State v. Leech, 2020 UT App 116 (Aug. 13, 2020)

Leech was charged with multiple counts stemming from a grisly murder. An alleged accomplice testified against Leech at his preliminary hearing, but refused to testify again at Leech’s trial. Relying on Utah R. Evid. 804(b)(1), the trial court admitted the accomplice’s preliminary hearing testimony over Leech’s objection. On appeal from Leech’s conviction on all counts, the Utah Court of Appeals reversed and remanded on a single count, holding that the admission of the accomplice’s testimony was prejudicial error. Although prior case law held that a defendant has the same “opportunity and similar motive” to cross examine a witness both at a preliminary hearing and at trial, that line of cases was abrogated by subsequent amendment of article I, section 12 of the Utah Constitution, which limited the purpose of preliminary hearings to determination of probable cause. Since only the determination of probable cause was at issue during the preliminary hearing, Leech had no motive to attack the accomplice’s credibility as he would at trial.