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Show PAGE TEN MONDAY, JUNK INTERMOUNTAIN COMMERCIAL KECOKD Continued from page 9 The Supreme Court Of The State Of Utah Bn any ' other applicable statute or rule"; whereas the couniv.torney con tends to the contrary. accordance witn Kuie &o ox me It is of interest to. not that thii.p?Pfedure if Uniform Rules of Criminal Procedure prepared by the National Commissioner on Uniform Laws: 7. Sec. U.C. A. 1953 (Supp. 1973). 6. 76-1-1- The statutes relied upon by the county attorney as being the "other applicable statutes" are: 04, 8. See Langrock, Vermont's Experiment in Criminal Discovery, 53 A. B. A. J. 32. 733-3- Sec. (1967). 4 78-2-- 4. U. C. A. 1953 Third District Court On behalf of defendant Section Of witnesses or malfeasance office in with offense charged When a defendant has been held to answer a within state. charge for a public offense or malfeasance in office 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. U. C. A. 1953 77-46- -1, -.- Calendar vs Attys; Roger Cutler, Bl. Dart and R.Christensen 202329 - Bon Hurley, dba vs (Jury Florence Crltchlovr Attys; Gregory Bown and -2, L. Summerhays 213592 - B. Monroe vs David Dolowitz 212811 - Colonial Ford vs Richard Allen Attys; Robert Howell and G. D. Hunt vs and George Drabner Attys: Delos Daines and W. vs (Jury) 211578 Walton M. Bryan K. Rackley vs L. Russon and Don J.Hanson and William Collier Boyd Brewer Atty; Gerald . Hess - Bush & Gudgell,Inc vs Thursday, June 13, 197 213736 77-47- -1 - Duane 202901 vs vs vs Stephen Gleave Coolley Sherrie L. Monia Attys; T. Duff in and Don Bybee 210337 - Dan McGraw Tuesday, June 11. I97I 20321O - Murray First Thrift vs J. vs The interaction of these provisions should therefore be considered in and fundamental rule: that when one is charged the light of the time-honorwith a crime he should not be subjected to unfavorable rigidities in the interpretation of the law to him, but he should be entitled to have it applied in Consistent with this, it would the light most favorable to his interests. seem that if a man is entitled to the advantages of the deposition and discovery procedure in a civil case involving money or property, he ought, a fortiori, to have it in a criminal one where the even more precious things of liberty and - reputation are at stake. Isaac. Attys; Kay Lewis and Bell - Cameron O.Brinkerhoff vs (jury) R. dnith Fears have been expressed that permitting the taking of depositions before trial in criminal cases will lead to abuses; and I readily acknowledge that in recent years there have been some abuses in criminal proceedings. The rejoinders to that charge are these: First, that the statutes and the rules are established; and it is the duty of the courts to see that both the defendant and the state are accorded the benefits, and are bound by the restrictions therein. Second, whether there will in fact be abuses is conjectural. .They may well be more imagined than real; and this apprehension cannot affect the meaning of the statutes anyway. Third, the trial court has control of the proceedings before it and can invoke its inherent powers to prevent any such abuses. Fourth, the courts also have control of making the rules of 9 But this should procedure, and can change them as necessary or desirable. be done in a'regular and advised manner, and the existing rules should be neither distorted nor changed in an individual case. The apprehension of "grave constitutional problems" suggested by the majority in allowing the defendant to take these depositions gives me no undue alarm. No one supposes that any procedural rule could deprive a person of his constitutional rights; and Rule 81(e) clearly so indicates. Upon the basis of the discussion herein, I would allow the defendant to proceed with the taking of depositions as proposed, but 'subject to the control and supervision of the district court. All emphasis added. T. Rule 30, U. R. C. P. , provides: "(a) When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination 3. See 2A Sutherland, Statutory Construction, Sec. 58. 06 (4th Ed. 1973). 4. See O'Oay v. People, 114 Colo. 373, 166 P. 2d 789; State v. Tapp, 26 Utah 2, 2d 392. 490 P. 2d 334; 21 Am. Jur.2d 544; and see U.C. A. 1953, now of Code Sec. effective replaced by July 1, 1973. Also see 2A Sutherland, Statutory Construction, Sec. 58. 04. 5? See statements concerning the desirability of affording deposition procedure to one charged with a serious offense in State v. Guerts, 1 1 Utah 2d 345, 359 P. 2d 12, particularly the emphasis placed thereon by Mr. Justice 1 enriod in his dissent: ..." 76-1-- New-Crimina- 06 l I '""ll 15 Attys; and Don Hanson I89238 - Jack Sandarosa Attys; Q. vs l Esparza Attys; Jeffry Paoletti and Orrin Hatch George Taylor 213l6l - Donald L. Steiner Continental Casualty Attys; Del Rowe and Jeffrey Taylor 177803 - Capitol Loan vs Blaine Dalton Attys; G. Hunt and vs Camilla D.Esplin Ferro - Forace Martin 206110 - vs Herta D. Dennett Attys; Harry Pugsley Attys; J. Mcintosh, Fred Scalley and M. Lybbert 213983 - Granger Hunter Imp Pearl Pollard Dennett, Runyan, Peters Kesler, Mollinet and Morrill 209017 vs 1 and A. Swan Wallace Lauchnar - Jan Bates vs Adams vs Keith S. Rodgers Attys; pro' se and A.M. Rena Coleman 211823 Maestas and Joseph Howell 211273 - Michael Wednesday, June 12, 197I 213199 - Ross Wangsgard Richard W. Ebert Attys; Nolan Olsen and M. Attys; Stanley Richard Davidson Cook Cummings and David H. Schwobe 215559 - John Benton, Gdn Gail M. McKinney Attys; Don Olson and - Patrick Start vs (jury) Friday. June Ik, 197! - Jeffery Fillmore , Tr . 200612 Fitzen Attys; Robert Bradley 212995 Attys; Clare Jones and John Marshall vs Atty; John McCoy 208192 - A. Richard Brown vs vs Ida Krogh Attys; S. vs David R. Aston - Thomas Otero vs (Jury) William Watson Attys; Del Rowe and Jeffry vs William R. Kendrick Attys; John Evans and R. Groussman and M.Davis 212751 - Sharon Bennett vs - Jame Pappas and Kay Lewis 198975 - Eugene N. Woodland . 215113 vs- and vs Gatehouse Const. Attys; William Stegall Attys; B. Spence and vs G. D. Hunt Alston 213055 Green Brier Farms vs White and J. - Capital Thrift 201891 Attys; Jerry Kennedy L. Pace 209395 - W. Lyle D. Schoenhals vs Charles D. Stewart 212182 - Intermountain Lease Allowing depositions in this and other criminal proceedings would be consistent with the spirit of Rule 81(e); with the national trend; and would correlate our criminal procedures with our new Criminal Code's policy 7 against arbitrary or oppressive treatment of accused persons. vs Frank Lim 213878 E. Builders Inc. - Theressa Haslam B. 209215 Ben D. Vernon H. Tom vs Paul Felt J. Vranes Metos 211631 - Orlo L. Snow vs (jury) South East Furniture Co Attys; Frank Noel and 3 J. Flinders Attys; R. Lord and Stephen Nebeker W. (jury) and R. Orton 19539! - Melvin G. Ward - Delbert Comm Corporation Attys; John McAllister Attys; Donn Cassity and 21219l Road Cox (jury) Mack L. - State 179858 Fowderhorn Resort Attys; Frank Kennard and Keith Hawick Consequently it seems to me inescapably clear that these statutes, ' which authorize the taking of testimony, only where there is a likelihood that the witness .will be unable to attend the trial, "and not otherwise" cannot reasonably be deemed to cover the taking of depositions under any other T Adopted effective Jan. 20, 1972. circumstances, such as discovery depositions authorized by Rule 30, U. R. C. P. Bennett - Grace Nielson vs (jury) Scott Leroy Crosby Attys; Carmen Kipp and Attys; JoelAllred and Tim Hanson 219915 - Clifford - Inland Transport 207761 L. L. Sunmerhays 212568 - S. Michael Inman -2, While it thus seems clear to me that the statutes referred to deal only with the special circumstance where a witness will be unavailable at trial, and that the newly adopted Rule 81(e) opens application of all other procedure, including discovery depositions, to be applied in criminal cases, if it be supposed that there exists some ambivalence in the situation, it then becomes both desirable and permissible to invoke principles of statutory construction, combined with the policy considerations, to determine the correct solution to the problem. - Mary E. Anderson (Jury) Isaac De Herrera Attys; Frank Noel and 211738 Iverson Don Bybee Attys; III and T. Vuyk vs (jury) Cameron L. Lorenc 77-46- -7, 1 Attys; Walter Plumb, es 77-46- 76-1-1- South Village Inc. vs Universal Dist. Co. Attys; Francis Nielsen and Paul Cotro-Man211105 - Calvin Ross vs (Jury) Collin J. Watson Attys j A. Thurber and L. It is of the utmost importance to note that the statutes referred to above are not a prohibition, but on the contrary, are an authorization, to take depositions only under certain exigent circumstances. Section -1 provides that the defendant may have witnesses examined is "as prescribed in this chapter 46, and not otherwise." The following section, deals with when the examination of a witness may be made, that is, "when a material witness for the defendant is about to leave the state, or is so ill or infirm.. . . that he will be unable to attend the trial . .." Moreover, a subsequent section in that chapter, provides that if at the time to the the of shown satisfaction magistrate, . . . that he designated "it is the examination shall not take place. the witness is not ill or infirm, and 2, for a It is also significant that the next chapter, 47, sections of of a the nonresident witness. similar purpose authorize taking testimony ed va 203187 - Sushita, ELec.Corp ' ..." John H. Snow and D.Wlnder 211860 - Richard Jordan Rex Levis the-takin- 77-46- ' Intennt. Volkswagen It is submitted that if these sections are looked at together, as they should be, it will be seen that they clearly and unequivocally apply only to and perpetuation of the testimony of witspecial situations for nesses where there is "reasonable grounds for apprehending" that they will not be able to attend the trial; and moreover, it appears with equal clarity and certainty, that they do not apply to any other circumstances; more especially they do not apply to the taking of depositions for discovery as proposed by defendant here. . Attys: Brent Moss and Victor Sagers 209311 - Jacob Israel vs Salt Lake Transportation Attys; R. Dibblee and Monday. June 10, 1971 209522 - Barren A. Gasparac U. C. A. 1953. Application for exSection When a material witness for the defendant is amination. about to leave the state, or is so ill or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the' defendant may apply for an order that the witness be examined conditionally. 77-46- ' iw,.. - Intermountain Sports Vaughn Stosich Attys; Curtis K.Overhansly and Brent 205281 vs J. Moss - Price Bros, Inc. QualityIbfrformance Lines Attys; Jay Barney and Ben Batley 215181 - A. B. Christenson vs Gale J. Sfcott Attys; Richard Carllng and David Slagle |