BILL ANALYSIS Ó
AB 568
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Date of Hearing: May 7, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 568 (Muratsuchi) - As Introduced: February 20, 2013
SUMMARY : Clarifies the definition of a "law enforcement
officer" for purposes of introducing hearsay statements at a
preliminary hearing. Specifically, this bill states that for
purposes of introducing hearsay statements at a preliminary
hearing, a law enforcement officer is any officer or agent
employed by a federal, state, or local government agency to whom
all of the following apply:
1)Has either five years of law enforcement experience, or who
has completed a training course certified by the Commission on
Peace Officer Standards and Training (POST) which includes
training in the investigation and reporting of cases and
testifying at preliminary hearings; and,
2)Whose primary responsibility is the enforcement of any law,
the detection and apprehension of persons who have violated
any law, or the investigation and preparation for prosecution
of cases involving violations of law.
EXISTING LAW :
1)States that 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. [California
Constitution, Article I, Section 30(b).]
2)Provides that a finding of probable cause at a preliminary
hearing may be based on hearsay statements related by a law
enforcement officer. [Penal Code Section 872(b).]
3)Defines 'hearsay evidence" as "evidence of a statement that
was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter
stated." [Evidence Code Section 1200(a).]
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4)Provides that, except as provided by law, hearsay evidence is
inadmissible. [Evidence Code Section 1200(b).]
5)States that the prohibition against offering hearsay testimony
does not apply at a preliminary hearing pursuant to Penal Code
Section 872(b). (Evidence Code Section 1203.1.)
6)States that any person who comes within the provisions of this
chapter and who otherwise meets all standards imposed by law
on a peace officer is a peace officer, and notwithstanding any
other law, no person other than those designated in this
chapter is a peace officer. (Penal Code Section 830.)
7)Declares specific persons to be peace officers. [Penal Code
Sections 830.1 through 830.65.]
8)Declares other specific persons not to be peace officers, but
having powers of arrest. [Penal Code Sections 830.7 through
830.9.]
9)Requires all peace officers to complete an introductory course
of training prescribed by POST, demonstrated by passage of an
appropriate examination developed by POST. [Penal Code
Section 832(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is a
chance to stop the waste of government funds on unnecessary
litigation and prevent criminals from being able to subvert
the legal system. AB 568 will ensure that the testimony of
nontraditional law enforcement officers is not hindered by
costly and time consuming defensive objections that have
already been resolved by the California Court of Appeal."
2)Proposition 115 : Proposition 115, which became effective June
6, 1990, added both constitutional and statutory language to
permit a probable cause determination at a preliminary hearing
in felony prosecutions to be based on hearsay evidence
presented by a qualified investigative officer.
Specifically, Proposition 115 added Section 30 to Article I of
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the California Constitution which provides, that in order to
protect victims and witnesses in criminal cases, hearsay
evidence shall be admissible at preliminary hearings.
Proposition 115 also added Evidence Code Section 1203.1 to
provide a preliminary hearing exception to the general
requirement that a hearsay declarant be made available for
cross-examination.
Proposition 115 amended Penal Code Section 872 to provide that
notwithstanding the hearsay rule, the finding of probable
cause can be based, entirely or in part, on the sworn
testimony of a law enforcement officer relating the
out-of-court statements of declarants which are offered for
the truth of the matter asserted.
And Proposition 115 amended Penal Code Section 866(a) to give
the magistrate discretion to limit the defendant's right to
call witnesses on his or her own behalf. [See Whitman v.
Superior Court (1991) 54 Cal.3d 1063, 1070-1071.]
3)Qualifications and Definition of Law Enforcement Officers :
Penal Code Section 872(b) contains experience and training
requirements in order for an investigating officer to be able
offer hearsay evidence at the preliminary hearing. The
section requires such an officer to have at least five years
of law enforcement experience or have completed have completed
a course certified by POST which covers the investigating and
reporting of criminal cases, and testifying at preliminary
hearings. (Whitman v. Superior Court, supra, 54 Cal.3d at p.
1073.)
While Penal Code Section 872 established the training or
experience required for testifying officers, it did not
provide a definition of what "law enforcement officers"
qualify to testify. The Court of Appeal decisions that have
considered the issue have held that Penal Code Section 872(b)
is not limited to traditional peace officers authorized to
carry weapons and to make arrests. Rather, the intent is to
hear from an officer who has knowledge of the relevant law and
facts such that he or she can provide meaningful testimony at
a preliminary hearing. As such, and arson investigator and a
Franchise Tax Board investigator have both qualified under the
statute. [Martin v. Superior Court (1991) 230 Cal.App.3d 1192
(arson investigator); and Sims v. Superior Court (1993) 18
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Cal.App.4th 463 (tax board investigator).]
This bill includes in the definition of a "law enforcement
officer" any officer or agent employed by a federal, state, or
local government agency as long as the person also has the
requisite training or expertise, and is also primarily
responsible for enforcing laws, detecting and apprehending law
violators, or investigating and preparing cases for
prosecution. The language of this bill mirrors the holding of
the appellate court in Sims v. Superior Court, supra, 18
Cal.App.4th at p. 470.
4)Limits on Law Enforcement Testimony : The testifying officer
cannot be a "mere reader" of information contained in a police
report. The officer must have personal knowledge of the
subject matter about which he or she testifies. (Whitman v.
Superior Court, supra, 54 Cal.3d at pp. 1072-1073.) If the
officer does have personal knowledge, he or she may also
testify about statements made to him or her by other peace
officers and other witnesses.
However, multiple hearsay is not admissible. [Id. at p. 1074;
see also Shannon v. Superior Court (1992) 5 Cal.App.4th 676;
Montez v. Superior Court (1992) 4 Cal.App.4th 577.] So, for
example, the testifying officer could relate what another
officer told him or her, but could not testify as to what a
witness told that other officer.
5)Confrontation Clause : A criminal defendant has the right
under both the federal and state Constitutions to confront the
witnesses against him or her. (U.S. Const., 6th Amend.; Cal.
Const., art. 1, § 15.) In Crawford v. Washington (2004) 541
U.S. 36, 68, the United States Supreme Court held that "where
testimonial hearsay is at issue," the Sixth Amendments forbids
the prosecution from introducing it unless the declarant
testifies at trial or the right to confrontation is otherwise
honored. "Testimonial evidence" has been defined as including
"statements that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial." (Id.
at p. 52.) This description seems to match the hearsay
introduced by investigating officers at preliminary hearings.
However, the California Supreme Court has held that the
California Constitution does not require confrontation at a
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preliminary hearing. In doing so, the court recognized that
the confrontation clause does not bar all hearsay evidence,
and that the United States Supreme Court has repeatedly held
that confrontation is a trial right. [Whitman v. Superior
Court, supra, 54 Cal.3d at pp. 1077 and 1079.] Recently, the
Ninth Circuit reconsidered this proposition in light of
Crawford, supra, and for the same reasons came to the same
conclusion. [Peterson v. California (9th Cir. 2010) 604 F.3d
1166, 1170.]
6)Argument in Support : The Los Angeles County District
Attorney's Office (the sponsor of this bill) writes, "Penal
Code section 872, subdivision (b), provides that a finding of
probable cause at a preliminary hearing may be based upon
hearsay statements related by a law enforcement officer.
However, the section does not define "law enforcement officer"
for the purposes of the statute. Case law has interpreted
'law enforcement officer' under the statute more broadly than
the term 'peace officer.' ?
"Due to this ambiguity, prosecutors face objections where they
seek to elicit hearsay testimony from 'non-traditional' law
enforcement officers such as federal agents, special agents
working for any of the various California state agencies,
departments or bureaus, or investigators whose primary purpose
is to enforce the law but who lack the authority to carry
weapons or make arrests. For instance, our Major Narcotics
Division faced an objection to using Penal Code § 872(b) to
elicit hearsay testimony from a federal agent called to
testify in the case of People v. Hsiu-Ying (Lisa) Tseng.
"While the failure to define a law enforcement officer for
purposes of Proposition 115 may appear to be a minor problem,
this ambiguity in the statute has led to several California
Court of Appeal cases wherein the court has been forced to
determine whether a witness called by the People qualified
under the definition of a law enforcement officer for purposes
of Penal Code Section § 872(b). ?
"In each of these cases, after time consuming and expensive
litigation, the court decided that each of these witnesses
qualified as a law enforcement officer under Penal Code
Section § 872(b). Although the California Court of Appeal has
taken up the issues of what constitutes a 'law enforcement
officer' for purposes of Penal Code Section § 872(b) three
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times and the Sims court went so far as to provide a
definition of this term, it appears that litigation of this
issue will continue until the term 'law enforcement officer'
is explicitly defined in statute. ?
"AB 568 should reduce, but will not eliminate, litigation on the
issue of whether an officer is qualified to relate hearsay
testimony. The defense can still object to an investigator
testifying to hearsay statements, claiming that it is not the
primary responsibility of that investigator to investigate and
prepare for prosecution of violations of the law. The
proposal also does not cover other instances in which
non-traditional law enforcement is primarily responsible for
the initial investigation and arrest of a suspect, but do not
meet the definition of law enforcement under Sims."
7)Argument in Opposition : The California Public Defenders
Association (CPDA) states, "AB 568 proposes to expand the
hearsay exception at preliminary hearings. This would be
detrimental to our clients because it would further curtail
the defendant's 6th amendment right to cross examination.
"At the preliminary hearing, the magistrate looks to draw
inferences that point to the defendant's guilt. Those
inferences must be reasonable and based on credible evidence.
The defense is in a better position to challenge the
credibility of that inference supporting evidence when the
defense has the opportunity to examine percipient witnesses.
"Proposition 115 already significantly diminished that
fundamental right, and CPDA opposes any provision that expands
the shield between the defense and the percipient witnesses."
8)Related Legislation : SB 663 (Lara) creates an exception to
the hearsay rule for certain out-of-court statements made by a
person with a developmental disability if the declarant is a
victim of a crime; if the statements describe a specified sex
offense performed with, by, on, or in the presence of the
declarant; or if the statements describe any act of child
abuse to which the declarant was subjected or which the
declarant witnessed; and specified other criteria are met. SB
663 is pending hearing by the Senate Human Services and Senate
Public Safety Committees.
9)Prior Legislation : AB 557 (Karnette), Chapter 18 Statutes of
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2205, authorized an honorably retired law enforcement officer
to testify as to hearsay statements at a preliminary hearing.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
Opposition
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744