BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 603 Hearing Date: April 21, 2015
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|Author: |Hueso |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Defendant: Acting As His or Her Own Attorney (in pro
per)
HISTORY
Source: San Diego District Attorney's Office
Prior Legislation:None
Support: California District Attorneys Association; Alliance
for Hope; San Diego VOICES; Partnership to End
Domestic Violence; Crime Victims United; a number of
individuals; Crime Victims Action Alliance; 2
individuals
Opposition:ACLU; California Public Defenders Association
PURPOSE
The purpose of this bill is in cases where a defendant who is
charged with specified offenses is acting in pro per, to allow
the court to appoint intermediary standby counsel for the
limited purpose of presenting the defendant's examination of the
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victim.
Existing law provides that in all criminal prosecutions, the
accused shall enjoy the right ... to be confronted by the
witnesses against him ? (U.S. Constitution, Amendment VI.)
Existing law provides that the Sixth Amendment of the U.S.
Constitution guarantees the right accused of a crime to
represent him or herself. (Faretta v. California (1975) 422
U.S. 806)
Existing law provides that when a defendant is charged with
specified sex offenses, child abuse, lewd and lascivious acts on
a child, and the victim either is a person 15 years of age or
less or is developmentally disabled as a result of an
intellectual disability, as specified, the people may apply for
an order that the victim's testimony at the preliminary hearing,
in addition to being steno graphically recorded, be recorded and
preserved on videotape. (Penal Code, § 1346(a).)
Existing law states that at the time of trial, if the court
finds that further testimony in any of the qualifying cases
would cause the victim emotional trauma so that the victim is
medically unavailable or otherwise unavailable within the
statutory definition of unavailability, the court may admit the
videotape of the victim's testimony at the preliminary hearing,
as specified. (Penal Code, § 1346(d).)
Existing law establishes that a videotape prepared for court
testimony is subject to a protective order of the court to
protect the privacy of the victim and must be made available to
the prosecuting attorney, the defendant, and his/her attorney
for viewing during business hours. The videotape is to be
destroyed five years from the date of judgment, unless an appeal
is filed. (Penal Code, § 1346(e), (f), and (g).)
Existing law provides that when a defendant is charged with
spousal rape or infliction of corporal injury resulting in a
traumatic injury to a spouse, former spouse, or domestic
partner, the people may apply for an order that the victim's
testimony at the preliminary hearing, in addition to being steno
graphically recorded, be recorded and preserved on videotape.
If the victim's testimony at the preliminary hearing is
admissible, the videotape recording may be introduced as
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evidence at trial (Penal Code, § 1346.1(a) and (d).)
Existing law allows, in cases where a minor, 13 years or
younger, will testify that a sexual offense was committed
against or with the minor, or that the minor was a victim of a
violent felony, as defined, that the minor may testify by way of
contemporaneous examination and cross examination in another
location and communicated to the courtroom by closed-circuit
television if the court finds that the impact on the minor of
one or more of the following is shown by clear and convincing
evidence to make the minor unavailable as a witness unless
closed-circuit television is used:
a) Testimony by the minor in the presence of the defendant
would result in the child suffering serious emotional
distress so that the child would be unavailable as a
witness;
b) The defendant used a deadly weapon in the commission of
the offense;
c) Threats of serious bodily injury to be inflicted on the
minor or a family member, of incarceration or deportation
of the minor or a family member, or of removal of the minor
from the family or dissolution of the family in order to
prevent or dissuade the minor from attending or giving
testimony at any trial or court proceeding or to prevent
the minor from reporting the alleged sexual offense or from
assisting in the prosecution;
d) The defendant inflicted great bodily injury upon the
child in the commission of the offense; or,
e) The defendant or his or her counsel behaved during the
hearing or trial in a way that caused the minor to be
unable to continue his or her testimony. (Penal Code §
1347(b).)
This bill provides that if the defendant is acting as his or her
own attorney, the court, upon a motion by the prosecutor, at the
request of a victim, or upon the court's own motion, shall
conduct a hearing to determine whether intermediary standby
counsel, shall be appointed, at county expense, for the limited
purpose of presenting the defendant's examination of the victim.
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This bill provides the court may order intermediary standby
counsel if the court makes the following findings:
The victim's testimony will involve the recitation of
facts on any of the following offenses.
o A registerable sex offense.
o A violent felony.
o Felony stalking.
o Felony elder abuse.
o Felony domestic violence.
o Felony child abuse.
The prospect of the defendant personally presenting the
examination of the victim creates an emotionally traumatic
situation for the victim that is more than de minimis.
The denial of the defendant's personal examination, and
the use of intermediary standby counsel to present the
defendant's examination of the victim, is necessary to
protect the victim from that trauma.
This bill provides that the hearing on the motion to have
standby counsel pursuant to this bill shall take place outside
the presence of the jury and shall not require the testimony
of the victim. If the victim does testify at the hearing the
questioning of the victim shall be conducted by the court.
This bill provides that if the court orders intermediary
standby counsel to present the examination of the victim the
court shall do all of the following:
Make a brief statement on the record of the reasons
in support of its order. The reasons shall be set forth
with sufficient specificity to permit meaningful review
and to demonstrate that discretion was exercised in a
careful, reasonable and equitable manner.
Instruct the jury that although intermediary standby
counsel is presenting the defendant's questions of that
witness, the defendant is continuing to represent himself
or herself, and that the jury is to draw no negative
interferences against the defendant from the sue of
intermediary standby counsel to facilitate the
examination of that particular witness or to speculate as
to the reasons for intermediary standby counsel's
participation.
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This bill provides that when the court orders the examination of
the victim be presented by intermediary standby counsel, the
defendant shall submit the entire line of questioning to the
intermediary standby counsel, including any follow- up
questions, and have the right to contemporaneously direct
intermediary standby counsel during the examination to ensure
the defendant maintains control of his or her defense. The
defendant shall remain personally subject to court procedures
and the rules of evidence.
This bill provides that the appointed intermediary standby
counsel who performs merely as the presenter of the defendant's
proposed examination of the victim pursuant to this section
shall not be subject to sanctions for presenting the defendant's
proposed examination. The appointed intermediary standby
counsel shall not be subject to liability for malpractice for
presenting the defendant's proposed examination in an action
brought by the defendant against his own counsel for his or her
service in that capacity.
This bill contains codified legislative intent.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need For The Bill
According to the author:
SB 603 would set up a legal framework to prevent
further trauma to specified victims when their accused
attacker is acting in pro per. This bill applies when
a defendant is representing himself or herself in a
criminal case involving a sex crime, stalking, elder
abuse, child abuse, domestic violence, or a violent
felony. If a judge finds that direct questioning by
the accused would create an emotionally traumatic
situation for that victim, the judge may appoint
stand-by counsel to ask the questions as prepared by
the defendant.
Numerous courts across the country have restricted
pro per defendants' ability to personally
cross-examine their victims, particularly in cases
involving sexual abuse. For example, in 1995, the
Fourth Circuit Court of Appeals in Fields v. Murray,
affirmed a lower court's decision to appoint stand-by
counsel to read the defendant's questions as prepared
by the defendant in a case involving child
molestation. The Court found it was not a violation
of the defendant's rights, he still maintained control
of his defense, and the state had an important
interest in protecting the child victims from further
trauma. This ruling applies to the states of
Maryland, Virginia, West Virginia, North Carolina, and
South Carolina. Similar decisions were reached by the
Supreme Court of Kentucky in the cases of Partin and
Applegate, and the Washington Appellate Court case of
Estabrook.
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California's public policy to protect the physical and
psychological well-being of victims during the
criminal justice process is clear. Particularly in
cases of sexual assault, secondary victimization can
cause even more harm than the initial criminal act,
with the trial often being referred to as "the second
rape." A rape victim should be afforded protection
from the trauma of being personally questioned by the
accused rapist. A stalking victim should be afforded
another option than have to suffer the trauma from
direct questioning by the person who has harassed,
threatened, and tormented her. By having a procedure
in which stand-by counsel is appointed to read a pro
per defendant's questions, victims of violent crime
will be able to avoid another direct assault by their
attackers during the trial. At the same time, this
bill protects defendants' rights to still maintain
control of their case and direct their trial.
2. Use of Standby Counsel For Victim Cross-Examination
The U.S. Constitution guarantees the right of a person accused
of a crime to represent himself or herself (in pro per). A
defendant acting in pro per has the right to control the
organization of the defense, make motions, argue points of law,
participate in voir dire, question witnesses and address the
court and jury. (McKaskle v. Wiggins (1984) 465 U.S. 168, 174)
This bill would provide that in specified cases when a defendant
is acting in pro per a court can order standby counsel to
question the victim on behalf of the defendant. The court will
have to find that the defendant examining the victim will create
an emotionally traumatic situation for the victim and that
appointing the stand by counsel will protect the victim from
that trauma. The offenses about which the victim is testifying
must be one of the following: a registerable sex offense; a
violent felony; felony stalking; felony elder abuse; felony
domestic violence; or, felony child abuse.
In support of this bill the sponsor states:
In a recent San Diego case, a woman was violently
raped while walking from a store to a trolley station.
During the course of the criminal case, the defendant
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eventually chose to act as his own attorney. The rape
victim in the case had not alternative by to face her
rapist during the trial and answer he questions
directly about the violent sexual assault, despite
having suffered panic attacks prior to trial, out of
increased anxiety of being directly questioned by her
rapist.
Victims of sex crimes and other violent crimes already
suffer physical trauma, fear, and an assault on their
privacy and dignity. To require those victimized to
have to suffer re-traumatization by answering
questions personally posed by their alleged attacker,
without an alternative, is indefensible considering
the vulnerable state of these victims. Through a
loophole in the law, rapists can victimize their
victims-once during the rape and then again by
re-traumatizing them through direct question about the
crime perpetrated. The fact that our laws allow
victims of violent sex crimes to endure this line of
question when there is an alternative is
reprehensible.
3. Offenses For Which Standby Counsel Can Be Appointed
The offenses for which standby counsel can be appointed to
cross-examine the victim are:
A registerable sex offense;
A violent felony;
Felony stalking;
Felony elder abuse;
Felony domestic violence;
Felony child abuse;
The list of violent felonies includes twenty-three offenses
including murder and sex offenses but also including any robbery
and any first degree burglary where another was present. Any
robbery could be purse snatch when the person holds on to the
purse too long and a person present at a first degree burglary
can be a burglary downstairs while people sleep unknowing
upstairs. Both events are traumatic but are they the type of
crimes for which a person's constitutional right to
self-representation should be infringed?
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4. How Will The Questioning Work And Does The Process Protect
The Defendant's Right To Confrontation?
The bill states that the pro per defendant will submit the
entire line of questioning, including follow-up questions to the
standby counsel. It is not clear how this work. The
examination or cross-examination of a witness is an organic
process. Follow up questions are just that, follow-up questions
based on the answers, how does a person submit follow up
questions prior to the examination? Does the standby counsel
have to stop after every answer and ask the defendant if they
have a question? Even an experienced attorney will not know all
the questions that they are going to ask on an examination until
the question starts, how is an in pro per defendant supposed to
submit the questions before? Does the standby counsel continue
to ask questions even if they don't make sense based on how the
witness is answering?
In opposition the ACLU states:
It is simply not possible for an attorney to step in
and act as an effective mouth piece for the accused
during cross-examination. Cross-examination is an
art. The litigator must respond, in real time, to the
actual answers from the witness, constantly adjusting
course. The timing of the questions is critical.
Requiring standby counsel to read a list of prepared
questions does not constitute a "full opportunity for
contemporaneous cross-examination." (Ibid.) Nor is
this problem cured by having the standby attorney
consult with the accused during cross-examine. This
prevents rapid response to answers and destroys the
ability to develop effective timing.
Two cases in which appellate courts reversed the trial
courts for using the procedure proposed in SB 603
demonstrate this point. In State v. Folk (Idaho 2011)
256 P.3d 735, the court observed:
Requiring Defendant to write out questions to be
asked by someone else in order to cross-examine
Child is a significant impairment of the right
of confrontation. [?]
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As anyone who has conducted cross-examination
would know, one must be able to listen to the
answer and then, especially with young child, be
able to reword the question or come up with
another question based upon the answer.
Cross-examination is often a fluid process, and
the person forming the questions must be able to
concentrate on the answers and what further
questions are necessary to elicit the desired
information.
(Id. At 745.)
In Commonwealth v. Conefrey (Mass. 1991) 570 N.E.2d
1384, the court described the events at trial as
follows:
Cross-examination of the complainant proceeded
in the form directed by the judge, with the
defendant writing out questions and giving them
to standby counsel to ask of the complainant.
During the course of the questioning, however,
standby counsel protested to the judge that he
felt awkward with this method of examination,
and that he could not adjust his questions
quickly enough to respond to the complainant's
answers without constantly conferring with the
defendant.
(Id. At 1389.) The court then held:
We conclude that the restriction denied the
defendant a fair chance to present his case his
own way because it literally required standby
counsel to speak in his place, thereby hindering
the defendant's ability to conduct an effective
cross-examination of a witness on whose
credibility the Commonwealth's case depended.
As a result, the defendant's constitutional
right of self-representation has been violated
and a new trial is necessary.
(Id. At 1391.)
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One state appellate court has upheld the use of the
procedure proposed in SB 603. (State v. Eastabrook
(Wash. 1993) 842 P.2d 1001.). This court, however,
failed to analyze the Sixth Amendment Confrontation
Clause issues raised by these procedures. While other
courts have approved preventing the defendant from
personally cross-examining the complaining witness, in
all of those cases the defendant was in fact
represented by counsel. (See Fields v. Murray (1995)
49 F.3d 1024 [where defendant was acting as
"co-counsel" to court appointed attorney, it was
acceptable to require the court appointed attorney
conduct the cross-exam]; Partin v. Commonwealth
(Kentucky 2005) 168 S.W. 3d 23 [same]; State v. Taylor
(RI 1989) 562 A.2d 445 [accused represented by an
attorney].)
As the cases from Idaho and Massachusetts demonstrate,
implementing the procedure proposed in SB 603 will
lead to the infringement of the constitutional rights
of the accused, leading to reversals and the need to
retry these cases years later.
5. Will The Court Be Able To Find Standby Counsel?
This bill provides that the standby counsel cannot be sanctioned
or subject to malpractice liability for presenting the
defendant. Sanctioned by whom? Should it be clear that the
counsel cannot be sanctioned by the State Bar or the Court?
Even without potential liability, will any defense attorney feel
comfortable asking questions on behalf of the pro per defendant
without having an ability to use their knowledge and skill to
follow-up? If the court orders a defense attorney to be a
standby counsel and the attorney refuses can the attorney be
found in contempt for that? Will attorneys who are solo
practitioners feel they have to agree for fear they will lose
appointed cases in the future? If the attorney goes off the
script and asks a question on his or her own are they still
protected from liability?
6. Are There Other Options For The Court?
As the ACLU notes, there are other ways a court can deal with a
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pro per defendant who is being abusive so as to protect the
witness:
Fortunately, California trial courts already have many
tools to protect witnesses. Trial courts can control
the mode of cross-examination by any person to protect
the witness from undue harassment and embarrassment.
(See Cal. Evid. Code, § 765.) California law provides
for the use of closed-circuit television to question
certain child witnesses and witnesses with
disabilities. (Pen. Code sec. 1347, 1347.5.) The
courts can require that a pro se litigant stay seated
while cross-examining the witness or maintain a
certain distance from the witness. If a pro se
litigant is disruptive or threatening, the judge can
have him or her restrained or removed from the
courtroom. See Illinois v. Allen (1970) 397 U.S. 337.
If a pro se litigant engages in witness intimidation
or in any way subverts "the core concept of a trial,"
the court can even terminate the accused's right to
represent himself or herself. (People v. Carson
(2005) 35 Cal.4th 1, 9.)
Trial courts, thus, are already vested with broad
discretion to prevent the kind of harm that SB 603
guards against.
Are courts using the options available to them in order to
protect victims and maintain the defendant's Constitutional
right to represent himself for herself?
7. Support
The supporters believe that this bill will help victims in
reducing their trauma at trial. Specifically, the California
Partnership to End Domestic Violence states in support:
The criminal process can be extremely traumatic for
survivors of domestic violence, sexual assault,
stalking and other violent crimes. Many survivors are
reluctant to participate and fearful of confronting
their abusers. By allowing an appointed stand-by
counsel to question the survivor in these specific
cases we can help reduce the possibility for emotional
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harm and increased trauma to the survivor. A survivor
should be afforded protection from trauma of being
personally questioned by their accused. By having a
procedure in which stand-by counsel is appointed to
read a pro per defendant's questions, survivors of
violent crime will be able to avoid another attack
during the trial.
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