2022 UT 18
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellant,
v.
ISIDOR PACOMIO ARCHIBEQUE,
Appellee.
No. 20210008
Heard March 14, 2022
Filed April 28, 2022
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable Richard McKelvie
No. 201903186
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
Colleen K. Magee, Salt Lake City, for appellant
Ann M. Taliaferro, Jeremy Delicino, Cara M. Tangaro, Salt Lake City,
for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which JUSTICE PEARCE, JUSTICE PETERSEN, JUDGE HAGEN, and
JUDGE MORTENSEN joined.
Having recused himself, ASSOCIATE CHIEF JUSTICE LEE does not
participate herein; COURT OF APPEALS JUDGE DIANA HAGEN sat.
Due to his retirement, JUSTICE HIMONAS did not participate herein;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
STATE v. ARCHIBEQUE
Opinion of the Court
Introduction
¶1 Isidor Pacomio Archibeque faces seven felony charges for an
alleged pattern of sexual abuse that occurred between 2014 and 2017.
He denies the charges and served his alleged victim, A.W., with a
subpoena to appear and testify at his preliminary hearing in the
district court. A.W. filed a motion to quash the subpoena.
¶2 To defeat an alleged victim’s motion to quash at the
preliminary hearing stage, our caselaw requires that a defendant
demonstrate to the magistrate that the testimony is necessary to
present specific evidence that is reasonably likely to defeat the
State’s showing of probable cause. The question this interlocutory
appeal presents is whether the district court may judge the
sufficiency of the defendant’s showing based solely on an in camera
proffer, without first affording the State an opportunity to respond.
We hold that the court may not do so.
Background
¶3 Mr. Archibeque is charged with two counts each of rape,
forcible sodomy, and forcible sexual abuse, and one count of object
rape, in connection with a series of alleged acts directed at A.W. over
the course of several years. A.W. was a minor throughout the
duration of the alleged abuse, and Mr. Archibeque was her pastor.
¶4 Mr. Archibeque denies the charges against him and requested
a preliminary hearing at the district court. He informed the court
that he would seek A.W.’s live testimony in addition to her written
statement and then served her with a subpoena to appear and testify
at the hearing. A.W. moved to quash the subpoena, arguing that
requiring compliance would be unreasonable and that forcing her to
testify would violate her constitutional rights.
¶5 While A.W.’s motion to quash was pending, we issued State v.
Lopez, which clarified the respective rights of defendants and alleged
victims at preliminary hearings.1 We held that, in light of the
―circumscribed function of the preliminary hearing,‖ ―a subpoena
compelling the [alleged] victim to give additional, live testimony will
survive a motion to quash only if the defendant demonstrates that
the subpoena is necessary to present specific evidence that is
reasonably likely to defeat the [State’s] showing of probable cause.‖2
_____________________________________________________________
1 2020 UT 61,
474 P.3d 949.
2 Id. ¶ 4 (footnote omitted).
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Opinion of the Court
¶6 After Lopez was issued, Mr. Archibeque asked to make the
showing necessary to overcome A.W.’s motion to quash in camera
and only to the district court. Both the State and A.W. filed
memoranda in opposition to Mr. Archibeque’s request. The State
argued that by viewing the evidence in camera, the district court
judge would violate the Code of Judicial Conduct’s prohibition on ex
parte communications.3 And A.W. argued that Mr. Archibeque’s
constitutional rights as a criminal defendant did not entitle him to an
in camera proceeding.
¶7 The district court granted Mr. Archibeque’s motion in part,
attempting to reach a compromise that would respect the rights of all
involved. The court found that requiring Mr. Archibeque ―to expose
his theory of the case‖ and ―to reveal evidence concerning
impeachment of the alleged victim‖ during the preliminary hearing
would be prejudicial and violate his constitutional rights. It therefore
determined that Mr. Archibeque would be allowed ―to make an in
camera proffer as to what evidence is anticipated to be gleaned from
the cross-examination‖ of A.W. Then, if the court were to determine
that the proffered evidence ―could obviate probable cause,‖ it would
turn that evidence over to the State to give it ―notice as to how the
defense intends to approach [A.W.] at the preliminary hearing.‖ But
if the court were to determine that the proffered information would
not obviate probable cause, then that information would ―remain
sealed and [would] not be disclosed to the State.‖
¶8 The parties view the practical effect of the district court’s
order differently. The State is concerned that under the terms of the
order, it will not ―have the opportunity to correct and contextualize‖
Mr. Archibeque’s representations or to show that ―the ground[] to be
covered by the live witness could just as effectively be presented by
other means.‖4 But Mr. Archibeque does not read the order as
limiting the State’s ―opportunity to address [his] in camera
representations‖ (if the court finds they obviate probable cause) or
―to show that live testimony is unnecessary.‖
¶9 Our reading of the district court’s order comports with the
State’s, and we review it accordingly. Under the order, if the court
determines that Mr. Archibeque’s proffer ―could obviate probable
cause,‖ it will turn the information over to the State ―so they will
have notice as to how the defense intends to approach [the] witness
_____________________________________________________________
3 See UTAH CODE JUD. CONDUCT R. 2.9.
4 See Lopez, 2020 UT 61, ¶ 54 n.18.
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Opinion of the Court
at the preliminary hearing.‖ This language suggests that by the time
the State receives the information, the court will have already
decided that A.W. will have to testify. Giving the State ―notice‖ of
how Mr. Archibeque ―intends to approach [the] witness‖ merely
provides the State the opportunity to prepare for the testimony, not
to refute the proffer or argue that the ground to be covered could be
presented without the testimony.5 Given our reading of the order,
we offer no opinion on whether a district court could properly allow
for an in camera Lopez proffer so long as the State and alleged victim
were given an opportunity to challenge the proffer before the court
required the alleged victim to testify.
¶10 After the district court issued its order, the case proceeded to
the preliminary hearing. There, to show probable cause existed to
justify the charges against Mr. Archibeque, the State submitted a
statement from A.W. under rule 1102 of the Utah Rules of Evidence.6
Based on this statement, the court made a ―preliminary
determination‖ that the State had established a prima facie case for
probable cause as to each of the charges. But it stayed the anticipated
_____________________________________________________________
5 The district court’s explanation of its proposal to the parties at a
hearing on Mr. Archibeque’s motion supports this reading of the
order. The court suggested that if it makes the determination that
Mr. Archibeque’s proffer is ―one of the rare instances‖ in which the
alleged victim’s testimony would obviate probable cause, ―at that
point, then the State is given the information in advance of the
preliminary hearing so they have an opportunity to adequately
prepare for it and give the witness an opportunity to adequately
prepare for it so that she’s not completely blindsided.‖ According to
this language, the district court’s determination as to the sufficiency
of the proffer is made before the information is turned over. And the
language regarding notice to the State presumes A.W. will testify
and leaves no room for the court to reverse that determination.
At oral argument, counsel for Mr. Archibeque maintained that,
even under our reading of the order, the State and A.W. are not
foreclosed from filing a subsequent motion to quash once the proffer,
if sufficient, has been disclosed. But we need not wait to see if the
district court would grant a subsequent motion to quash in order for
us to decide whether the court may base its decision on the present
motion to quash solely on an in camera proffer.
6 Rule 1102 allows the admission of ―[r]eliable hearsay‖ at
preliminary hearings. UTAH R. EVID. 1102(a).
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Opinion of the Court
in camera review of Mr. Archibeque’s Lopez proffer pending our
resolution of this interlocutory appeal. We have jurisdiction under
Utah Code section 78A-3-102(3)(h).
Standard of Review
¶11 In cases where in camera review is typical, such as when a
claim of privilege is asserted in response to a discovery request, ―the
determination of whether in camera review is necessary lies in the
sound discretion of the district court.‖7 But this is not a case where a
party seeks discovery of purportedly privileged information. Here,
the district court partially granted Mr. Archibeque’s motion for in
camera review to protect his constitutional rights as a criminal
defendant. And because constitutional issues are questions of law,
we review the district court’s order for correctness.8
Analysis
¶12 The State raises two primary arguments on appeal. First, it
argues that allowing Mr. Archibeque to proceed with his Lopez
proffer in camera would violate the Code of Judicial Conduct’s
prohibition of ex parte communications.9 Second, it argues that the
district court’s order violates A.W.’s constitutional rights, as a crime
victim, to ―be treated with fairness, respect, and dignity, and to be
free from harassment and abuse throughout the criminal justice
process.‖10
¶13 With respect to the State’s first argument, we note the
parties’ differing interpretations of the procedure set forth in the
district court’s order. The State calls it an ―ex parte proceeding,‖
while Mr. Archibeque calls it an ―in camera review.‖ The procedure
may be ―ex parte‖ in the sense that the Lopez proffer would be ―made
at the instance and for the benefit of one party only,‖11 but we need
not decide whether it is the sort of ―ex parte communication‖
_____________________________________________________________
7 Allred v. Saunders, 2014 UT 43, ¶ 24,
342 P.3d 204.
8 Neese v. Utah Bd. of Pardons & Parole,
2017 UT 89, ¶ 21,
416 P.3d
663.
9 See UTAH CODE JUD. CONDUCT rule 2.9(A).
10 See UTAH CONST. art. I, § 28(1)(a).
11See Ex parte, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
―ex parte‖ as: ―Done or made at the instance and for the benefit of
one party only, and without notice to, or argument by, anyone
having an adverse interest‖).
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Opinion of the Court
contemplated by the Code of Judicial Conduct. So to avoid
confusion, and because the district court’s order is itself styled as
granting in part a ―motion for in camera review,‖ that is how we
refer to the procedure throughout this opinion—even though we
disagree, for reasons we explain, with Mr. Archibeque’s view that
there is no ―principled distinction‖ between the sort of in camera
review courts routinely employ and the one at issue here.
¶14 Although we decline to consider whether the district court’s
order violates the Code of Judicial Conduct, we agree with the State
that ―a defendant cannot seek to force his [alleged] victim to testify
at his preliminary hearing without telling the prosecution and the
victim why, and giving them an opportunity to respond.‖ And
although we applaud the district court’s efforts to craft a
compromise that seeks to respect the constitutional rights of all
interested parties, we are not convinced Mr. Archibeque’s statutory
or constitutional rights at this stage of the proceedings entitle him to
an in camera proffer. And because one-sided proceedings are
disfavored, we reverse the district court’s order.12
I. The Adversarial Legal System Disfavors One-Sided Proceedings
¶15 Under our adversarial system of justice, courts decide the
matters before them ―on the basis of facts and arguments . . .
adduced by the parties,‖13 relying on the parties ―to zealously
advocate their cause.‖14 One-sided proceedings are disfavored under
this system because they ―deprive the absent party of the right to
respond and be heard.‖15 Information given to the court in such a
proceeding ―may be incomplete or inaccurate‖ and ―carries the
attendant risk of an erroneous ruling on the law or facts.‖ 16 It is
therefore ―inherently unfair to allow one party to put evidence
_____________________________________________________________
12 Because we reverse on this basis, we need not and do not
address the State’s arguments regarding A.W.’s constitutional rights
as an alleged victim.
13 Sanchez-Llamas v. Oregon, 548 U.S. 331, 357 (2006) (citation
omitted).
14 State v. King,
2006 UT 3, ¶ 14,
131 P.3d 202.
15 State v. Scales,
933 P.2d 737, 741 (Kan. 1997) (citation omitted).
16
Id. (citation omitted).
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Opinion of the Court
before the court without allowing his opponent the opportunity to
test its validity.‖17
¶16 Mr. Archibeque asserts that the district court’s order is a
legitimate use of in camera review. He notes that courts ―have long
been empowered to review materials in camera to protect privileges
and dissemination of sensitive information.‖ This is true but not
relevant to this case. In camera review is occasionally necessary
where one party seeks access to another party’s purportedly
privileged material—in other words, where discovery is sought. But
here, no party has sought discovery of the information Mr.
Archibeque claims is privileged. Instead, he wishes to withhold from
the State and A.W. the justification for his own subpoena. So the
cases he cites are inapposite.
¶17 As one example, Mr. Archibeque cites State v. Otterson,
where the court of appeals explained that a party seeking records
covered by the patient-therapist privilege18 ―must petition for an in
camera review in which the [district] court will review the records to
determine if they actually contain material that is relevant and ought
to be disclosed.‖19 There, unlike here, the issue was whether the
material was discoverable: the defendant sought access to his
daughter’s privileged counseling records.20 Moreover, Otterson
explained that the district court could conduct an in camera review
only after the defendant showed, with reasonable certainty, ―that
exculpatory evidence exist[ed] which would be favorable to [the]
defense.‖21 The defendant made that showing in open court22—
precisely what Mr. Archibeque seeks to avoid doing here.
¶18 Mr. Archibeque next cites Allred v. Saunders23 to argue that in
camera review has ―been used for assessing privilege more
generally.‖ But Allred cannot be read to support in camera review in
_____________________________________________________________
17E.E.O.C. v. Monarch Mach. Tool Co., 737 F.2d 1444, 1448 (6th Cir.
1980) (quoting Wright v. Sw. Bank,
554 F.2d 661, 663 (5th Cir. 1977)).
18 See UTAH R. EVID. 506.
19
2010 UT App 388, ¶ 5,
246 P.3d 168.
20
Id.
21
Id. (second alteration in original) (citation omitted).
22 Id. ¶ 6.
23
2014 UT 43,
342 P.3d 204.
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Opinion of the Court
this case. Once again, the issue in Allred was a discovery dispute.24
There, we stated that a ―district court may undertake in camera
review when . . . it deems such a review necessary to properly
evaluate whether [] documents or items withheld from discovery
qualify for [a] privilege.‖25 Nothing in this statement or the rest of
our opinion in Allred suggests the district court may undertake an in
camera review in a case like this one, where the party hoping to
conceal evidence from the other parties is the same party offering it
to the court.
¶19 Mr. Archibeque also finds it ―ironic[]‖ that the State objects
to his request for in camera review even though it is a process
―routinely used by prosecutors.‖ ―Time and again,‖ he points out,
―the State seeks arrest warrants, search warrants, and orders to show
cause based on submissions that are made available to defendants, if
ever, only long after they’ve been signed by the judge.‖ These
examples are unhelpful to resolving the issue before us. In fact,
many warrants are issued before a prosecution exists, and their very
purpose is to protect the rights of the person to be arrested or
searched.26
¶20 Finally, Mr. Archibeque points to rule 16 of the Utah Rules of
Criminal Procedure, which he says ―is replete with references to a
court’s authority to review materials in camera.‖ But, as he
acknowledges, rule 16 generally, and the provisions he highlights
specifically, govern discovery.27 Once again, the State is not
requesting purportedly privileged material as part of discovery
disclosures. Rule 16 simply does not apply and does not support Mr.
_____________________________________________________________
24 Id. ¶ 1.
25 Id. ¶ 26 (emphasis added).
26 ―An essential purpose of a warrant requirement is to protect
privacy interests by assuring citizens subject to a search or seizure
that such intrusions are not the random or arbitrary acts of
government agents. A warrant assures the citizen that the intrusion
is authorized by law, and that it is narrowly limited in its objectives
and scope. A warrant also provides the detached scrutiny of a
neutral magistrate, and thus ensures an objective determination
whether an intrusion is justified in any given case.‖ Skinner v. Ry.
Lab. Execs. Ass’n, 489 U.S. 602, 621–22 (1989) (citations omitted).
27 UTAH R. CRIM. P. 16.
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Opinion of the Court
Archibeque’s attempt to conceal his justification for his own
subpoena.
¶21 The law disfavors one-sided proceedings, and Mr.
Archibeque has not convinced us that presumption does not apply
here. Although he has cited ample authority permitting in camera
review in the discovery context, that authority does not support the
soundness of an in camera proffer in this instance. As the State puts
it, Mr. Archibeque has cited ―no authority recognizing that a
criminal defendant can use the specter of these privileges as a sword
to prevent him from having to disclose evidence and arguments that
he voluntarily submits.‖
¶22 Mr. Archibeque must disclose the evidence he hopes to
gather from A.W.’s testimony only because he chose to issue the
subpoena. And because he seeks testimony from A.W. on a
substantive matter—to determine whether probable cause exists—
the State, as the opposing party, should have the opportunity to
dispute his proffer or to argue that ―the grounds to be covered by the
live witness could just as effectively be presented by other means.‖28
II. Mr. Archibeque’s Rights as a Criminal Defendant Do Not Entitle
Him to In Camera Review
¶23 Although one-sided proceedings are disfavored, we would
be inclined to uphold the district court’s ruling if we agreed it was
necessary to protect Mr. Archibeque’s constitutional rights as a
criminal defendant. But the rights he identifies do not entitle him to
the in camera review he seeks, so we hold that the district court’s
order was improper.
¶24 Mr. Archibeque begins by identifying several rights
guaranteed to a criminal defendant by the U.S. and Utah
constitutions, including the right to due process and a fair trial, the
right against self-incrimination, and the right to effective assistance
of counsel. And he correctly notes that these rights ―protect criminal
defendants in myriad ways, and trump any rule of procedure.‖ But
he fails to show how any of his rights will be violated if he is
required to make his Lopez proffer in open court.
¶25 For example, Mr. Archibeque is correct that the right against
self-incrimination includes ―the right of the individual not to reveal
his thoughts in the face of accusations by the state.‖29 Indeed, that is
_____________________________________________________________
28 See State v. Lopez, 2020 UT 61, ¶ 54 n.18,
474 P.3d 949.
29 Am. Fork City v. Crosgrove,
701 P.2d 1069, 1075 (Utah 1985).
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―the most fundamental right sought to be protected by the privilege
against self-incrimination.‖30 But the scope of that right ―protects a
person only against being incriminated by his own compelled
testimonial communications.‖31 Here, the State is not seeking
testimonial communications from Mr. Archibeque. Indeed, it does
not seek to compel the disclosure of anything. The only reason Mr.
Archibeque must produce anything at all is because he chose to
subpoena A.W.’s testimony.
¶26 Next, Mr. Archibeque asserts that ―[p]remature disclosure
will also taint the reliability of a witness’s trial testimony, impairing
the defendant’s right to effective assistance of counsel, cross-examination and confrontation, and . . . the due process right to a fair
trial.‖ But he fails to explain how affording the State and A.W. a
chance to respond to his Lopez proffer would render A.W.’s trial
testimony unreliable.
¶27 Finally, Mr. Archibeque cites authority holding that a
defendant ―must not be forced to provide the prosecutor a preview
of his case or arguments, and must not be required to provide the
prosecutor advance notice of the weaknesses in the State’s case or
evidence.‖32 And he argues that in criminal cases, the State and the
defendant ―are not on equal footing‖ when it comes to discovery and
disclosure duties. Once more, this is true but irrelevant. Nobody is
forcing Mr. Archibeque to disclose anything.
¶28 In addition to the rights he holds as a criminal defendant
generally, Mr. Archibeque provides a thoughtful summary of the
rights he enjoys at the preliminary hearing stage specifically. But that
discussion suffers from the same defect that afflicts the rest of his
arguments: it fails to show how those rights entitle him to the district
court’s order for in camera review.
_____________________________________________________________
30 Id.
31 Doe v. United States,
487 U.S. 201, 207 (1988) (citations omitted)
(interpreting U.S. CONST. amend. V); see also Crosgrove,
701 P.2d at
1075 (interpreting UTAH CONST. art. I, § 12 as limited ―to those
situations where the state seeks evidence of a testimonial or
communicative nature‖).
32 The cited cases are State v. Marshall,
4 P.3d 1039, 1044 (Az. Ct.
App. 2000) and People v. Chavez,
109 Cal. Rptr. 157, 161 (Ct. App.
1973).
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¶29 To summarize, Mr. Archibeque has identified numerous
rights that he argues would be violated were he required to make his
Lopez proffer in open court. But those rights simply are not
implicated here.33 Mr. Archibeque knows that, under Lopez,
overcoming the State’s prima facie showing of probable cause is a
―difficult‖ task.34 But nobody is forcing him to attempt it; he is well
within his rights to hold his cards until trial. What he cannot do is
have his cake and eat it too. None of the rights Mr. Archibeque has
identified protects him from the consequences of his litigation
strategy. If he chooses to proceed with his Lopez proffer, fairness
requires that the State have an opportunity to respond before A.W. is
compelled to testify.
Conclusion
¶30 In most instances, a criminal defendant is not required to
reveal his strategy ahead of trial, including his plans for crossexamining adverse witnesses. Nor is he required to make as
extensive disclosures as is the prosecution. But the right to keep his
trial strategy under wraps is not absolute, and it does not protect
him here, where his own litigation strategy requires he make a
particular showing to the court. Because our adversarial system
disfavors one-sided proceedings, and because Mr. Archibeque is not
entitled to one here, he must make his Lopez proffer in open court,
giving the State the opportunity to respond. Accordingly, we reverse
the district court’s order granting Mr. Archibeque’s motion for in
camera review.
_____________________________________________________________
33 Other courts have held that criminal defendants do not enjoy a
right to proceed ex parte before trial, even to protect trial strategy.
See, e.g., Pare v. Commonwealth, 648 N.E.2d 1277, 1277–78 (Mass.
1995); State v. Apelt,
861 P.2d 634, 650 (Ariz. 1993); Ramdass v.
Commonwealth,
437 S.E.2d 566, 571 (Va. 1993), vacated on other grounds
sub nom., Ramdass v. Virginia,
512 U.S. 1217 (1994); State v. Floody,
481
N.W.2d 242, 254–56 (S.D. 1992).
34 See State v. Lopez,
2020 UT 61, ¶¶ 48, 50,
474 P.3d 949.
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