The law-and-order authors of Proposition 6 call it the “Safe Neighborhoods Act,” and they promote it with a hard-to-resist appeal: Pass this in order to “stop gang, gun and street crime.”
The measure mandates that the legislature find an additional $365 million in its deficit-ridden general fund to spend on tougher law enforcement, including much longer sentences for gang crimes, auto theft and drug possession. It would also direct money to rehabilitation, victim assistance and county-jail construction.
But hidden in the fine print of this complex measure, uncriticized by its opponents and largely unreported by media, is a clause to expand the use of hearsay in criminal trials.
California allows hearsay only if there is “clear and convincing evidence” that a defendant intentionally kept a witness from testifying about what he or she heard, such as by kidnapping or threatening the life of that witness.
Prop. 6 would relax that rule. Instead of requiring “clear and convincing evidence” that a defendant intentionally prevented a witness from testifying, it says the defendant has only to “acquiesce” to a crime by others who acted to prevent a witness from testifying.
Legal experts tell L.A. Weekly the proposal would clearly undercut the right to a fair trial.
“There’s going to be less cross-examination,” Professor Miguel Mendez of Stanford Law School tells the Weekly. “The less cross-examination that takes place, the greater the likelihood that those convictions are going to be unreliable.”
U.S. courts, including California’s, have generally prohibited the use of hearsay, defined as a statement made outside court and not under oath, which is used to prove testimony.
If, for example, Jack tells Jill that his friend Bob admitted to a crime, and Jill testifies in court and repeats Jack’s account of Bob’s confession as evidence of Bob’s guilt, that’s hearsay. Bob’s defense attorney can’t cross-examine Jill because she has no firsthand evidence of the crime or confession. She’s merely repeating Jack’s testimony, which is why hearsay is notoriously unreliable.
Ronald Huff, a UC Irvine dean and a criminologist, says a disproportionately high number of wrong convictions results from the use of hearsay evidence — much of it culled from jailhouse informants who hear things they cannot actually prove.
Prop. 6’s subtle wording change means the accused would no longer need to have intended, or participated in, a crime that prevents testimony in order to be convicted of it, Huff and others say.
“This is significant,” says Myrna Raeder, a law professor at Southwestern Law School and an evidence expert. “This may simply let in too much. ... This would eliminate a lot of the requirements in the current rules.”
Kara Dansky, executive director of Stanford’s Criminal Justice Center, says, “This new provision of the code contains no provisions to ensure that statements that would come in would be reliable.”
For the vast majority of crimes, current law requires that in order for hearsay to be used, it must be taped by police or written down by the accuser and notarized in front of a police officer.
Prop. 6 co-author Mike Reynolds expressed discomfort with the idea that his initiative could lead to the expanded use of unreliable evidence or expanded use of statements not subject to cross-examination.
“I frankly feel that both the prosecution and defense attorney should be able to cross-examine,” Reynolds, who drafted California’s three-strikes law, tells L.A. Weekly.
But, he says, the California District Attorneys Association wanted the clause added to his measure.
UC Irvine’s Huff is particularly worried, saying, “This is the type of thing we see at Guantánamo. I think this is pretty scary.”
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Scott Thorpe, CEO of the state’s district attorneys association, doesn’t agree, saying, “If the conduct of the person has caused that [witness] unavailability, it’s our basic view that they shouldn’t be able to benefit from it.”
Adding to the questions over the measure’s fine print, legal scholars point to a U.S. Supreme Court decision in June, Giles vs. California, which makes the relaxing of the hearsay rule unconstitutional. A disappointed Thorpe agrees, saying the court ruling probably makes Prop. 6’s hearsay changes “moot.”
Or maybe not.
Despite the Supreme Court ruling, the relaxed hearsay rules might still be adopted in state courts while a legal battle is waged over their use. This could “lead to wrongful convictions which would require litigation for several years,” says L.A. County Deputy Public Defender Maureen Pacheco, who opposes Prop. 6. “The courts move slow. Someone could spend years behind bars before their conviction is overturned.”