California Supreme Court:
Spontaneous Declaration Is Not Necessarily Admissible
Fact That an Out-of-Court Excited Utterance Need Not Be Barred by the Hearsay Rule Does Not Mean It Is Categorically Admissible at a Probation-Revocation Hearing, Unanimous Court Says, Reversing C.A.
By a MetNews Staff Writer
The California Supreme Court held yesterday, in a unanimous opinion that resolves a conflict among the Court of Appeal districts, that where an out-of-court statement is not rendered inadmissible by the hearsay rule, its admission at a probation revocation hearing might nonetheless offend due process.
There must be good cause for the lack of confrontation and a balancing of interests, the state’s high court declared.
Chief Justice Patricia Guerrero wrote the opinion, which reverses an April 30, 2021 decision by this district’s Div. Two. There, Justice Brian M. Hoffstadt posed the question:
“Is the due process-based ‘right to confront and cross-examine adverse witnesses’ at a final probation revocation hearing satisfied when the People establish that an out-of-court statement falls within a firmly rooted hearsay exception, or must the People also show ‘good cause’ to dispense with cross-examination and that this good cause outweighs the defendant’s need for confrontation?
“We conclude that the applicability of a firmly rooted hearsay exception is sufficient….”
Hoffstadt’s opinion affirmed a decision by Los Angeles Superior Court Judge Renee Korn who revoked the probation granted to Dontrae Gray, ordering that he serve the seven-year prison sentence previously imposed on him, but suspended, pursuant to his no-contest plea to assault with a deadly weapon, with an admission that he personally inflicted great bodily injury. Korn found that he had violated a term of his probation by beating up his girlfriend.
Police had responded to reports of a man breaking into a home. Statements by a distraught woman were recorded on a bodycam.
She said Gray broke in and hit her repeatedly. The woman later recanted her statement and did not show up at the probation-revocation hearing despite having been subpoenaed.
Korn acted based on the bodycam footage.
“Because the bodycam video is reliable enough to fall within the firmly rooted hearsay exception for excited utterances, the dictates of due process are satisfied,” Hoffstadt wrote.
Hoffstadt said—and Guerrero agreed—that the Confrontation Clause applies only at criminal proceedings, but that due process, required at probation-revocation hearings, can encompass confrontation.
Guerrero wrote for the court in disapproving the view that any out-of-court statement that is not barred by the hearsay rule may, consistent with due process, be used at such a hearing.
“A categorical approach—which would allow even testimonial spontaneous statements to be admitted at probation revocation hearings without any case-by-case consideration of the reasons for not allowing confrontation—is inconsistent with this court’s precedent and that of the United States Supreme Court,” she set forth.
She went on to say:
“We emphasize that a defendant’s due process right to confront testimonial witnesses against him is not absolute; a defendant’s interests can be outweighed by the government’s substantial showing of good cause for not making the witness available at the revocation hearing, by sufficient independent evidence corroborating the hearsay evidence, and by other indicia of reliability including the fact that the statements fall within a firmly rooted exception to the hearsay rule. What cannot be done, however, is reducing the analysis to a single determination that hinges solely on whether a statement qualifies as a spontaneous statement under Evidence Code section 1240.8.”
Wording of Statute
That section provides:
“Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
“(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and
“(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
Guerrero said in as footnote:
“[W]e have accepted, without further analysis, the parties’ agreement that the statements at issue here constitute testimonial evidence that comes within the spontaneous statement exception. We do not decide what due process-based confrontation rights, if any, apply to the admission of nontestimonial evidence that comes within a hearsay exception.”
The matter was remanded for the Court of Appeal to determine whether the statements recorded by the bodycam were properly admitted at the probation-revocation hearing and, if not, whether the error was prejudicial.
Groban said in a brief concurring opinion:
“I write separately to emphasize that, as part of this balancing test…, the potential for emotional or mental harm to the witness can be a relevant factor bearing on the state’s demonstration of good cause.
“Domestic violence victims, by testifying, may be facilitating their partner or family member’s incarceration. This, for some, may prove emotionally or mentally harmful.”
He remarked that “trial courts may consider the potential emotional and mental harm that alleged victims may suffer if they are compelled to testify.”
The case is People v. Gray, 2023 S.O.S. 2944.
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