December 20, 2019 – Notice of Proposed Rule Change
The Utah Supreme Court gave notice today of a proposed change to Rule 8 of the Utah Rules of Criminal Procedure, and invited comments from the public on the proposed rule. The comment period is scheduled to end February 3, 2020.
Appointment of Counsel in Utah Criminal Cases
Rule 8 of the Utah Rules of Criminal Procedure governs the appointment of counsel in criminal cases. The rule recognizes the individual right of self-representation when facing criminal prosecution. The rule further recognizes the constitutional right of an indigent person to have counsel appointed by the court.
Proposed Changes to Capital Qualification Requirements
The proposed new rule includes small but significant changes addressing the training and experience required of an attorney being considered for appointment in a capital (death penalty) case.
Defense-Specific Experience Requirements
Rule 8 already requires an attorney who is to be appointed to represent a defendant in a capital case to have tried to verdict at least six felony cases within the most recent four years, or alternatively to have a career total of at least twenty-five felony trials.
The current Rule 8 does not specify which side of the case the attorney must have represented, nor does it require that the six (or twenty-five) trials must have been tried by jury.
The proposed changes would require that the appointed attorney have trial experience specifically as defense counsel. An attorney relying on six trials within the most recent four years must have represented the defense in each of those six trials. An attorney relying on a career total of twenty-five trials must have served as defense counsel in at least six of those trials.
Rule 8 as it exists requires that an attorney appointed in a capital case have previously appeared as counsel or co-counsel in at least one felony homicide jury trial which proceeded to final verdict. The term “felony homicide” is broad, and includes trials on lower level felony charges including manslaughter, automobile homicide, and others. The proposed revisions to Rule 8 would require that the appointed attorney have served as defense counsel in that jury trial.
Defense-Specific Training Requirement
The current Rule 8 requires that an attorney appointed in a capital case have completed (or taught) within the most recent five years at least eight hours of approved continuing legal education focused on the “trial of death penalty cases.” The proposed revision would require that such course focus on the “representation of defendants” in death penalty cases.
The proposed change to Rule 8 would also require that the capital defense courses be taught “in person.” Webinars, video recordings, or other remote or recorded presentations could not be used to satisfy the education requirement.
In addition to the mandatory requirements discussed above, Rule 8 also currently requires a judge in a capital case, in selecting the attorney to be appointed to represent a defendant, to consider whether an attorney has previously appeared as counsel or co-counsel in a capital case. The proposed changes would direct the appointing court to consider whether an attorney has previously appeared in a capital case representing a defendant.
The proposed changes to Rule 8 appear to be aimed at improving the quality of representation provided to defendants in Utah who are facing the potential imposition of the ultimate penalty that a government can impose. By imposing more stringent requirements relating to experience and training, one likely effect of the rule will be to narrow the field of attorneys who meet the Rule 8 qualifications to be appointed as defense counsel in Utah capital cases.