This opinion is subject to revision before final

p ublication in the Pacific Reporter

20 20 UT 61

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH and L.L.

, Appellants

,

v.

I VAN M ICHAEL L OPEZ
, Appellee

.

S TATE OF U TAH , Appellee

,

v.

D ARIN C HASE N IELSEN
, Appellant

.

No s

. 201 80 940 , 20180945, 20180952 , and 20190272

Heard April 8 , 20 20
Filed August 18, 2020

On Consolidated Appeal of Interlocutory Orders

Third District, Salt Lake

The Honorable James T. Blanch

No. 1 81907088

Fourth District, Provo
The Honorable Robert C. Lunnen

No. 181100038S TATE v. L OPEZ
Opinion of the Court

2 Attorneys:
Sean D. Reyes, Att’y Gen., T e ra J. Peterson

, Asst. Sol. Gen.

, Clint T. Heiner, Donna Kelly

, Lance E. Bastian, Salt Lake City , for the

State of Utah

Paul Cassell, Heidi Nestel, C. Bethany Warr, Salt Lake City,

for appellant L.L.

Alexandra S. McCallum

, Salt Lake City , for appellee

Ivan Michael Lopez

Dallas Young, Douglas J. Thompson, Provo, for appellant

Darin Chase Nielsen

A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court in

which C HIEF J USTICE D URRANT , J USTICE H IMONAS
, J USTICE P EARCE
,

AND J USTICE P ETERSEN joined.

A SSOCIATE C HIEF J USTICE L EE , opinion of the Court :
¶1 Ivan Michael Lopez and Darin Chase Nielsen each stand

accused o f engaging in illicit activities with children. Lopez is charged

with furnishing alcohol to, rap ing

, and otherwise sexually abu s ing a twelve

- year

- old girl ( L.L

. ) in the back of his truck. Nielsen is charged

with sexually abus ing his five

- year

- old daughter ( A.N. ) while alone

with her in a bedroom.

¶2 L.L. and A.N. each participated in interviews about their alleged abuse at the Children’s Justice Center (CJC). These interviews

were later introduced (along with other evidence) as “ reliable hearsay ” at L opez ’s and Nielsen’s preliminary hearings in accordance

with rule 1102 of the Utah Rules of Evidence and rule 15.5 of the Utah

Rules of Criminal Procedure

. Both Lopez and Nielsen sought to compel their alleged victims to testify by way of subpoena

, each

as serting a right to do so under rule 7B of the Utah Rules of Criminal Procedure and the Compulsory Process Clause of article I, section 12

of the Utah Constitution.

¶3 In the Lopez case, the State and L.L. moved to quash the subpoena, but the magistrate denied the motions , opting instead to
modif y the manner in which L.L. would be required to testify

. In the

Nielsen case , the magistrate granted the State’s motion to quash the subpoena. We agreed to hear the cases on interlocutory appeal, in recognition of the need for guidance from this court on the clashCite as: 2020 UT 61

Opinion of the Court

3 between the rights of defendants and victims in a preliminary hearing. We resolve both cases in this consolidated opinion.

¶4 We hold that any power a defendant has to subpoena

witnesses at a preliminary hearing

— whether under the rules of criminal procedure or the constitution

— must be understood in light of the prerogative of the court to “ quash or modify [ a ] subpoena if compliance would be unreasonable.” U TAH R. C RIM

. P. 14(a)(2)

. And we conclude that the unreasonableness inquiry must account for the

circumscribed function of the preliminary hearing (to determine

whether there is probable cause to justify bindover) a s well as the

limited burden of proof on the S tate and the establi shed rights of

victims at such a hearing. Thus, we hold that once the State has used a victim’s reliable hearsay to ma k e a prima facie showing of probable

cause, a subpoena c ompel ling the victim 1 to give additional

, live

testi mony 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 showing of probable

cause

. Since neither Lopez nor Nielsen attempted to explain how his alleged victim’s additional

, live testimony would inform the probable cause determination, we reverse the Lopez court’s refusal to quash L.L.’s subpoena and affirm the Nielsen court’s decision to quash A.N.’s subpoena

. ¶5 Part I lay s out the facts and procedural bac kground of the Lopez and Nielsen cases. Part II answer s a threshold question raised

in the Lopez case

— whether an alleged victim has a right to seek a n interlocutory appeal or lodge a direct appeal from a magistrate’s

denial of a motion to quash her subpoen a. Part III set s forth the

standard that governs such motions

, as informed by the probable

cause standard and the law protecting the rights of crime victims . Part

IV then appl ies this standard to the facts of the Lopez and Nielsen

cases. Part V conclude s

.

_____________________________________________________________

1 Throughout this opinion, we sometimes use the term “victim” for simplicity. We acknowledge that at the preliminary hearing stage, a

victim of a crime is an alleged victim of a crime. See U TAH C ODE § 77

- 38

- 2(9)(a) (“‘ Victim of a crime ’ means any natural pe rson against whom the charged crime or conduct is alleged to have been perpetrated or attempted by the defendant or

. . . against whom a

related crime or act is alleged to have been perpetrated or attempted

. . . .” (emphases added)).S TATE v. L OPEZ
Opinion of the Court

4 I . BACKGROUND 2

A . Lopez

¶6 Lopez began communicating via phone call and text message

with L.L. and her friend

, C.D.

, by posing as a fifteen

- year

- old boy

named “ Giovanni. ” One night , L.L. told Lopez that she wanted to visit C.D., who was undergoing surgery at the hospital the next morning

. Lopez told L.L. that he had a car and offered to drive her to C.D.’s

house. L.L. accepted the offer and met Lopez for the first time in

person at a local gas station. Instead of taking L.L. to C.D.’s house

, howeve r, Lopez drove to a residential neighborhood in Kearns

, parked on a corner , and locked the doors

. L.L. moved to the backseat to get away from him , but Lopez followed. He then offered L.L. marijuana and beer, which she later testified that she refused. Lopez
drank a beer himself and threw the can out the window. He then

undressed L.L. , undressed himself, and got on top of her, vaginally penetrating her with his penis and p l acing his mouth on her breasts. 3

¶7 A homeowner called the police after not icing two people sitting in the back of a parked truck and seeing something thrown

from the vehicle. When the responding officer arrived, she found a beer can near the truck, the windows steamed up

, and Lopez (then
twenty

- seven years old) and L.L. (then tw elve years old ) in the

backseat

. Both were shuffling their clothing, and Lopez had his underwear around one of his ankles under his pants. 4 The officer testified that both occupants had their shirts inside out and smelled of

beer. L.L. told the officer th at they had been drinking.

¶8 After talking with the officer, L.L. received a sexual assault

exam, in which she related some of the details of this encounter to a

nurse. The nurse took photographs of red marks she noticed on L.L.’s

breasts. Later, a n investig ating detective interviewed L.L. at the CJC

, where L.L. gave the full story. The investigating detective also

_____________________________________________________________

2 When relating the evidence presented at a preliminary hearing, we state the facts “in the light most favorable to the prosecution, with
all reasonable inferences in its favor.” State v. Jones , 2016 UT 4, ¶ 2 n.1, 365 P.3d 1212 (citation and internal quota tion marks omitted).

3 L.L. also told the CJC interviewer that her shirt and bra stayed on throughout the encounter.

4 L.L. testified that Lopez told her to hurry and get her clothes back on when he noticed the officer approach.Cite as: 2020 UT 61

Opinion of the Court

5 interviewed C.D. , who said that L.L. had told her that she (L.L.) and Lopez had had sex.

¶9 The State charged Lopez with (1) rape of a child, 5 (2) aggravated sexual abuse of a child, 6 and (3) furnishing alcohol to a

minor. 7 Before his preliminary hearing, Lopez served L.L. with a

s ubpoena c ompelling her to testify

. L.L. moved to quash the subpoena on the ground that forcing her to testify at the preliminary hearing

would be “unreasonable” in light of her statutory and constitutional rights as a victim

. Lopez responded that “[c]rime victims do not have a right under Utah law to refuse to testify at court hearings when they have been lawfully served with a subpoena.” The court took L.L.’s motion under advisement and proceeded with the preliminary hearing.

¶10 In the State’s case

- in

- chief, both the responding officer and investigating detective testified

. Lopez cross

- examined both. The

State then played a video recording of L.L.’s CJC interview and

introduced the results of L.L.’s sexual assault exam.

¶11 Once the State rested , t he court heard arguments on L.L.’s motion to quash. Lopez argued that he was not required to explain

what he expected L.L.’s live testimony to provide because he was
“entitled” to “find out some more of the details” even if L.L.’s testimony ultimately supp orted rather than undermined probable

cause.
¶12 The court agreed with Lopez and denied the motion to quash, holding that the subpoena was “not unreasonable under the facts and
circumstances of this case.” I n particular, it noted L.L.’s “mature
demeanor” and t he fact that the courtroom would be relatively empty.

The court admitted that it did not “see a likely basis that questioning the child victim in this case would defeat probable cause

. . . where the State has met its burden for bindover during its prima f acie case,” but

held that the defendant “need not show a particular likelihood that calling the child victim will defeat probable cause prior to exercising his right to call the child victim.” The court justified its decision by reasoning that

, under the l ow probable cause standard, “ if defendants were required to make such a showing prior to subpoenaing and questioning witnesses, the Court would be required to quash defense

_____________________________________________________________

5 U TAH C ODE § 76

- 5

- 402.1.

6 Id. § 76

- 5

- 404.1(4).

7 Id. § 32B

- 4

- 403.S TATE v. L OPEZ
Opinion of the Court

6 witnesses’ subpoenas in every case and defendants’ right to call

witnesses under ru le 7B

. . . would be illusory .” 8 Still, the court modified the subpoena so that Lopez would remain in the holding cell

while L.L. testified

, and it indicated that it might make further

accommodations later on

. ¶13 The parties agreed to continue the proceeding s and both L.L.
and the State petitioned for interlocutory review of the denial of the motion to quash

. L.L. also filed a timely notice of direct appeal. We provisionally granted L.L.’s interlocutory appeal, granted the State’s, and consolidated them with L.L.’s direct appeal (deferring a determination on our jurisdiction over the direct appeal).

B . Nielsen

¶14 The State’s probable cause statement alleges that Nielsen “engaged in sex acts with his daughter

, A.N

. ” Specifically, the State

claims that in a forensic interview at the CJC, A.N. described a “naughty game” that she and Nielsen would play on a bed. In this game, Nielsen would allegedly touch A.N.’s “b ottom ” with a “part” that was “round,” the “ color of skin,” and close to his belly button, a s well as touch A.N. between her legs with his hands. The State is charging Nielsen with two counts of aggravated sexual abuse of a child with a prior gri evous sex offense. 9

¶15 Prior to the preliminary hearing, Nielsen moved to subpoena various witnesses (including A.N.), while the State moved to admit A.N.’s CJC interview and quash her subpoen a . In opposing the latter motion, Nielsen argued that wh ile he had an express right to call

witnesses under rule 7B of the Utah Rules of Criminal Procedure and article I, section 12 of the Utah Constitution, nothing in the rules or constitution granted victims a right to “avoid legal process” or “not be required to testify.” He also argued that subpoenaing A.N. would not destroy the State’s ability to use reliable hearsay at preliminary hearing s in its case

- in

- chief

.

_____________________________________________________________

8 Elsewhere, however, the court also expressed the view that quashing a subpoena might be appropriate “where it’s purely and entirely speculative about whether or not a witness’s testimony could potentially defeat b indover, and we [a] re dealing with a very, very young child where it [i] s apparent to the Court that it would be a traumatic experience for the alleged victim in the case to testify.”

9 U TAH C ODE § 76

- 5

- 404.1(4). At the time, Nielsen was on parole

for a prior conviction of aggravated sexual abuse of a child.Cite as: 2020 UT 61

Opinion of the Court

7 ¶16 The court began the preliminary hearing by granting the State’s motion to quash the A.N. subpoena. I n so doing, the court cited Utah’s policy of allowing reliable hearsay in preliminary hearings as

laid out in rule s 7B and 15.5 of the Utah Rules of Criminal Procedure, rule 1102 of the Utah Rules of Evidence, art icle I, section 12 of the Utah

Constitution , and this court’s opinion in State v. Timmerman , 2009 UT 58, 218 P.3d 590. Nielsen objected to this ruling, a sserting that “[n]o

witness except [A.N.] can eviscerate and make incredible the State’s alleged claim s to probable cause,” that “[w]ithout contex t, t he State’s

inference of the ‘naughty game’” would “stretch the legal fabric past it[]s sure point

, ” and that he had a right to “test the State’s evidence.”

But Nielsen never explained what clarification he expected A.N. to offer, and the court reaffirm ed its ruling.

¶17 The State then called the forensic interviewer, A.N.’s mother, and the investigating detective to testify. The interviewer explained how he had avoided asking leading questions or suggesting A.N.’s

answers. A.N.’s mother testified that Nielsen was alone with A.N.

sometimes. The investigating detective testified that A.N.’s
step

- grandmother had first reported the abuse to the police. Nielsen

cross

- examined all these witnesses , but never about the content of A.N.’s CJC interview or the man ner in which it was conducted

. 10 Finally, the State introduced Nielsen’s 2005 conviction for aggravated

sexual abuse of a child.

¶18 At the close of the preliminary hearing

, Nielsen offered no

evidence . Instead, he ask ed that the magistrate hear argument on th e “strengths and weaknesses” of the CJC video once he (Nielsen) had

see n the video and confer red with counsel “as to the presence or lack of presence of probable cause

. ” The State and the court agreed . But
before th e next scheduled hearing could occur, Nie lsen obtained new

counsel

, who asked the court to clarify its ruling on the motion to quash so that Nielsen could have a clean record on which to seek interlocutory appeal of the decision pre

- bindover

. In a telephone

conference , d efense counsel admitted that “ one of the difficult issues ”

in the case was that they did not know “ precisely what [A.N.] would

say .”

¶19 The magistrate then issued a written ruling reaffirming the original decision

, h olding that “ [d] efendant’s assertion that he has an

unrest rained right to call A.N. as a witness at his preliminary hearing

_____________________________________________________________

10 Nielsen asked the forensic interviewer about his notes, for example, but not his questioning of A. N.S TATE v. L OPEZ
Opinion of the Court

8 is entirely inconsistent with the overall intent expressed in the rules and statutes governing preliminary hearings ,” and that the purpose of the V ictims’ R ights A mendment was to “excuse vic tims from having to appear at the preliminary examination .” In particular, the court noted victims’ constitutional rights to “be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.” U TAH C ONST

. art. I, § 28 (1)(a)

. The court also concluded that if Nielsen’s subpoena were “characterized as an effort to exercise his right to cross

- examination ,”

then “ Timmerman [2009 UT 58] and Crawford [ v. Washington , 541 U.S. 36 (2004)] have explicitly rejected that argument.”

¶20 Nielsen petition ed for interlocutory review of the order, which we granted. As the parties had agreed, the magistrate stayed the proceedings and delayed any decision on bindover.

II . L.L.’S RIGHT TO APPEAL

¶21 A threshold qu estion in the Lopez case concerns the proper avenue for challenging a decision on a motion to quash a defendant’s preliminary

- hearing subpoena. Lopez’s alleged victim, L.L., filed a direct appeal of right, apparently on the theory that the decision in the Lopez case was effectively “final” under our law. As an apparent backup, L.L. also petition ed for interlocutory appeal

— a petition
which we “provisionally” granted

, subject to briefing on whether L.L. has standing to seek appellate review

. ¶22 W e undoubtedly ha ve jurisdiction to hear the case , having
grant ed the State’s petition for interlocutory appeal. See U TAH C ODE § 78A

- 3

- 102(3)(h) (“ The Supreme Court has appellate jurisdiction

. . .

over

. . . interlocutory appeals from any court of record involving a charge of a first degree or capital felony .”). And L.L. clearly has both

the standing and right to pursue an interlocutory appeal from the denial of her motion to quash , as she would be forced to testify

otherwise and has a statutory right to s eek an appeal from an “[a]dverse ruling[]” on her motion “under the rules governing appellate actions.” U TAH C ODE § 77

- 38

- 11(2)( b)

. 11 Yet L.L. urges us to

_____________________________________________________________

11 See also Haik v. Jones , 2018 UT 39, ¶ 18, 427 P.3d 1155 (holding that the traditional standing test “requires a plaintiff to show some distinct and palpable injury that gives rise to a personal stake in the outcome of the disput e.” ( citation and internal quotation marks omitted)); State v. Brown , 2014 UT 48, ¶ 16, 342 P.3d 239 (holding that “[t] he t raditional parties to a criminal proceeding are the prosecution and the defense, ” but that “ does not eliminate the possibility that a (continued . . .)Cite as: 2020 UT 61

Opinion of the Court

9 decide whether she also has a right to file a direct appeal , emphasizing the upsides of our providing clarity on the matter.

¶23 We agree with the need to address this issue but disagree with the notion that L.L. has a right to a direct appeal. Clarity in our articulation of the law of appellate jurisdiction is important. See Utah Down Syndrome Found

. , Inc. v. Utah Down Syndrome Ass’n , 2012 UT 86, ¶ 16, 293 P.3d 241 ( explaining that “certainty is critical” and “bright

line rules” are helpful on matters of appellate jurisdiction ). And for that reason we exercise our discretion to resolve the question

pr esented despite the fact that our decision is not required.

¶24 We conclude, however, that the proper mechanism for appeal in this circumstance is a petition for interlocutory appeal. Our rules, as interpreted in our case law, provide only for a discretionary petition for interlocutory appeal

, not a direct appeal of right.

¶25 Federal case law endorses the notion of a “collateral order”

doctrine. See Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546

– 47 (1949)

. This doctrine treats as final (and appealable) a ruling that is otherwise interlocutory but conclusively determines a “ claim[] of right” that is ”separable from” and “collateral to” the underlying action, and that would be “effectively ” unreviewable on appeal from a final judgment. Id. at 546. The ter ms and conditions of this doctrine could potentially be established here, where the refusal to quash a subpoena compel ling victim testimony is conclusive and separate

from the criminal charges against the accused and could be deemed “effectively ” unreviewa ble on appeal from a final judgment. But we
have thus far declined to adopt the collateral order doctrine as a

matter of Utah law. See Mecham v. Frazier , 2008 UT 60, ¶ 12, 193 P.3d 630 (“[I]n Utah, there is no collateral order doctrine.”) ; Tyler v. Dep’t of

Human Servs. , 874 P.2d 119(Utah 1994) (per curiam) (declining to adopt the federal collateral order doctrine on the ground that Utah law provides sufficient avenues for obtaining review of nonfinal orders)

. And we have identified th re e specific av enues for appeal from a nonfinal judgment in our courts : petition for interlocutory appeal under appellate rule 5, certification under civil rule 54(b), and petition for extraordinary relief under civil rule 65B(e). Tyler , 874 P.2d

at 1 20. We have determin ed that these avenues provide Utah courts

_____________________________________________________________ victim may qualify as a limited

- purpose party

— with standing to

assert a claim ”); State v. Casey , 2002 UT 29, ¶ 22, 44 P.3d 756 (recognizing that “ crime victims possess the right to appeal rulings on motions related to their rights as a victim ”).S TATE v. L OPEZ
Opinion of the Court

10 with “ample power” to consider granting “immediate review” where “appropriate

. ” Id. ( “ O ur rules allowing discretionary review provide parties an opportunity to convince an appellate court that the issue

raised is s o important that review prior to full adjudication of the case is justified or that the order will escape review altogether if an appeal

is not allowed

. ” ).

¶26 These principles control our decision here. There is no final judgment in the case before us on rev iew

— indeed

, the case is at a very preliminary stage. For that reason, the appellate avenues available to

L.L. are those set forth under our case law

. 12 L.L accordingly has no direct appeal available of right and is limited to a discretionary appeal

under a ppellate rule 5. Because she properly pursued that avenue and undoubtedly has standing, we affirm our jurisdiction to hear her appeal in addition to the State’s

.
II I

. THE STANDARD FOR JUDGING THE QUESTIONS

PRESENTED ON APPEAL

¶27 We turn next to the standard for judging a motion to quash a subpoena directed to an alleged victim in a preliminary hearing. This is a complex question of first impression that requires us to balance

defendants ’ rights under our rules and constitution against victims ’

ri ghts under the same

— in particular

, the Victims’ Rights Amendment adopted in 1995.

¶28 In asserting a right to subpoena their alleged victim s to testify

at their preliminary hearing s , the defendants rely first on rule 7B(a) of our rules of criminal procedure

— a provision that states that a defendant in a preliminary hearing “may testify under oath, call

_____________________________________________________________

12 Our cases have recognized a direct appeal of right from the entry

of at least one form of non

- final order

— an order denying a motio n to

intervene. See Brigham Young Univ. v. Tremco Consultants, Inc. , 2007 UT 17, ¶ 17 , 156 P.3d 782; Commercial Block Realty Co. v. U.S. Fid. & Guar.

Co. , 28 P.2d 1081, 1082 (Utah 1934). But this case does not involve that

kind of non

- final order, and L.L. has neither cited these cases nor suggested that they are implicated by the denial of a motion to quash.

For that reason we need not and do not decide whether or how our cases on intervention may be reconciled with our general rejection of

a collateral or der doctrine. Instead we hold that L.L. has not established a right to an appeal of right in a case like this one. And we leave any questions about our precedent on denial of a motion to intervene for a case in which these cases are squarely presented and briefed by the parties.Cite as: 2020 UT 61

Opinion of the Court

11 witnesses, and present evidence.” T hey then invoke their right to “compulsory process” under article I, section 12 of the Utah

Constitution. 13

¶29 The magistrate in t he Lopez case endorsed the defendants’ general view. In denying the motion to quash, the magistrate noted

that Lopez had an “explicit right to call witnesses” under rule 7B(a) and concluded that no constitutional provision, statute, or procedural rule “exp licitly provides that a child sex abuse victim cannot be called to testify at a preliminary hearing.” The magistrate acknowledged that it could not “see a likely basis” for concluding “that questioning the child victim in this case would defeat probable ca use .

. . where the State has met its burden for bindover during its prima facie case

. ” B ut
it nonetheless ruled that Lopez was not required to “show a particular likelihood that calling the child victim [would] defeat probable cause prior to exercising hi s right to call the child victim.” In light of the “low probable cause standard,” the magistrate thought that “if defendants were required to make such a showing prior to subpoenaing and questioning witnesses, the Court would be required to quash defense w itnesses’ subpoenas in every case and defendants’ right to call witnesses under rule 7B .

. . would be illusory.” The court

_____________________________________________________________

13 In the proceedings below, Lopez did not even quote the Compulsory Process Clause, opting instead to make a vague reference to article I, section 12 of the Utah Constitution. This is insufficient. See Bank of Am. v. Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196 ( “A party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case .

. . .”). We address the issue only with respect to Nielsen, since he did grapple with and m ake an argument respecting the text of the Compulsory Process Clause. On appeal, Lopez

— and, in more vague terms, Nielsen

— also seek to base their right to compel testimony of the alleged victims in the

Due Process Clause. But neither Lopez nor Nielsen prese rved this

claim below

— either in their memoranda opposing the motions to quash the subpoenas or in argument before the court. Lopez’s counsel did mention “due process” once while arguing in the court below, but that was in connection with an argument over a defendant’s right to a preliminary hearing. And Nielsen made only a vague insistence that his subpoena protected a “substantial right.” These vague allusions to due process are not enough to preserve the due process claim pursued in the briefs on appeal. And we decline to reach this claim on preservation grounds.S TATE v. L OPEZ
Opinion of the Court

12 thus recognized its authority to “quash or modify [a] subpoena if compliance would be unreasonable” under the terms of criminal rule 14(a)(2), but held that the subpoena at issue was “not unreasonable

under the facts and circumstances of [ the ] case,” including the “mature demeanor” of the alleged victim and the fact that the courtroom would be relatively empty during the preliminary hearing

. Still, the court modified the subpoena by requiring that Lopez remain in a holding cell while L.L. testified and indicati ng that further accommodations might be added as required.

¶30 The court i n the Nielsen case granted the motion to quash. In so doing

, the magistrate concluded that Nielsen’s “ assertion that he has an unrestrained right to call” an alleged victim “as a witness at his preliminary hearing is entirely inconsistent with the overall intent expressed in the rules and statutes governing preliminary hearings .”

The court also cited Utah Rule of Evidence 1102(b)(7) and Utah Rule

of Criminal Procedure 15.5 , which open th e door to the admission of hearsay testimony by victim s under fourteen years of age in certain

circumstances

. 14 It further held, quoting State v. Nguyen , that these rules are aimed at “prevent[ing] child victims from being further traumatized by the experi ence of testifying of their abuse in court.” 2012 UT 80, ¶ 22, 293 P.3d 236. And it noted that article I, section 28 of

the Utah Constitution provides that “victims of crime have their own independent rights to justice and due process, and demands that the y ‘be treated with fairness, respect, and dignity, and to be free from

harassment and abuse throughout the criminal justice process.’” Finally, the court ruled that to the extent the Nielsen subpoena was an attempt “to exercise [a] right to cross [

- ] examination,” th at argument was foreclosed by State v. Timmerman , 2009 UT 58, ¶ 9, 218 P.3d 590,

and Crawford v. Washington , 541 U.S. 36, 40 (2004).

¶31 We appreciate and commend the work of the magistrates for their careful attention to the difficult question s presented in the two

cases before us i n this consolidated opinion . Their reasoned analysis has helped to sharpen the questions presented for our review

— questions that require a careful balance of seemingly competing

_____________________________________________________________

14 U TAH R. E VID

. 1102(b)(7) (“ For purposes of criminal preliminary examinations only, reliable hearsay includes [] .

. . a statement made by a child victim of physical abuse or a sexual offense whic h is

recorded in accordance with Rule 15.5 of the Utah Rules of Criminal

Procedure ”); U TAH R. C RIM

. P. 15.5 (laying out the proper procedures for recording such testimony).Cite as: 2020 UT 61

Opinion of the Court

13 provisions of law and that have never before been considered by this

court.

¶32 We conclude that the key to balancing these various provisions is the insight that any general ability a defendant may have to compel his alleged victim to testify in a preliminary hearing must be understood in light of the court ’s authority to “quash or modify [a] subpoena if compliance would be unreasonable.” U TAH R. C RIM

. P. 14(a)(2). And we hold that that reasonableness inquiry must account
for a range of limitations on a defendant’s ability to compel an alleged

vi ctim to testify

— the constitutionally limited purpose of a preliminary hearing

, the State’s ability to rely on reliable hearsay, the low bar that applies in a decision to bind a defendant over for trial

, and other victim protections set forth in the 1995 Vi ctims’ Rights Amendment to the Utah Constitution. With these provisions in mind, we hold that once the State has used a victim’s reliable hearsay to
make a prima facie showing of probable cause, a subpoena compel ling the victim to give additional, live testimony will survive a motion to quash only if the defendant demonstrates that the subpoena is necessary to the presentation of specific evidence that is reasonably likely to defeat the showing of probable cause.

¶33 We develop the basis for our holdings in the paragraphs

below. We first discuss a defendant ’s ability to call witnesses at a preliminary hearing and identify an important limitation

— the power of a court to quash a subpoena where “compliance would be
unreasonable.” We then conside r a series of provisions in our law that inform the inquiry into the reasonableness of a subpoena compelling an alleged victim at a preliminary hearing. And we conclude by articulating the governing standard in greater detail.

A. The Defendant’s Ability to “ Call Witness es” at a Preliminary Hearing

¶34 The threshold question concerns the existence of an alleged “right” to subpoena a witness to testify at a preliminary hearing.
Defendants’ first

- cited basis for the existence of such a “ right ” is
criminal rule 7B

. That rule governs preliminary hearings . It provides in relevant part that “[a]t the conclusion of the state’s case, the defendant may testify under oath, call witnesses , and present
evidence.” U TAH R. C RIM

. P. 7B (a) (emphasis added). The Lopez court

cited th is language, noted the absence of an “explicit [] ” protection for alleged victims , and concluded that the “ right ” to “call witnesses” would be “illusory” if it were conditioned on a requirement of proof
of a “ particular likelihood” that a subpoenaed witness w ould defeat probable cause.S TATE v. L OPEZ
Opinion of the Court

14 ¶35 Defendants also invoke the C ompulsory P rocess C lause of article I, section 12 of the Utah Constitution

. They note that this provision states that “the accused shall have the right” to “compulsory process to compel the attendance of witnesses” in “criminal prosecutions.” U TAH C ONST

. art. I, § 12 (emphasis added)

. And they assert that this provision applies to a preliminary hearing , presumably as the first step in a “criminal prosecution[].” 15 Id.

¶36 The State and Lopez’s a lleged victim (L.L.) challenge this latter proposition. They contend that the constitutional compulsory process right applies with limited force , if at all, in a preliminary hearing

— especially after the adoption of the Victims’ Rights

Amendment

. They likewise challenge the breadth of any rule

- based right to “call witnesses” at a preliminary hearing, asserting that rule 7B(a) says only that the defendant “may” call witnesses, and contending that any such authority must be limited by other provisions of the criminal rules and by the terms and conditions of the Victims’ Rights Amendment to the Utah Constitution.

¶37 The State and L.L. cite our decision in State v. Ti mmerman , 2009 UT 58, 218 P.3d 590, in support of their position. They note that in that case we held that the 1995 Victims’ Rights Amendment “clearly

removed confrontation rights from the pre liminary hearing stage” of a

criminal case and overrul ed our prio r decision in State v. Anderson

, 612 P.2d 778, 784

– 85 (Utah 1980) , on this point. Timmerman , 2009 UT 58, ¶ 15 (emphasis added)

. And the State ask s us to hold that the cited legal grounds for the purported right to compel an alleged victim to testify at a p reliminary hearing are nothing more than an attempted

end run around Timmerman

. ¶38 The governing provision of the Victims’ Rights Amendment expressly states that “[n]othing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary examination to determine probable cause

. . . if appropriate discovery is allowed as defined by statute or rule.”

_____________________________________________________________

15 Defendants’ amicus, the Utah Association of Criminal Defense Lawyers (UACDL), mak es a similar argument by pointing to Utah

Code section 77

- 1

- 6(1)(e), which provides that “[i]n criminal prosecutions the defendant is entitled .

. . [t]o have compulsory process to insure the attendance of witnesses in his behalf.” UACDL asks us to uphold the statutory right to “compulsory process” and to hold that it applies at the preliminary hearing stage. Our analysis on the Compulsory Process Clause applies with equal force to this
statutory argument.Cite as: 2020 UT 61

Opinion of the Court

15 U TAH C ONST

. art. I, § 12. Citing this provision, the State and L.L. ask

us to conclude that there can be no blanket “right” to subpoena victim testimony at a preliminary hearing. They argue that i f defendants can compel their alleged victims to undergo adverse questioning simply by calling them as their “own” witnesses , then the State’s authority to

rest on reliable hearsay will never be of any practical effect, and we will rob the constitutional proviso of its intended effect.

¶39 We think both sides overplay their hand to some degree. The cited provision of the Victims’ Rights Amendment, for one thing, is not dispositive. It says only that “[n]othing in this constitution shall preclude the use of reliable hearsay” in the determination of “probable cause.” Id. (emphasis added). That lea ves room for the

revival of a right to c ompel and confront witness es as a matter of legislative or judicial policy. See id. (allowing the “use of reliable hearsay evidence as defined by statute or rule ” (emphasis added)). And that leaves open the question s whether and to what extent the terms of the code or our rules preserve a defendant’s right to subpoena

witnesses.

¶40 Yet the governing rules and statutes cannot be read to enshrine an unfettered “right” to subpoena victim witness es to testify at a preliminary hearing. Rule 7B(a) speaks to the general authority of

a defendant to make his own case at a preliminary hearing. See U TAH
R. C RIM

. P. 7B(a) ( “At the conclusion of the state ’ s case, the defendant may testify under oath, call wi tnesses, and present evidence.”). And the ability to “call witnesses” at least arguably encompasses the general power to subpoena witnesses. 16 But any such power is expressly subject to limitation

— by the rules themselves as well as the

terms and conditions of the Utah Constitution. The threshold limitation appears in criminal rule 14(a)( 2 ), which provides that “[t]he court may quash or modify [a] subpoena if compliance would be

unreasonable .” Id. 14(a)( 2 ) (emphasis added). Th is reas onableness standard vests a degree of discretion in the court. But that discretion must be exercised in light of legal standards that speak specifically to the question presented. And here those standards include provisions that appear both elsewhere in ou r rules and in the terms and conditions of the 1995 Victims’ Rights Amendment. See U TAH R. C RIM

.

_____________________________________________________________

16 Alternatively, the ability to “ call witnesses” ma y just encompass the defendant’s right to present evidence through witnesses who agree to appear. We do not resolve this question conclusively here because it is unnecessary to our decision.S TATE v. L OPEZ
Opinion of the Court

16 P. 14 advisory committee notes (noting the need to consider “ a victim’s state constitutional right ‘[t]o be treated with fairness, respect,

and dignity, and to be free from harassment and abuse throughout the criminal justice process ’ ” in assessing the parallel terms of rule 14(b) (alteration in original) ).

¶41 We elaborate on the governing limits informing the “unreasonableness” inquiry in Part III ( B ) . Here

, we conclude only that (a) neither Timmerman nor the constitutional proviso that “[n]othing in this constitution shall preclude the use of reliable hearsay

, ” U TAH
C ONST

. art I, § 12, forecloses limitations on the admissibility of hearsay

set forth by rule or statute, but (b) a subpoena of a victim witness may be quashed as “unreasonable” in light of governing provisions of our law that speak to the limited purpose of the preliminary hearing

, the

low burden of proof that governs the bindover decision , and victims’ rights under the Utah Constitution.

¶42 These holdings preserve a meaningful, non

- illusory role for a defendant’s ability to “call witnesses” at a preliminary hearing under

criminal rule 7B. 17 They also obviate the need for us to conclusively

r esolve the question whether a defendant has a rule

- based, statutory

, or constitutional “compulsory process” right to subpoena witnesses to testify at a preliminary hearing. We can assume for the sake of argument that such a right exists because even if it does, there is no basis for the conclusion that it is categorical or unlimited. Defendants

and their amic us identify no persuasive basis for such a

determination. For that reason

, we hold that any authority a

defendant has to subpoena witnesses at a preliminary hearing

— whether by rule, statute, or the constitution

— is subject to rule 14(a)(2)’s “unreasonableness” limitation. And we conclude that the

u nreasonableness inquiry must be performed in light of the provisions set forth below.

_____________________________________________________________

17 We see at least two potential problems with the Lopez court’s

c onclusion that a decision granting the motion to quash would render a defendant’s ability to “call witnesses” illusory. First, it assumes that “call” equates to “compel.” See supra ¶¶ 40, 40 n.16. Second, it conflates “witnesses” in general with “alleged v ictims.” A defendant may be limited in his ability to subpoena his alleged victim (for the reasons laid out in this opinion) without being deprived of a right to
“call witnesses” at all.Cite as: 2020 UT 61

Opinion of the Court

17 B. Legal Principles Informing the Inquiry into “Unreasonableness”

¶43 The inquiry into the unreasonableness of a subpoena directed

at a n alleged victim in a preliminary hear ing is informed by a series of important tenets of Utah law.

1. The Purpose of the Preliminary Hearing

¶44 The first relevant principle is found in limitations on the purpose of the preliminary hearing . Prior to the ratification of the 1995 Victims’ Rights Am endment to the Utah Constitution, this court had held that a preliminary hearing was at least in part “a discovery
device”

— a “means by which” the defendant could “discover and preserve favorable evidence.” State v. Anderson , 612 P.2d 778, 784 (Utah 1980 )

. But that “ancillary” function of the preliminary hearing,

id

. , was eliminated by the constitutional amendment ratified in 1995.

Under th at amendment, the “function” of the preliminary hearing “ is limited to determining whether probable cause exists unless otherwise provided by statute.” U TAH C ONST

. art. I, § 12. This

amendment was thus a direct override of Anderson on this point

. See

State v. Goins , 2017 UT 61, ¶ 44, 423 P.3d 1236 (acknowledging that past cases might need to be revisited if they were decided before the

1995 a mendment “limited the purpose of preliminary hearings”). The

amendment eliminated the ancillary discovery purpose of the preliminary hearing a nd limited that proceeding to the determination of probable cause.

2. Hearsay Evidence in the Preliminary Hearing

¶45 The 1995 amendment also established that the Utah

Constitution would not stand as a bar to “ the use of reliable hearsay

evidence as defined b y statute or rule .

. . at a ny preliminary examination to determine probable cause.” U TAH C ONST

. art I, § 12. This was again an override of an element of our decision in Anderson

. Anderson had established a confrontation right at the preliminary hearing

— a right “not only of testing the recollection and sifting the conscience” of an adverse witness, but also “of compelling him to

stand face

- to

- face” with the defendant in court. 612 P.2d at 785. But by “allowing hearsay” evidence to establish probable cause, the 1995 amendment “removed confrontation rights from the preliminary hearing stage and overruled Anderson’s holding on this point.” State v.

Timmerman

, 2009 UT 58, ¶ 15 , 218 P.3d 590

. This left the “[a]dmission of evidence at preliminary hearings .

. . exclusively governed by the reliable hearsay language in the Utah Constitution and rule 1102 of
the Utah Rules of Evidence.” Id. ¶ 16. And r ule 1102, in turn, defines “reliable hearsay” to encompass “ s tatement [s] made by a child victimS TATE v. L OPEZ
Opinion of the Court

18 of physical abuse or a sexual offense ” that are “recorded in accordance with [r]ule 15.5 of the Utah Rules of Criminal Procedure.” U TAH R.

E VID

. 1102(b)(7).

3. The Burden of Proof at the Preliminary Hearing

¶46 T he State bea rs the burden of establishing the basis for binding a defendant over for trial

. State v. Jones , 2016 UT 4, ¶ 11, 365
P.3d 1212. But th e burden i s “light

. ” Id . ¶ 12. T he only “ question at the preliminary hearing is whether the prosecution has presented

evid ence sufficient to sustain ‘ probable cause. ’ ” I d. To make this showing, t he prosecution need not produce evidence sufficient to “support[] a finding of guilt at trial” or even to “eliminate alternative

inferences that could be drawn from the evidence in favor of the
defense.” Id. ¶ 13 (citations and internal quotation marks omi tted). All that is necessary is a presentation of “evidence sufficient to support a

reasonable belief that an offense has been committed and that the
defendant committed it.” State v. Schmidt , 2015 UT 65, ¶ 1 7 , 356 P.3d 1204 ( citation and internal quotatio n marks omitted).

¶47 Accordingly, i t is generally “ inappropriate for a magistrate to weigh credible but conflicting evidence at a preliminary hearing

. . . .” State v. Virgin , 2006 UT 29, ¶ 24, 137 P.3d 787. This hearing “is not a
trial on the merits” but “a gateway to the finder of fact.” Id. (citation and internal quotation marks omitted). With this in mind, the magistrate may “disregard or discredit” evidence only if it is “ wholly lacking and incapable of creating a reasonable inference regarding a portion of the prosecution ’ s claim. ” Id

. (citation and internal quotation marks omitted).

¶48 Under this low bar, it may be difficult for the defense to

overcome a prima facie showing of probable cause

. E ven a n alleged
victim’s recantation may sometimes be insufficient , given that the magistrate “must view all evidence in the light most favorable to the prosecution and draw all reasonable inferences in favor of the prosecution.” See Schmidt , 2015 UT 65, ¶ 4 (footnote and internal quotation marks omitted). Th e governing standard is the one we

articulated in Schmidt : The magistrate is not “to evaluate the totality

of the evidence in search of the most reasonable inference at a preliminary hearing”; instead, the “magistrate has discretion to

decline bindover onl y where the facts presented by the prosecution provide no more than a basis for speculation.” Id. ¶ 18 (citations and internal quotation marks omitted)

. 4. The Rights of Victims at the Preliminary Hearing

¶49 Finally, c rim e victims have extensive rights in cri minal justice proceedings in Utah. The 1995 amendment to the Utah ConstitutionCite as: 2020 UT 61

Opinion of the Court

19 establish ed a right of crime victims “[t]o be treated with fairness, respect, and dignity,” and a right to “be free from harassment and abuse throughout the criminal justice pro cess.” U TAH C ONST

. art I, § 28 (1)(a)

. These rights are further delineated by statute. Under Utah

Code section 77

- 38

- 2, the victim’s right to “fairness” encompasses the right to be treated “reasonably, even

- handedly, an d impartially,” id. § 77

- 38

- 2(3)

, the right to be free from “abuse” is a right to be free from treatment that would “injure, damage, or disparage

, ” id. § 77

- 38

- 2(1)

, and the right to be free from “harassment” is the right to be free from being treated “in a persistently annoying manner,” i d. § 77

- 38

- 2(4)

. A lso relevant to this case is the neighboring provision that states that “[c]hildren have the right to protection from physical and emotional abuse during their involvement with the criminal justice process.” Id. § 77

- 37

- 4(1).

C. The Stand ard for Determining Whether a Subpoena of a Victim

Witness at a Preliminary Hearing is “Unreasonable”

¶50 The above sets the stage for our articulation of the standard for judging whether a subpoena directed to a n alleged victim at a preliminary hearing is unr easonable. Four principles inform our statement of the standard: (1) the sole purpose of the preliminary hearing is the determination of probable cause; (2) reliable hearsay

evidence

— including statements made by a child victim of abuse

under the terms of r ule 1102

— may be sufficient to establish probable cause; (3) the probable cause standard

— requiring evidence sufficient to support a reasonable belief that an offense has been committed and

that the defendant committed it

— leaves little room for the magistrat e to judge witness credibility and is difficult for a defendant to overcome; and (4) crime victims have a right t o be treated with

“ fairness, respect, and dignity, ” and to “be free from harassment and abuse throughout the criminal process.” U TAH C ONST

. art I, § 28(1)(a).

¶51 These legal principles foreclose the defendants’ assertion of a

“ right ” to c ompel a victim to testify at a preliminary hearing without showing how such testimony could affect the prosecution’s prima facie showing of probable cause. A subpoena in service of such a right

would be unreasonable in light of the principles set forth above. It would exceed the bounds of the constitutional purpose of the preliminary hearing, effectively override the law endorsing the sufficiency of hearsay evidence in establishing probable cause, supersede the govern ing standard for establishing probable cause, and ultimately intrude on the constitutional and statutory rights of

victims.S TATE v. L OPEZ
Opinion of the Court

20 ¶52 The la st point is sustained by extensive social science material put forward in the briefing submitted by L.L. That material identi fies some patterns that typically appear in the interactions between a perpetrator and victim of child sex abuse: a perpetrator who “desensitize[s]” a child victim after “befriend[ing]” her by increasing
levels of abuse from minimal acts to more “invasive” ones; a child who becomes so emotionally traumatized that she finds it difficult to resist or disclose the abuse; and a period of delay in reporting that may cause the child to feel somehow responsible for the abuse or

believe that it has become consensua l. See Thomas D. Lyon & Julia A.
Dente, Child Witnesses and the Confrontation Clause , 102 J. C RIM

. L. &

C RIMINOLOGY 1181, 1203

– 12 ( 2012). T he social science literature also establishes that the experience of testifying about past abuse may cause substantia l emotional trauma for victims of child sex abuse. See Jim Henry, System Intervention Trauma to Child Sexual Abuse Victims Following Disclosure , 12 J. I NTERPERSONAL V IOLENCE 499, 501, 50 8 ( 1997 ) . And it indicates that forcing such victims to “continually repeat their abuse stories” can “connect[] children with painful memories and may reinforce the internalization of guilt and shame experienced in sexual abuse,” id

. at 508 , and “reduce the child’s resilience and make the child more susceptible to distress.” L. Christine Brannon, The Trauma of Testifying in Court for Child Victims of Sexual Assault v. The Accused’s Right to Confrontation

, 18 L

. & P SYCHOL

. R EV

. 439 , 442 (1994).

¶53 The above points are controlling. A defendant has the general

authori ty to “call witnesses” at a preliminary hearing, but a subpoena compelling alleged victims to testify is per se “unreasonable” whe n it seeks testimony that is immaterial to the probable

- cause determination, would obviate the legal sufficiency of hearsay

ev idence, and would unnecessarily intrude on the rights of victims.

¶54 With th is in mind, we conclude that the starting point for assessing the reasonableness of a subpoena aimed at compelling an alleged victim of sex abuse to testify at a preliminary hearing is a prima facie determination of probable cause. See U TAH R. C RIM

. P. 7B(a) (“ At the conclusion of the state’s case , the defendant may

. . . call witnesses [] and present evidence. ” (emphasis added)). A decision on whether to quash such a subpoena, in other words, should come after the prosecution presents its case and the magistrate is able to determine whether the prosecution has presented evidence that at that stage would sustain a determination of probable cause. See id. ; s ee also U TAH
C ONST

. art. I, § 12 (“ Where the defendant is otherwise entitled to a preliminary examination, the function of that examination is limited to determining whether probable cause exists unless otherwiseCite as: 2020 UT 61

Opinion of the Court

21 provided by statute. ”). If the magistrate d etermines that this is so , the inquiry then turns to whether the subpoena of the alleged victim is

unreasonable. U TAH R. C RIM

. P. 14(a)(2) (“ The court may quash or modify the subpoena if compliance would be unreasonable. ”). That

assessment should be made o n the basis of the defendant’s showing

that additional, live testimony from the victim is necessary to present
evidence on a specific point material to the probable

- cause determination , and that is reasonably likely to defeat the State’s prima facie showin g of probable cause. 18

¶55 The above sequencing of this inquiry will best balance the competing interests and rights of both the defendant and the alleged victim. On one hand, it will preserve the defendant ’s opportunity to “call witnesses” under criminal rule 7B(a). On the other hand , it will

maintain the court ’s power to quash a subpoena that would be “unreasonable” as applied to a given victim after account ing for the circumscribed function of the preliminary hearing, the low probable

- cause standard, and vic tims ’ rights

. ¶56 Our standard speaks to the grounds on which a subpoena should be quashed as a matter of law

— where a prima facie showing of probable cause has been established through a victim’s reliable hearsay , and where the defendant is unable to identify a need to
present additional, live testimony from the victim on a specific point
that is material to the probable

- cause determination and reasonably likely to defeat the State’s prima facie showing. But this standard is not

exhaustive. It should not be read to exclude other means and

measures that a court m ight undertake under criminal rule 14(a)(2). That rule speaks of the power of the court to “quash or modify ” a subpoena “if compliance would be unreasonable .” Id. (emphasis added). And the court may see a need to further modify or limit a subpoena on a case

- by

- case basis.

IV

. DISPOSITION

¶57 We now have only to dispose of the cases at issue

. Applying the above standard, we reverse the Lopez court and affirm the Nielsen

court

. ¶58 In the Lopez case, the court denied the motion to quash on the basis of an essentially unfettered right to subpoena witnesses

_____________________________________________________________

18 Such a showing would be difficult, if not impossible, for example, where the grounds to be covered by the live witness could just as effectively be presented by other means.S TATE v. L OPEZ
Opinion of the Court

22 under criminal rule 7B (a) . That was error. We reverse that decision on the ground that Lopez made no attempt to show that additional, live testimony from the alleged victim was material to the probable

- cause determination

— let alone that there was no other way to present that

evidence or that such testimony wa s reasonably likely to defeat the
State’s prima facie showing of probable cause. Instead, he claimed that

he did not need to justify the subpoena in any way

— he was simply
“entitled” to “find out some more of the details

, ” e ven if L.L.’s compelled testimony ultimately supported rather than undermined the State’s probable

- cause showing. Because Lopez refused to explain why compelling L.L.’s testimony was necessary and reasonably likely

to defeat the State’s prima facie showing of probable cause , we reverse th e court’s denial of L.L.’s motion to quash.

¶59 We affirm the Nielsen court on similar grounds

. Admittedly

, the Nielsen court granted the State’s motion to quash A.N.’s subpoena at the start of the preliminary hearing, before the State had even presented its evidence . But when Nielsen objected, he did not name anything specific that he hoped A.N.’s testimony would provide. H e just baldly asserted that he was entitled to “test the State’s evidence.” This point was further reinforced in a telephone conference in which Nielsen’s counsel openly acknowledged that “one of the difficult issues” in the case was that they did not know “precisely what [A.N.] would say.”

¶60 Nielsen’s all

- or

- nothing position

— that he had “an unrestrained right” to call the allege d victim “as a witness at his preliminary hearing”

— was wrong

. A nd the magistrate was accordingly correct to grant the motion to quash under these

circumstances . We affirm the decision in the Nielsen case on that limited basis, without any intent to influen ce any future bindover decision under the probable cause standard

.
V . CONCLUSION

¶61 Th e s e case s arise at the difficult intersection between the rights of defendants and the rights of alleged victims in preliminary hearing s

. We hold that any power a defendant has to c ompel a victim

witness to testify at a preliminary hearing is limited by the court’s authority to quash unreasonable subpoena s . And we conclude that

that reasonableness inquiry must be informed by the standards that govern preliminary hearings and the rights that our law guarantees

for crime victims

.