No Right To Confront Witnesses At Preliminary Hearings

In State v. Garner, 2016 UT App 186, Defendant pleaded no contest to 3 counts of trafficking methamphetamine. Defendant entered conditional pleas, reserving the right to appeal whether the trial court should have made the prosecution reveal the names of confidential informants used in gathering evidence.

Defendant was charged with 3 counts of trafficking methamphetamine for sales made to confidential informants. After each sale, the confidential informants prepared written statements for the purpose of use at a preliminary hearing, while still with the police. The statements were offered at Defendant's preliminary hearing. Defendant objected to the anonymous statements and asked for disclosure of the names of the informants. The trial court denied Defendant's motion based on the government informer privilege found in Utah Rule of Evidence 505.

The Utah Constitution does not grant an absolute right to discovery prior to a preliminary hearing. Discovery is allowed as defined by state statutes and state rules of evidence. Utah Rule of Evidence 505 allows the State to keep the identity of a confidential informant anonymous unless and until said informant appears at a hearing. Defendant argued that the informants appeared in the present case through their written statements. However, the Utah Court of Appeals determined the plain meaning of the term "appears in court" is a personal appearance and not appearance through a written statement. Furthermore, under the Utah Constitution, the right to confrontation does not apply to preliminary hearings.

Since the confidential informants appeared through written statement, Defendant did not have a right to disclosure of their names.  His convictions were affirmed.