State v McNeil

McNeil appealed his assault conviction arguing that the district court erred in allowing preliminary hearing testimony about phone records into evidence as the statements were hearsay. The Court, with one justice adding a concurrence, affirmed. It first held that Utah law does not equate failure to object with invited error as failure to object merely fails to preserve an issue. The Court held there was no invited error on the issue as McNeil’s trial counsel withdrew his hearsay objection only after the district court ruled the testimony was not hearsay and thus did not invite any error on the issue. The Court noted that for both plain error and ineffective assistance analysis, the same test for prejudice used namely whether the alleged err undermines confidence in the trial outcome. Applying here, the Court held there was no prejudice because appellate courts can consider hypothetical alternate trial strategy, the phone records at issue existed given defense counsel request for them and the state stating they were provided, the district court cut of any need for the government to explain how it would lay foundation for the admission of the records, the fact that defense counsel did not introduce the records supports and inference that the admitted testimony accurately related their content and it is likely thy would have come into evidence. Justice Lee added a concurrence arguing that the precedent which appears to prohibit the analysis of hypothetical alternatives in a prejudice analysis should be repudiated.