Tread Carefully – An Ethics Reminder

Zack (Zachary) Peterson
January 2018

In State v. Ellis, 2018 UT 02, Justice Himonas wrote a separate, concurring opinion that provides a reminder of an attorney’s ethical obligations as an officer of the Court and of candor to the tribunal.  Before the district court, the prosecutor requested to use a preliminary hearing transcript at trial because a witness was unavailable to testify at trial.  The prosecutor made representations to the district court that the witness was a “key witness” and the State could not proceed without the testimony.  The district court allowed the use of the preliminary hearing transcript at trial.  Mr. Ellis was convicted at trial.

On appeal, the Utah Supreme Court reversed the district court’s decision to allow the use of a preliminary hearing transcript, finding it did not meet the hearsay exception in Rule 804.  In the briefing, the State took the position that the admission of the preliminary hearing transcript was harmless error, and therefore, the conviction should be affirmed.

Justice Himonas wrote a separate, concurring opinion to point out the inconsistency in the two positions the State had taken in the course of the proceedings.  At the district court, the witness was a key witness who was vital to the prosecution of the case.  On appeal, the witness’ testimony was insignificant and its admission was harmless error.  Justice Himonas noted that the State’s conduct in the case was beyond reproach, and he acknowledged that perceptions about evidence change before trial as compared to on appeal.  Nevertheless, he stated:  “But when a prosecutor has stated their belief that evidence is important, I’d tread carefully before finding any error in admitting it to be harmless.”

This concurring opinion serves as a reminder to be cautious in the positions that are taken with the Court.  A position which appears reasonable one day may appear less so as the case proceeds down the long, winding road.

Zachary Peterson is a shareholder at the Salt Lake City law firm of Richards Brandt Miller Nelson. He can be reached at