decision whether, given all the circumstances, there is a fair probability that the contraband will be found in the place described.

Citing State v. Hansen, 732 P.2d 127, 130 (Utah 1987).

If the affidavit establishes the character of the informant as an ordinary citizen, the magistrate may rely on that information in determining probable cause. If the affidavit characterizes the individual as a police or confidential informant the affidavit must also establish the reliability of the informant.

In reviewing an application for a search warrant based upon information provided by an informant, the magistrate should insist that the applicant provide as much detail as possible. The magistrate should consider the reliability of the informant and the basis of the informant’s knowledge, but the ultimate focus is on whether the totality of the circumstances shows probable cause that contraband will be found in the place described.

(vii) Staleness

In addition to the above considerations, the magistrate must determine whether the information provided in the affidavit is “stale.” The court must determine whether the information is too old to be reliable. “Staleness issues usually arise when a significant lapse of time occurs between the discovery of information suggesting that evidence of the crime can be found at a particular locale and the magistrate’s finding of probable cause or the execution of the warrant. The question that arises with staleness is whether so much time has elapsed that there is no longer probable cause to believe that the evidence is still at the targeted locale.” State v. DeCorso, 1999 UT 57, ¶ 60, 993 P.2d 837. The general rule, particularly in drug cases, is that the information should be recent. Some criminal investigations, such as those involving art theft, pornography, homicide or racketeering, could be based on information that is older. The magistrate must evaluate staleness in determining whether to issue the warrant. See State v. Norris, 2001 UT 14, 48 P.3d 872 (“Where a commonsense reading of an affidavit presents a substantial basis for the magistrate to conclude that the criminal activity is continuous, specific dates are unnecessary to sustain the validity of the professed acts.”)
Remotely communicated search warrants
Rule 40 of the Utah Rules of Criminal Procedure outlines the procedure to be followed when a magistrate is asked to authorize a warrant by telephone or other electronic means. The evidence in support of the warrant must be given under oath and reduced to writing or otherwise recorded verbatim. The remotely communicated information must be kept by the magistrate or another neutral individual to insure that the information cannot be altered after the warrant is issued. The court is not required to delay the warrant pending transcription of the record. The rule does not require that emergency circumstances or other special justifications be shown to remotely obtain a search warrant. The applicant’s testimony may be communicated by various mechanical, magnetic, electronic, or photographic means.{URCrP 40(L)(2)}.

If the magistrate is satisfied from the communicated testimony that probable cause exists, the magistrate directs the applicant to sign the magistrate’s name to the warrant at the remote location. The warrant and supporting documents are subsequently returned to the court and maintained along with the recorded testimony. The documents should be returned as soon as possible.

The bulk of this chapter has been devoted to the requirements of the affidavit. The affidavit is critical to issuing a warrant. The warrant must be harmonious with the affidavit as it applies to the items to be seized and the places to be searched. If not, the warrant might be defective.
Special Circumstances and Rules

(i) Special Directions

If the affidavits or oral testimony provide reasonable cause to believe that a search should be done at night to avoid concealing, destroying, damaging or altering the evidence, the magistrate may insert a direction that the warrant be served at any time of the day or night. Otherwise, the magistrate must insert a direction in the warrant that it is to be served in the daytime. {URCrP 40(e)(1)}

(ii) Execution of Warrant

A warrant must be executed within 10 days after it is issued. {URCrP 40(e)(2)} An officer may break open any outer or inner door or window of a house, or any part of a house or anything within, to execute the warrant if the officer is refused admittance after giving notice of the officer’s authority and purpose, or if the judge has given direction that the officer is not required to give such notice. (This is commonly referred to as a “no knock” warrant.) The judge can only direct that notice is not needed if the object of the search might be quickly destroyed, disposed of, or hidden; or that physical harm might result to any person if notice is given. {UCA 77-23-210}

An officer must create a receipt for property taken. {URCrP40(f)} The officer must promptly return the warrant to the magistrate together with an inventory of the property taken. {URCrP 40(g)}

3. Searches Without A Warrant

There are numerous exceptions to the warrant requirement. An officer is often justified in conducting a search and seizure without a warrant. Several of these exceptions are covered in Chapter 16, Rights of the Accused.

4. Special Provisions

There are a number of special provisions in the Utah Code relating to searches and seizures. They are found in the Wildlife Resources Code {UCA 23-20-1}, the Controlled Substances Act {UCA 58-37-13}, the Juvenile Court Act {UCA 78A-6-106}, and several other parts of the Code. All of these laws are influenced by the Utah Constitution (as quoted in this chapter) and the general principles outlined above.

5. Administrative Checkpoints

A justice court judge might also be asked to authorize an administrative checkpoint. An administrative checkpoint is “a roadblock procedure where enforcement officers stop all, or a designated sequence of, motor vehicles traveling on highways and roads and subject those vehicles to inspection or testing and the drivers or occupants to questioning or the production of documents.” {UCA 77-23-102}.

A law enforcement officer who seeks approval of an administrative checkpoint must provide a detailed plan on how the checkpoint will be conducted. The plan must include such details as the location of the checkpoint, the date, time and duration of the checkpoint, the sequence of traffic to be stopped and the purpose of the checkpoint. A justice court judge should review Utah Code Ann. § 77-23-104(2) for the requirements of a checkpoint plan.

Before authorizing an administrative checkpoint, a justice court judge must confirm that the plan minimizes the length of time the motorists will be delayed, minimizes the privacy intrusion, minimizes anxiety by the motorists, minimizes the officers’ discretion, and maximizes the safety of the motorists and the officers. The judge must also confirm that the purpose of the checkpoint is to detect drivers who are under the influence of alcohol or drugs, and/or that drivers are properly licensed and insured. A judge may also authorize wildlife officers to conduct an administrative checkpoint or for other circumstances that are not designed for general crime control. {UCA 77-23-104(2)}. See State v. DeBooy, 2000 UT 32, 996, P.2d 546 (“Magistrate authorization of checkpoints must be narrowly tailored and limited to inquiries directly linked to promoting safety of the highways. Multipurpose, general warrant-like intrusions on the privacy of persons using the highways are unacceptable. The broader the authorization by the magistrate and the greater the discretion of the officer at the checkpoint, the more suspect the constitutionality of the checkpoint under Article I, Section 14.”)

6. Disposition of Property Seized

Holding Seized Property

Law enforcement officers who seize property pursuant to a search warrant should place the seized evidence in a specially designated, locked evidence room. If the items seized are large, cumbersome, and numerous, a commercial storage company's facility may be used. The peace officer holds the seized property subject to the magistrate’s order directing its disposal. {URCrP 40(h)} Property obtained under a search warrant or other lawful search which is not needed as evidence and is not contraband, is returned to the owner. {UCA 77-24-2}
Procedure when Property is not Used as Evidence

When the peace officer or agency determines that the property is not needed as evidence, the officer or agency informs the prosecuting attorney, describing the property and giving details of ownership. The prosecuting attorney authorizes release of the property. The officer notifies the owner that the property is to be returned. When the owner shows proof of ownership and of lawful possession, the custodian releases the property to the owner. {UCA 77-24-2}.
Procedure when Property is Used as Evidence

When the property has been received in evidence, it is either retained by the clerk of court or is returned to the peace officer's custody until all direct appeals and any retrials are final. The property may then be returned following the procedure described above. The prosecuting attorney may decline to authorize release, however, if the prosecutor anticipates either collateral attacks on the judgment or use in another prosecution. {UCA 77-24-2}
When Property Goes Unclaimed

If the property is not claimed after notice to the owner, or if the owner is unknown and no claim of ownership has been made, the entity which possesses the property may put the property to public use or sell it at public auction. The money received from the auction is put to public use. {UCA 77-24-4}

7. Records

When a justice court judge issues a search warrant, the justice court judge must retain a copy of the warrant and all supporting documents from the time that the warrant is issued. {URCrP 40(i)} When the warrant is returned, the justice court judge should attach the return to the warrant, affidavits, and other documents upon which the warrant was issued. The search warrant documents should be maintained at the court. See Anderson v. Taylor, 2006 UT 79, 149 P.3d 352 (”To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material.”)

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CHAPTER 6: Bail Procedure

1. Bail and Recognizance

Purpose and Use

The primary purposes of bail are to relieve the accused of imprisonment while ensuring that the accused will submit to the jurisdiction of the court. Utah Code Ann. § 77-20-1 states that a person charged with a criminal offense has a right to bail unless charged with:
1. a capital offense;
2. a felony while on probation or parole;
3. a felony while free on bail on another felony charge; or
4. a felony with substantial evidence to support the charge and there is clear and convincing evidence that the person is a substantial danger to another person, or is likely to flee.
Justice court judges may not set bail in a capital case nor deny bail in any case. {UCA 78A-2-220(2)(b)}
Occasions for Bail

When a defendant appears in response to a citation or information, and pleads not guilty, the court may require the defendant to post bail to ensure the defendant’s presence at subsequent proceedings.

The same bail amount may be continued throughout the case unless the judge subsequently determines that the amount of bail is insufficient or excessive and raises or lowers it accordingly. {UCA 77-20-3(2)} Increasing the bail would be justifiable, for example, when the judge receives information that the individual might flee the jurisdiction or commit some other offense.
Recognizance

Any person who may be admitted to bail may also be released on that person’s own recognizance, in the magistrate’s discretion. {UCA 77-20-3(1)} Release on one’s own recognizance (OR) may be appropriate in cases where the offense is not serious and the judge determines that the defendant will appear in court upon promise to do so.
Factors for Bail and Recognizance

The judge might consider the following factors in either setting bail or allowing an own recognizance release:
1. the defendant’s ties to the community, including employment, length of residency, and family and relatives in the area;
2. the defendant’s record on prior required appearances;
3. the seriousness of the charge and whether the defendant's past record suggests the defendant will be incarcerated or placed on probation if found guilty of the charge.
The court may also consider granting an own recognizance release or a low bail amount if the defendant agrees to specific conditions, such as residing with parents or participating in a drug and alcohol rehabilitation program. The judge may ask the parents or program administrator to notify the court if the defendant leaves or fails to comply.

2. Bail Commissioners

Utah Code Ann. § 17-32-1 and § 10-3-920 give counties and some cities the option of appointing a peace officer to serve as a bail commissioner. A bail commissioner has authority to fix and receive bail for a person arrested on a misdemeanor. Bail commissioners must follow the Uniform Fine/Bail Schedule adopted by the Judicial Council. Bail commissioners may also set reasonable bail for county or city ordinances not contained in the Uniform Fine/Bail Schedule. {UCA 10-3-920(2)}

The court may review the amount of bail set by a bail commissioner and, for good cause, may modify the bail amount. {UCA 10-3-920(5) and 17-32-1(5)}

3. Posting Bail

A defendant has three options for posting bail: property bond, cash, or bond from a licensed surety.

Property bond

A property bond consists of property owners pledging their property to the court to guarantee a defendant’s appearance. The property owners must have a net worth of at least twice the amount of the bond and the pledged property must be located within the state. {UCA 77-20-5(1)} In order for the property bond to be valid, the property owners must include information such as evidence of ownership, property tax amount, a title report, and lien holders. {URCP 72} Property bonds are rarely filed.
Cash

A defendant may post cash. A defendant may also use a credit or debit card. When a credit or debit card is used, the amount that the court receives will be the bail amount less the fee that is charged by the financial institution to process the payment. {UCA 77-20-4(3)} If the bail is subsequently returned, the amount will be less the credit card fee. The court can just credit the defendant’s card in that circumstance. {UCA 77-20-4(4)} A third party may also post cash on behalf of a defendant. The cash is considered to be the defendant’s property in that circumstance.
Bail bond

The Utah Department of Insurance issues licenses to entities (“sureties”) which want to be in the bail bond business. {UCA Title 31A, Chapter 35} A defendant may purchase a bail bond from one of these sureties. {UCA 77-20-4(1)(b)}.(A list of licensed bail bond companies is found at: http://www.insurance.utah.gov/BB_Licensees.html) The surety issues a bail bond on behalf of the defendant and it is filed with the court. The bond guarantees a defendant’s appearance throughout the proceedings up to sentencing or the surrender of the defendant at the jail, whichever occurs later. {77-20-7(1)(a)} If the defendant is not required to serve jail time, bail is exonerated at sentencing. In the written undertaking, the surety submits itself to the jurisdiction of the court. The court is not required to inquire into the financial condition of a licensed bail bond company.

4. Forfeiture of Bail

Property Bond

If a defendant fails to appear and a property bond has been posted, the prosecuting attorney proceeds against the property that has been pledged to the court. The prosecuting attorney makes arrangements to sell the pledged property to satisfy the bail amount.
Cash Bail

If a defendant or third party has posted cash bail, and the defendant fails to appear, the cash may be immediately forfeited.
Bail Bond

If a defendant fails to appear in a case in which a bail bond has been posted, and the court chooses to forfeit the bond, the court must issue a bench warrant and, within 30 days,¹² send notice of the defendant’s nonappearance to the surety. The notice must include the name, address, telephone number, and fax number of the prosecutor. The bail bond company then has 6 months to produce the defendant. If the bail bond company does not produce the defendant within the 6 months, a judgment may be entered against the bond company. The prosecuting attorney should prepare and submit the judgment. {UCA, Title 77, Chapter 20b}. The prosecutor should pursue collection of the judgment. A surety which fails to pay a judgment should be reported to the Insurance Department. {UCA 31A-35-504(2)} The Insurance Department may suspend the license of a surety which does not pay a judgment.

5. Exoneration

Property Bonds and Cash Bail

Property bonds and cash bail are exonerated if a defendant appears as required and is not found guilty of the charges. A property bond is also exonerated at the end of the proceedings, even if a defendant is convicted. Cash bail can be applied to a defendant’s fine or other penalties if the defendant is convicted.
Bail Bond

The Utah Code establishes certain conditions under which a surety is entitled to exoneration of its bond:
1. death of the defendant, {UCA 77-20b-104}
2. completion of the proceedings and the defendant has appeared as required, {UCA 77-20-7}
3. the defendant is in custody in another jurisdiction and the surety notifies the court and the prosecutor of that fact, and the prosecutor pursues extradition, {UCA 77-20b-103} (The surety can be required to pay the costs of extradition.)
4. the defendant has failed to appear, and has been arrested and booked on the original charge, {UCA 77-20b-105} or
5. the defendant is in custody and the surety revokes the bond by serving the revocation on the jailer and providing proof of the revocation to the court. {UCA 77-20b-105}.
The Utah Code also permits a surety to file a motion asking for the bond to be exonerated in various circumstances, such as when the defendant has escaped from jail or the surety delivers the defendant to the county jail. The surety must provide proof supporting the basis for exoneration. {UCA 77-20-8.5} Exoneration is usually discretionary in these circumstances. The court can refuse to exonerate if the court determines that the bond is still necessary to guarantee the defendant’s appearance.

6. Amount of Bail

Rules

There is no statute which tells the judge or bail commissioner how high or how low bail can be set. The Constitution prohibits excessive bail, but there is no indication as to what amount might be considered excessive. The Uniform Fine/Bail Schedule provides guidance on the appropriate amount of bail. The schedule should be followed, except in unusual cases. Once set, the magistrate has authority to increase or decrease the amount of the bail as necessary. {UCA 77-20-3(2)}
Misdemeanors

In the case of misdemeanors, the justice court judge should follow the bail schedule and require bail in the approximate amount of the fine that would be imposed on conviction.
Felonies

In the case of a felony, the bail amount depends on the seriousness of the offense and the risk that the accused might not appear in court. Bail for such offenses, is often set at relatively high amounts, such as $10,000 or $20,000 or into the hundreds of thousands

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CHAPTER 7: Citations (Tickets)

1. Legal Meaning of Citations

A law enforcement officer can issue a citation instead of taking a person into custody on a misdemeanor charge. Citations are also used on infractions even though a defendant cannot be taken into custody on an infraction. A citation orders the accused to appear before the court which has jurisdiction over the offense. {UCA 77-7-18} A magistrate may issue an arrest warrant if a defendant fails to appear on a citation.¹³ {UCA 77-7-19(3)} A willful failure to appear on a citation is a class B misdemeanor. {UCA 77-7-22}

2. Types of Citations

Traffic Citation

Citations are most often issued by the Utah Highway Patrol, county sheriffs’ offices, and municipal police departments. A citation lists the name and address of the defendant, the defendant’s driver’s license number, and the offense. A citation also specifies the name and location of the court where the defendant must appear and the time to appear, which must be at least five days and no more than fourteen days after the citation is issued. {UCA 77-7-19 and 77-7-20} The law enforcement officer signs the citation and the defendant signs the citation at the bottom. (Note: the defendant’s signature is not required for the citation to be valid.) The citation also notifies the defendant that, if the defendant does not appear on the citation, the court may issue a warrant for the defendant’s arrest.

Citations are issued for violations of the State Motor Vehicle Laws (Title 41 of the Utah Code). For some of the more serious violations under this title, like driving under the influence or hit and run driving, citations are usually not issued and immediate arrests are made. Arrests are also sometimes made for lesser traffic offenses instead of issuing a citation. This might be done if the law enforcement officer believes that the defendant will not appear in court on the citation and it might be difficult to find the defendant later.

Whenever a law enforcement officer issues a citation, one copy is given to the accused and one is filed with the court as provided in Utah Code Ann. § 77-7 20. If a defendant fails to appear in court, fails to deposit bail, or pleads not guilty to the offense, an information must be filed. {UCA 77-7-21}
Overweight Citations

For violations of weight and load limits of motor vehicles, the Utah Highway Patrol uses a special citation which has blank spaces to fill in axle loads and distances between overloaded axles. In all other respects this citation is like the citation described above. The judge will find the law on overloads and prohibitions on the size of vehicles in Utah Code sections 72-7-401 to 72-7-409. The purpose of these provisions is to protect Utah highways from excessive wear and tear caused by vehicles of great weight. Any judge who would like to have information on the manner of figuring overloads, and on the operation of this law generally, should communicate with the Utah Highway Patrol Port of Entry Office in the State Office Building or any Port of Entry field office. There are several other statutes relating to the weights of vehicles which deals with registration fees. {UCA 41-1a-1201 to 41-1a-1213} The higher the weight the larger the registration fee. Information on the Department of Transportation and its regulations can be found at http://www.udot.utah.gov
Citations Issued for Violations of the Motor Carrier Safety Act

Citations are also used for violations of the Motor Carrier Safety Act contained in Title 72, Chapter 9 of the Utah Code. This Act regulates the use of freight trucks, passenger buses, gasoline tank cars, and other vehicles employed in the business of transporting persons or property. These types of vehicles may not be operated over Utah highways without first obtaining a certificate, license, or permit from the Department of Public Safety. Vehicle operators must also comply with strict safety regulations and other requirements established by the Commissioner of the Department of Public Safety. Additional information can be found at http://highwaysafety.utah.gov
Wildlife Resources Citations

Another type of citation that frequently comes before the justice court judge is the citation issued by a Division of Wildlife Resources conservator officer. This citation has blank spaces for filling in such information as the make of the gun and items seized by the officer.

A copy of the Wildlife Resources Code {UCA 23-13-1 et seq.} in pamphlet form and the fishing and hunting proclamations of the Division of Wildlife Resources may be sent to the justice court by the Division. They can also be viewed on the internet at http://www.wildlife.utah.gov/proclamations. Any judge who has not received a copy or needs additional copies, and any judge who would like questions answered on Wildlife Resources laws, should communicate with the Division of Wildlife Resources, Law Enforcement Section, 1594 West North Temple Street, P.O. Box 146301, Salt Lake City, UT 84114-6301. Additional information can be found at http://www.wildlife.utah.gov
Ordinance Violations

There are many different kinds of local ordinances involving such subjects as animal control, building and zoning, and licensing. The citations for violations of these ordinances are similar in form to the previously discussed citations. The court can assume jurisdiction over these only if they are charged criminally. The court does not have civil jurisdiction over these ordinances.

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CHAPTER 8: Script and Procedure for Disposition of Traffic Cases Without a Trial

The following is an example of a court procedure followed by some justice courts:

Step 1: The defendant arrives and hands the judge the citation. (In most courts, the defendant first goes to the court clerk to have the case calendared. The judge then calls the case from the calendar.)

Step 2: The judge sits at the bench in the courtroom and opens court:

"The Justice Court for ___________ precinct (or for the City of ___________ ), _________ County, State of Utah, is now in session. The case before the court is (reading from the citation or the docket), the State of Utah (or the County, City of _________ in the case of an ordinance violation) versus James Browning, defendant."

Step 3: "Mr. Browning, is James Browning your correct name?" (If the answer is "no" and he gives his correct name, the name is noted on the citation and in the docket, showing both the incorrect and the correct name. The case then continues with the correct name, which might be Jerome Browning.)

Step 4: "Mr. James Browning, you are charged with the offense of speeding. Before asking you to plead to this charge, I will inform you of your rights under the law. You have the right to be represented by an attorney before anything further is done in the matter, and you have the right to have these proceedings postponed to give you time to hire an attorney. If you desire to have an attorney, and you cannot afford one, you may ask the court to appoint an attorney to represent you.”

(Note: A court cannot sentence an indigent defendant to jail (even a suspended jail term), unless counsel is appointed or the defendant waives that right. Before a defendant waives the right to counsel, the defendant must fully understand the right. Argersinger v. Hamlin, 407 U.S. 25 (1972) and Shelton v. Alabama, 535 U.S. 654 (2002). The court is not required to appoint an attorney if a jail term will not be imposed although the person still has the right to be represented by counsel of his or her choice. This step should be modified if the court is not required to appoint an attorney).

“If there is a postponement, you may be required to post bail. Do you desire counsel?" If the answer is "yes," the defendant is admitted to bail or released on the defendant’s own recognizance. A time is set for the defendant to return with an attorney. If the answer is "no," the judge proceeds with the next step.

Step 5: "Mr. Browning, you have the right to have an information filed specifying the charges against you.”

“If you want an information, the case will be postponed to another date so that an information can be filed. If you waive the right to an information, the case will proceed at this time.”

If an information is requested, bail is taken, or the defendant is released on his or her own recognizance and another date is set for the defendant to return. The prosecutor is notified by the court to prepare an information. If the information is waived, the case proceeds.

If the defendant wishes to proceed on the citation, the judge should explain the contents of the citation, i.e. the code section involved, the date and time of the offense, etc.

“You have the right to a speedy trial. You have the right to a trial by a jury [not applicable for an infraction] upon your written request to this court, and to have the unanimous verdict of the jury.”

“You have the right to face your accusers or anyone who might testify against you, and the right, by yourself or through your attorney, to cross-examine those witnesses.”

“You have the right to refuse to testify, and this refusal will not be construed by the court as an admission of your guilt because you have a privilege against compulsory self-incrimination.”

“You may take the witness stand yourself, if you wish, to testify in your own defense, after which you can be cross-examined by the prosecution.”

“Mr. Browning, you are considered innocent of any charges by this court, and the burden of proof is upon the State of Utah to prove that you are guilty beyond a reasonable doubt.”

“You have the right to appeal the verdict or judgment of this court to the ________ District Court [District Court of your area] and to have a new trial.”

“You have the right to withdraw your plea in the future, however you must file a motion with the court before sentence is pronounced.”

“Mr. Browning, do you understand all of the rights I have just explained to you." "Yes". "Do you have any questions about your rights?” "No."¹⁴

Step 6: (Reading from the citation): “The charge against you is that you drove an automobile at a speed of 65 miles an hour in a 40 mile an hour speed zone on U.S. Highway 89 in _______ County on March 19, 20_ at 10:55 p.m. The offense is a class C misdemeanor, which has a maximum fine of $750 plus a 35% surcharge and a maximum jail sentence of 90 days. The court can suspend the fine and jail sentence.”

“Mr. Browning, you may now enter a plea of guilty, no contest, or not guilty. If you plead guilty or no contest, and wish to offer an explanation, you may do so after the court accepts your plea and before the court pronounces its judgment.”

“The consequences of a guilty or no contest plea are the same as if you had been convicted after trial. By entering a guilty plea you waive all rights that I have previously explained to you. You will then be sentenced under the law you violated and a report of your conviction will be forwarded to the Driver License Division of the State Department of Public Safety. If you plead not guilty, the prosecuting attorney will be notified and a trial date will be set. You will be released on your own recognizance or admitted to bail until the trial date.”

"What is your plea?" If the plea is not guilty, a trial date is set. See Chapter 10 for a step-by-step outline of a criminal trial. If the plea is "guilty" the judge proceeds to the next step.

Step 7: Before accepting the guilty plea of a defendant, the judge must determine that the plea is voluntary and that the defendant has voluntarily waived the right to plead not guilty and proceed to trial. The judge should ask the defendant whether the defendant knows and understands the previously explained rights to a speedy trial and a trial by jury, the right to an attorney, the burden of proof that the State must show, the privilege against compulsory self-incrimination, and the right to confront witnesses. The defendant needs to be informed of the nature and elements of the offense to which the plea is being entered and that the plea of guilty is an admission of those elements. The court must also make certain that there is factual basis for the plea. The facts must address every element of the offense. See Rule 11, Utah Rules of Criminal Procedure for all the rights that must be explained before a guilty or no contest plea can be accepted.¹⁵

If the judge is satisfied that the defendant understand the above rights and is voluntarily and knowingly entering the guilty plea, the plea is entered in the docket.

After accepting the guilty plea, the judge might then allow the defendant to make a statement. After the defendant has given an explanation, the judge may then choose to explain the purpose of the law. The important part here is to impress on the defendant a healthy respect for the law. Lecturing to the defendant is often not helpful and must be discreetly used.

Step 8: "You have the right to be sentenced no sooner than two and no later than forty-five days from now.¹⁶ You have the right to waive this time period and be sentenced at this time.” (The defendant can waive the time for sentencing and agree to be sentenced at that time. If the defendant does not waive the time, the defendant may be released on the defendant’s own recognizance, required to post bail, or committed to jail to insure the defendant’s appearance at the time set for sentencing. The defendant can also waive the 45 day limit with the court’s permission and agree to be sentenced later.)

Step 9: Although a victim does not have the right to make a statement in justice court cases, the court could allow the victim to appear and speak if the court chooses. The judge may ask the prosecution about whether the victim (if any) of the crime is present and if so, would the victim like to make a statement. A victim may make a statement in any appropriate fashion, including an oral, written, audio-taped, or video-taped statement. {UCA Title 77, Chapter 27 and Chapter 38.}

Step 10: When imposing sentence, the judge should examine the defendant about the defendant’s financial status and the court should tailor the fine payments accordingly. If the defendant fails to pay the fine under the terms set out by the court, the judge can hold a hearing for contempt. The judge cannot commit a defendant to jail or contempt if the defendant does not have the ability to pay the fine. Tate v. Short, 401 U.S. 395 (1971). A judge may sentence a defendant to jail as a part of the original sentence. If the jail sentence is suspended, the jail time may be reinstated if the defendant fails to pay the fine, even if the defendant is unable to pay.

Step 11: During the proceeding, the clerk should enter all of the necessary information in the docket. The docket should include the defendant's name and address, the charge, the citation number, the time the defendant appeared, any adjournments, admissions to bail or commitments, the plea, the sentence, the date of payment of the fine, and all other occurrences in the case. {UCA 78A-7-110}

Step 12: A report of Mr. Browning’s conviction is sent to the Driver License Division. The report must include all the information required by Utah Code Ann. § 53-3-218(3).

Whether a person is charged with the most minor traffic offense in a justice of the peace court, or with the commission of an infamous crime in a criminal court, the rights and privileges guaranteed to him by statute and the Constitution are the same in either court, and anyone else concerned with his prosecution and trial. Such principles are part of the foundation of American democracy.

Judge and Prosecutor in Traffic Court: Northwestern University American Bar Association and the Traffic Institute p. 138 (1951).

The outlined procedure helps to ensure the proper disposition of citations while protecting the constitutional rights of those who are accused. The procedure does not require the presence of the officer who issued the citation, nor does it require the prosecutor to file an information if the defendant agrees.

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CHAPTER 9: Handling Non-Appearances in Citation Cases

The justice court will often deal with individuals who do not respond to their citations. The situation is addressed by following a set procedure in every case in which a defendant fails to appear.

1. Citations

Appearance on Citation

A citation directs the accused to appear at court no sooner than five days and no later than fourteen days after receiving it. The peace officer who issued the citation must file a copy of the citation within 5 days. {UCA 77-7-19 and 77-7-20} Most citations are resolved without a personal appearance by the defendant. Defendants usually contact the court and ask for the amount to resolve the citation. The defendants then send that amount to the court. The court forfeits the amount and enters a conviction. {UCA 77-7-21} Some courts send courtesy bail notices when citations are filed. A courtesy bail notice informs the defendant of the amount that can be sent to the court to resolve the citation.

If the defendant consents, the magistrate may use the citation as an information to which the accused may plead guilty or no contest. (See Chapter 7.) The justice court judge also has discretion on most class B misdemeanors or less to allow the person to waive a personal appearance before the court and voluntarily forfeit bail. As noted above, the voluntary forfeiture of bail is treated as a guilty plea and entered as a conviction. The court should require the defendant’s personal appearance on any case which the Uniform Fine/Bail Schedule designates as a mandatory appearance.{UCA 77-7-21(1)}
When a Defendant Does Not Appear on a Citation

The judge has three remedies when a defendant does not appear on a citation. Any or all may be used.
1. The court may, if the defendant is a resident of Utah or a resident of a state which is a member of the Nonresident Violator Compact, send a "Notice of Failure to Comply With the Terms of Citation or Order of the Court" to the Driver License Division. The Driver License Division will suspend the defendant’s driver’s license until the court sends a clearance notice after the defendant appears on the citation. {UCA 53-3-221(2)}
2. The prosecutor can file an information for the separate charge of failure to appear and the court can issue a warrant on the original charge and the failure to appear. {URJA 4-701} The defendant may be convicted on the failure to appear regardless of guilt or innocence on the original charge. {UCA 77-7-22}
3. After 14 days, the court may send a delinquent bail notice and increase the outstanding bail by $50. {URJA 4-701}. If the defendant fails to appear or pay within forty days after the citation was issued, and the citation is on a misdemeanor, the court may increase the bail by an additional $75.00 and issue a warrant. A separate offense of failure to appear may also be filed. {URJA 4-701 and UCA 77-7-19(3)} If the citation is on an infraction, the court may issue a warrant after the prosecutor files an information charging a failure to appear. If the defendant is subsequently convicted, the court may punish the defendant for both the original infraction charge and the failure to appear.

2. Summoning a Corporation

If the defendant is a corporation, the court initially uses a summons and not a warrant of arrest. The summons must be served personally on an officer of the corporation. If no one appears for the corporation a plea of not guilty is entered. The law then allows the court to issue a bench warrant against the officer of the corporation who was personally served with the summons. {UCA 10-7-69 to 10-7-72}

Charges against corporations are brought, for example, under a load limit statute in which "the driver or owner of a vehicle" is responsible. {UCA 72-7-405} In that case the corporation or firm which owns the truck often pays the fine on behalf of the driver.

3. Efficient Action Under Present Procedure

If the above procedures are followed, the court can hold defendants responsible for their citations. Most courts follow Rule 4-701 of the Rules of Judicial Administration and send a courtesy bail notice when a citation is filed and a delinquent bail notice if the defendant does not pay within 14 days. The courts then proceed to a warrant for someone who refuses to appear. When a warrant is issued and the Driver License Division is notified, the person's driver’s license will be suspended.

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CHAPTER 10: Script and Procedure for a Criminal Trial (With or Without a Jury)

The court can follow the procedure outlined in this chapter on all justice court cases. Many citations are resolved by the procedure outlined in Chapter 8 whenever the accused pleads “guilty” or “no contest.” If the plea to the citation is “not guilty,” the following procedure might assist the court. Before beginning, the court should ensure that an information has been filed or that the defendant has waived a formal information.

The following is an example of a DUI case (driving under the influence of alcohol). The defendant was arrested about 1:00 a.m. and put into the county jail. At 9:00 a.m. the same day, she is taken before a justice court judge by the arresting officer. An information has been filed.

The Arraignment (or First Appearance)

The arraignment (or first appearance) is the court session at which the information is read to the defendant and she is required to enter her plea to the charge(s) against her. {URCrP 7(e)(f) and (g)}.

Step 1: The judge sits at the bench and opens court: “The justice court for precinct of county (or city of _________), State of Utah, is now in session. The case before the court is the State of Utah (or the city or county on an ordinance violation) versus Regina Smith, Defendant.

Step 2: “Ms. Smith, is Regina Smith your correct name?” (If the answer is “no,” the correct name is noted on the Information and in the docket.) The court then gives Ms. Smith a copy of the Information.

Step3: “Ms. Smith, you are charged with the offense of operating or being in actual physical control of a vehicle while being under the influence of alcohol, drugs, or the combined influence of alcohol and drugs, which in your case is a class B misdemeanor, and has a maximum fine and surcharge of $1,850.00, and a maximum jail sentence of six months. Ms. Smith, if you are convicted of this crime, the court must either sentence you to jail for not less than 48 consecutive hours, participate in home confinement, or perform att least 48 hours in community service. The court must also impose a minimum fine of $700.00 and you must participate in a screening for alcohol education. (The judge should carefully review Title 41a, Chapter 6, Part 5 of the Utah Code for the elements and punishments in DUI cases.)

Additionally, upon a first conviction, the Driver License Division of the Department of Public Safety is required to suspend your driver license for 90 days.

Before asking you to plead to this charge, I will first advise you of your rights. You have the right to be represented by an attorney. If you cannot afford an attorney, and you are indigent, the court will appoint an attorney to represent you. (Note: Because of the mandatory jail sentence the court should appoint counsel for any indigent DUI defendant unless the defendant waives the right or the court will only sentence to community service.) If you are convicted of this charge, the court may order you to reimburse all or a portion of the attorney’s fees, based upon your ability to pay. You have the right to a postponement to give you time to get an attorney. If you wish to avail yourself of this right, I will set another hearing date, and you will either be released on your own recognizance or be asked to post bail to guarantee your appearance on that day. (A date is set for the continuation of the proceedings. If the defendant does not ask for a postponement, the judge goes on to the next step.)

You have the right to a speedy trial. You have the right to a jury trial upon your written request to this court, and to have the unanimous verdict of that jury. {URCrP 17 and Utah Const., Art. 1, Sec. 10}

You have the right to have all the elements of the offense proven beyond a reasonable doubt.

You have the right to face your accusers or anyone who might testify against you, and the right by yourself or through your attorney, to cross-examine those witnesses.

You have the right to call witnesses in your own behalf, and to have subpoenas issued to ensure that anyone you desire to have testify in your defense will appear.

You have the right to refuse to testify, and this refusal will not be construed by the court or the jury as an admission of your guilt, because you have a privilege against compulsory self-incrimination.

You may take the witness stand yourself, if you wish, to testify in your own defense, after which you will be cross-examined by the prosecution.

Ms. Smith, you are presumed innocent of any charges by this court and the burden of proof is upon the State of Utah (or city or county of _________________) to prove that you are guilty beyond a reasonable doubt.

You have the right to withdraw your plea at any time before sentencing, by filing a motion with the court.

You have the right to appeal the verdict or judgment of this court to the District Court (District Court of your area) and to have a new trial. You also have the right to appeal even if you plead guilty.

Ms. Smith, do you understand all the rights I have just explained to you?" “Yes." "Do you have any questions about your rights that I might explain further to help you to understand?" "No."¹⁷

Step 4: The judge then tells the defendant: "You may now plead guilty, no contest, or not guilty to the charge.¹⁸ What is your plea?” (With permission of the court, a "no contest" plea may be entered.) {UCA 77-13-1 and 77-13-3} If the answer is "guilty," the judge should determine whether the defendant's plea was voluntarily and knowingly made.¹⁹ The judge should also ask whether anyone has made any promise to her in return for her guilty plea and whether she was coerced, bribed or threatened into entering her guilty plea.

The court must explain the elements of the offense. The court should ask the defendant whether she understands the consequences of her plea as an admission of all the elements of the crime and whether she is in control of her mental faculties. In cases of enhanceable offenses, the court may explain the possible consequences of committing this crime again. Finally, the defendant should be asked whether her plea is her own decision which she alone has made. Once the court determines that the guilty plea is voluntarily and knowingly made, the judge proceeds to Step 19. If the answer is "not guilty” the judge sets a trial date, allowing the defendant time to prepare. The court sets bail for the defendant or releases her on her own recognizance as in Step 3. The plea and the trial date are entered in the docket.

(Note: When a defendant pleads guilty but has not yet been sentenced, the judge may, for good cause shown, allow the defendant to withdraw her guilty plea. {UCA 77-13-6} The defendant may not withdraw her plea after she has been sentenced. A defendant can appeal the guilty plea if the appeal is filed within 30 days after sentencing. {UCA 78A-7-118(1)(a)})

If a defendant refuses to plead or cannot decide how to plead after having been given enough time to consider, the judge enters a plea of “not guilty.” {UCA 77-13-5 and URCrP 11(b)}

A defendant who is unable to post bail is entitled to an early trial setting. {UCA 77-1-6(1)(h) and URCrP 17(b)(6)}

Preparation for Trial

Step 5: In the interval between the first appearance and the date set for trial, the court notifies the prosecutor’s office of the trial date. During the interval, the two sides can then engage in discovery under Rule 16 of the Rules of Criminal Procedure to obtain relevant information possessed by the other side. The prosecution and the defense are responsible for ensuring that their witnesses appear for trial. The court may issue subpoenas at their request. {UCA 78-24-5}

Subpoenaing Witnesses

Under Article 1, Section 12, of the Utah Constitution, the defendant has the right "to have compulsory process to compel the attendance of witnesses in his own behalf." An indigent defendant is entitled to have witnesses subpoenaed at the expense of the prosecution. The court must review all subpoena requests in that circumstance to ensure that expenses are reasonable. {UCA 78B-1-150}. A prosecutor can sign and issue prosecution subpoenas as an officer of the court {URCrP 14}.

A criminal subpoena may be served by anyone over 18 years of age. For more information see Rule 14, Utah Rules of Criminal Procedure. A justice court may issue subpoenas to any part of the state. {UCA 78A-7-109} The court may pursue contempt proceedings against any witness who disobeys a subpoena. The witness may be liable in damages to the party harmed by the witness’s failure to appear. {UCA 78B-1-131}

Prior to Trial

During the period between arraignment and trial the defendant can request a jury trial.{URCrP 17} A demand for a jury trial must be in writing and filed at least 10 days before trial. If demand is made, the court must summon jurors before the trial (See Step 9.) A defendant is not entitled to a jury on an infraction.

Joint Trials

Utah Code Ann. § 77-8a-1 states that when two defendants are jointly charged with any offense, whether felony or misdemeanor, the defendants shall be tried jointly, unless the court in its discretion, or by motion of the prosecuting or defense attorney, orders separate trials to better serve justice. The right to separate trials is waived if the motion is not made at least five days before trial. {UCA 77-8a-1(4)(b)}

Though the statute does not list or refer to criteria upon which the court's discretion is based, the facts must show that the accused would be unduly prejudiced by a joint trial. State v. Miller, 111 Utah 255, 177 P.2d 727 (1947). In State v. Rivenburgh, 11 Utah 2d 95, 355 P 2d 689 (1960), the court stated that a judge must look at the total facts of the case, the cooperation between all parties, the potential prejudice, and the necessary instructions to the trier-of-fact. The court has broad discretion on whether to grant such a motion. State v. Hayes 572 P.2d 368 (Utah 1977); State v. Faulkner, 23 Utah 2d 257, 461 P.2d 470 (1969).

One exception is noted under Utah Supreme Court decisions. Accessories after the fact cannot be indicted or tried jointly with the principal defendant. State v. Bowman, 70 P.2d 458 (Utah 1937).

The Trial

Step 6: At the hour and day set for trial, the judge opens court as in Step 1. The judge asks the prosecution and the defense whether they are ready to proceed. If either side asks for a continuation, the court should consider whether the party should have been prepared and the prejudice that would occur from moving forward. See State v. Lizarraga, 2006 Ut App 30. The trial cannot be held in the absence of the defendant unless the defendant is voluntarily absent or excluded for disorderly behavior.²⁰ {URCrP 17}

Trial Without Defense Attorney

In a case in which a defendant has elected to not hire an attorney or has knowingly and voluntarily waived her right to court-appointed counsel (if qualified), the judge must be careful to ensure that the accused is treated fairly. The court first allows the prosecutor to present the evidence against the defendant. The defendant is then allowed to present evidence. The judge makes sure that each side is given the right to cross-examine and that irrelevant matters and inadmissible hearsay are not admitted. The judge must, above all else, never lose sight of the fact that the court is impartial. The judge or jury must not decide whether the defendant is guilty until all the evidence has been presented.

Step 7: Continuance and Change of Place of Trial.

At this point, before the trial commences, the defendant or her attorney may request to have additional witnesses subpoenaed. Either party has the opportunity to delay the beginning of the trial by asking either for a postponement or for a change of place of trial. When deciding whether to grant the continuance, the judge should take into consideration the defendant’s right to a speedy trial. The judge should also consider whether a party has repeatedly requested continuances to delay the proceedings.

Continuance

The judge must listen to the reasons given for making the request and if they seem good and convincing, the request is usually granted. The fact, for example, that an important witness was unable to arrive on time may be a sufficient ground for a continuance. The court will probably be more reluctant to grant a second continuance. The judge should always consider the inconvenience, loss of time, and expense caused to those persons who appeared and who have to return another time.

Change of Judge

If the prosecution or defendant in any criminal action files an affidavit that there is reason to believe that the judge is biased or prejudiced against either a party or attorney, the judge must immediately deal with the matter. The affidavit must state the facts and reasons upon which such a belief is based and the reasons given must be reasonable. {UCA 78A-2-222} See State v. Neeley, 748 P.2d 1091 (Utah 1988) and State v. West, 2001 UT App 275, 34 P.3d 234) (Discussing the standards for disqualification.) The affidavit must be accompanied by a certificate that the allegations are made in good faith. {URCrP 29}

The judge against whom the motion and affidavit are directed must, without further hearing, enter an order granting the motion or certifying the motion and affidavit to a reviewing judge. If the reviewing judge grants the motion, a new judge must hear the case. The new judge is selected by the appointing authority of the city or county. The presiding judge of the court, or any judge of the district, of like jurisdiction, may serve as the reviewing judge. {URCrP 29}

Change of Venue

The parties might also seek a change of venue. Both the prosecution and the defense have the right to file a motion claiming that a fair and impartial trial cannot be had in the jurisdiction where the action is pending. The motion must be supported by an affidavit setting forth the facts justifying a transfer of the case. If the court determines that a fair and impartial trial cannot be had in that jurisdiction, the judge transfers the case to a court in a jurisdiction in which a fair trial may be had. If the judge denies the motion the case remains with the original court. {URCrP 29(d)}

Step 8: If neither party has filed a motion for a continuance, motion to disqualify the judge, or a motion for change of venue, the trial can get underway. If the defendant has not requested a jury, the judge is the trier-of-fact and ultimately decides whether the defendant is guilty. If there is a jury trial, the jury is the trier-of-fact and decides the question of guilt. In either situation the judge fixes punishment. During a jury trial, the judge must conduct the proceedings so that the jury can do its duty in a proper manner, and must instruct the jury and answer all questions of law that arise. {UCA 77-17-10}

Step 9: Impaneling a Jury.

Summoning the Jury

When the defendant requests a jury trial, the court requests a list of prospective jurors from the district court, which maintains such a list. The court should request this list well in advance of the trial date. (See Utah Code Ann. § 78B-1-106 and § 78B-1-107 for details on the manner in which a master jury list is prepared.)

The judge determines how many prospective jurors should be called for the trial. The number of jurors for a jury panel in justice court is four. In determining how many prospective jurors should be called, the judge should consider that each side has three peremptory challenges (although these challenges are not always used), therefore, a minimum of 10 prospective jurors would be needed if there were no challenges for cause. However, to prevent unnecessary delays in the event that the two sides challenge jurors for cause, the court should ask for at least 18 to 20 prospective jurors.

A prospective juror must be at least 18 years old, a U.S. citizen, a resident of the county, and able to speak, read and understand English. {UCA 78B-1-105} An individual who has been convicted of a felony which has not been expunged is prohibited from serving as a juror. A juror may be excused if the person is incapable of rendering jury service or shows some undue hardship, extreme inconvenience, or public necessity. {UCA 78B-1-109} Slight inconvenience or difficulty is not sufficient cause to dismiss a juror. The court may postpone a person’s jury service upon a showing of good cause, subject to being called at a later date.

Examination of Jury

After the judge opens court, the judge calls the roll of the prospective jurors. If a prospective juror is absent, the judge notes the absence, to be dealt with later. (The absence can be treated as contempt.)

The judge welcomes the prospective jurors to court and thanks them for coming. The judge might also explain the privilege of exercising their constitutional obligation to serve on a jury. The judge might then tell the prospective jurors about the case (D.U.I.), and introduce the prosecuting attorney, the defendant, and defense counsel. The judge then tells them that they will be asked questions to determine whether they are qualified for jury service and they must answer all questions truthfully. The court should then administer an oath to all the prospective jurors.

Rule 17 of the Utah Rules of Criminal Procedure describes two different processes for impaneling a jury: The strike and replace method and the struck method. The court may also use any other method that results in the random selection of jurors. The following is an example of one method:

The judge asks the clerk to randomly select 10 names from the prospective juror list. The 10 are listed on a paper in the order in which they are selected and are seated in the jury stand in that same order. The judge questions the 10 prospective jurors about their qualifications. The judge should also permit the prosecuting attorney, the defense attorney or the defendant (if not represented by counsel) to ask questions. The judge can ask the parties to submit their questions before the trial. {URCrP 18(b)}

This questioning of the jurors is called the voir dire (pronounced vwahr deer) examination. They are asked questions such as:

"Is there anyone among you that has not reached his or her 18th birthday?"

"Is there anyone among you who is not a citizen of the U.S., a resident of the county, or does not read, speak, or understand the English language?"²¹

"Is there anyone among you who is related to the defendant, Ms. Regina Smith, or her attorney, or any of the witnesses they might have introduced?"

"Is there anyone among you who is related to the prosecuting attorney or any one of the witnesses the attorney has introduced?"

"Is there anyone among you who has been, or is, a party to a criminal or civil action with the defendant or her counsel or the prosecuting attorney, or any of the witnesses or parties to this case?"

"Is there anyone among you who has been convicted of D.U.I. or served on a jury which has tried another person for the same offense?"

"Is there anyone among you who has formed or expressed an opinion or belief as to whether the defendant is guilty or not guilty of the offense charged?"

"Is there anyone among you who has other reasons which have not yet been explored, that would prevent you, after hearing the facts of this case, from rendering a fair and impartial verdict?"

The judge might now ask the two sides if they have any questions to ask the prospective jurors.

Challenging Jurors

If the answers to these or any other questions indicate that any of the prospective jurors is not competent (under 18 years, not a resident, etc.) the prospective juror should be dismissed. If the answers indicate that a juror is prejudiced for or against the defendant, either side can challenge the juror "for cause." The judge must decide, based on the prospective juror’s answers, whether the challenge is valid. Rule 18(e) of the Utah Rules of Criminal Procedure lists the grounds upon which cause may be based, including such things as being related to the defendant or having a bias toward law enforcement.

If the judge determines that there is adequate support for the challenge, the judge will say: "challenge allowed." The juror is then excused and may leave. The judge then asks the clerk to draw another prospective juror name and the person whose name is drawn takes the place, in the same order, of the person who was excused.

Example: If the person excused for cause was the fifth person originally called, then the newest prospective juror would sit in seat #5 and would be listed as #5 on the list of prospective jurors.

The judge, rather than asking all the examination questions, might ask the new prospective juror, "Mr. X, have you heard all the questions I have previously asked the prospective jurors?" "Yes.” "Did you understand them all?" "Yes." “Would any of your answers to the questions have been yes?” "No." If the judge is satisfied the person has understood the questions and has responded appropriately, the judge can ask the prosecution and the defense if they have any questions they want to ask. The judge should not grant a challenge for cause if the judge is convinced that the prospective juror is free from bias.

If one of the prospective jurors states, for example, that she is against drinking in principle and believes that law enforcement officers are always justified in arresting people who smell like alcohol, and the defendant is probably guilty, then the judge would grant the challenge. But with respect to another juror who had read a newspaper account of the arrest and had formed some opinion about the defendant's guilt, but stated that he could easily lay aside this first impression and hear the case fairly and impartially on the basis of the evidence, the judge might reject the challenge. See State v. Sales, 537 P.2d 1031 (Utah 1975). (“The trial court exercised commendable care to determine that despite whatever jurors may have been aware of concerning the charged offense through publicity, they conscientiously believed that they could set it aside and act without bias or prejudice as fair and impartial jurors.”)

Both parties have an unlimited number of challenges for cause. The prosecution is given the first opportunity to challenge, then the defendant. {URCrP 18(c)(2)}

After they have completed their challenges for cause, both sides have the right to take up to three peremptory challenges each. {URCrP 18(d)} These are challenges for which a reason need not be given and which may not be refused by the judge.²² The prospective jurors list (containing 10 names) is handed first to the prosecution, which may cross out one person's name. The prosecution then hands the list to the defense, which may cross out one name. The process continues until each side has an opportunity to eliminate up to three prospective jurors, leaving four on the jury panel. The list is handed back to the judge who excuses the persons whose names were crossed out, or reads the names of the four who will be the jury. If the parties do not use all their peremptory challenges, the first four names remaining on the list constitute the jury. The court then excuses the other prospective jurors. The court may also keep an alternate juror who can be called on at any time to replace a juror who becomes unable to serve.

As can be seen, summoning a small number of jurors, like eight, would not be sufficient if the parties use all their peremptory challenges. The difficulties are compounded if the parties exercise challenges for cause. To avoid the inconvenience of having to call more jurors later, judges should request at least 18 or more persons on the original prospective juror list.

Judges cannot reduce the number of peremptory challenges. The parties are allowed to agree to accept a jury of less than four. {UCA 78-46-5(2) and URCrP 17(f)} With a jury which is already as small as four persons, the practice should not be encouraged.

The four persons who are left constitute the jury. At this point the jury is given the juror’s oath.

Swearing the Jury

The judge will ask all of the jurors to stand and raise their right hands, and this oath is administered: “Do you swear that you will well and truly try this issue between the State of Utah (or the city or county) and Regina Smith, the defendant, and render a true verdict according to the evidence and instructions of the court?” {URCrP 18(h)} The jurors will answer "I do," "We do," or "Yes." The court may want to take a recess to give the jury members a chance to notify home or their employers that they have been chosen as members of the jury. Before this recess, and before every recess, the judge should caution the jury members to not discuss the case among themselves or with anyone else.

Step 10: Jury Instructions

After the jury is empaneled and given their oath, the judge reads the preliminary jury instructions. These instructions describe the course of the proceedings, the role of the judge, jury and lawyers, the burden of proof and other information jurors need before the parties present their evidence. Stock jury instructions can be found at www.utcourts.gov/committees/criminaljury/

Step 11: Opening Statement

Whether there is a jury or not, the prosecuting attorney usually makes an opening statement to acquaint the judge or jury with the charge against the defendant and with the evidence that will be introduced to prove this charge. The defense is then allowed to make an opening statement. The defense may reserve their statement until just before the defense presents its case.

Step 12: Evidence for the Prosecution

The attorney for the prosecution now presents the testimony of witnesses and other evidence (which might be documents or objects) to prove the defendant's guilt.

Oath of Witness

The prosecutor calls the name of the first witness and asks the witness to step forward. The judge or court clerk asks the witness to raise the witness’ right hand, and administers the following oath:

"You do solemnly swear (or affirm) that the testimony you shall give in this case shall be the truth, the whole truth and nothing but the truth, so help you God (or under the pains and penalties of jury)"

The witness expresses assent by saying "I do" or "Yes".

The oath may be changed to suit the religious belief of the witness. {UCA 78B-1-143 to 78B-1-145}

The witness is seated on the witness stand, which is to the side of the judge's bench. If the same witness is called back to the stand later in the trial, it is not necessary to give the witness the oath again.

The witness is first questioned by the prosecuting attorney. This is called direct examination. The witness may then be cross-examined by the defendant's attorney. Cross-examination is generally limited to the evidence presented on direct examination. Cross-examination may also be used to attack the credibility of the witness. The witness may then be questioned by the prosecuting attorney on redirect examination. Redirect is limited to the issues raised on cross-examination. If the defendant does not have counsel, the judge asks her whether she wishes to question the witness herself. If, instead of asking the witness questions, the defendant starts to tell her side of the case, the judge must stop her and explain that she will have her turn to present her case later, after the prosecution presents its evidence. In our case of drunken driving, the prosecution might present three witnesses: First, the police officer who arrested the defendant, who may state that he was called to the scene after there was an accident; that the defendant's car was on the wrong side of the road; and that he smelled alcohol on the defendant's breath and saw her stagger and walk unsteadily. The second witness might be a passenger in the car involved in the accident, who might testify that the defendant's car came toward her at a high speed on the wrong side of the road; that after the accident the defendant was not hurt, but had to hold on to someone to steady herself; that she talked incoherently and that she saw a bottle of whiskey in the defendant's car. A third witness might be a chemist or laboratory technician who might testify that he conducted a blood test, to which the defendant voluntarily submitted, about one hour after the accident and that the test showed a blood alcohol content of 0.20 percent.

Step 13: Motion to Dismiss

After the examination of its last witness the prosecution has completed its case. The prosecuting attorney will then say something like: "The state rests" or "the prosecution rests." At this point the defendant's counsel might ask to make a motion in the absence of the jury. The judge excuses the jury and the jury retires to another room. The defendant's attorney then moves to dismiss the case on the grounds that the prosecution has presented insufficient evidence to prove the charges against the defendant. This is called a motion for a directed verdict. {URCrP Rule 17(p)}. After the defense has made its legal argument in favor of granting the motion, the prosecuting attorney will argue against granting the motion.

The judge listens carefully to both arguments and then decides whether to grant the motion. The standard for determining whether the motion should be granted is:

Did the prosecution present believable evidence of all the elements of the charged crime?

Could reasonable minds find that there has been evidence supporting all the elements? See State v. Smith 675 P.2d 521 (Utah 1983) and State v. Montoya, 2004 UT 5, 84 P.3d 1183 (“A motion for a directed verdict made at the close of the state’s case may be denied if the trial court finds that the state has established a prima facie case against the defendant by producing believable evidence of all the elements of the crime charged. The evidence is to be viewed in the light most favorable to the state.”)

If, for example, the only evidence against the defendant was the testimony of a police officer who said that the defendant’s car was on the wrong side of the road and that the defendant staggered a bit. The judge might be convinced that the prosecution has not presented evidence to support one of the elements of DUI- e.g. evidence of consumption or blood-alcohol content. The judge will say: "The motion is granted." In that case the proceedings are at an end, the defendant is acquitted and is discharged. The defendant is released from custody if she is still being held. The bail is refunded to her, if she deposited cash, or the bail bond is exonerated. There will be situations in which the decision for the judge is not easy, but it may be safe for the court to follow this rule: if there has been at least some incriminating evidence on each element of the offense, the motion to dismiss should be denied.

Step 14: Evidence for the Defense

After the prosecution rests, the defendant has an opportunity to present her evidence. If one has not already been given, her attorney may start with an opening statement to inform the judge or jury of the position the defense will take and of the evidence she expects to introduce.

The defense then calls its first defense witness. The witness is sworn by the judge or clerk, and the examination of other witnesses proceeds exactly like in Step 12. The defendant's counsel will question the witness first, the prosecuting attorney will cross-examine, and the defense attorney may question the witness on re-direct.

One witness for the defendant in our case might testify that the witness was riding in the defendant's car; that he had spent the whole evening with her and never saw her take a drink; that the bottle of whiskey in the car was that of the witness; and that the defendant had none of it.

The Defendant as a Witness

The defendant has the right under the Constitution to testify or not testify as she chooses. If she decides to take the witness stand she may be cross-examined by the prosecution like any other witness, although the examination will be limited to issues raised on direct examination or to the defendant’s credibility. If the defendant appears without counsel, she will often depend on her own testimony to defend herself. In our case she might state, for example, that she was not intoxicated and was feeling perfectly fit to drive; that her unsteadiness after the accident was caused by the fact that she was first rendered unconscious from the collision; that she did have an injury on her head; and that she was dazed from the shock even after she regained consciousness. After the defense presents its evidence, the defense also "rests."

In some cases the prosecution might offer rebuttal evidence to disprove some of the defendant's evidence. At this point, all the evidence is before the judge or jury and the case is ready for decision. The judge gives the jury the final instructions and the parties give their closing arguments.

Special Note: Rulings on the Evidence, Competency of Witnesses, and Privileged Communications.

Throughout the presentation of evidence in Steps 11 and 14 the judge might be called upon to rule on the admissibility of evidence and the propriety of questions asked of and answers given by the witnesses. The question of whether a person is competent to act as a witness might also arise, as well as the question whether testimony must be excluded because it is a privileged communication.

Every time an objection is made by either counsel, the judge must make a decision. The judge must either sustain or overrule the objection. Rulings on the admissibility of evidence are often very difficult. Judges who are attorneys also often find these issues to be difficult.

In 1983, the Utah Supreme Court, pursuant to their rule-making power, adopted the Utah Rules of Evidence. The Utah Rules of Evidence generally follow the Federal Rules of Evidence although there are some differences. The rules are found in the published Utah Court Rules or on the courts’ website. The judge should also read a handbook on evidence or a casebook of the kind used by law students.

In order to give the judge some assistance with these issues, a few of the main rules of evidence are briefly discussed here. Evidence, as used in the rules, includes the means - oral, documentary, physical - which are used to prove facts. The Rules of Evidence govern all proceedings in the courts except preliminary hearings, grand jury proceedings, miscellaneous judicial or quasi-judicial proceedings, and summary contempt proceedings.{URE Rules 101 and 1101}

Evidence must be relevant

Evidence is relevant if it tends to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” {URE 401}. The evidence must relate to the facts to be proved. For example, suppose a witness is asked in our DUI case whether the defendant owes her neighbor a large sum of money. Defense counsel, before the witness has had a chance to answer, objects to this question on the ground that it is irrelevant." Both sides are then given an opportunity (outside of the jury’s hearing) to argue why the evidence is or is not relevant. See State v. McDonald, 2005 UT App 86, 110 P.3d 149 (In a prosecution for cruelty to animals, testimony about a previous incident was relevant to show defendant’s knowledge that certain conduct would lead to a cruelty charge.)

Granting this objection will mean that the witness is not permitted to answer the question for the reason that it has nothing to do with the charge of DUI, and may only confuse the jury and direct their thoughts away from the real questions they are to consider.

Hearsay evidence is excluded

Hearsay is a statement made by someone other than the person who is testifying which is offered to prove the truth of the matter asserted. {URE 801} A witness typically may not testify about what someone else said. For example, Mr. White, who lives close to the scene of the accident and saw it happen, told the police officer about it. The officer on the witness stand attempts to testify about what Mr. White said to him. This is hearsay and an objection to it must be sustained by the judge. If the prosecution wants to present Mr. White's statement, it must call him as a witness, so that he can testify under oath and be subjected to cross-examination. There are some exceptions to this rule, but the basic principle holds true. A judge should carefully review Rules 803 and 804 of the Utah Rules of Evidence and other provisions throughout the rules for the hearsay exceptions.

Lay and expert witnesses

A lay witness may give the witness’s observations of facts but may only offer opinions on those facts if the opinion is based on the witness’s perception and the opinion is helpful to a clear understanding of those facts. {URE 703} In Roods v. Roods, 645 P.2d 640/Utah 1982) a woman was permitted to give her opinion on whether a birth was full-term because it was helpful to understanding her perception of the facts.

Inferences and opinions are generally to be formed by the jurors. Suppose that a witness testifies that the defendant was "drunk." This is a conclusion which the witness has drawn from the fact the defendant staggered, that she talked incoherently, etc. The observations that she staggered, etc., are the only facts to which the witness may testify. In another case, a witness states that a certain intersection is "dangerous." This is again the conclusion or opinion of the witness. The witness could state instead that there is a lot of traffic at the intersection, that there is a building which obstructs the view of drivers, etc., so that the court or jury can conclude whether the intersection is dangerous. See State v. Rothlisberger, 2004 UT App 226, 95 P.3d 1193 (When a witness seeks to testify on matters regarding that witness’s scientific, technical or specialized knowledge the witness must be qualified as an expert witness under Rule 702 and may not testify as an expert witness.) Rule 702 has been amended since Rothlisberger so it is important to review the rule for the current provisions on expert qualifications.

A judge who has presided over a number of trials will know that objections under the lay witness rule are sometimes carried so far that the witness does not know how to testify and ends up contributing very little. Since it is very difficult for anyone to speak only by way of making statements of fact, the judge will have to use common sense to guard against having a witness so confused and harassed that the testimony becomes worthless. The judge may sometimes find it necessary to overrule an objection under the opinion rule in order to give the witness a chance to tell the story, and to give the jury and the court a chance to listen to it without constant interruption. On the other hand, opinion evidence that clearly only an expert can provide should not be allowed.

Under Rule 702 a witness is qualified to testify as an expert if the witness has specialized expertise based on certain knowledge, skill, experience, training, or education. The special knowledge must be reliable based on the introduction of sufficient facts, and the knowledge must be reliably applied to the case. As a rule, the specialized knowledge must be generally accepted by the relevant expert community. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). A witness need not obtain a college diploma to qualify as an expert. See State v. Kelley, 2000 UT 41, P.3d 546 (“A person may be qualified to testify as an expert by virtue of experience and training; formal education is not necessarily required.”) Varying degrees of formal education and experience among expert witnesses may be factors for the jury to consider in determining the weight that an expert's testimony should receive. If a witness is qualified as an expert, the witness may offer an opinion as to questions concerning the subject for which the court finds the witness qualified as an expert. {URE 702} If a witness is not qualified as an expert, the witness may not offer an opinion on scientific, technical or other specialized matters. Judges should review the committee note to Rule 702 for more direction on expert testimony.

Proper Direct Examination and Cross-Examination

On direct examination, a party may not ask leading questions of that party’s witnesses. {URE 611} A party's own witness is probably sympathetic to that party's cause. There is a risk that such a witness will be receptive to suggestive questioning. Leading questions are easily recognized. They usually start out with "Isn't it a fact," or "Didn't you see," or "Isn't it true that..." They suggest the answer to the witness. When dealing with objections on this issue, the court should consider whether "the question suggests the answer that the examiner wants." The policy of the rule is that the court wants the jury to hear the witness and not the lawyer.

There are exceptions to the leading question rule. The very old, the very young and the inarticulate, might be lead when the judge is satisfied that the danger is minimal and the judge carefully controls the questioning. See State v. Kallin, 877 P.2d 138 (Utah 1994) (leading questions permitted for an 11 year old victim.). A party may also interrogate any adverse party or hostile witness by leading questions. Leading questions are permitted on cross-examination and this is often the only way the witness can be made to respond. However, on redirect examination, leading questions are typically prohibited. {URE 611(c)} Leading questions may be used if the witness becomes hostile as a result of the testimony on cross-examination. See Xenakis v. Garrett Freight Lines, 265 P.2d 1007 (Utah 1954).

Cross-examination is used to explore matters brought out on direct examination. On cross-examination, counsel may also ask questions related to the credibility of a witness. The cross-examiner is not permitted to ask about matters which were not addressed on direct examination. The redirect is limited to matters brought out on the cross-examination. A court has some discretion to allow inquiry into new areas on cross-examination. {URE 611(b)}

Competency of Witness

With a few exceptions, all persons are presumed to be competent witnesses and may give testimony. {UCA 78B-1-127}

The judge presiding over the trial may not testify as a witness. {URE 605} Also, a juror may not testify as a witness before the jury of which that person is a member. {URE 606} Although all persons are presumed to be competent witnesses, the trier-of-fact ultimately determines the weight to be given to the testimony.

Privileged Communications

The Rules of Evidence recognize several privileges under which certain individuals cannot be required to testify. In a criminal case, a wife cannot be compelled to testify against her husband nor a husband against his wife. {Utah Const., Art. I, Section 12 and URE 502} The husband-wife privilege does not exist in civil proceedings in which the spouses are adverse parties, or if the interests of a minor are at stake. For more exceptions see Rule 502, Utah Rules of Evidence.

Communications between lawyer and client are privileged when they arise during that relationship. {URE 504} The client, not the lawyer, enjoys this privilege and it may be claimed by the client, by the client’s lawyer, by the client’s guardian (if the client is incompetent), or by the client’s personal representative (if the client is deceased). Under Rule 504, the lawyer-client privilege does not extend to the following situations:

Where the legal service was sought to aid the client to plan or commit a crime or fraud;

Where the communication was relevant to an issue of breach of duty by the lawyer to the client, or by the client to the lawyer;

Where a communication is relevant to an issue between parties who claim through the same deceased client;

Where there is an issue concerning a document to which the lawyer is an attesting witness; or

Where communications of multiple clients of a single attorney are at issue. See State v. Carter, 578 P.2d 1275 (Utah 1978).

A confidential communication between a patient and a physician is privileged if it was communicated in confidence and for the purpose of diagnosing or treating the patient. {URE 506} This privilege may not be divulged by the physician or any other person without the patient's consent.

A person has a privilege to refuse to disclose and to prevent any other person from disclosing any confidential communication to clerics in their religious capacities. The communication must have been made under circumstances where it was necessary and proper to the functions of the cleric. This rule applies to confessions and similar confidential communications. {URE 503}

Step 15: Charge by the Judge to the Jury

If there is a jury, the judge now gives additional instructions. {URCrP 19} Pattern jury instructions are available for use by justice court judges. {www.utcourts.gov/committees/criminal jury} The court should, with the help of a copy of the law, give instructions on the elements of the offense and any definitions necessary to understand the elements. The judge can usually rely on the attorneys to prepare the elements instructions. The judge should also give instructions on the jury’s duties in deliberation. The judge should give the jurors copies of the jury instructions to help guide them in their deliberations.

Prior to trial, the judge should ask both sides if they wish to submit instructions. If either side submits instructions, the propriety of giving them should be addressed before the trial begins. The judge may also seek input from counsel in drafting instructions or in determining what instructions should be given. This should not be done ex-parte and both sides should be given an opportunity to examine the instructions. The judge should direct the parties to submit proposed jury instructions at least a couple of days before trial so that the instructions can be reviewed, discussed, and approved before trial.

The Utah Supreme Court’s Advisory Committee on Criminal Jury Instructions has created stock instructions which can be found at http://www.utcourts.gov/committees/criminaljury. The Committee is also working on instructions to address substantive areas of the law, such as controlled substances and DUI. Those will be posted as they are completed.

In charging the jury, the judge must be careful to not comment on the testimony of the witnesses or to express the judge’s opinion on the credibility of any witness or the guilt of the defendant. {URCrP 19(f)} The judge should read the instructions verbatim to avoid any issues.

Step 16: Arguments of Counsel

After the instructions to the jury, both sides have the opportunity to make closing arguments. {URCrP 19(g)} If the defendant is not represented by counsel she can make the argument. The case is sometimes submitted to the judge or jury without closing argument by one or both sides. Attorneys have a lot of leeway in their closing arguments, but it is possible for attorneys to exceed their limitations. If an attorney makes statements which are very prejudicial and are not supported by the evidence, the judge may stop the attorney on the court’s own initiative or after an objection is raised. See State v. Lafferty, 2001 UT 19, 20 P.3d 342 (“Counsel for both sides have considerable latitude in their closing arguments to the jury; they have a right to discuss fully from their standpoints the evidence and the inferences and deductions arising therefrom.”)

Step 17: Jury Verdict or Decision by the Judge

The judge must instruct the jurors to not form an opinion on the evidence until after they have had a chance to deliberate. Justice is best served when all members of the jury actively discuss the evidence before making a decision. To facilitate candid discussion of the case, the courthouse must have a room where the jurors can talk about the case in private. An officer must be sworn to keep the jurors together and not allow anyone to talk to them. The judge must swear in the officer in a form similar to the following:

"You do swear that you will keep this jury together in a private and convenient place, that you will not permit any person to speak to them nor speak to them yourself, unless ordered by the court or to ask them whether they have agreed upon a verdict; and that you will return them to the courtroom when they have agreed on a verdict; or when ordered by the court." {UCA 77-17-11}

The jury's final verdict may be "guilty," "not guilty," "not guilty by reason of insanity," "guilty and mentally ill," "not guilty of the crime charged but guilty of a lesser included offense” or “not guilty of the crime charged but guilty of a lesser included offense and mentally ill at the time of the offense.” The final verdict must be unanimous. It must be announced in open court and recorded. {URCrP 21}

If the jurors cannot agree on a verdict, the court might direct the jury to make another attempt to agree. If the jury ultimately cannot agree on a verdict, the jury is “hung.” The court discharges the jury. The prosecutor may then choose to retry the defendant. If there are several defendants and the jury can agree on a verdict as to some of them, the case may be retried as to the remaining defendants. {URCrP 21}

If a juror becomes unable to serve during the trial, the judge may call the alternate juror to take the juror’s place. If an alternate has not been selected, the parties may agree to proceed with the remaining jurors. Otherwise, the court must discharge the jury and order a new trial. {URCrP 17}

If the case is tried by the judge without a jury, the judge must weigh the evidence, assess the credibility of witnesses, apply the presumption of innocence, and follow the other general rules which the judge explains in jury cases. The judge should review the statute or ordinance defining the crime to determine whether the prosecution has proven the elements of the crime beyond a reasonable doubt.

If the judge is satisfied beyond a reasonable doubt that the defendant committed the crime, the judge will declare: "I find the defendant guilty" or words to the same effect. If a reasonable doubt remains, the judge declares: "I find the defendant not guilty."

A verdict of guilty by the jury or a finding of guilt by the judge convicts the defendant. A verdict or finding of not guilty acquits her of the crime.

If the defendant is acquitted, this is the last step in the proceedings. She is immediately discharged, and is allowed to leave, unless she is being held on other charges. {URCrP 21}

Step 18: Certificates of Attendance for Witnesses and Jurors

Before the jurors and witnesses leave, they should report their attendance to the court clerk to make arrangements for payment. The city or county that conducted the prosecution is responsible for juror and witness payments. {UCA 78B-1-119}.

Witnesses and jurors are paid a fee of $18.50 for the first day and $49.00 for each subsequent day of attendance. Witnesses and jurors are also entitled to $0.25 cents for each mile over 50 traveled, one way only. {UCA 78B-1-119}

Step 19: Adjournment for Sentence

If the defendant is convicted, the judge addresses her somewhat as follows: "Ms. Smith, the court will schedule sentencing between two and forty-five days from now unless you wish to be sentenced today.” The sentencing hearing must be set within this time period unless the court, with the consent of the defendant, decides to sentence the defendant earlier or later. If a postponement is requested, the judge adjourns court and requires the defendant to post bail, releases her on her own recognizance, or commits her to jail. {URCrP 22(a)} If the defendant previously posted bail, the bail may be held until the sentencing hearing. {UCA 77-20-7}

Step 20: Motions after Trial

The parties may occasionally make either a motion for a new trial or a motion to arrest judgment. The judge may grant a new trial if there was some irregularity in the proceedings which had a substantial adverse effect upon the party. {URCrP 24} A motion can also be granted based on newly discovered evidence. A motion to arrest judgment is granted if the facts proved do not constitute a public offense, the defendant is incompetent, or there is other good cause. {URCrP 23} If the court arrests judgment, the court can order the defendant held until there is a new trial or the court may issue any other appropriate order.

Step 21: Preparation for Sentence

At sentencing, the judge considers all relevant information which might influence the severity of the punishment. The court must give the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed. The prosecution may at this point show any information relevant to sentencing, such as the prior driving or criminal record of the defendant. {URCrP 22(a)}

Step 22: The Lesson

At the time of sentencing, the judge has an opportunity to discuss the case and impress upon the defendant the consequences of breaking the law. In our case of DUI, the judge might tell the defendant that the court has no intention of discussing the subject of drinking generally. However, the court might continue, "it is shown everyday in thousands of accidents that drinking and driving just do not go together..." The judge can obtain accident statistics and other material helpful for this purpose by contacting the Utah Safety Council, 5263 South 300 West, Murray, Utah 84107.

Step 23: Imposing Sentence

When sentencing the defendant the judge should review the statute or ordinance again to clarify the parameters of the sentence. The judge should also review the Uniform Fine/Bail Schedule for sentencing recommendations.

Commitment

If a jail term is imposed, a commitment is prepared and sent to the Sheriff. {URCrP 22(d)}

Step 24: Payment of Fine

A defendant can pay a fine in cash, check, credit card, or money order. The court cannot accept other property in payment of a fine. An unsatisfied civil judgment in favor of the defendant, for example, may not be assigned to the court to be applied to the fine.

If the defendant makes a partial payment on her fine, she is given a statement showing the amount she has paid and the amount and due date or dates of the amount still owing. The clerk should then note on the docket when the balance is due. If the defendant does not make payments when required, the judge can issue an order to show cause requiring the defendant to be brought before the court and explain why she should not be held in contempt for failure to pay the fine. If the defendant does not have a good reason for her failure to pay, the judge may find the defendant in contempt.

The judge might choose to give the defendant a certain amount of time to pay the fine, including paying in installments. The judge should examine the defendant about such things as her income, assets, family support obligations, and debts. The judge should ensure that the defendant gives priority to paying the fine. Payment on a new car, for example, should not be given priority over payment of a fine.

Step 25: Report to Driver License Division

In a traffic case, the court mails a report of the conviction or an abstract of judgment to the Driver License Division, Department of Public Safety, P.O. Box 30560, Salt Lake City, Utah 84130-0560. The court must report all traffic convictions except non-moving offenses. The court should review the statute for a description of the information that must be included in the report. {UCA 53-3-218}

Step 26: Entries in Docket

Before the defendant leaves, the court makes sure that all required entries have been made in the court docket. It is important that the exact terms of the sentence be entered immediately.

Step 27: Disposition of Fines and Forfeitures

The justice court judge must remit all collected fines and forfeitures to the appropriate treasurer (state, county or city) within 3 days after receiving them. Fines and forfeitures collected in connection with violations of municipal ordinances are paid by the justice court judge to the appropriate treasurer within 3 days. {UCA 10-3-716, 51-4-2, 53B-3-110, 63-63a-2, 63-63b-102, 77-7-19, 78A-7-120, 78A-7-121, 78A-7-122, and 78A-7-301}

Step 28: Appeal

The defendant may appeal for a trial de novo in the District Court within 30 days after entry of judgment. It would, of course, be improper for a judge to make any comments to a defendant in an attempt to dissuade her from appealing.

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CHAPTER 11: The Sentence

Proper Penalties for Statutory Violations

Imposing the proper penalty in each case is one of the most important duties of the justice court judge. A judge should use judgment and discretion and be guided by the penalties other judges impose in similar cases.

The Utah Criminal Code sets forth the following purposes and principles which may aid the judge in ordering proper penalties:

Forbid and prevent the commission of offenses;
Impose penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders;
Prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.

{UCA 76-1-104}

1. Rules, Definitions, and Procedures

Sentence Distinguished from Conviction

A conviction takes place before sentencing and is entirely separate and distinct from the determination of punishment. Conviction means either a jury verdict of guilty or a judge's finding that the defendant is guilty of an offense. A plea of guilty or no contest which is accepted by the court is treated as a conviction. {URCrP 22}
Judgment or Sentence

A conviction is followed by the sentence, which is an order of the court setting punishment. The Utah Code often uses the words "judgment" and “sentence” interchangeably and gives them the same meaning. {UCA 77-18-1 et seq.} See State v. Dickey, 841 P.2d 1203 (Utah 1992). (“Because of the interchangeable use of the terms ‘sentence’ and ‘judgment,’ our Code of Criminal Procedure was compiled with [the] common law definition in mind.”) The jury verdict or judge's finding is also called a judgment, but in that case it is usually referred to as the "judgment of conviction" or the "judgment of acquittal."
Punishment Within the Limits of the Law

The punishment must be within the limits set by law. {UCA 76-3-101} A penalty which is lower than the minimum or higher than the maximum prescribed, or which in any other way departs from the limits established by statute or ordinance, is illegal. The judge must review the laws which define the crime and establish the penalty. The majority of offenses allow the imposition of jail time and a fine. A court may impose only a fine for an infraction. An ordinance might mandate that imprisonment be in the city jail, (See UCA 108-58.5 for a discussion of city jails) in which case it is inappropriate to sentence a defendant to a term in the county jail. See Frankey v. Patten, 75 Utah 231, 284 P. 318 (1929) (“Where the law prescribes a place of imprisonment, the court cannot direct a different place.”). An illegal sentence may be corrected at any time. {URCrP 22(e)}

2. Sentence Rules and Procedure

Definite and Certain Sentence

The judge must fix the sentence so that nothing is left for the defendant or the sheriff to do but execute the sentence. They must not be left guessing about what is to be done. An indefinite or uncertain sentence is void. The Supreme Court of Utah held in one case that a sentence "either to pay a fine of $200 or spend 90 days in jail" was illegal and void for uncertainty, because the court left it up to the sheriff to determine what sentence would actually be imposed. Rasmussen v, Zundel, 248 P.135 (Utah 1926) (“It is elementary that judgment, especially in criminal cases, should be definite and ministerial. Officers should not be left in doubt as to what sentence is to be imposed.”)
Finality of Sentence

After the sentence is ordered, the judge may not increase the punishment. However, if the judge imposed an illegal sentence, that error can be corrected at any time. {URCrP 22(e)} See State v. Alexander, 15 Utah 2d 14, 386 P.2d 411 (1963). (“Where a judge has based his act on an erroneous conception of the law, it may be corrected.”) The judge may reduce a previously imposed sentence. The court should provide notice to the defendant and an opportunity to be heard before a sentence is reduced.
Pre-Sentence Investigation Reports (PSIs)

The justice court judge must schedule a sentencing hearing for any time between two and forty-five days. This period is used to obtain a pre-sentence investigation report or gather other helpful information. {UCA 77-18-1(5)(a)} The Department of Corrections is not required to prepare pre-sentence investigation reports on infractions or class C misdemeanors. {UCA 77-18-1(4)} A copy of the pre-sentence investigation report should be given to the defendant’s attorney or the defendant if not represented. The defendant may also receive copy even if represented. Pre-sentence investigation reports cannot be disclosed to the public. {UCA 77-18-1(5)(d) and (6)(a)}

Before imposing sentence, the court gives both the defendant and the prosecuting attorney an opportunity to present information concerning the appropriate sentence. The defendant must be provided with a copy of all the information upon which the court makes its sentencing decision, such as letters from individuals, the “rap sheet,” etc. {URCrP 22}
Suspension of Sentence and Probation

The judge may suspend the execution of a sentence and place the defendant on probation. {UCA 77-18-1} See State v. Garcia, 504 P.2d 1015 (1972). (“The court may in its discretion place a defendant on probation on whatever conditions it deems proper.”) The court may place a defendant on probation for up to 12 months. {UCA § 77-18-1(10)(a)(i)}. The probation period may be extended with the consent of the defendant or if the court, after a hearing, finds that the defendant violated the conditions of probation. The court may extend probation to collect unpaid fines, costs, and restitution. The Utah Supreme Court, in State v. Wallace, 2006 UT 86, determined that the probation periods in statute are essentially recommendations and a court may order probation for as long as the court determines is reasonably necessary. However, the 12 month period should generally be followed.
Probation Example

Suppose, for example, that a defendant is sentenced to pay a $100 fine and to spend 30 days in jail. The court then suspends $50 of the fine and all of the jail time. The court places the defendant on probation for 6 months, during which period the defendant is to appear each month and report to the judge on the defendant’s driving performance. If the defendant does not appear one month, the judge may reinstate and enforce payment of the remaining $50 fine and the jail sentence. The judge must hold a hearing before the suspended sentence may be reinstated. In the hearing, the defendant is given an opportunity to address the allegations that probation was violated. Probation revocation proceedings must be commenced before the probation period expires. State v. Green, 2005 UT 92, 127 P.3d 1213.

A court often uses probation to suspend a jail sentence to allow a defendant to pay a fine in installments. This makes it possible for a defendant to work and support a family while paying the fine, instead of going to jail. A court may order other probation conditions such as community service and home confinement. The court may use a licensed probation provider to supervise the court’s probationers. {UCA 77-18-1}
Stay of Execution

The judge may also grant a stay of execution of sentence. Suppose, for example, that a defendant who is sentenced to jail needs three days to settle urgent matters concerning her business and family. In that case the sentence might read: "The defendant is fined $100 and sentenced to 30 days in the county jail. The defendant shall report to jail three days from now, on ___________.” A stayed sentence can be executed without any additional hearings, but the court must conduct a hearing to reinstate a suspended sentence.

3. Proper Penalties

Responsibilities of the Judge

Meting out the proper punishment to fit each offense and each offender is a very important responsibility for every justice court judge. The court has a wide choice of penalties within the limits of the statute or ordinance. In a large number of cases, the judge is free to fine a defendant from $0 to $1,000 (plus surcharge) and/or to send the defendant to jail for anywhere from one day to six months. As noted above, the court may also suspend any sentence.
Considerations Influencing the Sentence

Before sentencing a defendant, the judge should consider many factors. The Uniform Fine/Bail Schedule provides recommendations for sentences. The schedule establishes a recommended sentence and then lists mitigating and aggravating factors that a judge should consider. Aggravating factors include the fact that a defendant has a criminal history, the defendant is a violent offender, the defendant caused injury to individuals or property, the victim was particularly vulnerable, and the defendant has not expressed remorse. The schedule includes several other aggravating factors.

The mitigating factors include the fact that the defendant’s activities did not cause harm, the defendant is remorseful, the defendant assisted law enforcement, the defendant has good employment and family relationships, and the victim does not want the offender incarcerated. The schedule includes several other mitigating factors. A justice court judge should use the Uniform Fine/Bail Schedule when deciding the sentence to be imposed.
Effects of Inadequate Penalties

A judge must ensure that a defendant is sufficiently punished to deter future criminal activity. Offenders should not come away from the court saying: “This was not too bad. If I do it again, I can stand the expense of the fine.” If this is true, then the punishment has not had its desired effect, which is to deter people from disobeying the law and keep them from committing the same offense again, make them reconsider their driving habits and other actions, and make them resolve to change.
Excessive Penalties

Excessive penalties might also prove to be ineffective. The person might become disillusioned with the criminal justice system. The feelings of anger and resentment might keep the person from becoming a safer driver or a more law-abiding citizen. This would work against obtaining cooperation from the public.
Agreement on Uniform Penalties

The judge has the difficult task of finding an appropriate medium between punishments which are too low or punishments which are too high. The Uniform Fine/Bail Schedule was created to guide judges on appropriate punishments. Also, as the judge meets with other judges at judicial conferences, the judges can share solutions to difficult problems.

The driving public expects, and has a right to expect, that penalties for similar violations will be equal and uniform throughout the State. Their confidence in the courts is shaken when they learn that a person is fined $50.00 for a stop sign violation in one court and another person is fined $200.00 in a different court. To help establish respect for justice courts - which are often the only courts they will ever have contact with - it is important for judges to generally impose uniform punishments for traffic offenses. This is why the Uniform Fine/Bail Schedule was created.

Every justice court judge has a copy of the Uniform Fine/Bail Schedule. The schedule is also posted on the judiciary’s website. Adopted by the Utah Judicial Council, this schedule specifically covers most moving and non-moving traffic offenses and many violations of the criminal code. The schedule also provides recommendations for offenses that are not specifically listed. A standing committee composed of juvenile, district, and justice court judges reviews and recommends updates of the schedule on a yearly basis. Although intended to be a guideline, judges are strongly encouraged to follow the schedule in order to impose appropriate sentences and eliminate disparity and inequities.

4. Special Sentencing Provisions

In some cases, the law requires or permits a judge to sentence a defendant to conditions in addition to a fine and jail. For example, in DUI cases, a judge must order a defendant to participate in a screening to determine whether the defendant should be required to participate in alcohol treatment. {UCA 41-6a-503} A statute might require a judge to order the installation of an ignition interlock device, which prevents operation of a vehicle without first determining the driver’s alcohol concentration. {UCA 41-6a-518}

In domestic violence cases, a judge must order a defendant to participate in a licensed domestic violence treatment program. {UCA 77-36-5(4)} A judge may also issue a protective order, which restrains the defendant from committing domestic violence and imposes other conditions for the probation period. {UCA 77-36-5.1}

A judge should carefully review other areas of the law to determine whether they contain special sentencing provisions.

5. Restitution

If a victim of the defendant’s crime has suffered damages, the court must order restitution. The court first determines the total amount it would take to make the victim whole. This is called complete restitution and is entered as a civil judgment. The court then determines how much of the restitution the defendant should pay as a part of the criminal case. This is called court-ordered restitution. {UCA Title 77, Chapter 38a} For example, a court may determine that a defendant caused $5,000.00 in damages. This amount is entered as a civil judgment. The court might then determine that the defendant should pay $1000.00 as a condition of probation. This amount is entered in the criminal case. The victim can collect the remaining $4,000.00 in the civil case.

6. Driver License Revocation and Suspension

Traffic Offenders

The Driver License Division can revoke or suspend a person's driver license, which might be as effective as fines or jail terms. The Driver License Division also assesses "points" which may be reported to the driver's insurance company which might result in an insurance rate increase. The Driver License Division relies on the court to supply it with the information needed to take proper action on a person’s driver’s license.
Reporting Offenses

It has already been pointed out that justice courts must immediately report all traffic convictions (except those designated as non-moving violations) to the Driver License Division. A plea of guilty, a plea in abeyance, and a voluntary forfeiture of bail are all considered convictions and must be reported. {UCA 53-3-218} Failure by a judge to make these reports "constitutes misconduct in office and is grounds for removal." {UCA 77-7-25(5)}
Recommendations

The judge not only reports convictions, but may also recommend that a license be suspended if the judge believes that a defendant is a dangerous driver. {UCA 53-3-218 and 53-3-220(1)(a)(viii)}
Mandatory or Permissive Revocations

When a statute states that suspension or revocation is mandatory, the Driver License Division has no choice and must revoke a license. When it is permissive, the Division has the right, but is not required, to suspend or revoke the license. The Division uses its discretion to decide whether to suspend or revoke the license. {UCA 53-3-221}

Revocations or suspensions are mandatory, for example, after one conviction for DUI, two convictions for reckless driving within twelve months, automobile homicide, and upon a conviction for hit and run driving causing personal injury or death. The complete list is found in Utah Code Ann. § 53-3-220. The crimes for which the Division may revoke or suspend licenses are found in Utah Code Ann. § 53-3-221.

The Division generally revokes licenses for one year. The old license cannot be renewed and a driver must apply for new one. {UCA 53-3-225} Suspensions are generally made for periods of three months or more. The Division may not deny or suspend a license for more than one year except in special circumstances. {UCA 53-3-221} A driver who fails to comply with a citation or court order may have the driver’s license suspended for as long as the period of non-compliance. Anyone who drives under a revoked or suspended license will have the period of revocation or suspension extended for an additional, equal length of time. {UCA 53-3-220(3)}

For complete information on the work of the Driver License Division in keeping dangerous drivers off the highways and on the judge's duties in furthering that goal, all justice court judges are urged to read Title 53, Chapter 3 of the Utah Code. (Uniform Driver License Act) Information can also be found at http://driverlicense.utah.gov

7. Conclusion

Responsibility of the Judge

The justice courts might have the greatest opportunity of all entities to serve the cause of highway safety. A justice court judge has the power to compel the court appearance of persons charged with traffic violations (see Chapter 9). The judge has the opportunity to speak to each offender and to impress on the person the need for the person’s cooperation to reduce accidents. The court can assist in the control of dangerous drivers through license revocations and suspensions by reporting convictions to the Division. Finally, by imposing proper penalties, the justice court judge has the ability to deter offenders and keep them from repeating their violations.
Proper Prosecution

If every person cited before a justice court becomes certain that he or she will not escape prosecution by non-appearance; will be duly punished if found guilty; and that the penalty will be no greater and no smaller than that of other, like offenders, this will be a great step forward in safety and public order.

To any judge who is interested, a reading of the article by James Economos on "Proper Penalties" in Judge and Prosecutor in Traffic Court, at Page 256, is highly recommended.
Penalty Assessment

The Utah Legislature has enacted Chapter 63, Title 63a of the Utah Code to create a trust fund for victims, public safety, and substance abuse protection. This act provides that a surcharge must be assessed by the courts on all criminal fines, penalties, and forfeitures imposed within this state, except for non-moving traffic violations or when community service is ordered instead of a fine. {UCA 63-63a-1} A more detailed discussion of surcharges is found in a different section of this book.

The Legislature has also enacted Utah Code Ann. § 78A-7-122 which requires justice courts to impose a security surcharge of $32.00 on all convictions for offenses listed in the Uniform Fine/Bail Schedule and for all moving violations. A more detailed discussion of that surcharge is also found in a different section of this book.

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CHAPTER 12: Appeals in criminal cases

1. Trial de novo

Every defendant convicted in a justice court (whether by bench trial, jury trial, or the defendant’s own plea) has a statutory right to a trial de novo in the District Court. The defendant cannot appeal a judgment after a trial de novo unless the District Court rules on the constitutionality of a statute or ordinance. {UCA 78A-7-118}.

2. Compliance with Statutes and Rules

An appeal from a justice court to the district court satisfies a defendant’s constitutional right to appeal. See City of Monticello v. Christensen, 788 P.2d 513 (Utah 1990). The appeal must be taken within 30 days after the judgment is entered. {UCA 78A-7-118 and URCrP 38} The appeal is perfected when the notice of appeal is filed with the justice court. There is no fee for an appeal in a criminal case. Upon appeal, a justice court judgment is not stayed unless a certificate of probable cause is issued. {URCrP 38} An application for a certificate of probable cause is presented first to the justice court and then to the district court if the justice court denies the application. A certificate may be granted if the appeal is not for the purpose of delay and the judge determines that the defendant is not a safety risk and does not need to immediately begin a sentence. If a certificate of probable cause is issued, the court may set appropriate conditions for release, including bail. {URCrP 27}²³

3. The Justice Court’s Duties

Within 20 days after the notice of appeal is filed, the justice court must send a certified copy of the case file to the clerk of the district court. {URCrP 38} The justice court must transmit the following papers to the district court clerk:

A copy of the docket.
The pleadings. (Citation, information, etc.)
All notices, motions and other papers filed.

The justice court should keep the original papers.

The district court conducts anew the proceedings on which the order or judgment is based. This might involve accepting a defendant’s guilty plea or conducting a new trial. {URCrP Rule 38} If the sentence has not been stayed, the justice court retains jurisdiction over the sentence until the district proceedings are concluded. If the defendant is convicted in district court, the district court judgment replaces the justice court judgment. Upon entry of the judgment or final order of the district court, the clerk of the district court transmits to the justice court notice of the disposition of the case. Such notice is for informational purposes only and is not considered a remand. See Dean v. Henriod, 1999 UT App 50, 975 P.2d 946. The district court can send the case back to justice court if the defendant fails to appear or otherwise take steps to prosecute the appeal.

4. Hearing de Novo

A defendant can also appeal an order revoking probation, an order denying a motion to withdraw a guilty plea, or a judgment or sentence that is entered after a plea in abeyance agreement is violated. {UCA 78A-7-118(3)} The prosecution can appeal a final judgment of dismissal, an order arresting judgment, a pretrial order excluding evidence if the exclusion prevents further prosecution, or an order granting a motion to withdraw a plea. {UCA 78A-7-118(4)}

The district court conducts a de novo hearing on the order that has been appealed. After the district court conducts its hearing, it sends the case back to the justice court unless the case is dismissed, the defendant enters a guilty plea in the district court, or the parties agree to keep the case in the district court. {UCA 78A-7-118(b)} If the district court sends the case back to the justice court, the justice court resumes the case at the point the appeal was taken, subject to any determinations made by the district court.

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CHAPTER 13: Preliminary Hearing

1. Purpose of Preliminary Hearing

Jurisdiction

Although justice courts do not have jurisdiction over felony cases, a justice court judge may sometimes conduct initial appearances, preliminary hearings, and arraignments on felonies filed in a district court. {URCrP Rule 7} The preliminary hearing is not a procedure involving an arraignment or a plea. Justice court judges should read Rule 7, of the Utah Rules of Criminal Procedure for the main provisions relating to preliminary hearings.
Requirements

Prior to a justice court judge conducting felony preliminary hearings and arraignments, the judge must:
- Complete the course offered by the Administrative Office of the Courts on conducting preliminary hearings;
- Be appointed by the presiding judge in the district court; and
- Consent to the appointment.
{URJA 4-610} The justice court judge conducts preliminary hearings at the district court so that a district court clerk can supervise the recording of the proceedings. {URJA 4-610(5)}
Definition and Purpose

A preliminary hearing is not a trial, but rather a hearing to determine whether sufficient evidence exists to take a case to trial. The purpose of a preliminary hearing is to make two determinations:
- First, is there probable cause to believe a crime has been committed?
- Second, is there probable cause to believe the defendant committed the crime?
{URCrP 7}
Reasonable Grounds

A preliminary hearing is designed to sift out those cases in which the evidence does not show probable cause that a crime has been committed or that the defendant committed it. The sifting process places an important responsibility on the justice court judge. By performing this duty conscientiously, a judge can save innocent defendants from trial, while ensuring that those defendants who appear to have committed crimes are bound over for trial.

2. Errors in Proceedings

Because the preliminary hearing forms the basis for proceedings in the district court and the record of the hearing is made part of the complete record in the case, the judge must carefully ensure that every step is correct and legal. If the judge is not diligent, the case may go through a trial in the district court only to be sent back by an appellate court because of an error during the preliminary hearing.

The main objection raised on appeal related to preliminary hearings is that the magistrate failed to grant the defendant all the rights and privileges to which the defendant is entitled under the U.S. Constitution and the Utah statutes. See State v. Brickey. 714 P.2d 644 (Utah 1986) (“[A] preliminary hearing . . . [is] a ‘critical stage’ in the criminal process and proper consideration for a defendant’s constitutional rights must be observed.”)

3. Rights of the Accused Before Magistrate

Preliminary Hearings

The accused has a constitutional right to a preliminary hearing before a magistrate. The defendant may waive this right, but only with the consent of the prosecuting attorney. {Utah Const. Art. I, Sec 12.} If the right is waived, the judge binds the defendant over for trial. {URCrP 7(h)}
Other Basic Rights

The defendant has the right to a preliminary hearing on the exact offense in the information. The defendant has the right to be represented by counsel and to confront and examine witnesses. {URCrP 7(i)} See also Chapter on "Rights of the Accused.”

After a suspect has been arrested, the accused is brought before a magistrate who must inform the accused of the charge and of the right to have the aid of counsel at every stage of the proceedings. {URCrP 7} The magistrate must postpone other proceedings in the case if the defendant needs time to obtain counsel. The judge must also inform the defendant that counsel will be appointed if the defendant cannot afford to retain an attorney. This requirement was set forth in Coleman v. Alabama, 399 U.S. 1 (1970), where the United States Supreme Court found the preliminary hearing to be a "critical stage" of the criminal process requiring the appointment of counsel for indigent defendants.
Procedure

The following is taken from Rule 7, Utah Rules of Criminal Procedure:
- (e) The magistrate having jurisdiction over the offense charged shall, upon the defendant's first appearance, inform the defendant:
- (1) of the charge in the information or indictment and furnish a copy;
- (2) of any affidavit or recorded testimony given in support of the information and how to obtain them;
- (3) of the right to retain counsel or have counsel appointed by the court without expense if unable to obtain counsel;
- (4) of rights concerning pretrial release, including bail; and
- (5) that the defendant is not required to make any statement, and that the statements the defendant does make may be used against the defendant in a court of law.
- (f) The magistrate shall, after providing the information under paragraph (d e) and before proceeding further, allow the defendant reasonable time and opportunity to consult counsel and shall allow the defendant to contact any attorney by any reasonable means, without delay and without fee.
- (g) If the charge against the defendant is a misdemeanor, the magistrate shall call upon the defendant to enter a plea.
- (1) If the plea is guilty, the defendant shall be sentenced by the magistrate as provided by law.
- (2) If the plea is not guilty, a trial date shall be set. The date may not be extended except for good cause shown. Trial shall be held under these rules and law applicable to criminal cases.
- (h) (1) If a defendant is charged with a felony, the defendant shall be advised of the right to a preliminary examination. If the defendant waives the right to a preliminary examination, and the prosecuting attorney consents, the magistrate shall order the defendant bound over to answer in the district court.
- (2) If the defendant does not waive a preliminary examination, the magistrate shall schedule the preliminary examination. The examination shall be held within a reasonable time, but not later than ten days if the defendant is in custody for the offense charged and not later than 30 days if the defendant is not in custody. These time periods may be extended by the magistrate for good cause shown. A preliminary examination may not be held if the defendant is indicted.
- (i) (1) Unless otherwise provided, a preliminary examination shall be held under the rules and laws applicable to criminal cases tried before a court. The state has the burden of proof and shall proceed first with its case. At the conclusion of the state's case, the defendant may testify under oath, call witnesses, and present evidence. The defendant may also cross-examine adverse witnesses.
- (2) If from the evidence a magistrate finds probable cause to believe that the crime charged has been committed and that the defendant has committed it, the magistrate shall order that the defendant be bound over to answer in the district court. The findings of probable cause may be based on hearsay in whole or in part. Objections to evidence on the ground that it was acquired by unlawful means are not properly raised at the preliminary examination.
- (3) If the magistrate does not find probable cause to believe that the crime charged has been committed or that the defendant committed it, the magistrate shall dismiss the information and discharge the defendant. The magistrate may enter findings of fact, conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the state from instituting a subsequent prosecution for the same offense.
- (i) At a preliminary examination, the magistrate, upon request of either party, may exclude witnesses from the courtroom and may require witnesses not to converse with each other until the preliminary examination is concluded. On the request of either party, the magistrate may order all spectators to be excluded from the courtroom.
- (k) (1) If the magistrate orders the defendant bound over to the district court, the magistrate shall execute in writing a bind-over order and shall transmit to the clerk of the district court all pleadings in and records made of the proceedings before the magistrate, including exhibits, recordings, and any typewritten transcript.
- (2) When a magistrate commits a defendant to the custody of the sheriff, the magistrate shall execute the appropriate commitment order.
- (l) (1) When a magistrate has good cause to believe that any material witness in a pending case will not appear and testify unless bond is required, the magistrate may fix a bond with or without sureties and in a sum considered adequate for the appearance of the witness.
Waivers

The magistrate must ensure that the accused knows what is being given up by waiving the right to counsel. The judge should explain to the defendant why an attorney might be helpful. The judge should also explore the defendant’s understanding of the procedural rules applicable in criminal cases. The judge should reiterate that counsel will be appointed if the defendant cannot afford to retain counsel. If the defendant waives the right to counsel, the judge must be convinced that the accused waives the right knowingly and with an understanding of the consequences. A good framework for this line of questioning is found in State v. Frampton, 737 P.2d 183 (Utah 1987).

4. Commission of a Lesser or Greater Offense

Example

Sometimes during the course of a preliminary hearing, the evidence might show that the defendant committed a lesser crime than the one charged and over which the justice court has jurisdiction. For example, a defendant is charged with felony theft which is punishable by a prison term. The evidence might subsequently show that the stolen property is worth $300 or less, which means that the crime is class B misdemeanor theft.
Procedure When Taking Jurisdiction

After a review of the facts as they relate to the classification of the statutory crimes, the judge would recognize that the district court does not have subject matter jurisdiction over a class B misdemeanor. {UCA 78A-5-102} In such a case, the judge might discharge the defendant. The prosecutor could then file a new information in justice court for the class B misdemeanor theft and arraign the defendant on that charge. The justice court judge should be careful in these circumstances and only discharge the defendant if it is clear that the district court does not have jurisdiction.
Procedure When Acting as a Magistrate

The reverse of this situation might also occur. The justice court might take jurisdiction of a case and the judge may later find that the defendant committed a more serious crime outside of the court’s jurisdiction. The judge would dismiss the case so that charges can be filed in district court. The judge can set bail so that the defendant can be held pending the new filing.

In State v. Brickey, 714 P.2d 644, 647 (Utah 1986), the Utah Supreme Court stated that when charges are dismissed based on insufficient evidence after a preliminary hearing, a prosecutor may only refile criminal charges on the same conduct when “new or previously unavailable evidence has surfaced or [when] other good cause justifies refiling.” If a judge dismisses charges based on a lack of jurisdiction, those charges can be refiled. However, if a judge conducts a preliminary hearing and determines that there is insufficient evidence for probable cause, a prosecutor will be limited in the circumstances under which charges may be refiled.

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CHAPTER 14: Script and Procedure of Initial appearance and preliminary hearing

Step 1: On the initial appearance, the accused is brought before the judge after either a warrantless arrest with the prosecutor subsequently having filed an information, or the prosecutor filed an information, a warrant was issued, and the accused was arrested.

The court will have given notice of the hearing to all parties. The hearing will be held at the district court.

Step 2: The judge sits at the bench and opens court: "The Court is now in session. The case before the court is the State of Utah versus Albert White, defendant."

Step 3: The judge proceeds: "Mr. White, is Albert White your true and correct name?" (If the answer is "no", the correction is made on the information and in the docket.)

Step 4: "Mr. White, you are charged with theft which is punishable as a felony. You have the right to counsel at every stage of the proceedings. If you cannot afford counsel, and qualify as indigent, an attorney will be appointed by the court to represent you, if you desire." The court should give the defendant time to hire an attorney or to have counsel appointed.

If the defendant chooses to proceed without counsel, the judge must question the defendant to determine whether the defendant understands the benefits of having counsel. The judge must also determine whether the defendant understands the consequences of proceeding without counsel.²⁴ If the judge is satisfied that the defendant fully understands the benefits of using an attorney, and the defendant is capable of understanding the law and the legal process, the defendant’s waiver of counsel can be accepted.

Unlike the next hearing, the defendant should either be required to post bail (if the offense is bailable) or be committed to jail. {URCrP 7} However, before requiring bail of the defendant, the judge should consider whether release on the defendant’s own recognizance is appropriate. Justice court judges cannot set bail in a capital case. {UCA 78A-2-220(2)(b)}

The preliminary hearing must be held within a reasonable time. If the defendant is in custody, the hearing must be held within 10 days. If the defendant is out on bail or released on recognizance, the examination must be held within 30 days. The magistrate has discretion to extend these time periods for good cause. {URCrP 7(h)(2)} If a defendant requests a continuance, a continuance is typically granted. A defendant may waive the preliminary hearing, but the court should not accept a waiver until the defendant has had a chance to consult with an attorney or consider the impacts of proceeding without counsel.

If the defendant waives the hearing, the judge binds the defendant over, using such language as the following: "The defendant has waived preliminary hearing of the offense stated in the information. The county attorney has consented to the waiver, I order that the defendant be held to answer in the district court." The order may also be in the form used to bind the defendant over after a hearing has been held, which is set out in Step 12.

Step 5: The parties have the right to compel witnesses to attend the hearing. The court issues subpoenas to insure the attendance of witnesses required by a pro se defendant. Prosecution and defense attorneys are authorized to sign and issue subpoenas as officers of the court. Subpoenas may be directed to anyone in the State. {URCrP 14}

Step 6: On the date set for the hearing, the judge opens court as in Step 2 and asks the parties and attorneys whether they are ready to proceed. The court may grant a request for postponement that is made during a hearing. However, as a general rule, the hearing should be completed in one session. See State v. Rogers, 2006 UT 85, (“The decision on whether to grant a continuance is properly left to the sound discretion of the magistrate. It would be unreasonable to grant a continuance to afford the prosecution more time to investigate or develop new evidence. It would be reasonable to grant a continuance when the prosecution, in good faith, fails to present sufficient evidence but the necessary evidence is reasonably available.”)

Step 7: If the hearing is held, the judge proceeds to read the information and depositions of witnesses, if any. If the defendant wishes to plead guilty or not guilty, the judge must explain to the defendant that this is only a preliminary hearing, and the judge cannot accept a plea at this time. A plea can be accepted at arraignment, after the case is bound over.

Step 8: The prosecutor then presents the State's witnesses and other evidence. The witnesses may be examined by the defendant’s counsel or the defendant, if unrepresented. {URCrP 7(i)(1)} Before any witness testifies, the judge or clerk administers the following oath:

"You do solemnly swear or affirm that the evidence you shall give in this case shall be the truth, the whole truth, and nothing but the truth, so help you God (or under the pains and penalties of perjury."

{UCA 78B-1-143} The oath may be altered to fit the beliefs of the witnesses. {UCA 78B-1-145}

The hearing must be recorded. If the defendant is bound over, this official record is included in the case records. {URCrP 7(k)(1) and URJA 4-610(5)} The judge should review URJA 4-201 for the appropriate recording methods.

Step 9: If requested by either party, the judge may exclude witnesses from the courtroom until they are required to testify. The judge may also exclude all spectators from the courtroom. {URCrP 7(j)}(Note: The Utah Supreme Court has determined that the public has a right to attend preliminary hearings. The court should only exclude spectators if it is necessary to protect the defendant’s right to a fair trial. Kearns-Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984))

Step 10: After the State rests, the defendant may call witnesses and present evidence. {URCrP 7(i)(1)}

Step 11: At this point, the defense might make a motion to dismiss. The motion is followed by arguments presented by both sides.

Step 12: The judge must decide whether the evidence establishes probable cause against the defendant. The judge usually makes this decision immediately. In difficult cases, the judge may take time to consider. In that case, the court announces that the case is taken under advisement and adjourns the hearing. The judge must make a decision as soon as possible after the adjournment.

If the evidence does not establish probable cause that the crime has been committed, the judge must discharge the defendant. If the evidence shows that the offense has been committed, but does not establish probable cause that the defendant is the perpetrator, the judge must discharge the defendant. In either situation, the judge issues an order. An example of an order would be:

"There being no probable cause to bind the defendant over for trial, I order the defendant discharged."

The magistrate may also enter findings of fact and conclusions of law along with the order of dismissal. {URCrP 7(i)(3)}

If the evidence shows probable cause that the offense has been committed and the defendant is the offender, the judge must bind the defendant over for trial. In that situation the judge signs an order binding the defendant over for trial. An example of this order would be:

"A preliminary hearing was held on __________. After receiving and reviewing the evidence, the court determines that there is probable cause to believe that a crime has been committed and probable cause that the defendant committed the crime, I order that the defendant be bound over for trial."

Step 13: If the defendant is bound over, the defendant is either committed to jail, released on bail, or granted a release on recognizance. Remember that a justice court judge cannot set bail in a capital case or deny bail in any case. Those cases must be referred to a district court judge.

If the judge sets bail, language such as the following can be added to the order set out in Step 12. The defendant is admitted to bail in the sum of _____ dollars and is committed to the county jail until the defendant posts bail or is legally discharged.”

If the defendant is able to post bail immediately, the defendant is released and the following words are added to the order:

"The defendant is admitted to bail by the undertaking that is attached" or "by accepting a cash deposit of ______ dollars."

Step 14: The judge may require material witnesses to give appearance bonds to assure their return for the trial in District Court. For particulars read Rule 7(l)(1), Utah Rules of Criminal Procedure.

An appearance bond may also be required of a material witness if there is reason to believe the witness will not be at the preliminary hearing. Also, depositions of witnesses may be taken before the magistrate prior to a preliminary hearing. These may be used at the hearing. This is done, for example, if an important witness is about to leave the state before the preliminary hearing can be held. The depositions cannot be used at the trial unless an evidentiary rule specifically allows them to be admitted.

Step 15: The judge gives attendance certificates to the witnesses specifying the amount due. See Utah Code Ann. § 78B-1-119 for the current schedule of witness fees. Also see URJA 4-405 for the reimbursements witnesses can receive.

[Note: In most cases the justice court judge conducts the preliminary hearing at the district court and a district court clerk maintains the record. If that is the case, the following steps are not necessary.]

Step 16: As soon as the hearing is over, the judge should review the docket and papers to see that all necessary entries have been made. This is important because any irregularity in the docket or documents may be grounds for reversal by an appellate court. If the judge carefully follows this step, the judge will experience little difficulty with Step 17, the return to the district court.

Step 17: The law requires the judge to turn over all records and documents in the case to the clerk of the District Court. The following papers make up the judge's return:

The warrant, if issued.

The information properly signed and sworn to by the complaining witness, with the order binding the defendant over or releasing him on bail. (See Steps 12 and 13.)

Depositions of witnesses, if any were taken.

A list of all the witnesses for the State; also their addresses, if the judge can ascertain them.

Any subpoenas issued.

Any undertakings of bail for the defendant, cash deposits or commitments.

Any appearance bonds of witnesses. (See Step 14.)

A certified copy of the docket entries.

Testimony of witnesses.

The making of the return completes the judge's duties in connection with a preliminary hearing.

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CHAPTER 15: The Utah Criminal Code

The Utah Legislature enacted Title 76, Chapter 3 of the Utah Code to classify categories of offenses and to promote consistency and uniformity in punishment. Under former Utah law, a specific penalty was usually prescribed with each offense, thus creating a myriad of penalties. However, because of the Board of Pardons’ power to determine the actual amount of time one should serve prior to release or parole, the sentencing scheme was changed. The creation of a multitude of punishments for various offenses did not appear necessary other than to allow the maximum time to be consistent with the seriousness of the offense. See Utah Const. Art VII, Section 12, Utah Code 77-18-4; and Adriano v. Turner, 20 Utah 2d 350, 437 P.2d 891 (1968) (upholding the constitutionality of the Board of Pardons). The classes of offenses and the range of penalties has therefore been simplified. (Utah is considered to be an indeterminate sentencing state because in felony cases judges do not determine a specific amount of time an individual serves in prison)

Felonies

Under the criminal code, offenses are sorted into four felony categories, three misdemeanor categories, and infractions. Classifications of felonies and the punishments for each are as follows:
- Capital felonies: death sentence, 20 years to life, or life without the possibility of parole.
- First degree felonies: a term of not less than five years to life in a Utah State Correctional Facility, unless a more specific statute provides otherwise, and a fine up to $10,000 plus surcharge;
- Second degree felonies: a term of not less than one year nor more than fifteen years in a Utah State Correctional Facility, unless a more specific statute provides otherwise, and a fine up to $10,000 plus surcharge;
- Third degree felonies: a term not to exceed five years in a Utah State Correctional Facility, unless a more specific statute provides otherwise, and a fine up to $5,000 plus surcharge.
{UCA 76-3-103, 76-3-203, 76-3-206 and 76-3-301}
Misdemeanors

The classifications for misdemeanors and the punishments for each are as follows:
- Class A misdemeanors: a term not exceeding one year in jail and a fine up to $2,500 plus surcharge.
- Class B misdemeanors: a term not exceeding six months in jail and a fine up to $1,000 plus surcharge;
- Class C misdemeanors: a term not exceeding ninety days in jail and a fine up to $750 plus surcharge;
{UCA 76-3-104, 76-3-204 and 76-3-301}

A justice court does not have jurisdiction over an individual charged with a class A misdemeanor or a felony. A judge can defer to the prosecutor on the appropriate level of offense, but if there is a concern, the judge should review the code. If the Traffic Code creates an offense but does not designate its severity, it is a class C misdemeanor. {UCA 41-6a-202} An offense designated as a misdemeanor in other areas of the Utah Code or in another law, without specification as to punishment or category, is a class B misdemeanor. {UCA 76-3-104(2)}
Infractions

The court cannot impose jail time on an infraction, but may order a fine of up to $750 plus surcharge. Any offense which is an infraction within the Criminal Code is specifically designated as such. Any offense defined outside the Criminal Code which is not designated as a felony or misdemeanor and for which no penalty is declared, is an infraction. {UCA 76-3-105}

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CHAPTER 16: The Rights of the Accused in a Criminal Proceeding

Justice court judges must ensure that all constitutional and statutory rights are afforded to persons brought before them. Judges must understand these rights in order to evaluate any defenses or claims raised.

1. Right to Counsel

Basic Right

The United States Constitution guarantees an accused the right to be represented by an attorney. This right is derived from the Sixth Amendment and applies to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). The court must appoint counsel to represent a defendant who cannot afford counsel. The right to counsel exists where there may be any imprisonment, regardless of whether the crime is a misdemeanor or a felony. Argersinger v. Hamlin, 407 U.S. 25 (1972). The right to court appointed counsel applies even if the court orders but then suspends jail time. Alabama v. Shelton, 535 U.S. 654 (2002).

In Utah, counsel must be appointed to an indigent defendant if the defendant faces "a substantial probability of deprivation of liberty." {URCrP 8} Webster v. Jones, 587 P.2d 528 (Utah 1978). An indigent defendant should be provided with an attorney free of charge when accused of a crime which could result in imprisonment and the court is likely to incarcerate the defendant. {UCA 77-32-301 et seq.} The court can order a defendant to reimburse the costs of representation if the defendant is convicted. {UCA 77-32a-2} If an indigent defendant is not provided counsel, and does not waive that right, the defendant can still be prosecuted, but cannot be sentenced to jail. The right to counsel involves many aspects, each of which will be treated separately.
Waiver

An accused may waive the right to be represented by counsel. A defendant’s decision to waive counsel must be voluntary, knowing, and intelligent. The accused must therefore first know of the right to counsel before that right can be voluntarily and intelligently waived. Westbrook v. Arizona, 384 U.S. 150 (1966); Gideon v. Wainwright, supra; Miranda v. Arizona, 384 U.S. 436 (1966); and Patterson v. Illinois, 487 U.S. 25 (1980) (“The key inquiry [is]: was the accused . . . made sufficiently aware of the right to counsel . . . and of the possible consequences of a decision to forego the aid of counsel.”)

In deciding whether the decision was made intelligently, knowingly, and voluntarily, the particular facts of the case must be examined. This includes such facts as the background, experience, and conduct of the accused. Westbrook v. Arizona, supra, Johnson v. Zerbst, 304 U.S. 458 (1938). The judge has the important responsibility to make an effective determination of whether or not there was a proper waiver.

The United States Supreme Court has held that the right to counsel does not depend on a request for counsel. The court must inform the defendant of the right and the accused must affirmatively reject the right. Boykin v. Alabama, 395 U.S. 238 (1969). The Utah Supreme Court, in State v. Frampton, 737 P.2d 183, 187, n.12 (Utah 1987) provided a “penetrating colloquy” for a court to follow in determining whether a defendant understands the consequences of proceeding without counsel.

The Utah Supreme Court has also determined that a defendant’s actions can constitute a waiver of the right to counsel. Before the actions can be considered a waiver, the court must inform the defendant of the right to counsel and discuss the consequences of proceeding without counsel. If the defendant wishes to hire his or her own counsel, but continually delays hiring counsel, the court must warn the defendant of the consequences. The court must specifically warn the defendant that failure to hire counsel by a certain time will be considered a waiver. State v. Pedockie, 2006 UT 28, 137 P.3d 716.
Effective Assistance of Counsel

An accused is guaranteed competent counsel. The old standard of competency, which Utah followed, was that, if counsel’s inadequacy made the trial a "farce or mockery of justice," then the defendant was denied this right. Jaramillo v. Turner, 465 P.2d 343 (Utah 1970).

A different standard has been adopted by the federal courts, most state courts, including Utah, and the United States Supreme Court. The standard is known as the "reasonably effective assistance" or Strickland standard. Strickland v. Washington, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). ("The test is whether counsel's representation falls below an objective standard of reasonableness and, but for counsel’s unprofessional errors, the result of the proceeding would be different.") There are no specific guidelines under this standard. The courts must look at the totality of the circumstances to determine whether counsel’s performance is deficient. Ineffective assistance of counsel claims are raised on appeal. Because a justice court appeal is by trial de novo, counsel’s performance in the justice court will not be reviewed on appeal. A justice court judge must therefore be particularly careful to ensure that effective assistance is provided during the justice court proceedings.
Extent of the Right

It is sometimes difficult to determine when the right to counsel attaches for an accused. The accused has the right to legal counsel at any “critical stage” of a proceeding, which includes the time from an accused's arraignment through conviction and sentencing, when consultation, investigation and preparation are vitally important. Massiah v. United States, 377 U.S. 201 (1964). The right includes communication and other preparation for trial. Powell v. Alabama, 287 U.S. 45 (1932), Hamilton v. Alabama, 368 U.S. 52 (1961).

The following are some examples of decisions regarding critical stages of a proceeding. A stage is not critical if it does not present a risk of an unfair trial if counsel is not afforded to the accused. Gilbert v. California, 388 U.S. 263 (1967). Sentencing is a critical stage. State v. Wanosik, 2003 UT 46, 79 P.3d 937. Taking a breathalyzer test is not a critical stage, but a lineup conducted after an information is filed is a critical stage. Cavaness v. Cox, 598 P.2d 349 (Utah 1979). A hearing on a motion to suppress is a critical stage. State v. Curry, 2006 UT App 390. Plea bargaining is a critical stage. State v. Ford, 793 P.2d 397 (Utah 1990). A probation revocation proceeding might also be considered a critical stage. Beal v. Turner, 454 P.2d 624 (Utah 1969). As can be seen from these decisions, the determination of whether a stage is critical must be made on a case-by-case basis.

The United States Supreme Court has held that a preliminary hearing is a critical stage even if such a hearing is not required in the state’s code of criminal procedure. Coleman v. Alabama, 399 U.S. 1 (1970). The Utah Supreme Court has similarly declared that a preliminary hearing is a critical stage. State v. Anderson, 612 P.2d 778 (Utah 1980).

2. Guilty Plea

A guilty plea can only be accepted from an accused, who is with or without counsel, when the judge is convinced that the accused is fully advised of all implications of the plea, that the accused understands the consequences of the plea and the rights being waived, and the accused persists in the desire to plead guilty. Bute v. Illinois, 333 U.S. 640 (1948). Carter v. Illinois, 329 U.S. 173 (1946); Foster v. Illinois, 332 U.S. 134 (1947). Just like waiver of counsel, the judge must determine if the decision was made in a voluntary, knowing, and intelligent manner. Boykin v. Alabama, supra.

The Utah Supreme Court has also declared that a court may not accept a guilty plea unless the plea is made voluntarily, knowingly, and intelligently. The court has stated that a judge, when accepting a guilty plea, must strictly comply with Rule 11 of the Utah Rules of Criminal Procedure. See State v. Visser, 2000 UT 88, 22 P.3d 1242. The court has stated that strict compliance does not mean that a court must follow a particular script. The trial court may use any “method of communicating the rights enumerated by Rule 11” but must cover every aspect of the rule. State v. Corwell, 2005 UT 28, 114 P.3d 569. The court can base its findings of voluntary, knowing, and intelligent on the contents of documents in the file, including affidavits and statements of the defendant and “the information in pre-sentence reports and exhibits.” Id.

3. Search and Seizure

Under the Fourth Amendment of the United States Constitution, personal privacy interests are protected against unreasonable searches and seizures. Katz v. United States, 389 U.S. 347 (1967). Searches and seizures should be considered unreasonable unless there is a warrant for the search (See Chapter 5), or unless one of the legally recognized exceptions apply. These exceptions arise in limited situations which have been established by case law. The following list is not exhaustive. A judge should consult additional resources on search and seizure.

Search Incident to Arrest

An officer may search a person after a valid arrest. The officer may also search the area in the immediate control of the arrestee, to determine whether weapons are in the area. This is sometimes called the lunge area. The officer may conduct such a search to protect against officer injury, destruction of evidence, or prisoner escape. Chimel v. California, 395 U.S. 752 (1969). As long as the arrest is custodial, the officer may search for evidence of the crime. Gustafson v. Florida, 414 U.S. 260, (1973); United States v. Robinson, 414 U.S. 218 (1973).
Automobile Exception

If an officer has probable cause and if exigent circumstances exist, movable instrumentalities, such as automobiles and boats, may sometimes be searched without a warrant. This type of search protects against evidence being lost if the vehicle were to be released. The privilege of search and seizure under this exception cannot be abused. If officers can easily obtain a warrant, it must be secured before a search is justified. Coolidge v. New Hampshire, 403 U.S. 443 (1971). See State v. Anderson, 910 P.2d 1229 (Utah 1996) (“Exigent circumstances exist when the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.”)
Other Exigent Circumstances

An officer may also conduct a search under other exigent circumstances. The test of its validity will depend on the circumstances of the particular case. In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court stated that a warrantless search based on exigent circumstances must meet three requirements: (1) a clear indication that evidence will be found; (2) exigent circumstances that justify the intrusion; and (3) a reasonable method of search. The exigent circumstances must be such that the evidence is in danger of disappearing or dissipating and there isn’t time to obtain a warrant. See State v. Alvarez, 2006 UT 61 (“Police officers must reasonably believe that they are confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatens the destruction of evidence.”)
Stop and Frisk

An officer may stop and frisk someone when the officer has reason to believe that the person is involved in criminal activity and possesses a weapon. An exterior pat-down must bear some reasonable relation to the purpose of the search. The officer must have also observed something that shows the person is carrying a weapon. Terry v. Ohio, 392 U.S. 1 (1968). A pat-down is not needed when the officer knows where the weapon is located. See State v. Peterson, 2005 UT 17, 110 P.2d 699 (“Courts must apply a two-prong analysis to evaluate whether a warrantless protective search was permissible under Terry. The court must first determine whether the officer’s action was justified at its inception. Next, the court must assess whether the action was reasonably related in scope to the circumstances which justified the interference in the first place. Because the only permissible objective of the Terry frisk is the discovery of weapons that may be used against the officer or others, a protective search that goes beyond what is necessary to determine if the suspect is armed is no longer valid under Terry and its fruits will be suppressed.”)
Plain View

If there has been a valid intrusion in private areas (such as stopping a vehicle or being invited into a home), evidence may be seized if it is in plain sight. Coolidge v. New Hampsire, supra, Harris v. United States, 390 U.S. 234 (1968). For example, if an officer validly enters a defendant's residence and sees a weapon on the table, the officer may seize it if the officer has probable cause to believe the weapon is contraband or evidence of a crime.
Hot pursuit

Law enforcement officers may enter private premises if they are in hot pursuit of a suspected criminal. “The hot pursuit exception to the warrant requirement rests in part upon the principle that a criminal suspect may not defeat a proper arrest simply by retreating into the home ahead of pursuing police.” State v. Ramirez, 814 P.2d 1131 (Utah App. 1991). Citing U.S. v. Santana, 427 U.S. 38 (1976). In Ramirez the Utah Court of Appeals stated that hot pursuit applies to misdemeanor defendants as well as felony defendants. As its name suggests, the pursuit must be “hot.” The intrusion must be directly and immediately tied to the pursuit.
Consent

If there has been a valid, voluntary consent to a search, then a warrantless search is allowed. Schneckloth v. Bustamounte, 412 U.S. 218 (1973). Only a person who has personal rights in the premises may give consent to search those premises. State v. Griffin, 626 P .2d 478 (Utah 1981). For example, a landlord might have authority to consent to a search of a tenant’s premises, but only if the landlord has authority to enter the premises. A person may revoke his or consent any time. State v. Dunkel, 2006 UT App 339, ¶ 14.
Reasonable Expectation of Privacy

Law enforcement officers may search any area in which an individual does not have a reasonable expectation of privacy. For example, an individual does not have a reasonable expectation of privacy in a garbage can left at the curbside. The expectation of privacy is lost because the owner knows that the garbage has essentially been turned over to a third party. California v. Greenwood, 486 U.S. 35 (1988). There may be other special situations in which a search and seizure will be considered reasonable. See e.g. State v. Rhynhart, 2005 UT 84, 125 P.3d 938 (The defendant did not have a reasonable expectation of privacy in her wrecked van that she left abandoned.)

The U.S. Supreme Court has emphasized that when evaluating actions by law enforcement officers “an action is reasonable under the Fourth Amendment regardless of the individual officer’s state of mind, as long as the circumstances viewed objectively, justify the action.” Brigham City v. Stuart, 126 S.Ct. 1943 (2006). In Stuart, the court stated that it was reasonable for officers to enter a house in order to assist an injured person and prevent further violence. When evaluating a warrantless search, the judge should always consider the reasonableness of the officer’s actions.

4. The Privilege Against Self-Incrimination. The Miranda Doctrine

The Miranda doctrine arose through the decision in Miranda v. Arizona, 384 U.S. 436 (1966). The doctrine applies when an accused is being interrogated by public officials while the accused is in custody. The Supreme Court stated:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used in evidence against him, and that he has right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

Id. at 444, 445.

This Court decision recognizes several important constitutional rights of an accused. The accused has the right to remain silent to avoid self-incrimination. The accused cannot be compelled to testify against him or herself. The accused has the right to have an attorney present during any questioning. The accused has the right to court-appointed counsel if the defendant is indigent. These rights may be waived if such waiver is done intelligently and voluntarily. If the accused speaks after a Miranda warning has been given, the accused has waived the right. State v. Easthope, 28 Utah 2d 244, 501 P.2d 109 (1972). A waiver may be retracted by the accused at any time, and the accused may invoke Miranda rights even after making admissions to public officials. Edwards v. Arizona, 451 U.S. 477 (1981). If an individual invokes Miranda, the individual may not be questioned any further if the individual is in custody, unless the defendant again consents.

Admissions which are made to persons other than police officers or while a defendant is not in custody are admissible as evidence. State v. Guerrero, 29 Utah 2d 243, 507 P.2d 1029 (1973). Like the area of searches and seizures, justice court judges should know the law of Miranda and the privilege against self-incrimination because it is frequently a defense argument to suppress statements made by the defendant.

5. Right of the Accused to be Present at Trial

A defendant has the right to be present at the trial. This right, however, can be waived in a non-capital trial if the accused specifically waives the right or voluntarily “absences himself”. Diaz v. United States, 223 U.S. 442 (1912).

In State v. Wanosik, 2003 UT 46, 79 P.3d 937, the Utah Supreme Court stated that a trial court may proceed if a defendant is voluntarily absent from the proceedings. A court must make a reasonable inquiry into the absence of a defendant to ensure that the absence is truly voluntary. The inquiry should include statements from the attorneys that they have made attempts to locate the defendant such as by contacting local jails and the defendant’s residence.

A represented defendant can be absent from a pre-trial conference which involves only discussions of questions of law that will not resolve the defendant's guilt or innocence. Brown v. Pepersack, 217 F. Supp. 547 (D.Md. 1963); Cox v. United States, 309 F .2d 614 (8th Cir. 1962); Pope v. United States, 287 F. Supp. 214 (W.D. Tex. 1967), cert. denied 393 U.S. 1097 (1969).

6. Right to a Speedy Trial

The Sixth Amendment states that "in all criminal prosecutions the accused shall enjoy the right to a speedy trial." The Sixth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967). Delays in arresting and charging are allowed within the framework of the statutes of limitations. Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967), United States v. Ewell, 383 U.S. 116 (1966). Under the Utah statutes of limitations, a misdemeanor must be filed within two years and an infraction within one year. {UCA 76-1-302} The right to a speedy trial begins after a case is filed.

There is a four-part inquiry in determining whether a defendant’s right to a speedy trial has been violated. The court looks at the cause of the delay (the fault of the defense or the fault of the prosecution), the length of the delay, whether the defendant asserted the right to a speedy trial, and whether the defendant has been prejudiced by the delay. Barker v. Wingo, 407 U.S. 514 (1972). None of these factors carry more weight than the others. The court balances these factors to determine whether there has been a speedy trial violation.

A justice court judge is obligated to comply with the guarantee of a speedy trial whether the case is in a preliminary hearing or actual trial. If the judge conducts a preliminary hearing, the hearing date should be set promptly so that the trial can quickly follow. If a criminal trial is held, the judge should move deliberately and promptly to set a trial date and avoid unnecessary delays.

In Utah, every defendant unable to post bail is entitled to a preference for an early trial. {UCA 77-1-6} Defendants may knowingly waive their rights to a speedy trial, such as through a diversion or plea in abeyance agreement, or through the defendant’s actions. The time during which a defendant avoids a warrant does not count against the right to a speedy trial.

7. Right to Fair and Impartial Trial

The right to a fair and impartial trial is guaranteed under the Due Process clause of the Fourteenth Amendment. All persons accused of crimes have this right. Irvin v. Dowd, 366 U.S. 717 (1961). There are many ways that unfairness can arise: community prejudice that affects the proceedings; undue influence by outside persons; judicial interest in the outcome; exposure of jurors to outside influences, etc. Justice court judges must guard against such unfairness.

8. Right to Trial By Jury

The Fourteenth and the Fifth Amendments work together to ensure the right to trial by jury in state criminal matters. Utah law provides for a jury trial for all criminal defendants, except those charged with infractions. {UCA 77-1-6(2)(e) and URCrP 17} The accused must file a written demand for a jury trial. {URCrP 11 and 17} The demand must be filed at least 10 days before trial. {URCrP 17}

A trial court may allow the prosecution to amend a charge against a defendant at any time before the defendant is convicted, “if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.” West Valley City v. McDonald, 948 P.2d 371 (Utah App. 1997). {URCrP Rule 4(d)}

9. Right to Public Trial

The right to a public trial is guaranteed by the Sixth Amendment. The right applies to the states under the Fourteenth Amendment. In re Oliver, 333 U.S. 257 (1948). In justice courts, all proceedings are public and evidence must be presented before the defendant, unless the defendant has chosen to be absent. {UCA 77-1-6}

10. Right to Confrontation

All state criminal defendants have a right of confrontation under the Sixth and Fourteenth Amendments. Pointer v. Texas, 380 U.S. 400 (1965). This means that an accused has the right to confront and cross-examine witnesses testifying for the prosecution. {UCA 77-1-6} See State v. Henriod, 2006 UT 11, 131 P.3d 232 (“The Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact . . . An alternative to a face-to-face confrontation would satisfy the Sixth Amendment only if it was necessary to further an important public policy and the reliability of the testimony was otherwise assured.”) Crawford v. Washington, 54 P.3d 656 (2004). (The court may not admit hearsay testimony unless the defendant has had an opportunity to examine the witness.)

11. Right to Compulsory Process of Witnesses

In criminal matters, the defendant has a right to have process to compel the attendance of defense witnesses. {UCA 77-1-6} Washington v. Texas, 388 U.S. 14 (1967). This is a right that is also guaranteed in justice court criminal trials. Justice courts must subpoena witnesses on behalf of defendants if the witnesses’ testimony will be relevant to the proceedings. The prosecuting entity must pay the witness fees if the defendant is indigent. {UCA 78B-1-150}

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CHAPTER 17: Extradition

1. Purpose and Definition

Extradition proceedings, as outlined in Utah Code 77-30-1 et seq., are controlled by the federal Constitution and state statutes. Extradition is the process used when one state surrenders to another state an individual who is accused or convicted of a crime, and has illegally left or escaped from the demanding state. Extradition statutes are enacted to promote justice and to aid states in enforcing their laws and to prevent criminals from escaping punishment.

A defendant is extradited when the governor issues a warrant. However, there may be a role for a magistrate before a governor’s warrant is issued.

2. Responsibilities of the Justice Court Judge

A justice court judge, while acting as a magistrate, may have the responsibility of issuing a warrant of arrest for a fugitive from another state. {UCA 77-30-13} A magistrate may issue a warrant when the magistrate receives sworn testimony from a credible person of this or another state that an individual has committed a crime in another state, escaped from confinement, or broken the terms of bail, probation or parole. {UCA 77-30-13} A justice court judge might also be asked to review a warrantless arrest of a fugitive. The judge should determine whether there was probable cause for the arrest similar to any other arrest in the state. {UCA 77-30-14}

3. Responsibilities of Peace Officers

A peace officer is empowered to arrest a person wanted for extradition without an arrest warrant. {UCA 77-30-14} After the arrest, the accused must be taken before a magistrate with all practicable speed. The officer must swear to the facts supporting the arrest and the accused must be given a chance to answer.

4. Bail and Release

If the magistrate determines that the person committed the extraditable offense, then the judge should issue a warrant to commit the accused in the county jail for a period not to exceed thirty days. {UCA 77-30-15} The thirty days allows time for a warrant to be obtained from the governor. The magistrate must set bail unless the offense is punishable by death or life imprisonment under the laws of the demanding state or a judge from the demanding state has ordered the person to be held without bail (in which case a district judge should review the matter). Under Utah Code Ann. § 77-30-17, the judge may discharge the person if a governor’s warrant is not issued within the thirty days, or the judge may recommit the person for up to sixty more days to allow additional time for a governor’s warrant to be obtained.

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CHAPTER 18: Driving Under the Influence

One of the most important types of cases that justice court judges will face involve driving under the influence and reckless driving under Title 41, Chapter 6a of the Utah Code. A judge should carefully review that title and chapter.

1. Defining DUI

A person can be charged with DUI when the person operates or is in physical control of a vehicle and the person has a breath alcohol content above a certain level. The prosecution may also charge DUI when a person is under the influence of alcohol or drugs to the extent that the person cannot safely operate a vehicle. The threshold alcohol concentration is .08 grams. {UCA 41-6a-502}

2. Pre-trial Processing

The prosecution may not offer, and the court may not approve, a diversion agreement for an individual charged with driving under the influence. The prosecution may offer, and the court may approve, a plea in abeyance agreement but only if the plea is entered in a driving under the influence court and the plea is approved by the prosecuting attorney. The facts must also show that a plea is abeyance is justified in that particular case. The court may not approve a plea in abeyance agreement if the defendant has a prior DUI conviction, if the defendant has a previous plea in abeyance agreement, or the DUI before the court involved bodily injury to another, the individual had an alcohol level of .16 or higher, or the defendant had a passenger under eighteen years of age in the vehicle. {UCA 77-2a-3.1}

3. Sentencing

When a defendant is convicted of DUI, the court must sentence the defendant to certain provisions established in the Utah Code. The court’s sentence must include either jail of forty-eight hours, community service for a minimum of forty-eight hours, or home confinement. The court must also order the defendant to participate in a screening program to determine the appropriate treatment for the defendant. The court must impose a minimum fine of $700.00. The court should review Utah Code Ann. § 41-6a-505 for the sentencing requirements. The court must order that a defendant install an ignition interlock device if the defendant is under twenty-one years old. The court has discretion to order the defendant to install an ignition interlock in other cases. {UCA 41-6a-518}

Under Utah Code Ann. § 41-6a-513, a court may not accept a plea of guilty to DUI unless the prosecutor agrees to the plea or the court receives verification from a law enforcement agency that the defendant does not have more than one prior violation within the previous ten years.

This is to ensure that a defendant is not allowed to plead guilty to a DUI before the prosecution has had a chance to determine whether the defendant has any prior convictions for enhancement purposes.

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CHAPTER 19: Domestic Violence

Another important case type justice courts will handle are domestic violence offenses. Utah Code Ann. § 77-36-1 lists all the offenses which may be considered domestic violence. The prosecution may charge a defendant with a domestic violence offense only if the defendant is a cohabitant of the victim. Utah Code Ann. § 78B-7-102 defines cohabitant.

1. Pre-trial Procedures

When a defendant is charged with domestic violence, the court should consider whether to issue a pretrial protective order. A pretrial protective order can be issued against the defendant to protect the victim until trial. The court can order the defendant to refrain from contacting the victim and the victim’s family members. The court can also order the defendant to be removed from the victim’s residence and to stay away from any other areas where the victim may be found, such as work and school. {UCA 77-36-2.7} If the court issues such an order, the court must provide a copy of the order to the victim. Because the court often does not have the victim’s address, the court can instruct the prosecutor to give the order to the victim.

The prosecutor may not offer, and the court may not approve, a diversion agreement for a defendant charged with domestic violence. {UCA 77-36-2.7} The prosecutor may offer a plea in abeyance agreement. The court may only dismiss the domestic violence charge if the defendant completes all the terms of the plea in abeyance agreement.

2. Sentencing

When a defendant is convicted of domestic violence, the Utah Code requires the court to impose certain conditions of probation. The court must order the defendant to participate in a domestic violence treatment program that is licensed by the Department of Human Services. {UCA 77-36-5} The court may not order a defendant to participate in another type of treatment program unless a licensed program is not reasonably available. The court should also consider whether to issue a protective order as a condition of probation. Similar to the pretrial protective order, the court can order the defendant to stay away from the victim and the victim’s family. The court’s order can include the same terms as a protective order, plus the court can prohibit the defendant from possessing weapons and to pay restitution to the victim. {UCA 77-36-5.1} If the defendant violates a pretrial protective order or a protective order issued as a condition of probation, the defendant can be charged with a new domestic violence offense. The court can also pursue the defendant for contempt.

Under federal law, a defendant convicted of a domestic violence offense may not possess or own a weapon. When a defendant is convicted, the court must warn the defendant about this prohibition. {URCrP 11 and 22}

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CHAPTER 20: The Controlled Substances Act of Utah

Justice court judges should become familiar with the "Utah Controlled Substances Act,"{UCA Title 57, Chapter 37} since they are empowered to hear many cases involving controlled substances. Judges should also review the “Utah Drug Paraphernalia Act,” {UCA Title 57, Chapter 37a} and the “Imitation Controlled Substance Act.” {UCA Title 58, Chapter 37b}.

Justice courts will usually only have jurisdiction over first time violators under subsections (2)(a)(ii) and (2)((a)(iii) of Utah Code Ann. § 58-37-8. A first-time conviction under either of these subsections is a class B misdemeanor. {UCA 76-3-204 and 76-3-301} Subsequent offenses might be enhanced above a class B misdemeanor.

Justice courts will have jurisdiction over certain drug paraphernalia offenses {UCA 58-37a-5(1) and (4)} and offenses involving possession of imitation controlled substances. {UCA Title 58, Chapter 37b}

Utah Code Ann. § 58-37-4 lists five schedules of controlled substances. The schedules are complicated and lengthy. Many of the drugs in use today must be broken down and analyzed before a determination can be made whether they are covered by the "Controlled Substances Act." Judges should become familiar with the categories and language of Utah Code Ann. § 58-37-4.

1. Marijuana

There is more than one strain of marijuana (cannabis). Differentiation between types is very difficult. As a result, defense attorneys have argued that identification of the particular cannabis is necessary in order to file a marijuana charge. Courts, however, have held that simple reference to marijuana is sufficient to comply with such statutes. State v. Wind, 208 N.W. 2d 357 (Wisc. 1973). The Utah Code indicates that simple reference to a violation regarding "marijuana" is sufficient to cover all strains. It is included in the schedules of controlled substances under the broad designation "marijuana." {UCA 58-37-4(2)(a)(iii)(S)}

2. Hashish

Hashish is not expressly mentioned in the Utah Code. It is a form of marijuana and therefore is a controlled substance.

3. Controlled Substance Schedule

The Utah Legislature may add to or delete from the list of controlled substances. A judge should review legislation every year to see if there have been additions or exclusions. If a judge is having problems with a particular substance which is not included in the Act, the judge may contact the Attorney General's Office or the Office of Legislative Research and General Counsel with a request to include the drug in the "Controlled Substance Act." However, it is probably best if the local prosecuting attorney makes the contact and initiates the request.

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CHAPTER 21: Competency of a Defendant

The court might occasionally have a case in which there is a question about whether the defendant is competent to stand trial. A defendant is incompetent if the defendant is not able to understand the proceedings or is not able to cooperate with counsel. {UCA 77-15-2} The issue of competency can be raised by any party or the court. The justice court judge cannot determine competency. If there is a question of competency, a party must file a petition in the district court. The district court will determine competency by having the defendant examined by medical professionals. If the district court determines that the defendant is incompetent, the district court may order the defendant into the custody of the state hospital to determine whether competency can be restored. If competency can be restored, the defendant can be held until that happens. If the district court determines that the defendant is or has become competent, the district court will send the case back to the justice court for continued proceedings. If the defendant is not and cannot become competent, the case will be dismissed. (See Title 77, Chapter 15 for the provisions on competency.)

There may be circumstances in which a defendant is competent to proceed, but the defendant is ultimately found guilty but mentally ill. In that situation, the court sentences the defendant the same as any other conviction. However, the court also has the option to order treatment specifically geared toward the defendant’s mental illness, including committing the defendant to the Utah State Hospital. {UCA 77-16a-202}

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CHAPTER 22: Contempt of Court

1. What is Contempt?

Contempt of court generally involves disrespect toward the court or disobedience to its orders. The definition of contempt includes a willful disregard for or disobedience of judicial authority, and any act which is calculated to embarrass, hinder or obstruct a court in its administration of justice, or which is calculated to lessen its authority or its dignity. Disobedience to a court order is also considered contempt. {UCA 78B-6-301}

The following acts or omissions are considered contempt of court: {UCA 78B-6-301}

Disorderly, contemptuous or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.
Breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding.
Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, or other person appointed or elected to perform a judicial or ministerial service.
Deceit, or abuse of the process or proceedings of the court, by a party to an action or special proceeding.
Disobedience of any lawful judgment, order or process of the court.
Assuming to be an officer, attorney or counselor of a court, and acting as such without authority.
Rescuing any person or property in the custody of an officer by virtue of an order or process of such court.
Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from, the court where the action is on the calendar for trial.
Any other unlawful interference with the process or proceedings of a court.
Disobedience of a subpoena duly served, or refusing to be sworn or to answer as a witness.
When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action to be tried at such court, or with any other person, concerning the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court.

2. Sparing Use of Contempt Powers

A justice court judge will usually be able to preserve order in the court. Most individuals will respect the court when the judge conducts proceedings in a dignified manner. If the parties or attorneys persist with inappropriate arguing, threaten to get out of hand, or use abusive words directed at the judge, the court may consider using its contempt powers. The judge should probably give one clear warning that the behavior is acceptable before proceeding with contempt. A judge will enjoy greater respect and will uphold the honor of the office far more effectively if contempt powers are exercised only as a last resort.

The Honorable Philip M. Fairbanks, Associate Judge of the Circuit Court of Montgomery County, Maryland, with reference to the contempt powers of the court, said the following:

I suggest to you that the quickest way to lose the respect of the persons appearing before you, both lawyers and litigants, is in indiscriminate threatening and exercise of contempt. In this regard, a judge is much like a teacher. The good teacher can control his class with little or no disciplinary action while the poor teacher is always threatening to send the child to the principal or the detention hall.

3. Contempt in the Presence of the Court (Direct Contempt)

Procedures

Direct contempt is that which occurs in the presence of the court such as a defendant repeatedly using abusive language toward others. Because the judge is present and can hear and see who is interfering with the orderly course of the court's business, it is not necessary to file formal pleadings in order to punish the offender. The judge is entitled to take “summary action” against the offender. The judge need only interrupt the trial or hearing long enough to state, for example: "Mr. X, I hold you in contempt of court and sentence you to a fine of $100." The court should warn the person about inappropriate behavior before contempt is ordered, unless the behavior is clearly unacceptable in a courtroom. The judge must make a written order "reciting the facts as occurring in such immediate view and presence of the court, adjudging that the person proceeded against is guilty of a contempt and that he be punished as prescribed in section 78B-6-310." {UCA 78B-6-302}. The judge should not neglect to make this order. See State v. Williams, 2006 UT App 420, 147 P.3d 497 (“without factual findings and with no record evidence to support the court’s actions . . . [a] contempt finding . . . is unsupported.”). A contempt order might read as follows:

"In the Justice Court for _________ Precinct (or the City of ________ ), ___________ County, State of Utah. Thomas Brown interrupted the small claims case of John Smith versus Thomas Brown on June 24, 2006, by shouting in a loud voice: "I know I have no chance in this court. This judge is a liar and he has been bribed by Smith" (Describe any other abusive language showing disrespect toward the court). The court had previously warned Mr. Brown about abusive language. The outburst tended to interrupt the proceedings of the court. I therefore adjudge Thomas Brown guilty of contempt, and order that he be punished by paying a fine of $100.00 and serving one day in the county jail. Dated this 24th day of June, 2006.

................................ (signed)
RICHARD YOUNG
Justice Court Judge

A commitment is prepared and given to a law enforcement officer.

The court makes a docket entry in the case which was in progress when the contempt was committed. The entry might read as follows:

"June 24, 2006. Defendant was found guilty of contempt for abusive words directed at the court which tended to interrupt the proceedings of the court. The defendant was fined $100.00 and ordered to serve one day in jail. The defendant paid the fine and a receipt was given. The court prepared a written order."

After this interruption the regular proceedings in the case continue and regular docket entries follow.
Punishment for Contempt in the Presence of the Court

The punishment for contempt in a justice court may not exceed a $500 fine and five days in jail. {UCA 78B-6-310}

The court should use great discretion before incarcerating an individual who is not represented by counsel. Since the holding of Argersinger v. Hamlin, 407 U.S. 25 (1972) (which holds that absent an intelligent waiver of counsel no person may be imprisoned for any offense whether classified as a misdemeanor or felony unless he was represented by counsel at his trial) the authority of judges to levy jail sentences against unrepresented individuals may be weakened.

Utah has not addressed the question of whether an individual is entitled to counsel in a direct contempt proceeding. The nature of direct contempt lends itself to the conclusion that it is impractical if not impossible to provide counsel before imposing a punishment for direct contempt. Some jurisdictions have determined that an individual does not have the right to counsel in a direct contempt proceeding. See e.g. Saunders v. State, 319 So.2d 118 (Fla. App. 1975) A judge therefore probably continues to have the option of jail time for direct contempt.

A judge has various options to subdue a disruptive, defiant individual, such as:
- Cite the defendant repeatedly for contempt;
- Remove the defendant from the courtroom until the defendant agrees to behave in an orderly fashion; or
- Bind and gag the defendant, keeping the defendant quiet but present.
Although the United States Supreme Court has held that under certain conditions a defendant may lose the right to be present at trial, and to confront the accusers, the judge should explore all other alternatives before removing a defendant from the courtroom and proceeding in the defendant’s absence. Illinois v. Allen, 397 U.S. 337 (1970).

The procedures that are followed to punish for contempt committed in court are entirely different from those used to punish for contempt committed out of court.

4. Contempt out of the Presence of the Court (Indirect Contempt)

Since the judge does not personally observe contempt committed out of the presence of the court, the court must initiate formal proceedings to bring the accused before the court to answer the charge.

Contempt Out of the Presence of the Court - Definition

This second type of contempt typically deals with disobedience of a court order, such as the failure to pay a fine or failure to appear for a supplemental hearing in a small claims case. {UCA 78B-6-302(2)} (Note: A defendant’s failure to pay a small claims judgment is not considered contempt.)
Formal Court Proceedings: Affidavit

The proceedings are similar to a regular criminal action. However, the proceedings are not initiated by a criminal information. There must be an affidavit which informs the accused of the charge. {UCA 78B-6-303} The affidavit outlines the facts constituting the contempt. In order for the court to acquire jurisdiction over the contempt it is essential that this affidavit is filed with the court. The court can initiate the contempt by issuing an order to show cause which recites the specific allegations against the defendant. Unless this is done, all subsequent contempt proceedings will be null and void. Robinson v. City Court of Ogden, 185 P.2d 256 (Utah 1947) (“It is necessary that an affidavit or initiating pleading be filed, unless this is done, subsequent proceedings are palpably null and void.”)
Order to Show Cause, Warrant of Attachment or Warrant of Commitment

After an affidavit is filed, the judge may issue either an order to show cause or the more severe warrant of attachment to bring the defendant in to answer the charge. {UCA 78B-6-303} The warrant of attachment is similar to a warrant of arrest in a criminal case. An order to show cause should be issued initially, rather than a warrant of attachment. A warrant of attachment may be issued if the person does not respond to the order to show cause. {UCA 78B-6-303}

The order to show cause should include the affidavit. The affidavit should inform the accused of the nature of the contempt alleged and state the facts supporting the charge. It is also good practice to include a copy of the court order the individual is accused of disobeying.
Service of the Document

The sheriff or constable’s office must serve the order to show cause to ensure that the accused receives adequate notice of the charge and the obligation to appear before the court. If a warrant of attachment is used, the sheriff detains the person and brings the accused before the judge. The court must endorse on the warrant that the person charged may be admitted to bail in the amount stated in the endorsement. {UCA 78B-6-304} If the defendant posts bail, the defendant must sign a promise to appear at the hearing. The officer must return the warrant of attachment and the undertaking, if any, by the return day specified on the warrant.
Hearing

When the person appears before the court, the judge holds a hearing to investigate the charge. The court must ensure that the defendant has had adequate time to prepare. The court and the accused may examine witnesses for or against the accused, and hear any statements the accused may wish to make in his or her own behalf. {UCA 78B-6-309} If the accused can show that the accused exercised due diligence in an effort to comply with the order of the court, but was unable to comply, the accused should not be held in contempt because inability to comply is a defense.
Punishment

If the accused is found in contempt, the judge may, as in cases of direct contempt, impose a fine not to exceed $500 and/or jail time for up to five days. {UCA 78B-6-310} The judge may not impose a jail term if the accused is not represented by counsel or has not waived this right.
Compensation

If the accused's contempt causes an actual loss or injury to a party, the judge may also order the defendant to pay the aggrieved party an amount adequate to compensate for the loss or injury. The order and the acceptance of the payment constitute a bar from the party bringing any further action against the defendant for the loss or injury. {UCA 78B-6-311}
Non-Appearance in Contempt Cases

If the defendant does not appear for the hearing, the judge may issue a bench warrant for the defendant’s arrest. The court may also forfeit any bail that has been posted. {UCA 78B-6-308}

5. Distinguishing Between the Two Types of Contempt

It may sometimes be difficult for a judge to determine whether a contemptuous act was committed in the presence of the court. As we have seen, this is a very important distinction because the procedures differ considerably in the two cases.

A case which occurred in the city court of Ogden will illustrate the distinction in at least one situation. In Robinson v. City Court of Ogden, 112 Utah 36, 185 P.2d 256 (1947) the court recited the relevant facts:

A defendant had been convicted for a small offense and sentenced to pay a fine. He had left the courthouse and returned one hour later to pay his fine. Meeting the judge who had imposed the sentence at the elevator, the defendant said "This is the worst example of a kangaroo court I have ever seen." Thereupon the judge took the defendant back to the courtroom and summarily adjudged him in contempt and imposed sentence.

The Utah Supreme Court held that Robinson’s remark, although made in the presence of the judge, was not made in the presence of the court because the court had adjourned and the defendant did not interfere with the court's proceedings during a hearing or trial. Because the judge used the informal rather than the formal contempt proceedings, the contempt conviction was null and void. The Utah Supreme Court also stated, without deciding the question, that the remark may not have gone beyond the limits of permitted criticism because it was an exercise of protected free speech. It is unlikely therefore that the defendant would have been guilty of indirect contempt either.

For further illustration, see these cases: West Valley City v. Borrego, 752 P.2d 361 (Utah App. 1988) (Contempt was directed at the court and the defendant was sufficiently warned); and Van Hake v. Thomas, 759 P.2d 1162 (Utah 1988) (Failing to appear at a court hearing when ordered to do so may be considered direct contempt.)

6. Criminal Contempt or Civil Contempt

The law also recognizes a distinction between criminal contempt and civil contempt. The two types of contempt are distinguished by their ultimate aims. Criminal contempt is punitive. Civil contempt is remedial. When the effect of the contempt is to punish an individual, the contempt is considered criminal. When the result of the contempt proceeding is to remedy contemptuous conduct, the contempt is considered civil. For example, if a defendant fails to obey a court order, such as an order to pay a fine, and the court imposes a penalty of $100.00 to punish the defendant, that would be considered criminal contempt. If a defendant refuses, for example, to answer a judge’s questions, and the court incarcerates the defendant until the defendant cooperates, this is considered civil contempt. The distinction is important for the procedures that must be followed in the respective contempt proceedings. The burden of proof in a criminal contempt proceeding is proof beyond a reasonable doubt. The burden of proof in a civil contempt proceeding is preponderance of the evidence.

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CHAPTER 23: Statutes of Limitation

In rare instances, a justice court judge may be precluded from hearing a case because of a statute of limitation. These statutes serve the purpose of eliminating stale or old claims by requiring prosecutors (in criminal actions) and plaintiffs or petitioners (in civil actions) to file their actions within a certain number of years. The Utah Court of Appeals has held that a criminal defendant may waive a criminal statute of limitation by failing to raise the statute as a defense. James v. Galetka, 965 P.2d 567 (Utah App. 1998). The same principle applies in civil cases.

1. Criminal Statutes of Limitations

Criminal Cases

Limitations of actions in criminal cases are established in Title 76, Chapter 1, Part 3 of the Utah Code. A prosecution for a capital felony, aggravated murder, murder, manslaughter or child abuse homicide may be commenced at any time. {UCA 76-1-301} A prosecution for:
- negligent homicide and most felonies must be commenced within four years after the crime is committed;
- some felonies, such as rape and forcible sexual abuse, must be commenced within eight years;
- a misdemeanor other than negligent homicide must be commenced within two years; and
- any infraction must be commenced within one year.
{UCA 76-1-302}

A prosecution is commenced upon the filing of an indictment by a grand jury or the filing of a criminal information. {UCA 76-1-302(5)}
Exceptions

Even if the applicable period stated above has expired, a prosecution may nevertheless be commenced for:
- Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense. However, the time to commence prosecution cannot be extended more than three years. {UCA 76-1-303(1)}
- Any offense based upon misconduct in office by a public officer or employee at any time during the term of defendant’s public office or the period of defendant’s public employment or within two years thereafter. However, the time to commence prosecution cannot be extended more than three years: {UCA 76-1-303(3)}
- Rape of a child, object rape of a child, sodomy upon a child , sexual abuse of a child or aggravated sexual abuse of a child within four years after the report of the offense to law enforcement officials. {UCA 76-1-303.5}
The period of limitation does not run against any defendant during any period in which the defendant is out of the state following the commission of an offense. {UCA 76-1-304}
Lesser Offenses

Whenever a defendant is charged with an offense for which the period of limitations has not run and the defendant is found guilty of a lesser included offense for which the period has run, the defendant may still be sentenced and punished for the lesser offense. {UCA 76-1-305}

2. Civil Statutes of Limitations

Civil Cases

Most of the statutes of limitations in civil matters are contained in Title 78B, Chapter 2 of the Utah Code. They are detailed and complicated and will not be exhaustively discussed here. There are a multitude of sections throughout the Utah Code, other than Title 78, Chapter 2 which deal with limitations of actions in civil cases. A judge should carefully examine the index of the Utah Code under the heading “Limitation of Actions”.
Exceptions

Miscellaneous provisions concerning the effects of absence from the state, minority, insanity, imprisonment, death, war, failure of action not on the merits, promise to pay, and other such matters are covered in Utah Code Ann. § 78B-2-101 through 117. Many of these provisions will extend the statute of limitations period.

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PART III - Justice Court Civil Procedures

CHAPTER 1: Small Claims Procedures

1. General Information

Purpose

A small claims case is a civil action to collect a debt of $7500 or less. District courts and justice courts both have small claims divisions. {UCA 78A-8-102} Small claims actions make it possible for individuals to collect small amounts of money through informal, speedy, and inexpensive proceedings. The action begins with an affidavit and summons instead of a complaint and summons. The Utah Rules of Small Claims Procedure set forth the process.
Who May Not Bring Small Claims Action

The action in small claims court cannot be brought by an assignee of a claim. {UCA 78A-8-103} This means that an individual or entity, such as a collection agency which has taken over an account, may not bring a claim when they are not the original party. An employee of a business may appear on behalf of a business - i.e. a dentist's office manager may appear for the dentist’s office. {UCA 78A-8-102(4)}
Representation

The procedure used in small claims court is intended to be simple enough that the parties do not need the help of an attorney. Attorneys may, however, be employed in small claims cases if the parties desire. {UCA 78A-8-102} Non-attorneys may appear and represent the interests of another person if the non-attorney is not paid for the work and the court approves the appearance. See Rule 14-802 of the Utah Supreme Court’s Rules Governing the Utah State Bar.

2. Small Claims Court Organization and Jurisdiction

Jurisdiction

The jurisdiction of small claims court is limited to money claims. An individual may not sue to have property returned to the individual. A judgment creditor may use attachment, garnishment and execution to enforce the judgment. {UCA 78A-8-104} The action must be brought in the court which has territorial jurisdiction where the defendant resides, or where the indebtedness was incurred. {UCA 78A-8-102(1)}

If a small claims action is filed in district court, the district court can transfer the case to a justice court which has territorial jurisdiction. {URJA 4-801}

The jurisdiction of the small claims court is not exclusive. The plaintiff has the choice, if the money claim is below $7,500, to either use the regular civil procedures in district court or the special small claims procedures. {UCA 78A-5-102 and Utah Const. Art. VIII, Sec.7.}
Small Claims Docket

The clerk should enter small claims cases in the docket. Each small claims case is entered in the civil part of the docket. The small claims docket should include the following:
- the title of the action (names of parties);
- the sum claimed;
- the date the case is filed;
- the date of the hearing;
- which of the parties appeared;
- any adjournment;
- the details and date of a judgment or order;
- the issuance of any abstract of judgment;
- post-judgment actions such as supplemental hearings, garnishments and executions;
- any monies paid to the court; and
- the receipt of any appeal papers filed.
Fees

See Utah Code Ann. §§ 78A-8-105 and 78A-2-301 for the current schedule of filing and other fees in small claims cases. Fees collected in cases filed with a municipal justice court are sent to the city treasurer. Fees collected in cases filed in a county justice court are sent to the county treasurer. The judge is responsible to ensure that the court is collecting the correct fees and should thoroughly review Utah Code Ann. § 78A-2-301.
Judgment

When the parties appear in small claims court, they may offer into evidence papers, books, the testimony of witnesses, etc. The court may ask the parties questions and the parties may ask questions of each other. The court should make a decision as the judge deems just and equitable in accordance with the law. The judgment must be in writing and clearly set forth the court’s decision. Copies of the judgment should be delivered to each party. Either party may appeal the decision by filing a notice of appeal within 30 days. {UCA 78A-8-106} The filing fee for a notice of appeal includes a fee for the justice court and a fee for the district court.

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CHAPTER 2: Outline and Procedure of a Small Claims Action

The rules of procedure for small claims cases are found in the Utah Court Rules Annotated - Utah Rules of Small Claims Procedure (URSCP) and on the back of the small claims affidavit form. These rules have been adopted by the Utah Supreme Court.

1. Forms

Small claims forms are found in the appendix to the Utah Rules of Small Claims Procedures and are available on the Utah State Courts website at www.utcourts.gov/resources/forms/. The original affidavit is filed with the clerk of the court. The clerk assigns a hearing date at that time. The plaintiff delivers a copy of the affidavit and summons to the sheriff’s department, constable, or process server for immediate service. The plaintiff may also serve the affidavit by using a mail or courier service that requires the defendant to sign a receipt, with the receipt being returned to the plaintiff. {URSCP 3}

The affidavit must be served at least 30 days before the hearing. Proof of service must be filed with the court within 10 days after service. If the affidavit is served by mail or courier service, the plaintiff files the proof of service. If the affidavit is served by a deputy sheriff, constable, or process server, proof of service is filed by the individual who served the document. {URSCP 3}

2. The Hearing

On the assigned date, the judge calls the case and the clerk notes on the docket which of the parties have appeared. If the plaintiff alone is present, the judge examines the proof of service to determine whether the court has acquired jurisdiction over the defendant through proper and timely service. The judge may then enter a default judgment against the defendant. The judge can examine the plaintiff and plaintiff's exhibits to determine whether the claim is legitimate. The judge completes the judgment form and enters judgment for the plaintiff. If the judge determines that the plaintiff’s claim is not legitimate, the judge may dismiss plaintiff’s claim.

If the defendant appears, the plaintiff is given the first opportunity to present evidence. The defendant then presents evidence. Any witness should be given the appropriate oath before testifying. The judge may question both the plaintiff and the defendant and any of their witnesses. At the conclusion of the presentation of evidence, the judge either gives the court’s judgment from the bench or takes the matter under advisement and renders a finding and order at a later date. If at all possible, the judge should render judgment from the bench. If the case is taken under advisement, the judge must issue a decision within 60 days from the date of the hearing.

3. The Judgment

The judge should enter the exact terms of the judgment on the judgment form and in the docket so that no later confusion arises. If the plaintiff has requested interest, that may be included in the judgment. A judgment based on a lawful contract must bear interest at the rate agreed upon by the parties in the contract. If the contract does not specify interest or if the action does not involve a contract, interest accrues at the annual rate established in Utah Code Ann. § 15-1-4. The specific rate can be found on the judiciary’s website. The judgment will have the same interest rate throughout the life of the judgment.

The prevailing party in any small claims action is also entitled to collection costs such as filing fees and service costs. If the defendant is the losing party and the plaintiff incurs further expenses to enforce a judgment, these costs are also recoverable. {UCA 78A-8-107}

Either party may appeal within thirty days of the judgment. {URSCP 12}

4. Collecting the Judgment

If no appeal is taken, and the defendant fails to pay the judgment, the plaintiff may apply for and be given an abstract of judgment form. The same procedure applies if judgment has been entered against the plaintiff based on a counter-affidavit. The party applying for the abstract of judgment may then create a lien upon any real property of the losing party. This is accomplished by filing and docketing the abstract with the county recorder’s office of the county in which the real property is located. {UCA 78B-5-202}

If the losing party does not pay the judgment, the prevailing party may request a supplemental order. A supplemental order directs a judgment debtor to appear in court on a specific date to answer questions about the debtor’s assets. A judgment creditor may also request other process such as garnishment, attachment, or execution to proceed against a debtor’s property. {UCA 78A-8-104}

Contempt proceedings are available for failure to comply with court orders. However, contempt cannot be used for failure to pay the judgment itself.

Note: The Court/Judge does not have the direct responsibility to collect the judgment in a small claims action. This responsibility rests with the prevailing party and it is that party’s burden to follow through with the collection process. The court should not become a collection agency. The prevailing party must enforce the judgment by the prevailing party’s choice of the remedies allowed by law.

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CHAPTER 3: Marriage Ceremonies

Justice court judges have the authority to solemnize marriages. {UCA 30-1-6(1)(f)} There are no geographical limits on this power since the performing of a marriage is not considered a judicial act like holding court. A justice court judge may perform marriages anywhere in the State. A justice court judge is not required to perform marriages.

1. Rules and Requirements

Prohibited Marriages

A list of prohibited marriages is found in Utah Code Ann. §§ 30-1-1 and 30-1-2. The list includes:
- Marriages between close relatives (incestuous marriages) including those between parents and children, ancestors and descendants of every degree, brothers and sisters of the half as well as the whole blood, uncles and nieces, aunts and nephews, or between any persons related to each other within and not including the fifth degree of consanguinity computed according to the rules of the civil law. First cousins may marry if both parties are 65 or older, or the parties are both 55 or older and a district court has determined that either party is unable to reproduce.
- Marriages when there is a spouse living from whom the person wanting to marry has not been divorced.
- When the male or female is under 16 or 17 years of age, unless consent has been obtained from a parent as provided in Utah Code Ann. § 30-1-9.
- When the male or female is under 16 years of age at the time the parties attempt to enter into the marriage. However, a 15 year old may obtain permission to marry if the 15 year old and his or her parent obtain permission from a juvenile court judge, in accordance with Utah Code Ann. § 30-1-9.
- Between a person seeking a divorce and any person other than the one from whom the divorce is sought until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the divorce decree. (For information on when a divorce becomes final see Utah Code Ann. § 30-3-7 and 8.)
- Marriages between persons of the same sex.
Any judge who knowingly solemnizes any of the above prohibited marriages, even if the couple presents a license issued by the county clerk, is guilty of either a felony or a class A misdemeanor, depending on the type of unlawful marriage. {UCA 30-1-13 and 30-1-15}
Presentation of License

A marriage may not be performed without a license issued by the county clerk of any county of the State. (It need not be issued by the clerk of the county where the marriage is to be performed.) Any judge who solemnizes a marriage without this license is guilty of a third degree felony. {UCA 30-1-13}
Underage Marriage

Utah Code Ann. § 30-1-9 states that minors who are 16 or 17 years old must obtain consent from a parent before obtaining a marriage license. The Code states that if a minor is 15, the minor and the minor’s parents must obtain permission to marry from a juvenile court judge. A minor younger than 15 years old may not marry.
Counseling Services

In 1971, the Utah Legislature authorized county commissioners to create mandatory premarital counseling programs. The counties can require counseling for persons under nineteen years of age and those who have been previously divorced before issuing them marriage licenses. Individuals can avoid the program requirements by waiting six months from the date of the application to obtain a marriage license. {UCA 30-1-30 to 30-1-39} Since this plan is optional with each county, every justice court judge should check with the respective county commission to determine whether the premarital counseling requirement is in effect in the judge’s jurisdiction. Under the Act, before a marriage license may be issued to the above-mentioned persons they must either:
- present a validly-issued certificate from their county premarital counseling board attesting that they have completed the counseling program;
- present a certificate verified by a clergyman that they have completed a premarital counseling course approved by a church;
- offer proof that they have not physically resided in the State for sixty days immediately preceding their application; or
- wait six months from the date of application before being issued a marriage license.
The premarital counseling requirement applies only to those persons under nineteen years of age or persons who have been previously divorced. If the judge’s county requires counseling, the judge may request proof from those persons coming under the act that they have fulfilled the requirements before the judge performs the marriage. However, because the counseling requirements are a condition of obtaining a marriage license, a judge may rely on the fact that the parties have a marriage license as proof that the counseling requirements have been met.

2. Marriage License and Attachments

Issuing of Marriage License

When a couple requests a justice court judge to marry them, the judge must require a marriage license from the couple. The judge must be satisfied that the license has been issued by a county clerk in the State of Utah, and it must have been issued within thirty days of the marriage. The license need not have been issued by the county clerk of the judge's own county. {UCA 30-1-7} A marriage license issued in another state is not valid in Utah.
Refusal to Perform Ceremony

If the judge has some doubt about the legality of a marriage, the judge should exercise good judgment as to whether to perform the marriage. The same is true in cases in which the judge feels that the parties do not look or act as they should at an occasion which is intended to create a permanent relationship between man and woman. The judge has the right to refuse to officiate under such circumstances, even where the marriage license seems to be in order.
The Marriage Ceremony

If the license and papers are in order, and the judge has determined that the marriage is not prohibited by law, the judge may proceed to perform the marriage ceremony. The ceremony must take place in the presence of two or more witnesses. The parties should declare or assent that they take each other as husband or wife. The ceremony itself does not have to follow a set pattern. The judge may wish to create a form or have several different forms ready from which the couple might select.
Marriage Certificate and Return of License

At the conclusion of the ceremony, the judge must fill out a marriage certificate, which the parties usually bring to the judge from the county clerk's office. The certificate must show the name of the county from which the certificate was issued and the date of its issuance. This certificate is handed to the couple. {UCA 30-1-6}

The certificate should be signed by the bride and groom, the witnesses, and by the judge. This certificate must give the date and place of the marriage and the names of the witnesses present at the ceremony. After the certificate is completed, the license and attachments must be returned to the county clerk who issued the license. Any judge who neglects to make this return within 30 days is guilty of a class B misdemeanor. {UCA 30-1-11}
No Docket Entry

A. marriage is not entered in the docket. Some judges keep a record book in which they record the marriages they perform.
Compensation

A judge may not receive compensation for performing a marriage at the court during regularly scheduled court hours. A judge may receive compensation for performing a marriage ceremony during non-court hours. (See Utah Ethics Advisory Informal Opinion 98-8). The law does not state how much a judge may charge for performing a marriage. A judge may charge any reasonable amount.

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Footnotes

¹ In State v. Robinson 860 P2d 979 (Utah App. 1993) the Court of Appeals held that: “Despite the fact that the traffic laws of this State are codified within the criminal code, a restitution order will generally be inappropriate in a matter arising from a traffic violation that involves only negligence, and not criminal intent. There are numerous instances wherein a driver can rightfully be cited for a violation of the traffic code, but should not be ordered to pay restitution for injuries arising out of the accident because such violation is not the proximate cause of the accident. Matters of negligence, proximate cause and the amount of resulting damages are best left to civil litigation. Restitution should be ordered only in cases where liability is clear as a matter of law and where commission of the crime clearly establishes causality of the injury or damages.” The Utah Code has been amended since Robinson and those changes might affect the validity of that case. However, as of now Robinson is still valid. Return to section.

² General elections are those that are held in even-numbered years. Return to section.

³ For example: Suppose a district judge’s salary is $100,000. A full-time justice court judge’s salary must be between $50,000 and $90,000. A part-time justice court judge whose workload is one-quarter that of a full-time judge must be paid between $12,500 and $22,500. Return to section.

⁴ There is no surcharge on non-moving violations. The Uniform Fine/Bail Schedule designates which violations are considered moving and which are non-moving. Return to section.

⁵ The ABA recently published a new Model Code of Judicial Conduct. The Supreme Court is reviewing that Code. The ABA Code creates four canons, which cover all the topics currently found in the new canons. The first two current canons are combined into Canon 1 and the other canons are re-numbered accordingly. If the Court adopts the Model Code, the substance of this section will not change, but the numbering will. Return to section.

⁶ A defendant can request a bill of particulars after an information is filed. The bill of particulars gives the defendant a more detailed description of the facts upon which the information is based. It does not need to include every piece of evidence that might be presented against the defendant. {URCrP 4(e)} Return to section.

⁷ These may only be resolved through pleas in abeyance. Return to section.

⁸ As noted above, a defendant is not required to personally appear before the judge in a traffic case. In those circumstances the court must be particularly careful to ensure that the agreement complies with Rule 11. Return to section.

⁹ A court clerk may, with the approval of the judge, use the judge’s signature stamp on a summons. For a list of other documents on which a signature stamp may be used, review Rule 4-403 of the Rules of Judicial Administration. Return to section.

¹⁰ The law still permits a private person to make an arrest. {UCA 77-7-3} Because of the dangers involved, this act is rare. Return to section.

¹¹ The jails have bail commissioners who can set bail in misdemeanor cases, subject to later review by a judge. {UCA 17-32-1} Return to section.

¹² The statute does not state when the 30 days begins - i.e. from the date of nonappearance or when the warrant is issued. The safest approach is to mail notice within 30 days of the nonappearance. If a defendant fails to appear the court may choose to give the defendant another opportunity to appear. If the defendant again fails to appear, the 30 days runs from the second nonappearance. Return to section.

¹³ In order to issue a warrant related to an infraction, the prosecutor must first file an information with a failure to appear charge. The information can include the infraction. Return to section.

¹⁴ The above discussion is usually done at the time a guilty or no contest plea is accepted and therefore does not need to be done until the court knows the defendant will plead guilty or no contest. The discussion can also occur earlier in the proceedings but must also be given again at the time the defendant pleads guilty. Return to section.

¹⁵ The judge may incorporate a written affidavit and waiver of rights into the Rule 11 inquiry. {URCrP 11.} See also, State v. Price, 837 P.2d 578 (Utah App. 1992)}. A written statement can be found in the appendix to the Rules of Criminal Procedure and on the justice court section of the courts’ website. Return to section.

¹⁶ “Upon the entry of a plea or verdict of guilt or plea of no contest, the court shall set a time for imposing sentence which shall be not less than two nor more than 45 days after the verdict or plea, unless the court, with the concurrence of the defendant, otherwise orders.” URCrP. 22(a) Return to section.

¹⁷ The court is not required to tell the defendant about these rights at this stage of the proceedings. This explanation is often reserved for, and is required to be given, when the court accepts a no contest or guilty plea. However, explaining the defendant’s rights at this stage may help the defendant in deciding how to proceed throughout the case.Return to section.

¹⁸ The defendant also has the right to plead “guilty but mentally ill at the time of the offense” or “not guilty by reason of insanity.” If a plea of “guilty but mentally ill” is entered, the court must question the defendant using the same standards for taking guilty pleas. The defendant must be advised that a plea of guilty and mentally ill is a plea of guilty and not a contingent plea. The court should follow the procedure outlined in Utah Code Ann. §77-16a-103. When the court receives notice that a defendant intends to claim that he is not guilty by reason of insanity or that the defendant had diminished mental capacity, at the time of the offense or that he intends to assert special mitigation under §76-5-205.5, the court may order the Department of Human Services to examine the defendant and investigate the defendant’s mental condition. The court should follow the procedure outlined in Utah Code. Ann §77-16a-104. Return to section.

¹⁹ General questions about whether a plea is “voluntary” are insufficient. Specific inquiry should be made as to whether the defendant understands that through the plea, the defendant waives the right against self-incrimination, to a jury trial, to appeal, and to confront witnesses. See State v. Valencia, 776P.2d 1332 (Utah App. 1989). The court must address all the requirements in Rule 11 of the Utah Rules of Criminal Procedure before accepting a guilty or no contest plea. See Chapter 8 for more information on a Rule 11 discussion. Return to section.

²⁰ In trials for misdemeanors and infractions the defendant may consent in writing to be absent for the trial. Utah R. Crim. P 17(a)(1). A defendant can also be considered voluntarily absent based on the defendant’s actions. See State v. Wanosik, 2003 UT 46, 79 P.3d 937. If the defendant is not present, the court must attempt to locate the defendant before proceeding. For example, the judge should ask the attorneys to call the defendant and check the local jail. The court should order a short delay to allow the inquiry. Return to section.

²¹ The first two questions are often not asked because the district court will have already sent the jurors a qualification questionnaire. Return to section.

²² A peremptory challenge may be refused, however, if the challenge is being used to remove someone from the jury based on the person’s race, ethnicity, or gender. See Batson v. Kentucky, 476 U.S. 79 (1986) Return to section.

²³ At the time of printing there are several proposed rules which would change the process for obtaining a certificate of probable cause. For most case types, there will be a presumption in favor of issuing a certificate unless the court finds good reasons for denying the certificate. Judges should follow-up to determine whether the rules are passed. Return to section.

²⁴ See State v. Frampton, 737 P.2d 183 (Utah 1987) for a discussion on the necessary inquiry.Return to section.

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Page Last Modified: 6/29/2009
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Justice Court Benchbook

Introduction and History

General Information

Part I - The Justice Court

PART II - Criminal Procedures

PART III - Justice Court Civil Procedures

Footnotes

Introduction and History

Introduction and History

Creation of the Justice of the Peace

American Development

The Justice of the Peace in Utah

The Justice Court Judge

General Information

1. Types of Justice Court Judges

2. Creation of Justice Courts

3. Court Support Requirements

4. Place of Holding Court

5. Calling in a Replacement

6. Criminal and Civil Cases

PART I - The Justice Court

CHAPTER 1: Selection and Tenure of Judges

1. Rules and Procedures

2. Impeachment of a Judge

CHAPTER 2: Administration of the Justice Courts

1. Judicial Council and the Rules of Judicial Administration

2. Boards of Judges

3. The Board of Justice Court Judges

4. The Rules of Judicial Administration

5. Compliance with the Rules of Judicial Administration

6. Justice Court Standards

7. Judicial Performance Evaluation

8. Administrative Office of the Courts

9. AOC Audits of Justice Court

CHAPTER 3: Days and Hours of Holding Court

1. Days and Hours of the Court

2. Holding Court on Sundays, Election Days, and Holidays

3. Compliance with Court Operational Standards

4. Holding Court at Night

5. Probable Cause Determinations

CHAPTER 4: Compensation

1. Fixed Compensation

2. Salary

3. Retaining Court Fees for Compensation

CHAPTER 5: Collection of Fines and Reporting

1. General Fine and Fee Allocations in Municipal Courts

2. Fines and Forfeiture in County Courts

3. In Both Municipal and County Courts

4. Small Claims

5. Criminal Victim Surcharge

6. Court Security, Education and Technology surcharge

7. Reporting

CHAPTER 6: Educational and Training Requirements

1. Continuing Education

2. Education Programs

CHAPTER 7: Judicial Ethics

1. Canons of Judicial Ethics

2. Ethics Advisory Opinions

CHAPTER 8: Requesting Legal Opinions

PART II: Criminal Procedures

CHAPTER 1: Criminal Jurisdiction

1. Criminal Offenses Triable by Justice Court Judges

2. Classification of Offenses

3. Criminal Code

4. Ordinance Violations

5. Criminal Offenses Heard as a Magistrate

6. Responsibilities of Judges in Criminal Cases

7. Territorial Jurisdiction in Criminal Cases

Territorial Jurisdiction

Exceptions

(i) Arrests Made Without Warrants

(ii) Higher Education Statute Violations

8. Jurisdiction Over a Defendant

General Rule

Rule 17, Utah Rules of Criminal Procedure

Procedure

CHAPTER 2: The Information

1. Purpose and Importance of The Information