Page 1
California Supreme Court:
Bail Hearing Does Not Require Trial-Admissible Evidence
Guerrero Says Pretrial Detention Order May Be Based on Prosecution Proffers Providing Reliable Evidence
By Kimber Cooley, Staff Writer
An order denying bail under Article I, §12(b) of the California Constitution does not require evidence that would be admissible at a criminal trial and may be based upon hearsay and a proffer by the prosecution describing the evidence supporting pretrial detention so long as the provided information is reliable, the California Supreme Court held yesterday.
The case came before the high court on a petition for a writ of habeas corpus challenging the trial court’s pretrial no-bail order for a defendant who was charged with attempted first-degree murder and aggravated mayhem after DNA recovered from the victim of a 32-year-old crime returned a match for his profile.
Div. Three of the First District Court of Appeal, in an opinion by Justice Carin T. Fujisaki, concluded that proffers are permissible on no-bail hearings and found that the order was supported by sufficient evidence but remanded the matter for further findings as to whether less restrictive alternatives could reasonably have protected the government’s interests in pretrial detention.
Guerrero’s Opinion
Chief Justice Patricia Guerrero wrote the opinion for the unanimous court reversing the First District’s judgment “insofar as the court held that the record contained substantial evidence” and remanded the matter with directions that the case be returned to the trial court to consider the reliability factors outlined in yesterday’s opinion.
The opinion left undisturbed the Court of Appeal’s determination that the matter must be remanded to consider whether less restrictive alternatives to detention are feasible.
Guerrero wrote:
“When deciding whether to detain a defendant without bail under article I, section 12(b), the trial court may properly consider hearsay and documents tendered without the full evidentiary foundation that would be required at trial. In evaluating such evidence, the trial court should reject or discount material it regards as unreliable and retains discretion to demand the production of additional, admissible evidence, including live testimony, in appropriate circumstances. We further hold that the trial court’s consideration of reliable proffers and hearsay evidence at a pretrial detention hearing does not offend federal or state due process principles.”
California Constitution
Article I, §12 of the California Constitution guarantees a person charged with a noncapital offense the right to be released on bail pending trial, subject to delineated exceptions.
One such exception appears in subsection (b) which authorizes the detention of a defendant without bail for “[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.”
Petitioning for habeas corpus relief was John Harris Jr., who had been charged in the case after DNA collected in a rape-kit was identified as matching his profile. According to the prosecution in its motion opposing bail, a man entered the victim’s San Mateo apartment on March 4, 1989 at 4:15 a.m. and tied the victim up with scarves, raped her, and stabbed her multiple times, slitting her throat and narrowly missing her jugular vein.
The prosecution’s proffer also summarized interviews with ex-wives and ex-girlfriends of Harris who said that he had exhibited aggressive sexual behavior involving scarves and rape fantasies.
San Mateo Superior Court Judge Amarra Lee denied bail under §12(b) based on the prosecution’s proffer of the evidence in the case. Harris filed a petition for writ of habeas corpus, asserting that Lee improperly relied on the proffer and failed to make findings that no nonfinancial, less restrictive alternatives to detention would protect the state’s interest in public safety, as required by the 2021 California Supreme Court case In re Humphrey.
Mixed Guidance
Guerrero noted that case law on related issues only provides “mixed guidance on the subject” and that “[w]e have never been asked to decide whether an order detaining a defendant without bail prior to trial must rest upon evidence that would be admissible at a criminal trial.”
Turning to the text of the provision, she remarked that “nowhere on its face does article I, section 12(b) indicate that a court may consider only evidence that would be admissible at a criminal trial in determining whether ‘the facts are evident or the presumption great,’ or whether the People have shown by ‘clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.’”
She found the legislative intent also devoid of such a requirement, saying:
“Nor do we perceive any underlying intent, not captured on the face of article I, section 12(b), to limit this provision through the categorical rule that petitioner proposes. No clear indications of such an intent appear in the debates regarding the 1849 Constitution, the legislative materials accompanying the 1974 constitutional revisions, or in the ballot materials associated with Proposition 4 in 1982.”
Practical Implications
The chief justice expressed practical concerns with a rule requiring that evidence submitted at a bail hearing comply with admissibility rules governing criminal trials. She wrote:
“It also seems doubtful that article I, section 12(b) was intended to constitutionalize an extension of the rules regarding the admission of evidence at a criminal trial when the timeline for setting or denying bail may make it difficult or impossible for the parties to present evidence in the manner required at trial. Initial bail hearings occur at the earliest stages of a criminal proceeding, often at the time of a defendant’s arraignment…when the parties’ ability to secure witnesses through subpoena is limited.”
She noted that victims of recent violent crimes may be physically or emotionally unable to appear so soon after the crime, and witnesses may be unable to appear on short notice. Under these circumstances, she concluded:
“Petitioner’s approach also implicates the possibility of mini trials ahead of a bail hearing at which the admissibility of certain evidence, such as a defendant’s confession, would be disputed. Neither the constitution nor the statutory scheme contemplates these kinds of additional procedures. These practical issues suggest that petitioner’s categorical rule would disserve the intent behind article I, section 12(b).”
Guerrero continued:
“Petitioner’s proposed rule also finds little support in contemporary standards regarding bail hearings and the descriptions of these hearings found in leading treatises, which emphasize the informal nature of these proceedings.”
Reliable Information
She acknowledged the high stakes involved in pretrial detention and said that “a court does not assume the truth of the criminal charges when evaluating whether to order a defendant held without bail” and “[a] trial court…must ensure its decision to detain an individual…under article I, section 12(b) is supported by reliable information.”
The jurist set forth factors relevant to the determination of whether a proffer is sufficiently reliable, such as:
“(1) the specificity and comprehensiveness with which the proffer describes the evidence; (2) the extent to which the proffer is supported by other evidence…; (3) whether the proffer attributes its information to identified witnesses with firsthand knowledge; (4) whether the government has failed to provide more precise evidence that it could readily have submitted…;…(5) whether the defense has…provided a specific basis for doubting the proffer’s reliability[;]….(6) whether the government has failed to produce readily available witnesses[;] and (7) whether information was sworn or made under oath.”
She asked that courts make a record of findings in this area, saying:
“[W]hen the defendant has made a competing proffer, or objected to the prosecution’s proffer as inadequately supported or otherwise unreliable, the trial court should endeavor to make a record of the basis on which it found the prosecution’s proffer reliable. Doing so furthers the goals of fairness and reasoned decisionmaking.”
Due Process
Harris asserts that the prosecution’s use of a proffer violated his due process rights under the federal and state constitutions. Unpersuaded, Guerrero said that “[i]t is well settled that the accused retains a fundamental constitutional right to liberty before trial,” but said “[w]e do not find a violation of federal due process on the record before us.”
She reasoned:
“[P]etitioner had counsel present at his bail hearing. He was permitted to testify on his own behalf and to also present information by proffer or otherwise. The record also indicates petitioner indeed received notice of the People’s intent to request no bail under article I, section 12(b) via their opposition to petitioner’s request to reduce bail, and that he also received at least some discovery.”
Based on these facts, Guerrero concluded:
“[P]etitioner fails to explain how the prosecution’s reliance on a proffer deprived him of his right to notice or a timely hearing. Petitioner retained the opportunity to present his own proffer and other evidence as well as the right to a timely hearing.”
The case is In re Harris, 2024 S.O.S. 2091.
Copyright 2024, Metropolitan News Company