In 1990, voters in California passed Proposition 115, known as the Crime Victims Reform Act. Proposition 115 was set out to restore victims’ rights in the criminal process by adding new statutory and constitutional provisions.[i] Some of the specific provisions included expanding the definition of first-degree murder, establishing and defining the crime of torture, and allowing hearsay evidence under certain circumstances in order to protect victims from confrontation at preliminary examinations.[ii] This paper will examine law on the books compared to law in action for California Proposition 115 (1990): Article I section 30 (b) which states: “in order to protect victims and witnesses in criminal cases, hearsay evidence shall be admissible at preliminary hearings, as prescribed by the Legislature or by the people through the initiative process”.[iii]
On the books, California Proposition 115, Article I, § 30(b) (Pen C § 872(b)) affects the use of hearsay evidence in preliminary hearings and the protection of victims. Pen C § 872(b) created a law enforcement exception to the general rule that “only competent evidence that is otherwise admissible under the evidence code may be introduced at the preliminary hearing”.[iv] The law enforcement officer exception allows qualified officers to assist and protect victims from potential trauma by testifying for them via hearsay evidence at a preliminary hearing.[v] In order to be considered qualified, a law enforcement officer must have at least five years of law enforcement experience, or the officer must complete a special training offered by the Commission on Peace Officer Standards for Training[vi]. In regards to Pen C § 872(b) “law enforcement officer” is an inclusive term for “any investigating agent or officer employed by the state, federal, or local agency, whose primary duty is to enforce the laws”.[vii]
Multiple factors led to the creation of Proposition 115. One factor was the victims’ rights movement which started in the 1970s and had gained increasing support in the years leading up to 1990.[viii] Also, by 1990, violent crime in the United States had more than doubled since 1960.[ix]
California Proposition 115, Article I, § 30(b) was sponsored by the Los Angeles County District Attorney’s office, and supported by the California District Attorneys’ Association. The proponents sought to extend more rights and protection to crime victims as well as witnesses in criminal cases.[x] Proponents argued that the ambiguity behind the use of “law enforcement officer” in the original section b caused prosecutors to “face objections where they seek to elicit hearsay testimony from ‘non-traditional’ law enforcement officers such as federal agents [and] special agents” which resulted in unnecessary and expensive litigations.[xi] The proposition was also heavily backed by Republican, U.S. Senator Pete Wilson who sought to expend protection to crime victims.[xii]
On the other side, Proposition 115, Article I, § 30(b) was opposed by the California Public Defenders Association, as well as California’s for Privacy.[xiii] Public defenders were concerned that the prosecution’s use of hearsay testimony by officers would shield the hearsay declarant and preclude the defendant from obtaining key information.[xiv] The public defenders argued that the use of hearsay testimony “would be detrimental to our clients because it would further curtail the defendant’s 6th amendment right to cross examination”.[xv] The California for Privacy coalition feared that Proposition 115 would cost taxpayers hundreds of millions of dollars.[xvi]
In implementation, Proposition 115 affects multiple aspects of the criminal court system. The resulting statute places an additional burden on district attorneys to establish that a law enforcement officer providing a hearsay testimony is considered qualified under the statue requirements.[xvii] It is the magistrate’s duty to “assess the credibility of the declarant” who is absent if hearsay testimony is used.[xviii] The absence of the declarant may “impair an accurate determination of the reliability of the hearsay testimony” as so much of communication is nonverbal.[xix] The magistrate must assess the reliability of the statements and check that hearsay statements were gathered correctly and do not consist of multiple hearsay.[xx] Prosecutors are the main benefactors of Proposition 115 because it greatly expands prosecutorial discretion in weak cases to help find probable cause.[xxi]
Since 1990, multiple court decisions have affected the implementation of California Proposition 115. The most prominent court case that challenged Proposition 115, Article I, § 30(b) was Whitman v. Superior Court (1991). The Superior Court ruled that Proposition 115 was constitutionally valid even though the defense was denied the ability to cross-examine the witness.[xxii] The Superior Court’s opinion also clarified that not all hearsay is admissible at trial by ruling that the qualified testifying officer must have sufficient personal knowledge of the crime or the circumstances and cannot simply be a case reader.[xxiii] After the decision in Whitman v Superior Court, the use of hearsay evidence was further expanded to allow officers to testify on out of court statements of expert witnesses and co-defendants.[xxiv] However, multiple hearsay was still prohibited by California evidence code section 1201, even if the evidence is presented by a qualified officer.[xxv] In 2002, Correa v. Superior Court further clarified that the use of lay language translators who are sufficiently reliable did not add another layer of hearsay.[xxvi]
Even though Proposition 115, was deemed constitutional by the court, in practice, hearsay evidence is used and enforced selectively. For instance, who constitutes a “law enforcement officer” has been vaguely defined. The code section also gives the prosecutors an immense level of prosecutorial discretion which they can use as a tool to hide weak witnesses from the defense attorneys. In an interview with Sonoma County Superior Court Judge, Lawrence Ornell, he stated that the use of hearsay testimony under Proposition 115 is most effective and prominent in simple cases and is used selectively in more complex cases.[xxvii] For example, a prosecutor may not want to use hearsay testimony for vulnerable witnesses or victims such as the elderly, gang members, or victims of domestic violence in order to preserve testimony at the preliminary hearings.[xxviii] In simple cases, on the other hand, there is often little doubt to the facts of the case and using hearsay evidence can help to speed up court proceedings.
In action, Proposition 115, Article I, § 30(b) has not been entirely effective. Proposition 115 is called the “Crime Victims Justice Reform Act”. However, the act has focused more on limiting the defendants’ rights than on protecting crime victims.[xxix] When hearsay evidence is presented the criminal defendant and the defense attorney lose the “opportunity to test the credibility or reliability of accusatory statements made at the preliminary examination, a right previously regarded as ‘essential’ to due process”.[xxx] Judge Ornell, noted how preliminary hearings have been restricted and stripped down by proposition 115 to a determination of probable cause that he has seen determined in one minute with the prosecutor asking just two questions.[xxxi] The use of hearsay evidence at preliminary hearings has helped to increase court efficiency, reducing the amount of law enforcement officers needed to testify in court, and protecting the victims from extra testimony, but this has been at the expense of the defendant who has an increased burden.[xxxii]
On the other hand, in 1996, Nienhouse v Superior Court determined that Proposition 115 did not solely benefit the prosecution because the code section also allows defense attorneys to also use hearsay for their own witnesses.[xxxiii] Nevertheless, Proposition 115 favors the prosecution over the defense sometimes under the façade of victim protection.
Through further reform, Proposition 115, Article I, § 30(b) could become more effective and proportionate. The most important change that could be implemented would be to give defense attorneys the ability to make special motions to the magistrate to have victims testify after hearsay testimony has been presented. In cases, for example, where the hearsay testimony is inconsistent with the police report, the defense attorney should be able to get a clarification of the facts from the victim. Another reform would be to allow the defense to have a method of double checking the reliability of the officer’s statements. For instance, an officer may believe that they are fluent in Spanish, but they may misinterpret the statements of a Spanish speaking defendant and incorrectly testify. Also, the hearsay exception should further limit the inclusiveness of the term “law enforcement officer” which currently expands to expert witnesses as well as witnesses.[xxxiv]
Overall, Proposition 115, Article I, § 30(b) has substantially impacted evidence law and preliminary hearings more than protecting the victims of crime in the court system. Even though Proposition 115, Article I, § 30(b) has been deemed constitutional in court, the defense should be given the ability in certain cases to speak with witnesses in preliminary hearings. The goal of the criminal justice system is to provide equal protection; however, Proposition 115 has tipped the scale in the victim’s favor.
Bibliography
Berend, L. (1998, December). Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115. American University Law Review, 48(2), 3rd ser., 52. Retrieved September 18, 2016.
California Proposition 115, the “Crime Victims Justice Reform Act” (1990). (n.d.). Retrieved September 15, 2016.
Cooke, C. C. (2015, November 30). Careful with the Panic: Violent Crime and Gun Crime Are Both Dropping. Retrieved September 15, 2016, from http://www.nationalreview.com/corner/427758/careful-panic-violent-crime-and-gun-crime-are-both-dropping-charles-c-w-cooke
Correa v. Superior Court (People) (2002). (n.d.). Retrieved October 25, 2016, from http://law.justia.com/cases/california/supreme-court/4th/27/444.html
De la Cerda, M. (2014). Trading Defendants’ Rights for Victims’ Rights. California Western Law Review, 51.
Hager, P. (1990, May 31). California Elections: The Ad Campaigns. Retrieved December 1, 2016, from http://articles.latimes.com/1990-05-31/news/mn-960_1_ad-campaigns
Itkin, B. E. (2016, June). 4. [§ 24] Effect of Proposition 115. California Evidence, 5, 1-2.
National Crime Victim Law Institute. (n.d.). Retrieved September 15, 2016, from https://law.lclark.edu/centers/national_crime_victim_law_institute/about_ncvli/history_of_victims_rights/
Ornell, L. (2016, October 25). Proposition 115 [Telephone interview].
Peterson v. California. (n.d.). Findlaw. Retrieved September 18, 2016, from http://caselaw.findlaw.com/us-9th-circuit/1524404.html
Preliminary Hearings. (2012). California Judges Benchguides, (92), 55-56. Retrieved from Judicial Council of California/Administrative Office of the Courts.
Rucker, E. A., & Overland, M. E. (2016, August). Hearsay Police Witness. California Criminal Practice: Motions, Jury Instructions and Sentencing, 1-3. Retrieved from WestLaw.
Rucker, E. A., & Overland, M. E. (2016, August). § 14:13. Hearsay police witness—Points and Authorities. 2.
Swifft, E. (1992, April). Does it Matter Who is in Charge of Evidence Law? Loyola of Los Angeles Law Review, 25, 2-10. Retrieved September 15, 2016, from WestLaw.
Uribe, S. (2013, May 7). Bill Analysis. Assembly Committee on Public Safety, (568), 1. Retrieved September 15, 2016, from http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0551-0600/ab_568_cfa_20130506_101112_asm_comm.html
Whitman v. Superior Court (People) (1991). (n.d.). http://scocal.stanford.edu/opinion/whitman-v-superior-court-people-31378
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[i] Swifft, E. (1992, April). Does it Matter Who is in Charge of Evidence Law? Loyola of Los Angeles Law Review, 25, 2-10. WestLaw.
[ii] California Proposition 115, the “Crime Victims Justice Reform Act” (1990). (n.d.). Retrieved September 15, 2016.
[iii][iii] Uribe, S. (2013, May 7). Bill Analysis. Assembly Committee on Public Safety, (568), 1.
[iv][iv] Preliminary Hearings. (2012). California Judges Benchguides, (92), 55-56. Retrieved from Judicial Council of California/Administrative Office of the Courts.
[v] Peterson v. California. (n.d.). Findlaw.
[vi] Swifft, E. (1992, April). Does it Matter Who is in Charge of Evidence Law? Loyola of Los Angeles Law Review, 25, 2-10. WestLaw.
[vii] Preliminary Hearings. (2012). California Judges Benchguides, (92), 57. Retrieved from Judicial Council of California/Administrative Office of the Courts.
[viii] National Crime Victim Law Institute. (n.d.).
[ix] Cooke, C. C. (2015, November 30). Careful with the Panic: Violent Crime and Gun Crime Are Both Dropping.
[x] Uribe, S. (2013, May 7). Bill Analysis. Assembly Committee on Public Safety, (568), 5.
[xi] Uribe, S. 5
[xii] Hager, P. (1990, May 31). California Elections: The Ad Campaigns. Retrieved December 1, 2016, from http://articles.latimes.com/1990-05-31/news/mn-960_1_ad-campaigns
[xiii] Ibid.
[xiv] Uribe, S. 6
[xv] Uribe, S. 6
[xvi] Hager, Philip. “California Elections/ Proposition 115 : Measure Seeks to Remodel Criminal Justice Procedures.” Los Angeles Times. Los Angeles Times, 20 May 1990. Web. 02 Dec. 2016.
[xvii] Rucker, E. A., & Overland, M. E. (2016, August). Hearsay Police Witness. California Criminal Practice: Motions, Jury Instructions and Sentencing, 1-3. Retrieved from WestLaw.
[xviii] Berend, L. (1998, December). Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115. American University Law Review, 48(2), 3rd ser., 52. Retrieved September 18, 2016.
[xix] Berend, L. (1998, December). Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115. American University Law Review, 48(2), 3rd ser., 52.
[xx] Rucker, E. A., & Overland, M. E. (2016, August). § 14:13. Hearsay police witness—Points and Authorities. 2.
[xxi] Berend, L. (1998, December). Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115. American University Law Review, 48(2), 3rd ser., 47.
[xxii] Whitman v. Superior Court (People) (1991). (n.d.).
[xxiii] Ibid.
[xxiv] Itkin, B. E. (2016, June). 4. [§ 24] Effect of Proposition 115. California Evidence, 5, 1-2.
[xxv] Rucker, E. A., & Overland, M. E. (2016, August). § 14:13. Hearsay police witness—Points and Authorities. 2.
[xxvi] Correa v. Superior Court (People) (2002). (n.d.).
[xxvii] Ornell, L. (2016, October 25). Proposition 115 [Telephone interview].
[xxviii] Ibid.
[xxix] Swifft, E. (1992, April). Does it Matter Who is in Charge of Evidence Law? Loyola of Los Angeles Law Review, 6
[xxx] De la Cerda, M. (2014). Trading Defendants’ Rights for Victims’ Rights. California Western Law Review, 51.
[xxxi] Ornell, L. (2016, October 25). Proposition 115 [Telephone interview].
[xxxii] Ibid.
[xxxiii] Itkin, B. E. (2016, June). 4. [§ 24] Effect of Proposition 115. California Evidence, 5, 1-2.
[xxxiv] De la Cerda, M. (2014). Trading Defendants’ Rights for Victims’ Rights. California Western Law Review, 51. Retrieved from WESTLAW.
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