PROVO In a 12-year-old felony case with hundreds of witnesses and a 15-year-old girl presumed to be dead and buried, anyone who testifies must do so in person, a judge ruled Tuesday in 4th District Court.
"The case for direct examination of witnesses is both compelling and overwhelming," said Judge Lynn Davis. "Our focus is not on convenience. It's to determine the truth."
With that preface, Davis denied a motion to allow written testimony instead of live testimony during a future eight-day preliminary hearing in January for two men accused of killing 15-year-old Kiplyn Davis, who disappeared from Spanish Fork High School on May 2, 1995.
Timmy Brent Olsen and Christopher Jeppson each sat shackled in a Provo courtroom Tuesday morning, listening to their attorneys argue about why live witness testimony is so crucial, especially in a murder case.
"This prelim is part of the adversarial process," said Olsen's attorney, Dana Facemyer. "Having transcripts won't follow that guideline. How can we consider this an adversarial process if we're just reading words?"
Facemyer and Jeppson's defense attorney, Scott Williams, told the judge they could call every single witnesses their clients' rights if the state didn't.
In preliminary hearings, state prosecutors call witnesses and present evidence to a judge about why a case should go to trial. Although defense attorneys rarely present evidence, they have every right to call witnesses.
"(Live witnesses) are never more important than a case like this where people are telling stories about people telling stories," Williams said.
Yet state prosecutors argued that re-calling the dozens of witnesses who have already testified in federal courts for perjury trials against Olsen and Jeppson is redundant.
"What concerns me ... is they have not gone to individual (testimonies) and said, 'this is our concern,"' said deputy Utah County Attorney Mariane O'Bryant. "It seems to be an 'it's not fair' argument. There's no reason for us to try this case before the court twice."
Olsen and Jeppson have both been convicted by juries of lying to federal investigators. Olsen was sentenced to 12 1/2 years in prison and Jeppson is awaiting sentencing.
"I am not aware of any other first-degree murder cases with two defendants (that would use) 20 transcript witnesses and 10 live witnesses," Davis said. "The state has argued that logistically it would be a time saver. That argument simply dissipates, evaporates with the defense's intention to subpoena the same witnesses."
Davis was also concerned about attorneys using different parts of the same person's testimony against each other.Tuesday's hearing also took care of a few housekeeping items, such as requests for evidence and information, as well as setting another court date to discuss possible county reimbursement for some of the investigative costs for Jeppson's case.
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