Brickey rule in Utah

2025But whether it misread these cases or not, Brickey itself announced an unambiguously constitutional holding, noting that it “address[ed]” Brickey’s claim “under” Utah’s Due Process Clause. 714 P.2d at 646 .

2025See, e.g., State v. Brickey, 714 P.2d 644, 646 (Utah 1986) (before announcing the Brickey rule, we considered “the nature and purpose of a preliminary hearing”).

2012The State, citing State v. Morgan, 2001 UT 87 , 34 P.3d 767 , attributed this to an "innocent miscalculation of a quantum of evidence required" that lacked any prosecutorial "intent to abuse or an intent to harass." The court agreed, concluding that the Brickey rule had not been violated because there was good cause for refilling the charge as the "prosecutor [had] innocently miscalculated the quantum of evidence" necessary to bind Dykes over on the second degree felony and Dykes had not shown that the "prosecution engaged in abusive practices in miscaleulat-ing the evidence." Dykes appeals.

2012The State, citing State v. Morgan, 2001 UT 87 , 34 P.3d 767 , attributed this to an "innocent miscalculation of a quantum of evidence required" that lacked any prosecutorial "intent to abuse or an intent to harass." The court agreed, concluding that the Brickey rule had not been violated because there was good cause for refilling the charge as the "prosecutor [had] innocently miscalculated the quantum of evidence" necessary to bind Dykes over on the second degree felony and Dykes had not shown that the "prosecution engaged in abusive practices in miscaleulat-ing the evidence." Dykes appeals.

2011Relying on Oklahoma authority, the model for the Brickey rule, see State v. Brickey, 714 P2d 644, 647-48 (Utah 1986) (citing Jones v. State, 481 P.2d 169, 171 (Okla.Crim.App.1971)), the Rogers court explained that where the prosecutor miscaleu-lates the evidence needed to establish probable cause, it is within the discretion of the magistrate to grant a continuance to allow the prosecutor to present other witnesses or evidence that can strengthen the proof.

2001Therefore, we adopted the Oklahoma approach that prohibits a "prosecutor from refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling." Id. (citing Jones v. State, 481 P.2d 169, 171 (Okla.Ct.App.1971)). 13 The policies and protections underlying the Brickey rule provide guidance in understanding the rule and properly defining its intended ambit.

2012As a means to accomplish that purpose, the Brickey rule focuses on potentially abusive practices, which include "intentional prosecu-torial harassment arising from repeated filings of groundless claims," id. 113 , forum shopping by the State through the "shuttl[ing of charges] from one magistrate to another simply because a county attorney is not satisfied with the action of the [first] magistrate," Brickey, 714 P.2d at 647 (internal quotation marks omitted), withholding of crucial evidence by the prosecution in order to surprise the defendant at trial, see Morgan, 2001 UT 87, ¶ 14 , 34 P.3d 7

2012As a means to accomplish that purpose, the Brickey rule focuses on potentially abusive practices, which include "intentional prosecu-torial harassment arising from repeated filings of groundless claims," id. 113 , forum shopping by the State through the "shuttl[ing of charges] from one magistrate to another simply because a county attorney is not satisfied with the action of the [first] magistrate," Brickey, 714 P.2d at 647 (internal quotation marks omitted), withholding of crucial evidence by the prosecution in order to surprise the defendant at trial, see Morgan, 2001 UT 87, ¶ 14 , 34 P.3d 7

2011See id. ¶20 (citing Harper v. District Court, 484 P.2d 891 (Okla.Crim.App.1971)).

2000In a footnote, the supreme court also noted that the Oklahoma Court of Criminal Appeals, whose analysis it followed, had held in Harper v. District Ct, 484 P.2d 891 (Okla.Crim.App.1971), that good cause to continue a preliminary hearing for further investigation might exist when a prosecutor innocently miscalculates the quantum of evidence required to obtain a bindover and further investigation clearly would not be dilatory.

2011T15 Notwithstanding the narrowness of Brickey's holding, the codefendants argue that the subsequent decisions in State v. Rogers, 2006 UT 85 , 151 P.3d 171 , and State v. Atencio, 2004 UT App 93 , 89 P.3d 191 , stand for the idea that the "due process inquiry is not limited to whether the case was dismissed for insufficient evidence at preliminary hearing, and instead includes an assessment of whether the State engaged in abusive practice regardless of whether the case was dismissed at preliminary hearing for insufficient evidence." While a defendant is entitled to due process at all stages of

2011T15 Notwithstanding the narrowness of Brickey's holding, the codefendants argue that the subsequent decisions in State v. Rogers, 2006 UT 85 , 151 P.3d 171 , and State v. Atencio, 2004 UT App 93 , 89 P.3d 191 , stand for the idea that the "due process inquiry is not limited to whether the case was dismissed for insufficient evidence at preliminary hearing, and instead includes an assessment of whether the State engaged in abusive practice regardless of whether the case was dismissed at preliminary hearing for insufficient evidence." While a defendant is entitled to due process at all stages of

2025See State v. Goins, 2017 UT 61, ¶ 44 , 423 P.3d 1236 (recognizing that certain portions of our caselaw will need to be “revisit[ed]” in light of the VRA as issues are placed “squarely before us”). ¶58 Today we clarify that, given the “limited” function of the preliminary hearing post-VRA, see id., the prosecution’s decision to not introduce all evidence available to it does not, without a separate finding of bad faith or intent to harass, support granting a Brickey motion.

2025See State v. Goins, 2017 UT 61, ¶ 44 , 423 P.3d 1236 (recognizing that certain portions of our caselaw will need to be “revisit[ed]” in light of the VRA as issues are placed “squarely before us”). ¶58 Today we clarify that, given the “limited” function of the preliminary hearing post-VRA, see id., the prosecution’s decision to not introduce all evidence available to it does not, without a separate finding of bad faith or intent to harass, support granting a Brickey motion.

2025(Citing United States v. Lovasco, 431 U.S. 783, 793 (1977) (“The determination of when the evidence available to the prosecution is sufficient to obtain a conviction is seldom clear-cut, and reasonable persons often will reach conflicting conclusions.”).) ¶61 Magistrate erred in categorically dismissing these proffered explanations as “internal office politics” that necessarily lie beyond the ken of a judge reviewing a Brickey motion.

2011T15 Notwithstanding the narrowness of Brickey's holding, the codefendants argue that the subsequent decisions in State v. Rogers, 2006 UT 85 , 151 P.3d 171 , and State v. Atencio, 2004 UT App 93 , 89 P.3d 191 , stand for the idea that the "due process inquiry is not limited to whether the case was dismissed for insufficient evidence at preliminary hearing, and instead includes an assessment of whether the State engaged in abusive practice regardless of whether the case was dismissed at preliminary hearing for insufficient evidence." While a defendant is entitled to due process at all stages of

2011T15 Notwithstanding the narrowness of Brickey's holding, the codefendants argue that the subsequent decisions in State v. Rogers, 2006 UT 85 , 151 P.3d 171 , and State v. Atencio, 2004 UT App 93 , 89 P.3d 191 , stand for the idea that the "due process inquiry is not limited to whether the case was dismissed for insufficient evidence at preliminary hearing, and instead includes an assessment of whether the State engaged in abusive practice regardless of whether the case was dismissed at preliminary hearing for insufficient evidence." While a defendant is entitled to due process at all stages of

2011However, "[dlismissal of a criminal information as a sanction against the prosecutor is rarely appropriate, even if the prosecutor is in contempt of court." Salt Lake City v. Dorman-Ligh, 912 P.2d 452, 456 (Utah Ct.App.1996) (reversing the trial court's order dismissing criminal charges with prejudice as a sanction for the prosecutor's failure to comply with the court's order to be present and ready to proceed at a scheduled hearing). 5 Although the magistrate erred in dismissing the charges with prejudice as a sanction for the prosecution's delay, in appropriate circumstances, sanctions may b

2011However, "[dlismissal of a criminal information as a sanction against the prosecutor is rarely appropriate, even if the prosecutor is in contempt of court." Salt Lake City v. Dorman-Ligh, 912 P.2d 452, 456 (Utah Ct.App.1996) (reversing the trial court's order dismissing criminal charges with prejudice as a sanction for the prosecutor's failure to comply with the court's order to be present and ready to proceed at a scheduled hearing). 5 Although the magistrate erred in dismissing the charges with prejudice as a sanction for the prosecution's delay, in appropriate circumstances, sanctions may b

2001Id. at 647 ; accord State v. Fisk, 966 P.2d 860, 864 (Utah Ct.App.1998) (Brickey rule "ensures that the defendant is not harassed by repeated charges on tenuous grounds").