A preliminary hearing (“preliminary examination” under the Utah State Constitution) is an opportunity for the court to determine whether the prosecution has enough evidence to justify moving the case forward to trial. If the court finds that the evidence establishes probable cause to believe that a charged crime has occurred and that the defendant is the person who committed the crime, the judge (acting as magistrate) will enter a “bindover” order requiring further proceedings moving toward trial. A preliminary hearing (“examination”) or a waiver by both parties is required in all felony cases, and also in any class A misdemeanor case. Misdemeanor cases involving only class B or class C level misdemeanors do not require a preliminary hearing.
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When is it too late for a prosecutor to change the charges in a criminal case? Constitutional due process and double jeopardy protections affect the question of when a prosecutor can file new or different charges in a criminal case. Utah's Rule 4(d) of the Rules of Criminal Procedure provides that a prosecutor can file an amended information with new, additional, or different charges any time prior to the beginning of a criminal trial, "so long as the substantial rights of the defendant are not prejudiced." Jeopardy is considered to "attach" to a case once a jury is empaneled or, in a bench trial, when the first witness is called and sworn. In order to comply…
Can a victim waive the no-contact provisions of a jail release agreement? A person arrested for a domestic violence charge in Utah is often subject to certain restrictions imposed under a jail release agreement. The victim is allowed, circumstances, to waive the contact and communication provisions of the release agreement before the criminal case has been presented to a judge. The waiver must be in writing and must comply with various statutory requirements to be effective. Consultation with an attorney is strongly advised before attempting to execute a waiver.
Does a prosecutor have to provide copies of search warrant affidavits? Under Rule 16 of the Utah Rules of Criminal Procedure (2022), a prosecutor is required to disclose and provide the defense with a copy of any warrant relating to the case. This includes any search warrants. The rule also requires prosecutors to turn over copies of any warrant affidavits filed in support of such warrants. When a judge signs a search warrant in Utah, the court should require an affidavit from the officer seeking the warrant. The affidavit is supposed to set out the facts believed to establish probable cause to justify the warrant. That affidavit must also be provided…
Do I have to appear in person at an arraignment? In most Utah courts, the judge will expect the defendant to appear in person at an arraignment hearing. If you ignore and skip a scheduled arraignment, the court will likely issue a warrant for your arrest. However, sometimes a court will accept a waiver of the formal arraignment or may allow a defendant to appear remotely or through counsel. Your attorney can help explain your options.
