Battling Last Minute Amended Informations from the Government: Waging the War by Using Rule 4(d) of the Utah Rules of Criminal Procedure

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1 Battling Last Minute Amended Informations from the Government: Waging the War by Using Rule 4(d) of the Utah Rules of Criminal Procedure Teresa Welch, Felony Trial Attorney with the Salt Lake Legal Defender s Association by The Battle A recurring battle that we defense attorneys are fighting pertains to the issue of last minute amended informations being filed by the government against our clients. The scenario of that battle is this: you and your client show up for a preliminary hearing prepared to meet and challenge the testimony relating to the charges as listed in the initial information filed by the State against your client. At the preliminary hearing, the State prosecutor informs you that he or she will be proceeding at the hearing on an amended information which now charges your client with either additional or different counts from what was listed in the original information. Most often, when I have been in this scenario, I find myself staring at an amended information that has changed the charge that my client faces from a third degree felony to a second degree felony. And, if you re like me, you still have the battle scars of fighting these last minute amended informations before judges to little or no avail. If you base your argument on having insufficient notice of the amended information, the most common response from judges is to ask defense counsel if they want to continue the preliminary hearing. I, however, have never found a rule that states that the remedy for a last minute amended information from the State is a continuance for defense counsel. And, if you maintain that you do not want a continuance, but instead seek to proceed with the preliminary hearing with the initially filed information, the judges routinely deny this request on the basis that defense counsel cannot show sufficient prejudice to prevent the State from proceeding at the preliminary hearing with the amended information. Thus, in the reoccurring scenario of last minute amended informations, judges are not putting the burden on the State by mandating that the State dismiss and re-file their case with the amended information. Instead, judges are placing the defense attorney in the unenviable position of deciding whether to request a continuance or proceed with the preliminary hearing with the amended information. Waging the War by Using Rule 4(d) of the Utah Rules of Criminal Procedure It is a constitutional right of the defendant to know the specifics of the charged offenses so that he or she can properly defend the government s accusations. See Utah Const. art. I 12; see also State v. Fulton, 742 P.2d 1208, (Utah 1987). Last minute amended informations filed by the State arguably violate this fundamental right given to defendants. In fighting our

2 continual battle against these last minute amended informations, it appears that there is some legal ammunition that can be used by defense attorneys to effectively wage war on this issue. First, even though it is not stopping the problem of last minute amended informations, it is always best to preserve an insufficient notice argument on the record when this scenario arises. Second, the Utah Rules of Criminal Procedure provide additional legal arsenal. Rule 4 of the Utah Rules of Criminal Procedure addresses the rules relating to the Prosecution of Public Offenses. Rule 4(d) specifically outlines the requirements and prohibitions that arise when the State seeks to proceed with amending an information after an initial information has been filed against your client. The plain language of Rule 4(d) states: The court may permit an indictment or information to be amended at any time before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. Utah R.Crim. Proc. 4d (2010). This recognizes the defendant s fundamental right to know the specifics of the government s accusations because this rule places specific restrictions on the State s ability to amend charges against an accused in a criminal proceeding. The plain language of Rule 4(d) provides that an information may be amended if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. Id. (emphasis added). Thus, it logically follows that according to Rule 4(d), the State may not be allowed to amend an information if either an addition or different offense is charged, or the substantial rights of the defendant are prejudiced. It is important to note that pursuant to the plain language of Rule 4(d), once there is a showing that the amended information consists of an additional or different offense, the court does not need to inquire whether the defendant has been prejudiced by the amended information because the additional or different offense alone reveals a clear Rule 4(d) violation. In other words, because the State has the burden of showing both: 1) the absence of an additional or different offense; and, 2) the absence of prejudice, it is unnecessary for a court to evaluate both parts of these Rule 4(d) conditions when an inquiry reveals that one of these two conditions is violated in an amended information. Utah case law supports the interpretation that both of the conditions of Rule 4(d) must be met before the State is permitted to proceed with an amended information. See State v. Bush, 2001 UT App 10, 11, 47 P.3d 69; see also West Valley City v. McDonald, 948 P.2d 371 (Utah Ct. App. 1997); State v. Ellifritz, 835 P.2d 170, 178 (Utah Ct. App. 1992); State v. Lancaster, 765 P.2d 872 (Utah 1988). State v. Ramon, 736 P.2d 1059, 1062 (Utah Ct. App. 1987). Condition #1 of Rule 4(d): An Additional or Different Offense The first condition of Rule 4(d) examines whether the amended information contains an additional or different offense. According to Utah case law, in order to show that an amended information charges a different offense than the offense listed in the initial information, it must

3 be shown that additional elements are required in meeting a conviction for the amended count as compared to the initially charged count. See Tillman v. Cook, 855 P.2d 211, 215 (Utah 1993). For instance, imagine this hypothetical scenario- suppose that your client is initially charged with Aggravated Assault as a third degree felony. At the preliminary hearing, the State seeks to proceed with an amended information charging your client with Aggravated Assault (DV), a third degree felony. By adding a domestic violence label to the count in the amended information, it appears that the State is now proceeding with a different offense because an additional element is required in meeting a conviction for Aggravated Assault (DV) as compared to an Aggravated Assault charge that omits the domestic violence designation. Specifically, in adding the domestic violence label to the Aggravated Assault charge in the amended information, the State is now required to prove the additional element that the defendant was a cohabitant of the victim as defined under the Utah Code. See Utah Code Ann (2010) and Utah Code Ann. 78B (2010). As this hypothetical demonstrates, when the amended information requires that the State prove additional elements that were not required in the initial information, a condition of Rule 4(d) is triggered. Further, the plain language of Rule 4(d) unequivocally states that once a showing has been made that the amended information charges defendant with an additional or different offense, the State is prevented from proceeding with the amended information. Condition #2 of Rule 4(d): Prejudice to the Defendant The second condition of Rule 4(d) examines whether the substantial rights of the defendant have been prejudiced. It is important to note that under Rule 4(d), an inquiry into the prejudice of the amended information need not occur if there has been a showing that the amended information constitutes an addition or different offense. See State v. Ramon, 736 P.2d 1059, 1062 (Utah Ct. App. 1987). Courts, however, are routinely doing a prejudice analysis when presented with an amended information at the preliminary hearing. In my experience, judges are most often deciding that prejudice to the defendant does not occur when amended informations are filed at the preliminary hearing because defense counsel still has adequate time to prepare to meet the testimony relating to the amended information before a trial occurs for the matter. Arguably, this is an incredibly narrow reading by judges of what constitutes prejudice when doing a Rule 4(d) analysis on whether to allow the State to proceed with an amended information. In fact, under Utah case law, a showing that the substantial rights of a defendant have been prejudiced may occur in many different instances including frustration of defense, lack of notice, and an increase in the severity of punishment. See State v. Finlayson, 2000 UT 10, 994 P.2d 1243, see also State v. Taylor, 2005 UT 40, 116 P.3d 360; State v. Nelson-Waggoner, 2004 UT 29, 21, 94 P.3d 186; Tillman v. Cook, 855 P.2d 211(Utah 1993); State v. Lancaster, 765 P.2d 872 (Utah 1988); State v. Robbins, 709 P.2d 771 (Utah 1985); State v. Norcutt, 2006 UT App 269, 139 P.3d 1066; State v. Perez-Avila, 2006 UT App 71, 131 P.3d 864.

4 Regarding the issues relating to the prejudice analysis that takes place with last minute amended informations, I suggest raising and preserving for the record a two-part argument: 1) remind judges that according to Rule 4(d), a prejudice analysis need not occur once there is a showing that an additional or difference is at issue; and, if you lose that argument, 2) clearly argue how your client is prejudiced by the amended information. In other words, if the judge insists that the amended information does not prejudice your client because you have sufficient time to prepare to meet the charges in the amended information prior to trial, provide an argument of why your client is still prejudiced from the amended information from other means relating to either frustration of defense, lack of notice, and/or an increase in the severity of punishment. For instance, take the hypothetical case scenario where the State seeks to proceed with an amended information charging the defendant with an Aggravated Assault (DV) charge instead of the initial charge that lacked the DV label. In that case, an argument could be raised that prejudice still exists because the amended offense carries a greater penalty or punishment than the charge listed in the initial information. That is, if the defendant is convicted of the amended charge, a domestic violence designation carries with it the added penalty or punishment that the conviction can be used to enhance subsequent domestic violence type charges pursuant to the Utah Code. See Utah Code Ann (2010). This type of penalty is not associated with the count as initially charged and this penalty arguably constitutes prejudice under Rule 4(d). Ultimately, when battling last minute amended informations, it is important to challenge these by pointing out that your client is substantially prejudiced by the amended information and because of this, the prosecutor is prohibited under Rule 4(d) with proceeding with the amended information. Conclusion: As defense attorneys, we must continually ensure that our clients are given their constitutional guarantee to know the nature of the government s charges against them and to ensure that we are always prepared to meet and challenge all of the allegations made against our clients by the government. Waging war against last minute amended informations given to us at preliminary hearings by State prosecutors is a battle worth fighting in order to preserve our client s fundamental and constitutional protections. The best legal weapon to use in fighting this war against last minute amendments is to remind judges of the plain language and meaning of Rule 4(d) of the Utah Rules of Criminal Procedure. This rule makes clear that the State is prohibited from proceeding with an amended information if either one of two possible conditions is present in the amended information,: 1) an additional or different offense is charged; or 2) the substantial rights of the defendant are prejudiced by the amended information. We defense attorneys must continually remind judges of how Rule 4(d) is to be applied in preventing last minute amended informations. We must also continually remind judges of the important constitutional protections that support why Rule 4(d) must be applied in preventing last minute amended informations. That is, the most important function of Rule 4(d) is that it

5 exists to protect our clients against those instances when the government acts as a constant moving target and thwarts our abilities to be adequately prepared to meet the nature of the charges against our clients. ****The author of this article wishes to give special thanks to Elizabeth Lorenzo for both her helpful research on this issue and for her invaluable discussions with the author regarding the meaning and importance of the Utah Rule of Criminal Procedure Rule 4(d).