BILL ANALYSIS �
AB 2156
Page 1
Date of Hearing: May 8, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2156 (Wagner) - As Amended: March 29, 2012
SUMMARY : Provides that evidence of a record, which complies
with Evidence Code Section 1560, received by an investigating
officer through a search warrant or a subpoena is not made
inadmissible by the hearsay rule at a preliminary hearing in a
criminal action.
EXISTING LAW :
1)Guarantees criminal defendants the right to confront the
witnesses against them. (U.S. Const., 6th Amend.; CA Const.,
art. I, sec.15.)
2)Provides that hearsay evidence, an out of court statement
offered to prove the truth of the matter asserted, is
inadmissible unless it satisfies the requirements of one of
the specified exceptions to the hearsay rule. (Evidence Code
Section 1200.)
3)Provides that one admissible hearsay statement may be used to
prove another hearsay statement if each statement satisfies an
exception to the hearsay rule. (Evidence Code Section 1201.)
4)Recognizes a business records exception to the hearsay rule.
This exception permits a court to admit a business record if
the writing was made in the regular course of a business and
at or near the time of the act, condition, or event; the
custodian or other qualified witness testifies to its identity
and the mode of preparation; and the sources of information
and method and time of preparation are such as to indicate its
trustworthiness. (Evidence Code Section 1271.)
5)Permits the admissibility of hearsay evidence at preliminary
hearings, as prescribed by the Legislature or by the people
through the initiative process, in order to protect victims
and witnesses in criminal cases. �Cal. Const. art. I, sec.
AB 2156
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30(b).]
6)States that the prohibition against offering hearsay testimony
does not apply to hearsay testimony of police officers at
preliminary hearings. �Penal Code Section 872 (b); Evidence
Code Section 1203.1.]
7)Requires any law enforcement officer testifying as to hearsay
statements to have either five years of law enforcement
experience or to have completed a certified training course,
including training in the investigation and reporting of cases
and testifying at preliminary hearings. �Penal Code Section
872 (b).]
8)Permits prosecutors to present a single law enforcement
officer at a preliminary hearing, whose hearsay testimony
alone can result in a criminal defendant being held for trial.
�Penal Code Section 872 (b).]
9)Provides a streamlined method for the production of business
records in response to a subpoena when the business is neither
a party to the proceeding nor the place where the cause of
action is alleged to have arisen. (Evidence Code Section
1560.)
10)Provides that the custodian of records or another qualified
witness who was served with a subpoena shall deliver the
records to the clerk of the trial court in a sealed envelope.
�Evidence Code Section 1560(b) and (c).]
11)Provides, as an alternative to the delivery of copies of the
business records to the court, that a subpoenaing party may
direct the witness to make the business records available for
inspection or copying by the party's attorney or
representative at the witness' place of business. �Evidence
Code Section 1560(e).]
12)Permits the introduction of business records by affidavit if
the records were properly subpoenaed to court and the business
records requirements have otherwise been met. (Evidence Code
Section 1562.)
13)Requires that documents produced in response to a subpoena
duces tecum in a criminal action be delivered to the clerk of
the court. �Penal Code Section 1326(b).]
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14)Specifies that the option of making the documents available
for inspection and copying at the witness's business address
does not apply in criminal cases. �Penal Code Section
1326(b).]
15)Allows the court to order an in camera hearing to determine
whether the defendant is entitled to receive the documents
subpoenaed. �Penal Code Section 1326(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Penal Code 872
codifies a part of Proposition 115 that allows police officers
to testify to one level of hearsay at preliminary hearings,
and Evidence Code 1560, which allows for subpoenaed documents
to be admitted if sent in the double wrapper with the
custodian of records declaration directly to the trial court
or hearing officer.
"There are two problems with Evidence Code 1560 for prosecutors:
(1) these documents are often obtained by search warrants not
subpoenas (can't subpoena before the case is filed and often
the documents are necessary to decide whether to file) and (2)
the police officer, the prosecutor, and even defense counsel
need to know what's in the documents well before hand.
"The solution is a new statute within the Hearsay section that
allows for the admission at a preliminary hearing of a
criminal matter. This would be made possible by the inclusion
of a declaration of custodian of records, which complies with
the content requirements of Evidence Code 1560 and is received
by investigating officer with documents provided pursuant to a
search warrant or subpoena."
2)Background on Preliminary Hearings : At a preliminary hearing,
the prosecution must present sufficient evidence to convince
the magistrate that probable cause exists to believe a crime
has been committed and the defendant committed that crime.
(Penal Code Sections 872 and 995.) If the prosecution shows
probable cause, the magistrate will hold the defendant to
answer to the charge in the trial court. The prosecution must
then file an information in the court within 15 days. �Penal
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Code Sections 739 and 1382(a)(1).]
Due to the fact that the vast majority of felony cases settle
before trial, the preliminary hearing may be the sole
proceeding in the case at which evidence is taken. �San Jose
Mercury News v. Municipal Court (1982) 30 Cal 3d 498, 511.]
The original purpose of the hearing was to eliminate
groundless claims, thus saving the accused the personal and
financial hardship of defending those charges and the state
the expense of prosecuting them.
However, the preliminary hearing transcript can provide a basis
for later impeaching a witness at trial if the witness
testifies inconsistently. �Evidence Code Section 1235;
California v. Green (1970) 399 U.S. 149]. Furthermore,
because a witness at the premliminary hearing is subject to
cross-examination, the preliminary hearing transcript may be
used at trial when a witness is later unavailable. �Evidence
Code Sections 240(a)(4) and 1291; California v. Green, supra,
399 U.S. 149.]
At a preliminary hearing, defense counsel may cross-examine
witnesses for purposes of raising affirmative defenses,
negating an element of the offense, or impeaching a witness.
�Jennings v. Superior Court (1967) 66 Cal.2d 867; Alford v.
Superior Court (1972) 29 Cal.App.3d 724.] Cross-examination
for the purpose of discovery is not allowed. �Penal Code
Section 866(b).] Similarly, the presentation of defense
evidence is limited to that which, if believed, is reasonably
likely to establish an affirmative defense; negate an element
of a crime charged; or impeach a prosecution witness or
declarant. �Penal Code Section 866(a).]
Defense counsel also may move to suppress illegally seized
evidence introduced at the hearing by making a written notice.
�Penal Code Section 1538.5(f)(1).]
3)Preliminary Hearings after Proposition 115 : In June 1990, the
voters passed Proposition 115, "Crime Victims Justice Reform
Act", which made numerous changes to Article I of the
California Constitution. Specifically and among other things,
the initiative stated that hearsay evidence was admissible at
preliminary hearings, preliminary hearings could no longer be
used for discovery purposes, and that admission of hearsay
evidence was designed to accelerate the trial process. �See
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California Constitution, Art. I, Section 30(b).]
Prop. 115 also amended Evidence Code Section 872(b) to provide
that a probable cause determination may be based on hearsay
statements related by a police officer with specified
qualifications or experience. The officer may relate the
statements of declarants made out of court offered for the
truth of the matter asserted.
In Whitman v. Superior Court of Santa Clara County (1991) 54
Cal.3d 1063, Prop. 115 was challenged on constitutional
grounds on the basis that the hearsay testimony of a police
officer violated the right to confrontation and to due
process. (Id. at p. 1071.) In Whitman, the prosecution
presented the testimony of a single officer who was not one of
the arresting or investigating officers and who had no direct,
personal knowledge of the defendant's alleged crimes. (Id. at
p. 1068.) The Supreme Court held that admitting the hearsay
testimony of a police officer at the preliminary hearing did
not violate the federal constitutional right to confrontation
because that right is "'basically a trial right.'" (Id. at p.
1079.) The Court also held that the hearsay provision of
Prop. 115 did not violate due process. The Court determined
that "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 Evidence
Code section 1200, by allowing a probable cause finding to be
based on certain hearsay testimony by law enforcement officers
having specified experience or training." (Id. at p. 1082.)
Nevertheless, the Supreme Court held that there were limits to
what police officers can testify to, even at a preliminary
examination. The testifying officer cannot simply read what
another officer reports; rather, he or she must have
sufficient knowledge of the crime or the circumstances under
which the hearsay statement was made in order to meaningfully
assist the magistrate in assessing the statement's
reliability. (Id. at pp. 1072-1073.)
As to multiple hearsay, the Whitman court held Prop. 115 did
not purport to create an exception for multiple hearsay. (Id.
at p. 1074.) The court found it significant that Prop. 115
created an exception to the basic hearsay rule of Evidence
Code Section 1200 but did not create a similar exception for
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the multiple hearsay rule found in section 1201. �Id. at p.
1074; see also Penal Code Section 872(b) ("Notwithstanding
Section 1200 of the Evidence Code?").] The court also noted
that introduction of multiple hearsay in this manner would
raise constitutional concerns. "�S]ubstantial 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." (Whitman, supra, 54 Cal.3d
at p. 1074.)
Subsequent cases have also concluded multiple hearsay in this
context is inadmissible. �See Montez v. Superior Court (1992)
4 Cal.App.4th 577; Shannon v. Superior Court (1992) 5
Cal.App.4th 676; People v. Wimberly (1992) 5 Cal.App.4th 439;
Tu v. Superior Court (1992) 5 Cal.App.4th 1617.]
The provisions of this bill allows an officer to merely become
a reader of the contents of a business record obtained through
search warrant or subpoena when he or she has no personal
knowledge as to its preparation, contents, etc. In doing so,
the officer would be testifying as to multiple levels of
hearsay. This is a a particular concern for business records
potentially obtained through a search warrant because the
affidavit required for subpoenaed records under Evidence Code
Sections 1560 to 1562 is not required for records obtained via
a warrant. How would an officer with no first-hand knowledge
of the business record be able to answer potentially
significant questions regarding the method and circumstances
of preparation, the identity of the records, their
completeness, or whether they were made in the regular course
of business when there is not even an affidavit from which the
officer can read?
4)Application of Evidence Code Section 1560 in Criminal Cases :
The California Supreme Court recently explained the
application of Evidence Code Section 1560 to criminal cases:
"Documents and records in the possession of nonparty witnesses
and government agencies other than the agents or employees of
the prosecutor are obtainable by subpoena duces tecum."
(Citations.) In civil actions, documents produced in response
to a subpoena duces tecum for business records may be
delivered to the clerk of the court or, at the election of the
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subpoenaing party, made available for inspection and copying
at the witness's business address. (Evid. Code, � 1560,
subds. (b), (e).) This rule does not apply, however, in
criminal actions. As we have explained, '�t]he issuance of a
subpoena duces tecum pursuant to section 1326 of the Penal
Code ? is purely a ministerial act and does not constitute
legal process in the sense that it entitles the person on
whose behalf it is issued to obtain access to the records
described therein�,] until a judicial determination has been
made that the person is legally entitled to receive them.'
(Citations.)
"Thus, '�i]n a criminal action, no party, or attorney or
representative of a party, may issue a subpoena commanding the
custodian of records or other qualified witness of a business
to provide books, papers, documents, or records, or copies
thereof, relating to a person or entity other than the
subpoenaed person or entity in any manner other than that
specified in subdivision (b) of Section 1560 of the Evidence
Code' (Pen. Code, � 1326, subd. (c)), which provides for
delivery of the materials to the clerk of the court. (See
also Pen. Code, � 1326, subd. (b) �the option of making the
documents available for inspection and copying at the
witness's business address (Evid. Code, � 1560, subd. (e))
"shall not apply to criminal cases"].) This restriction
maintains the court's control over the discovery process, for
if the third party 'objects to disclosure of the information
sought, the party seeking the information must make a
plausible justification or a good cause showing of need
therefor.' (Citations.)
"These provisions concerning third party subpoenas apply equally
to the People and the defense." �Kling v. Superior Court
(2010) 50 Cal.4th 1068, 1074-1075.]
Thus, existing law makes clear that an investigating officer in
a criminal case would not be entitled to receive a subpoenaed
record in compliance with Evidence Code Section 1560. These
records would be sent directly to the court. Therefore, it is
unclear how an investigating officer would even come to
possess a business record by way of subpoena in order to
testify about it at the preliminary hearing.
5)Effect on Motions to Suppress Evidence : When a defendant
moves to suppress evidence at a preliminary hearing, it is
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restricted to challenging the evidence that the prosecution
seeks to introduce at the hearing. �Penal Code Section
1538.5(f)(1).] After a motion to suppress evidence is heard
at the preliminary hearing, the defendant is entitled to renew
the motion in felony court. However, the defense is limited
to the transcript of the preliminary hearing, and to
additional evidence that could not reasonably have been
presented at that time, unless the prosecution agrees
otherwise. �Penal Code Section 1538.5(i); People v. Drews
(1989) 208 Cal.App.3d 1317, 1324.]
The California Supreme Court has held that live witness
testimony, and not affidavits, is required a hearing on a
motion to suppress. �People v. Johnson (2006) 38 Cal.4th 717,
720.] Under the provisions of this bill, the possibility
arises that a defendant might not be able to fully litigate a
motion to suppress evidence because the officer would be
reading from and relying on affidavits.
6)Argument in Support : None submitted.
7)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "This bill is flawed in several critical
ways. First, it violates the rule of Whitman v. Superior
Court (1991) 54 C3d 1063 which held that while Proposition 115
allowed the admissibility of hearsay evidence at preliminary
hearings, it was limited to initial, rather than, multiple
hearsay. In other words, the police officer witness on the
stand could testify regarding what an out of court declarant
told him but not repeat what another citizen told the out of
court declarant who then passed that information on to the
officer. Clearly, and almost without fail, the contents of a
record obtained by means of a search warrant or subpoena as
set forth in AB 2156 are going to fit the definition of
multiple hearsay which is precisely what the Whitman decision
forbids. Whitman also made clear that it's ruling against
multiple hearsay was grounded in Sixth Amendment United States
constitutional law which would mean that AB 2156 would likely
be overturned as unconstitutional. Indeed, the hearsay
exception which allowed hearsay to be offered at preliminary
hearings came about only as a result of passage of an
initiative by California voters on a proposition which made
major constitutional law changes.
"Second, in the past eight years, the United States Supreme
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Court has issued a trio of significant decisions banning the
use of hearsay in criminal proceedings on the ground that it
violates the defendant's fundamental constitutional right to
confront his accusers. These decisions are grounded in
Anglo-American jurisprudence's contempt for hearsay evidence
as inherently unreliable. From Crawford v. Washington (2004)
541 U.S. 36 to Melendez-Diaz v. Massachusetts (2009) 557 U.S.
305 to Bullcoming v. New Mexico (2011) 564 U.S., 131 S.Ct.
2705 the unmistakable trend of the United States Supreme Court
is to limit, not expand the use of hearsay in criminal courts.
"These decisions, and especially Justice Scalia's majority
opinion in Crawford, point out the unreliability of hearsay
evidence and that there is no substitute for confrontation and
cross-examination of one's accusers. AB 2156 flies in the
face of these decisions.
"The bill also has, to be blunt, a laziness factor to it. As it
currently exists, the law allows for business records to be
introduced provided the proper foundation is laid, including,
but not limited to, the factors set forth in Evidence Code
sec. 1560. Essentially, all the law requires is that the
custodian of records for the business documents in question
testify as to how the records are prepared in the normal
course of business and that these records appear to be
prepared in that fashion. This bill would allow the contents
of non-business records (search warrants and subpoenas) to be
introduced without any foundation laid by the person who
prepared said records. The magistrate at the preliminary
hearing would have no real way of knowing whether the
information contained in the record being offered by the
investigating officer had any indicia of reliability
whatsoever.
"This is precisely the confrontation/reliability problem
identified and addressed in the Supreme Court cases referred
to above. In particular, basic criminal lab reports
(Melendez-Diaz), even in cases involving drunk driving
(Bullcoming), cannot, said the Supreme Court, be admitted
without the person who actually conducted the tests being on
the witness stand, subject to cross-examination. AB 2156 goes
far beyond what the Supreme Court has already condemned by
allowing a police officer to introduce a record which may be
replete with information from sources unknown and unknowable
and have it offered for the truth of the matter contained
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therein."
8)Prior Legislation : AB 557 (Karnette), Chapter 18, Statutes of
2005, authorized an honorably retired law enforcement officer
to testify as to hearsay statements at a preliminary hearing.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744