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Show JUNE 10, MONDAY, Continued from page 8 1974 INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court Of The State Of Utah defendant1! expert! that they had not considered that potential. It could be that there ii tome frailty in arriving at a valuation based partly on the existence of the buildings. But this seems to be a sword. If the Mitsui experts had considered the possibility that the buildings were valueless, and that the property would produce a higher income as a parking lot, this may have tended to result in a higher evaluation, offsetting the value placed thereon by reason of the buildings. two-edg- The defendant claims the right to take the depositions and for the production of the materials by reason of Rule 81(e), Utah Rules of Civil Procedure which provides as follows: ed Application in of procedure shall proceedings where or rule, provided, that any rule so applied does not con- The taking of depositions in criminal cases is governed by two statutes hereinafter set forth: U. C. A. 1953. When a defendant has been held to answer a charge for a public offense he may, either before or after an indictment or information, have witnesses examined conditionally on his behalf as prescribed ' in this chapter, and not otherwise. Emphasis added 77-46- -1, U. C. A. 1953. When a material witness for the defendant is aboui to leave the state, or is so ill or infirm as to afford reasonable grounds for apprehend-- , ing that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. 77-46- -2, , . k It appears that the wording of the statutes above set forth makes Rule 81(e) inapplicable and that the Rules of Civil Procedure pertaining to discovery may not be used in criminal cases. . In its effort to discredit the defendant's evaluation and the criminal proceedings. These rules also govern in any aspect of criminal there is no other applicable statute flict with any statutory or constitutional requirement. It is true that the appraiser should take into account all facts and circumstances relatinp to the property which he thinks has a bearing on' value; and that this may include any potential use or development which is to be expected with reasonable certainty. 7 But the work of an appraiser, though it can be in a sense factual and scientific in some of its aspects, is 5. See, State Road Commission v. Valentine, 10 Utah 2d 132, 349 P. 2d 321. 6. Ibid. 7. State Road Commission v. Wooley, 15 Utah 2d 248, 390 P. 2d 860.(1964). also an art, in that it reflects the creative talents, the experience, the integrity, and in sum, the personalized judgment of the individual appraiser. It is his prerogative to select and analyze the various factors which seem important to him in arriving at hie eetimate as to value. Therefore no one should be able to put him in a straight-jack- et as to his method; much less should they compel him to speculate as to what may happen in the future with respect to the property.. If he fails to give proper consideration or weight to any particular factor, that goes to the credibility and not to the admissibility of his evidence. If it has deficiencies, they are subject to exposure on cross -- examination and the weight to be given it is for the jury.9 PAGE NINE jury i It is also noted that the language of Rule 30(a), U. R. CP. , is so broad in scope that its application to criminal cases would present grave constitutional fi problems. Under the rule "any party may take the testimony of any. persQn,ninjvj-eludina party, by deposition upon oral examination. " If the rule were applied in accordance with its terms a deposition of a defendant might be taken and in cases involving multiple defendants the door would be open for attempts by one An attempt to take a deposidefendant to take the deposition of and his tion of a defendant would violate his right against 12 of Constifor Utah Section as Article to silent I, by provided right remain tution. The majority rule is to the effect that neither statutes nor rules of civil procedure providing for' discovery or the inspection of evidence in the1 possession of an adverse party will be made applicable to criminal cases. also criticizes the admisverdict based thereon as excessive, sion of testimony of Mitsui 's experts concerning other sales of property in the area. It avers they are not comparable for various reasons, the detail of which can be spared here. Concerning this contention we make these observations: On the question of evaluation of property, as in moBt areas of the law, a resort to common sense and practical experience if helpful. Real estate has always been regarded unique because no two parcels can be exactly alike. It in certainly not to be supposed that there will be found sales which are identical as to time, location, quantity and various characteristics of the property. The requirement is that it meet the test of "reasonable comparability." That is, that these factors exist in .sufficient similarity that the sale can fairly be regarded as having some probative value in arriving at a proper appraisal of the property. Whether the other sale meets that test is for the trial court to determine; and he is allowed considerable latitude of discretion; and his ruling will not be disturbed on 10 appeal unle6 it appears clearly that he was in error. the-Agenc- g self-incriminat- ion are of the opinion that until such time as the statutes above referred to are modified or repealed by the legislature this court would be without power to provide for discovery proceedings by court rule. The defendant calls our attention to Rule 25 adopted by the Uniform Rules of Criminal Procedure Advisory Committee. While the adoption of such a rule may promote the ends of justice, nevertheless until the barrier of the statutes is removed the power of the court to adopt such a rule is without a sound basis. ,.rt We This case falls within the framework of the fundamental principle: that what the parties are entitled to is a fair opportunity to present their respective cases to a court and jury for determination.. When this has been accomplished, all presumptions favor the verity of the verdict and the judgment; and this includes all aspects of the conduct of the proceed11 The burden is upon the appellant (plaintiff ings, and rulings of the court. Agency) to show not only that there was error, but that, it .was. substantial and. prejudicial in that he was in some manner deprived12of such full and fair preWe find no such error sentation and consideration of the disputed issues. ' The judgment of the court below is affirmed. No costs awarded. WE CONCUR: here. E. R. Callister, Affirmed. Costs to defendant (respondent). Jr. , Chief Justice WE CONCUR: E. R. Callister, Jr. , F. Henri Henriod, Justice Chief Justice Redmond v. City Court of Salt Lake City, 17 Utah 2d 95 , 404 P. 2d 964; State v. Lack, 118 Utah 128, 221 P. 2d 852; The State v. Jeffries', 117 Kan. 742, 232 Pac. 873; Hameyer v. State of Nebraska, 148 Neb. 798, 29 N.W. 2d 458, State v. District Court in and for Delaware County, 114 N. W. 2d 317; State v. Fox (Vt. ) 1 69 A. 2d 356; People v. Abbatiello, 46 Misc. 2d 48, 259 N. Y;S. 2. d 203. 1. F. Henri Henriod, Justice A. H. Ellett, Justice ELLETT, Justice: . R. L. Tuckett, Justice 8. Weber Basin Water Cons. Dist. v. Ward, 10 Utah 2d 29, 347 P. 2d 862. 9. Weber Basin Water Cons. Dist. v. Skeen. 8 Utah 2d 79. 328 P. 2d 730. 10. State Road Comm. v. Wood, 22 Utah 2d 317. 452 P. 2d 872; Salt Lake County v. Kazura, 22 Utah 2d 313, 452 P. 2d 869 (1969); 5 Nichols Eminent Domain 21.3 11. As to rulings on evidence see Rule 4, Rules of Evidence for Utah; as to Co. . 1 Utah 2d 143. instructions to jury see Hillyard v. Utah 263 P. 2d 287 (1953). 12. See Rule 61, U.R.C.P. ; Eager v. Willis. 17 Utah 2d 314. 410 P, 2d 1003. I statute. The state has by statute1 allowed total discovery to the prosecuting attorney, and it would seem to be in the interest of justice to permit an innocent man2 who is accused of crime also the privilege to make discovery and not wait until trial to find out what evidence he will need to meet in order to prove his innocence. No. 13519 Plaintiff and Respondent, FILED May 30, 1974 v. Glenn G. Nielsen, Defendant and Appellant. Allan E. Mecham, Clerk ' The right afforded in civil cases has not led to abuses or increased the use of perjured testimony, and I do not think the application of the right to criminal cases would be different. I TUCKETT, Justice: The State commenced these proceedings in the district court seeking a declaration by the court as to whether or not the defendant was entitled to pursue the Utah Rules of Civil Procedure relating to discovery and particularly the claimed right of the defendant to take depositions of various wit- nesses. The defendant Glenn G. Nielsen was charged with two criminal offenses, one being for the misuse of public funds, a felony under the proU. C. A. 1953, as amended, and with using visions of Section a Board of Commissioners of Logan City to of his position as a member secure privileges or exemptions which is a misdemeanor under the proU. C.A. 1953. In the criminal proceedings visions of Section the defendant served notice of his intention to take the depositions of various prospective witnesses and in connection therewith caused a subpoena duces tecum to be served requiring witnesses to produce pertinent 76-8-4- 67-16- 04, -4, information, memoranda, notes, documents, writings and data compilations, relating to the criminal offenses charged in the complaints and in possession of the .witnesses. respectfully dissent. This defendant does not seek to take a deposition for use at triali'tlf he did so, then the prevailing opinion would be correct. What he wishes to do is to make discovery before trial in order to be able to present his defense to the charge against him. Since the statutes do not provide for this procedure, there is no conflict between Rule 81(e) of the Rules of Civil Procedure and the By-Produ- cts The State of Utah, (Dissenting) 1. 2. would reverse the judgment rendered below. Title 77, Chapter 45, U. C. A. 1953 as amended (1973 Pocket Supplement). All men are presumed to be innocent until proved guilty beyond a reason- able doubt. CROCKETT, Justice: (Dissenting) It is not to be gainsaid that the amendatory Rule 81(e), U. R.C.P., which was purposed to make the Civil Rules of Procedure applicable in criminal matters, except where otherwise provided by law, has created a problem. That rule provides: 1 , Application in criminal proceedings. These rules of procedure shall also govern in any aspect of criminaf proceedings where there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement. The dispute is this: The defendant argues that his proposal to take depositions for discovery purposes is neither, covered by nor in conflict with. Continued on page 10 4 |