This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 61

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH and L.L.,

Appellants,

v.

IVAN MICHAEL LOPEZ,

Appellee.

STATE OF UTAH,

Appellee,

v.

DARIN CHASE NIELSEN,

Appellant.

Nos. 20180940, 20180945, 20180952, and 20190272

Heard April 8, 2020

Filed August 18, 2020

On Consolidated Appeal of Interlocutory Orders

Third District, Salt Lake

The Honorable James T. Blanch

No. 181907088

Fourth District, Provo

The Honorable Robert C. Lunnen

No. 181100038
STATE v. LOPEZ

Opinion of the Court 

2

Attorneys:

Sean D. Reyes, Att’y Gen., Tera 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

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,

AND JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Ivan Michael Lopez and Darin Chase Nielsen each stand

accused of engaging in illicit activities with children. Lopez is charged 

with furnishing alcohol to, raping, and otherwise sexually abusing a 

twelve-year-old girl (L.L.) in the back of his truck. Nielsen is charged 

with sexually abusing 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 Lopez’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 

asserting 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 

modify 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 clash 
Cite 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.” UTAH R. CRIM. 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) as well as the 

limited burden of proof on the State and the established rights of 

victims at such a hearing. Thus, we hold that once the State has used 

a victim’s reliable hearsay to make a prima facie showing of probable 

cause, a subpoena compelling the victim1 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 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 lays out the facts and procedural background of the 

Lopez and Nielsen cases. Part II answers a threshold question raised 

in the Lopez case—whether an alleged victim has a right to seek an 

interlocutory appeal or lodge a direct appeal from a magistrate’s

denial of a motion to quash her subpoena. Part III sets 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 applies this standard to the facts of the Lopez and Nielsen 

cases. Part V concludes.

_____________________________________________________________

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 UTAH CODE

§ 77-38-2(9)(a) (“‘Victim of a crime’ means any natural person 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)).
STATE v. LOPEZ

Opinion of the Court 

4

I. BACKGROUND2

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, 

however, 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 placing his mouth on her breasts.3

¶7 A homeowner called the police after noticing 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 twelve 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 that 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, an investigating 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 quotation 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.
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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 

subpoena compelling 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, the 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 supported 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.” In particular, it noted L.L.’s “mature 

demeanor” and the 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 facie 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 low 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 UTAH CODE § 76-5-402.1.

6 Id. § 76-5-404.1(4).

7 Id. § 32B-4-403.
STATE v. LOPEZ

Opinion of the Court 

6

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

witnesses under rule 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 proceedings 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 “bottom” with a “part” 

that was “round,” the “color of skin,” and close to his belly button, as 

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 grievous 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 subpoena. In opposing the latter 

motion, Nielsen argued that while 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

hearings 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 bindover, 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 UTAH CODE § 76-5-404.1(4). At the time, Nielsen was on parole 

for a prior conviction of aggravated sexual abuse of a child.
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Opinion of the Court

7

¶16 The court began the preliminary hearing by granting the 

State’s motion to quash the A.N. subpoena. In so doing, the court cited

Utah’s policy of allowing reliable hearsay in preliminary hearings as 

laid out in rules 7B and 15.5 of the Utah Rules of Criminal Procedure, 

rule 1102 of the Utah Rules of Evidence, article 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, asserting that “[n]o 

witness except [A.N.] can eviscerate and make incredible the State’s 

alleged claims to probable cause,” that “[w]ithout context, the 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 reaffirmed 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 manner 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 asked that the magistrate hear argument on the 

“strengths and weaknesses” of the CJC video once he (Nielsen) had 

seen the video and conferred with counsel “as to the presence or lack 

of presence of probable cause.” The State and the court agreed. But

before the next scheduled hearing could occur, Nielsen 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, defense 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, holding that “[d]efendant’s assertion that he has an 

unrestrained 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.
STATE v. LOPEZ

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 Victims’ Rights Amendment was to “excuse victims 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.” UTAH CONST. 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 petitioned 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 question 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 petitioned for interlocutory appeal—a petition 

which we “provisionally” granted, subject to briefing on whether L.L. 

has standing to seek appellate review.

¶22 We undoubtedly have jurisdiction to hear the case, having

granted the State’s petition for interlocutory appeal. See UTAH CODE

§ 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 seek an appeal from an 

“[a]dverse ruling[]” on her motion “under the rules governing 

appellate actions.” UTAH CODE § 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 dispute.” (citation and internal quotation marks 

omitted)); State v. Brown, 2014 UT 48, ¶ 16, 342 P.3d 239 (holding that 

“[t]he traditional 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 “brightline rules” are helpful on matters of appellate jurisdiction). And for 

that reason we exercise our discretion to resolve the question 

presented 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 terms and conditions of this doctrine 

could potentially be established here, where the refusal to quash a 

subpoena compelling victim testimony is conclusive and separate 

from the criminal charges against the accused and could be deemed 

“effectively” unreviewable 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 three specific avenues 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 120. We have determined 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”).
STATE v. LOPEZ

Opinion of the Court 

10

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

“appropriate.” Id. (“Our rules allowing discretionary review provide 

parties an opportunity to convince an appellate court that the issue 

raised is so 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 review—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 appellate 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. 

III. 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’

rights under the same—in particular, the Victims’ Rights Amendment 

adopted in 1995.

¶28 In asserting a right to subpoena their alleged victims to testify

at their preliminary hearings, 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 motion 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 order 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.” They then invoke their right to 

“compulsory process” under article I, section 12 of the Utah 

Constitution.13

¶29 The magistrate in the 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 “explicitly 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 cause . . . where the 

State has met its burden for bindover during its prima facie case.” But 

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 his 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 witnesses’ 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 make 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 preserved 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.
STATE v. LOPEZ

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 indicating that further 

accommodations might be added as required.

¶30 The court in 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 the door to the admission of 

hearsay testimony by victims 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 experience 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 they 

‘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,” that 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 questions presented in the two 

cases before us in 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 UTAH R. EVID. 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 which is 

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

Procedure”); UTAH R. CRIM. 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.” UTAH R. CRIM. 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 

victim 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 Victims’ 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 compelling

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 consider 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 Witnesses” 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.” UTAH R. CRIM. P. 7B(a) (emphasis added). The Lopez court 

cited this 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 would defeat 

probable cause.
STATE v. LOPEZ

Opinion of the Court 

14

¶35 Defendants also invoke the Compulsory Process Clause 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.” UTAH CONST. 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 alleged 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. Timmerman, 

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 preliminary hearing stage” of a 

criminal case and overruled our prior 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 asks us to hold that the cited 

legal grounds for the purported right to compel an alleged victim to 

testify at a preliminary 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), makes 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

UTAH CONST. 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 if 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 leaves room for the 

revival of a right to compel and confront witnesses 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 questions 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 witnesses 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 UTAH 

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

may testify under oath, call witnesses, 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). This reasonableness

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 our rules and in the terms and 

conditions of the 1995 Victims’ Rights Amendment. See UTAH R. CRIM.

_____________________________________________________________

16 Alternatively, the ability to “call witnesses” may 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.
STATE v. LOPEZ

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,” UTAH 

CONST. 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 

resolve 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 amicus 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 

unreasonableness 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 

conclusion 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 victims.” 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 an alleged victim in a preliminary hearing 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 Amendment 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 that amendment, the “function” of the preliminary hearing “is 

limited to determining whether probable cause exists unless 

otherwise provided by statute.” UTAH CONST. 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 amendment “limited the purpose of preliminary hearings”). The 

amendment eliminated the ancillary discovery purpose of the 

preliminary hearing and 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 by statute or rule . . . at any preliminary 

examination to determine probable cause.” UTAH CONST. 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 rule 1102, in turn, defines 

“reliable hearsay” to encompass “statement[s] made by a child victim 
STATE v. LOPEZ

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.” UTAH R.

EVID. 1102(b)(7). 

3. The Burden of Proof at the Preliminary Hearing

¶46 The State bears 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 the burden is “light.” Id. ¶ 12. The only “question at the 

preliminary hearing is whether the prosecution has presented 

evidence sufficient to sustain ‘probable cause.’” Id. To make this 

showing, the 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 omitted). 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, ¶ 17, 356 P.3d 

1204 (citation and internal quotation marks omitted).

¶47 Accordingly, it 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. Even an 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). The 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 only 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, crime victims have extensive rights in criminal justice 

proceedings in Utah. The 1995 amendment to the Utah Constitution
Cite as: 2020 UT 61

Opinion of the Court

19

established 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 process.” UTAH CONST. 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, and 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,” id. § 77-38-2(4). 

Also 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 Standard 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 an alleged victim at a 

preliminary hearing is unreasonable. 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 rule 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 magistrate 

to judge witness credibility and is difficult for a defendant to 

overcome; and (4) crime victims have a right to be treated with 

“fairness, respect, and dignity,” and to “be free from harassment and 

abuse throughout the criminal process.” UTAH CONST. art I, § 28(1)(a).

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

“right” to compel 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 governing standard for establishing probable cause, 

and ultimately intrude on the constitutional and statutory rights of 

victims. 
STATE v. LOPEZ

Opinion of the Court 

20

¶52 The last point is sustained by extensive social science material 

put forward in the briefing submitted by L.L. That material identifies 

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 consensual. See Thomas D. Lyon & Julia A. 

Dente, Child Witnesses and the Confrontation Clause, 102 J. CRIM. L. &

CRIMINOLOGY 1181, 1203–12 (2012). The social science literature also 

establishes that the experience of testifying about past abuse may 

cause substantial emotional trauma for victims of child sex abuse. See

Jim Henry, System Intervention Trauma to Child Sexual Abuse Victims 

Following Disclosure, 12 J. INTERPERSONAL VIOLENCE 499, 501, 508

(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. & PSYCHOL.

REV. 439, 442 (1994).

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

authority to “call witnesses” at a preliminary hearing, but a subpoena 

compelling alleged victims to testify is per se “unreasonable” when it 

seeks testimony that is immaterial to the probable-cause 

determination, would obviate the legal sufficiency of hearsay 

evidence, and would unnecessarily intrude on the rights of victims. 

¶54 With this 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 UTAH R. CRIM. 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.; see also UTAH 

CONST. 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 otherwise 
Cite as: 2020 UT 61

Opinion of the Court

21

provided by statute.”). If the magistrate determines that this is so, the 

inquiry then turns to whether the subpoena of the alleged victim is 

unreasonable. UTAH R. CRIM. P. 14(a)(2) (“The court may quash or 

modify the subpoena if compliance would be unreasonable.”). That 

assessment should be made on 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 showing 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 accounting for the 

circumscribed function of the preliminary hearing, the low 

probable-cause standard, and victims’ 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 might 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. 
STATE v. LOPEZ

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 was 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,” even 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 

the 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. He

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 alleged victim “as a witness at his 

preliminary hearing”—was wrong. And 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 influence any future bindover 

decision under the probable cause standard.

V. CONCLUSION

¶61 These cases arise at the difficult intersection between the 

rights of defendants and the rights of alleged victims in preliminary 

hearings. We hold that any power a defendant has to compel a victim 

witness to testify at a preliminary hearing is limited by the court’s 

authority to quash unreasonable subpoenas. 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.