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State v. Nielsen, 2014 UT 10 (April 29, 2014) 

Apr 29, 2014

In a significant departure from prior case law, the Utah Supreme Court explained that the marshaling requirement for challenging a factual finding is no longer grounds for a procedural default on appeal, but is rather “a natural extension of an appellant’s burden of persuasion.” The Court emphasized the continuing importance of marshaling, explaining that a “party who fails to identify and deal with supportive evidence will never persuade an appellate court to reverse under the deferential standard of review that applies to such issues.” However, the Court explained that appellants are not required to play “‘ devil’s advocate’” and present “‘ every scrap of competent evidence’ in a ‘ comprehensive and fastidious order.’” Rather, appellants and the courts should focus “on the merits, not on some arguable deficiency in the appellant’s duty of marshaling.” On this basis, the Court rejected the state’s argument in a criminal appeal from charges of kidnapping that the defendant’s failure to marshal in itself warranted a rejection of the appeal. Nonetheless, the Court ruled sufficient evidence was presented to convict the defendant, even though the State’s evidence was entirely circumstantial.