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State v. Robinson1/3/2003
stence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact").
Several Utah cases rely in whole or in part on the presumption that the "'prosecution's case will only get stronger as the investigation continues.'" State v. Clark, 2001 UT 9, , 20 P.3d 300 (quoting Evans, 963 P.2d at 182 (other citation omitted)). Utah case law has incorporated this presumption from a line of Oklahoma cases that presume "'the State will strengthen its evidence at trial.'" State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995) (quoting Diaz v. State, 728 P.2d 503, 510 (Okla. Crim. App. 1986)).
The Oklahoma presumption seems to have originated in McAllister v. State, 260 P.2d 454 (Okla. Crim. App. 1953). In McAllister, the Oklahoma appellate court stated that " he presumption is that the State would strengthen its evidence at trial by production of everything favorable to support the charge." Id. at 465. However, the court cited no legal or factual basis to support this assumption.
The Utah Supreme Court, in citing the baseless Oklahoma presumption, dropped the qualification set forth in McAllister. Instead of simply presuming the prosecution's case would improve at trial because the prosecution would produce "everything favorable to support the charge," id., our supreme court ruled that the prosecution's case would "only get stronger as the investigation continue ." Clark, 2001 UT 9 at (quotations and citations omitted).
Now, the presumption is embedded in Utah jurisprudence. However, it has no factual or legal basis to support it. The presumption that "the prosecution is entitled to hold the defendant on a lesser standard while it hunts for additional evidence . . . may have been supportable in the middle of the last century when the police were not as sophisticated as they are today and when it may have been easier to flee to avoid prosecution." Kenneth Graham & Leon Letwin, The Preliminary Hearings in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L. Rev. 635, 692 (1971). However, today, "unless the statute of limitations is about to run, it is difficult to defend binding over the defendant while the police search for evidence that will support a conviction." Id. In fact, " s a practical matter, in most cases police investigation ceases once the complaint has been issued." Id.
In addition, the presumption is not based on known or proven facts. McAllister offers no known or proven facts to support its presumption, and the Utah Supreme Court simply relies on McAllister and its progeny to support its presumption. See Clark, 2001 UT 9 at ; see alsoEvans, 963 P.2d at 182.
Therefore, although I concur in the main opinion, which correctly states the law, I believe our supreme court, at its earliest opportunity, should revisit the so-called presumption that the prosecution's case will only get stronger as the investigation continues.
James Z. Davis, Judge
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