Can defendants subpoena child victims to testify at preliminary hearings? State v. Lopez Explained

The Utah Supreme Court addressed a complex intersection of defendants’ rights and victims’ protections in State v. Lopez, establishing clear standards for when defendants may compel alleged child victims to testify at preliminary hearings.

Background and Facts

Two consolidated cases presented the issue. In Lopez, a twenty-seven-year-old defendant was charged with raping and sexually abusing a twelve-year-old girl in the back of his truck. In Nielsen, the defendant was charged with sexually abusing his five-year-old daughter. Both cases involved Children’s Justice Center interviews that were admitted as reliable hearsay under Utah Rule of Evidence 1102 and Utah Rule of Criminal Procedure 15.5. Both defendants sought to subpoena their alleged victims to testify at preliminary hearings.

Key Legal Issues

The central question was whether defendants have an unfettered right under Rule 7B of the Utah Rules of Criminal Procedure and the Compulsory Process Clause to subpoena alleged victims for testimony at preliminary hearings, even after the State presents sufficient reliable hearsay evidence to establish probable cause.

Court’s Analysis and Holding

The court held that any power a defendant has to subpoena witnesses must be understood in light of the court’s authority to “quash or modify [a] subpoena if compliance would be unreasonable” under Rule 14(a)(2). The unreasonableness inquiry must account for: (1) the limited purpose of preliminary hearings to determine probable cause; (2) the State’s ability to rely on reliable hearsay; (3) the low burden of proof standard; and (4) victims’ constitutional rights under Utah’s Victims’ Rights Amendment.

The court established that once the State makes a prima facie showing of probable cause through reliable hearsay, a subpoena compelling additional live testimony survives a motion to quash only if the defendant demonstrates the subpoena is necessary to present specific evidence reasonably likely to defeat the probable cause showing.

Practice Implications

This decision significantly impacts preliminary hearing practice. Defense counsel can no longer rely on general discovery purposes or unfettered rights to call witnesses. Instead, they must make specific showings about how victim testimony would materially affect the probable cause determination. The ruling balances defendants’ procedural rights with Utah’s strong policy of protecting child victims from unnecessary trauma while preserving meaningful opportunities for defendants to challenge the State’s case.