THOMAS PAUL WHITMAN, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. S018847
Supreme Court of California
Dec. 9, 1991
54 Cal. 3d 1063
THOMAS PAUL WHITMAN, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Stuart Rappaport, Public Defender, Susan R. Bernardini and Barbara B. Fargo, Deputy Public Defenders, for Petitioner.
Wilbur F. Littlefield, Public Defender (Los Angeles), Laurence M. Sarnoff and Albert J. Menaster, Deputy Public Defenders, Gary M. Madinach and Madeline McDowell as Amici Curiae on behalf of Petitioner.
No Appearance for Respondent.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Clifford K. Thompson, Jr., Laurence K. Sullivan and Joan Killeen Haller, Deputy Attorneys General, for Real Party In Interest.
Dennis Kottmeier, District Attorney (San Bernadino), Joseph A. Burns, Deputy District Attorney, Kent S. Scheidegger and Charles L. Hobson as Amici Curiae on behalf of Real Party in Interest.
OPINION
LUCAS, C. J.—In this case, we resolve some issues presented by the adoption in June 1990 of an initiative measure designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act.” Peti-
As will appear, we conclude that, properly construed and applied, the hearsay provisions of Proposition 115 are constitutionally valid. We also conclude, however, that the evidence admitted at petitioner‘s preliminary hearing, consisting entirely of hearsay testimony by a noninvestigating officer lacking any personal knowledge of the case, was insufficient and incompetent to constitute probable cause to bind petitioner over for trial, and that his motion to dismiss the charges should have been granted.
FACTS
Petitioner was charged with one felony count of driving under the influence of alcohol and/or drugs with three or more prior similar convictions (
At the hearing, the People called only a single witness, Officer Bruce Alexander, who was not one of the arresting or investigating officers and who had no direct, personal knowledge of petitioner‘s alleged offenses. Over petitioner‘s continuing objection to the use of hearsay evidence, Alexander attested to his eight years of employment as a police officer, and thereupon recounted to the magistrate various entries made in the report of the investigating officer, Officer Navin. Alexander confirmed that he had never discussed Navin‘s report with that officer, was not personally acquainted with Navin, and first became aware of Navin‘s report, and of the case against petitioner, on the morning of the preliminary hearing after the district attorney handed him a copy of Navin‘s report.
Alexander further testified that, according to Navin‘s report, the driver of the car identified himself as Thomas Paul Whitman. Among other things, Navin noticed the strong odor of alcohol, bloodshot eyes, and dilated pupils. The driver‘s mood changed from passive to belligerent, leading Navin to believe that the driver might be under the influence of drugs. Alexander continued his “testimony,” relating, according to Navin, that the driver successfully completed the finger-dexterity test and balanced on one foot, but swayed when asked to walk a straight line. Believing the driver was under the influence, Navin transported him to the station where a blood test was administered. Counsel stipulated that a blood test revealed a blood-alcohol level of 0.08 percent and was positive for the presence of methamphetamine.
Thereupon, Alexander was permitted to state his opinion, based solely on the information revealed in Navin‘s report, that petitioner had been under the influence of alcohol and “perhaps some type of stimulant.”
Defense counsel moved to strike all of Alexander‘s direct testimony for lack of proper foundation regarding Navin‘s qualifications as a police officer. The magistrate denied the motion, after permitting Alexander to opine that because Navin‘s badge number was considerably lower than his, Navin probably had 12 years’ experience as a police officer.
On cross-examination, Alexander admitted he did not know the time or circumstances of the preparation of Navin‘s report, or the various tests conducted to determine petitioner‘s sobriety. Additionally, Alexander was unable to explain certain discrepancies and omissions in the report. Counsel elicited the fact that although Navin‘s report indicated petitioner‘s eyes were brown, in fact they are green.
Despite petitioner‘s objections and his argument that Alexander could not personally identify him as the suspect stopped by Navin, the magistrate held petitioner to answer on the counts charged. The magistrate noted that the description of petitioner contained in Navin‘s report closely matched the description in the records of the Department of Motor Vehicles, which was also placed in evidence.
Petitioner raises a variety of arguments regarding the admissibility, and constitutional propriety, of Officer Alexander‘s hearsay testimony. Before we consider these contentions, we first review the new constitutional and statutory hearsay provisions added by Proposition 115.
CONSTITUTIONAL AND STATUTORY PROVISIONS
Proposition 115 added both constitutional and statutory language pertinent to our present inquiry.
In addition, the measure amends
Additionally,
Further,
Finally,
We note that our discussion herein relates solely to proceedings initiated by complaint and information rather than by indictment, because under Proposition 115, “If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing.” (
DISCUSSION
As previously indicated, in addition to contesting the sufficiency of the evidence elicited at the preliminary hearing, petitioner raises various constitutional challenges to the foregoing provisions of Proposition 115. He argues that the use of hearsay testimony without confrontation or cross-examination of the declarants violates his federal
In Raven v. Deukmejian, supra, 52 Cal.3d 336, we rejected an identical single-subject rule challenge to Proposition 115. We also rejected a revision challenge to the entire measure, invalidating only a severable provision that would have required state courts to interpret certain enumerated state constitutional rights consistently with the federal Constitution. The principles expressed in Raven adequately dispose of petitioner‘s single-subject rule and revision challenges. (See 52 Cal.3d at pp. 349-350.)
Before discussing the merits of petitioner‘s various remaining constitutional challenges, we first turn to his alternative argument to the effect
1. Testimony of Noninvestigating Officers or “Readers”
As an initial matter, we observe that “[t]he fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ [Citations.] Thus ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 898-899 [276 Cal.Rptr. 918, 802 P.2d 420].) Similar rules would govern interpretation of measures adopted by initiative. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281].)
As previously noted, Proposition 115 added new constitutional and statutory language relating to the use of hearsay evidence at preliminary hearings. The constitutional provision (
Petitioner‘s primary argument is that, as a matter of sound statutory interpretation, Officer Alexander should not have been permitted to relate the contents of Officer Navin‘s investigative report because Alexander was not involved in the investigation of the case and had no personal knowledge of the circumstances under which Navin‘s report was prepared. We agree. Properly construed, Proposition 115 does not authorize a finding of probable cause based on the testimony of a noninvestigating officer or “reader” merely reciting the police report of an investigating officer. We believe the probable intent of the framers of the measure was to allow a properly qualified investigating officer to relate out-of-court statements by crime victims or witnesses, including other law enforcement personnel, without requiring the victims’ or witnesses’ presence in court. The testifying officer, however, must not be a mere reader but must have sufficient knowledge of the crime or the circumstances under which the out-of-court statement was
New
But other provisions of the measure convince us that the use of mere “readers” such as Officer Alexander was not contemplated by the measure. To permit testimony by noninvestigating officers that merely recites the contents of the reports of the investigating officers would render largely meaningless or nugatory the new statutory provision, also added by Proposition 115, that requires that the testifying officer have at least five years of law enforcement experience or have completed a training course covering the “investigating and reporting” of criminal cases. (
As petitioner observes, the experience and training requirements of
Moreover, to allow testimony by noninvestigating officers or readers would seemingly sanction a form of double or multiple hearsay beyond the contemplation of the framers of, and voters for, Proposition 115. (See
In addition, an interpretation of Proposition 115 that would allow “reader” or multiple hearsay testimony would raise constitutional questions that we can and should avoid by limiting admissible hearsay testimony to testimony by qualified investigative officers. (See, e.g., People v. Smith (1983) 34 Cal.3d 251, 259 [193 Cal.Rptr. 692, 667 P.2d 149] [construing Prop. 8, “The Victims’ Bill of Rights” initiative measure, to avoid constitutional doubts].) As discussed below, we believe that the latter, more limited, form of hearsay evidence satisfies federal requirements of reliability (see Ohio v. Roberts (1980) 448 U.S. 56, 63-65 [65 L.Ed.2d 597, 605-607, 100 S.Ct. 2531]), and thus properly may be admitted at preliminary hearings despite the defendant‘s inability to confront and cross-examine the declarant witness or victim. But substantial additional objections to the reliability of the evidence might arise if multiple hearsay were involved, and the defendant were also deprived of the opportunity to meaningfully cross-examine the testifying officer regarding the circumstances under which the out-of-court statement was made.
In the present case, for example, on cross-examination, Officer Alexander was unable to answer potentially significant questions regarding the methods and circumstances of Officer Navin‘s investigation, including the time the report was written, the details of the sobriety test given petitioner, and
In her concurring and dissenting opinion, Justice Kennard suggests that the term “declarant” in section 872, subdivision (b) should be interpreted to refer only to “citizen” declarants and not to police officer declarants. The statutory language contains no such limitation, however, and one of the principal purposes of Proposition 115—to increase the efficient administration of the criminal justice system, and, in particular, to streamline the preliminary hearing procedure (see, e.g., Prop. 115, §§ 1, subd. (c), 16, 17, 18, Primary Elec. (June 5, 1990) [Deering‘s Ann.
Thus, we conclude that the magistrate erred in allowing Officer Alexander to read or relate portions of Officer Navin‘s report, and that such error requires dismissal of the information. It appears, however, that the People will be entitled to refile the information (see
2. Constitutional Right to Confrontation
In the foregoing discussion, we construe Proposition 115 to allow an investigating officer to relate at the preliminary hearing any relevant statements of victims or witnesses, if the testifying officer has sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement. The new measure would permit the magistrate to base a finding of probable cause entirely on that testimony. (
a. State Confrontation Clause
Under the former statute at issue in Mills v. Superior Court, supra, a finding of probable cause could be based on the hearsay statements of a witness who was neither an eyewitness nor a victim, but only if the defendant failed to make reasonable efforts to secure the presence of the witness at the preliminary hearing. We grounded our decision invalidating the statute on prior California cases acknowledging the “critical importance” of the preliminary hearing as a mechanism to weed out groundless claims. As we stated, “Only by preserving the adversarial character of the preliminary hearing can we enable the magistrate responsibly to ‘weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses.’ [Citations.]” (42 Cal.3d at p. 957.) We concluded that the challenged statute, by requiring a defendant to expend “reasonable efforts” to secure a witness‘s presence at the hearing, “unduly strains defendant‘s rights under article I, section 15, of the California Constitution.” (Id. at p. 958.)
By virtue of the passage of Proposition 115, Mills v. Superior Court, supra, 42 Cal.3d 951, is no longer controlling authority. Although the state Constitution continues to afford an independent source of relief from infringement of the right to confront one‘s accusers (see Raven v. Deukmejian, supra, 52 Cal.3d 336 [invalidating Prop. 115 to extent it would have required interpretation of confrontation clause, and other procedural rights, consistently with federal Constitution]), nonetheless, by reason of the adoption of new
The new constitutional provision thus represents a specific exception to the broad confrontation right set forth in
b. Federal Confrontation Clause
The
The foregoing confrontation clause is not an absolute bar to all hearsay evidence or other procedures which may limit or preclude a direct face-to-face confrontation between accused and accuser. Thus far, at least, the clause has operated to exclude admission at trial of some otherwise admissible hearsay evidence, although many exceptions exist to that bar. (See Idaho v. Wright (1990) 497 U.S. 805 [111 L.Ed.2d 638, 110 S.Ct. 3139] [admissibility at trial of hearsay statements by child victims of sexual abuse]; Ohio v. Roberts, supra, 448 U.S. at pp. 63-65 [65 L.Ed.2d 605-607] [admissibility at trial of hearsay statements if elements of reliability of testimony and unavailability of declarant are shown]; Bourjaily v. United States (1987) 483 U.S. 171, 182-184 [97 L.Ed.2d 144, 156-158, 107 S.Ct. 2775] [requirement of reliability of testimony satisfied by “firmly rooted” coconspirator exception to hearsay rule]; United States v. Inadi (1986) 475 U.S. 387, 394-400 [89 L.Ed.2d 390, 397-402, 106 S.Ct. 1121] [requirement of unavailability of declarant inapplicable to statements made by nontestifying coconspirator]; see also Maryland v. Craig (1990) 497 U.S. 836 [111 L.Ed.2d 666, 110 S.Ct. 3157] [invalidity of one-way closed circuit television procedure to elicit testimony at trial of child abuse victim]; Coy v. Iowa (1988) 487 U.S. 1012 [101 L.Ed.2d 857, 108 S.Ct. 2798] [propriety of placing screen between defendant and child victim at trial]; Kentucky v. Stincer (1987) 482 U.S. 730, 737-740 [96 L.Ed.2d 631, 642-644, 107 S.Ct. 2658] [excluding defendant from child victims’ competency hearing was not confrontation clause violation because victims were available for cross-examination at trial]; Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 667 [172 Cal.Rptr. 850, 19 A.L.R.4th 1276].)
Petitioner, focusing on the foregoing “reliability” element for evaluating hearsay evidence, contends that new
Finally, under new
Moreover, aside from questions of reliability, it is doubtful that the federal confrontation clause operates to bar hearsay evidence offered at a preliminary hearing held to determine whether probable cause exists to hold the defendant for trial.
Several California appellate cases have assumed that either the Sixth or Fourteenth Amendments to the federal Constitution guarantees a right of confrontation and cross-examination at preliminary hearings. (E.g., People v. Harris (1985) 165 Cal.App.3d 1246, 1256 [212 Cal.Rptr. 216], and cases cited; Herbert v. Superior Court, supra, 117 Cal.App.3d 661, 665-666, & fn. 3; Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671 [162 Cal.Rptr. 389]; see also Jennings v. Superior Court (1967) 66 Cal.2d 867, 875 [59 Cal.Rptr. 440, 428 P.2d 304]; but see Herbert v. Superior Court, supra, 117 Cal.App.3d at pp. 671-672 [conc. opn. by Puglia, P. J.].) As petitioner acknowledges, however, the United States Supreme Court has never so held. Indeed, as we will explain, there are indications in prior high court cases that a constitutional challenge to the hearsay procedures now permitted by Proposition 115 would fail. Moreover, the scope and purpose of California preliminary hearings were considerably broader when the foregoing appellate cases were decided, thus calling in question the continued validity of their conclusion.
First, as petitioner acknowledges, other than the probable cause hearing held to justify continued detention of the accused (discussed below), there
Indeed, the United States Supreme Court has repeatedly stated that “The right to confrontation is basically a trial right.” (Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 260, 88 S.Ct. 1318], italics added; accord Kentucky v. Stincer, supra, 482 U.S. at p. 737 [96 L.Ed.2d at p. 642]; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 [94 L.Ed.2d 40, 54, 107 S.Ct. 989]; California v. Green (1970) 399 U.S. 149, 156-157 [26 L.Ed.2d 489, 495-497, 90 S.Ct. 1930] [federal confrontation clause was aimed at eliminating practice of trying defendants on basis of witnesses’ out-of-court statements and declarations].) As Barber explained (in the context of contrasting the utility of confrontation at a preliminary hearing), the confrontation right “includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.” (390 U.S. at p. 725 [20 L.Ed.2d at p. 260].)
A few years later, the high court squarely held that the federal confrontation clause does not require that full adversarial safeguards, such as presentation of witnesses and cross-examination of their testimony, be made available for every pretrial probable cause hearing. (Gerstein v. Pugh (1975) 420 U.S. 103, 119-124 [43 L.Ed.2d 54, 68-71, 95 S.Ct. 854], hereafter Gerstein.) Gerstein explained that, for purposes of Fourth Amendment analysis in determining whether probable cause exists to detain an arrestee for a significant time pending trial, a full adversarial hearing, together with confrontation and cross-examination of witnesses, need not be afforded so long as a “timely judicial determination” of probable cause is made as a prerequisite to continued detention. (Id. at p. 126 [43 L.Ed.2d at p. 72].)
The court in Gerstein contrasted Fourth Amendment detention hearings with the more formal preliminary hearings used in many states to determine whether the evidence justifies going to trial. (420 U.S. at pp. 119-120 [43 L.Ed.2d at pp. 68-69].) The court observed that “adversary procedures are customarily employed” during such formal hearings (id. at p. 120 [43 L.Ed.2d at p. 69]), but it avoided suggesting that such procedures are constitutionally mandated. Instead, Gerstein simply noted “that state systems of criminal procedure vary widely,” encouraged such “experimentation,” and concluded that “There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State‘s pretrial procedure viewed as a whole.” (Id. at p. 123 [43 L.Ed.2d at p. 71].)
Significantly, Gerstein observed that, by their very nature, probable cause determinations do not involve “the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. [Citation.] This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.” (420 U.S. at pp. 121-122 [43 L.Ed.2d at pp. 69-70], fn. omitted.)
The Gerstein court acknowledged that a prior decision (Coleman v. Alabama (1970) 399 U.S. 1 [26 L.Ed.2d 387, 90 S.Ct. 1999]) had held an Alabama preliminary hearing was a “critical stage” of the prosecution for which the presence of counsel was required. But the court noted that under the Alabama law involved in Coleman, not only was the purpose of the hearing to determine probable cause to charge an offense, but the suspect was specifically allowed to confront and cross-examine prosecution witnesses at such hearings, thus making it essential that the defendant have counsel‘s assistance. The Gerstein court continued by stating that “This consideration [need for counsel‘s assistance] does not apply when the prosecution is not required to produce witnesses for cross-examination.” (420 U.S. at p. 123 [43 L.Ed.2d at pp. 70-71].) Gerstein‘s implication seems to be that state limitations on the purpose and scope of the preliminary hearing may reduce the necessity for adversarial procedural safeguards such as right to counsel.
Assuming, based on the foregoing language in Gerstein, supra, 420 U.S. 103, and Coleman v. Alabama, supra, 399 U.S. 1, that the confines of the federal confrontation clause may vary depending on the purpose and scope of the hearing provided by state law, it seems reasonable to conclude that the federal clause is not violated by allowing hearsay testimony at post-Proposition 115 preliminary hearings in this state. Under that measure, the very purpose of the hearing has been considerably narrowed: “It is the purpose of
The foregoing statutory pronouncement marks a sharp contrast to this court‘s previous expansive concept of the preliminary hearing as a discovery and trial preparation device, allowing counsel the opportunity to “fashion” their impeachment tools for use in cross-examination at trial, to preserve testimony favorable to the defense, and to provide the defense “with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial.” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588 [150 Cal.Rptr. 435, 586 P.2d 916].) Significantly, the utility of the preliminary hearing as a discovery tool has been cited in support of the minority position that the use of hearsay at such hearings violates the defendant‘s confrontation rights. (See, e.g., State v. Anderson (Utah 1980) 612 P.2d 778, 784-786 [relying on confrontation clause of Utah Const.].)
As Justice Puglia explained in his concurring opinion in Herbert v. Superior Court, supra, 117 Cal.App.3d at pages 671-672, “The constitutional right of confrontation is ‘basically a trial right’ [citations]. Although the federal Constitution requires a probable cause hearing to justify significant pretrial detention of defendant, that hearing need not include traditional adversary safeguards such as the right of confrontation [citing Gerstein, supra, 420 U.S. 103]. Moreover, the federal Constitution does not require a judicial hearing at all as a prerequisite to prosecution by information. [Citation.] A fortiori, when state procedure nevertheless provides for such a hearing, it would logically follow that the federal Constitution does not require the entire panoply of procedural rights available at trial to be observed in the pretrial hearing [citation].”
We agree with Justice Puglia‘s analysis. We note that, under the express language of
We conclude that the new, limited form of preliminary hearing in this state sufficiently resembles the Fourth Amendment probable cause hearing examined in Gerstein, supra, 420 U.S. 103, to meet federal confrontation clause standards despite reliance on hearsay evidence.
3. Federal Due Process Concerns
Petitioner also contends that new
We find no similar unfairness here for, properly construed, the new hearsay statute contains no broad grant of authority to the prosecutor to rely on hearsay evidence. The section merely specifies a further, limited exception to the general hearsay exclusionary rule of
4. State Separation of Powers Doctrine
Finally, petitioner argues that the new hearsay procedures violate the constitutional doctrine of separation of powers (
First, as previously noted, by reason of Proposition 115, the state Constitution now expressly permits the admission of hearsay evidence at preliminary hearings. Thus, the prosecutor‘s ensuing “control” over the kind of evidence admitted at such hearings is specifically authorized by the Constitution, and the general separation of powers doctrine would not apply. (See Serrano v. Priest (1971) 5 Cal.3d 584, 596 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].)
Moreover, we discern no separation of powers violation here. Although the prosecutor is allowed to rely on hearsay evidence in presenting his or her case at the preliminary hearing, and may require the defendant to make a satisfactory proof offer before the defendant may call any defense witnesses (
CONCLUSION
Because the magistrate‘s finding of probable cause in this case was based on the improper and unauthorized use of “reader” testimony, we conclude that the superior court erred in denying petitioner‘s motion to set aside the information under
Panelli, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Concurring.—I concur in the judgment. Manifestly, petitioner is entitled to the relief he seeks.
I write separately to address the crucial issue of statutory construction.
Plainly, section 872(b) creates a new exception to the hearsay rule. What is not plain, however, is its meaning.
Section 872(b) may be construed narrowly to allow hearsay if given by an officer who simply possesses specified training or experience in, among other things, the investigation of cases. This interpretation cleaves to the literal meaning of the words used in the statutory provision.
Section 872(b) may also be construed somewhat more broadly to allow hearsay if given by an officer who possesses such training or experience in investigation and has actually investigated the case in question. This interpretation seeks to read the condition stated in the statutory provision in light of the condition‘s evident purpose, i.e., to assure the reliability of the hearsay given by the officer.
In choosing between these two constructions of section 872(b), I believe that we should make our decision against the background of the principles that underlie the law of hearsay. It is manifest that in enacting the statutory provision, the people legislated in this doctrinal context: they recognized the rule against hearsay and created an exception thereto. Accordingly, we should seek to adopt the interpretation that is the more consonant with those principles.
The hearsay rule generally rejects out-of-court statements offered for their truth because, without the test of cross-examination, they are not deemed sufficiently reliable for admission. (E.g., 1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, § 558, p. 534 [Cal. law]; 5 Wigmore, Evidence (Chadbourn ed. 1974) Analytic Rules: The Hearsay Rule, § 1362, p. 3 (hereafter Wigmore) [general Anglo-American common law].) Exceptions exist for classes of statements that meet requirements including possession
The narrow construction of section 872(b)—viz., hearsay may be given by an officer with specified training or experience in investigation—is discordant when played against the principles set forth above. Under this reading of the statutory provision, the exception created is not only new but apparently novel. Reliability is not assured for the extrajudicial statements at issue. Like all such statements, they are not subject to cross-examination.1 Neither can they be held to possess adequate indicia of trustworthiness. If they could, they would be admissible if offered by any otherwise competent witness. They are not. As stated, they are admissible only if given by an officer with specified training or experience. To be sure, such training or experience may give grounds for expectation that the statements are reported accurately. But in no way does it guarantee that they are trustworthy in and of themselves.
The somewhat broader construction of section 872(b)—viz., hearsay may be given by an officer who possesses specified training or experience in investigation and has actually investigated the case in question—is far less discordant. True, even under this reading of the statutory provision, the exception created is apparently novel. But here at least, reliability can be assured to some extent. As explained, the extrajudicial statements at issue cannot be held to possess adequate indicia of trustworthiness. They are, however, subject to a kind of indirect cross-examination. An officer who possesses specified training or experience in investigation and has actually investigated the case can be meaningfully questioned about all the matters that might be included in any relevant statement. Through such questioning, the trustworthiness of the statement can be tested in some appreciable way.2
I now turn briefly to the case at bar. Petitioner seeks a writ of prohibition against the superior court to compel it to dismiss the information and to restrain it from proceeding further. After a preliminary examination, the magistrate made an order holding petitioner to answer the charges in the complaint. Petitioner unsuccessfully moved the superior court to dismiss the ensuing information under
For the reasons stated above, I concur in the judgment.
KENNARD, J., Concurring and Dissenting.—I agree with the majority that those portions of Proposition 115 authorizing the use of certain hearsay evidence at preliminary hearings do not violate the state or the federal Constitution. I also agree that “reader” testimony, such as that offered by the prosecution in this case, is inconsistent with the purposes underlying Proposition 115, and thus defendant should not have been held to answer in the superior court.
But the manner in which the majority dispenses with “reader” testimony is deficient. Presented with language in Proposition 115 of uncertain meaning, the majority reaches a decision that compounds, rather than resolves, the uncertainty. In legal proceedings, uncertainty means litigation, and litigation means delay. By failing to articulate a workable “bright line” rule for hearsay evidence at preliminary hearings, the majority opinion poses a perplexing problem for magistrates and attorneys who will have to decipher its Delphic utterances, frustrating Proposition 115‘s goal of making our system of criminal justice both “swift and fair.”
I.
To determine the scope of Proposition 115‘s scheme permitting the use of hearsay testimony at preliminary hearings, it is necessary to focus on two of
The initiative‘s amendment adds
To implement this amendment to the state Constitution, Proposition 115 adds to the
As I shall explain, in determining whether the hearsay testimony offered in this case was admissible, both of these provisions must be considered.
II.
In this case, Officer Navin stopped defendant for speeding, and, based on observations leading her to believe that defendant had been driving under the influence of alcohol and/or drugs, arrested him. But Navin did not testify at defendant‘s preliminary hearing, at which the only witness called by the People was Officer Alexander. He had the requisite five years of law enforcement experience set forth in section 872(b). He had, however, never discussed the case with Officer Navin, and did not even know whether Navin was a man or a woman. Nevertheless, the magistrate allowed Officer Alexander to testify about Officer Navin‘s observations, by reading from Navin‘s police report. Based on this testimony, the magistrate held defendant to answer in the superior court.
The majority, however, would permit “reader” testimony if the testifying officer has “sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability of the statement.” (Maj. opn., ante, at pp. 1072-1073.) This is where I part company with the majority. By permitting hearsay testimony in these circumstances, the majority fails to take into account Proposition 115‘s express purpose in permitting hearsay testimony at preliminary hearings, as described in
The objective of
In sum, protection of private citizens rather than police officer witnesses appears to have been the fundamental concern underlying the phrase “to
The majority opinion makes no attempt to explain how its interpretation of section 872(b) is consistent with the purpose of “protect[ing] victims and witnesses” set forth in
III.
Not only is the majority‘s holding unfaithful to the intent of Proposition 115, it is also likely to mire the criminal justice system in confusion.
The majority holds that an officer can testify based on another officer‘s report if the testifying officer‘s “knowledge of the crime or the circumstances” is sufficient to “meaningfully assist the magistrate” in determining reliability. This vague test contains no guidance whatsoever for magistrates and litigators, leaving them adrift on the flood of litigation likely to ensue from efforts to grasp the meaning of the majority‘s ill defined terminology regarding the testifying officer‘s “knowledge of the crime or the circumstances” and ability to “meaningfully assist the magistrate.”
Can officers “meaningfully assist the magistrate” if they observed the preparation of the police report, but have no independent knowledge of the circumstances of the offense? Is the majority‘s “meaningful assistance” requirement met if, before testifying at the preliminary hearing, the testifying officer spoke to the officer who prepared the report and was assured of the reliability of the report, but the two officers did not discuss the contents of the report? What if the testifying officer‘s “knowledge of the crime” was gained from reading a number of police reports that had been prepared by various officers—can that officer then testify as to the contents of each of the reports he or she has read? And if, after the magistrate ruled the testimony to be inadmissible, the testifying officer telephones the officer who prepared the report and discusses its contents for five or ten minutes, can the testify-
Because the majority‘s vague and confusing test will not answer these questions, different magistrates presented with similar facts will make inconsistent rulings. To resolve the inconsistencies and uncertainties, the parties will be required to resort to the time-consuming pursuit of appellate remedies. Eventually the Courts of Appeal will provide content to the majority‘s empty formulation. In the meantime, however, the majority‘s failure to create a workable “bright line” rule for hearsay evidence at preliminary hearings will serve to obstruct, rather than to streamline, the criminal justice system, thereby frustrating the people‘s expressed purpose to create “a system in which justice is swift and fair” (Prop. 115, § 1, subd. (c), Primary Elec. (June 5, 1990) [Stats. 1990, No. 1 Deering‘s Adv. Legis. Service, p. 265]).