The Victims' Bill of Rights - thirty years under Proposition 8.

Author:Mendez, Miguel A.
Position::I. Evidence Code Sections Affected by Proposition 8 E. Competency of Witnesses through V. The Wisdom of Legislating Through Initiatives, with footnotes, p. 406-434 - California
  1. Competency of Witnesses

    The Evidence Code disqualifies persons from testifying if they cannot express themselves in a manner in which they can be understood or cannot understand their duty to testify truthfully. (181) The competency requirements would prevent a person from offering otherwise admissible relevant testimony if that person, for example, does not understand the duty to testify truthfully. The fact that such a person might not be credible would not render his or her testimony irrelevant. Although credibility is an aspect of relevance, it is not the only one.

    Under the Evidence Code, an item of evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (182) In other words, the item of evidence must be material, that is, it must be directed at proving a proposition that is properly provable in the action. In a homicide prosecution, for example, testimony by a witness with first-hand knowledge that she saw the defendant shoot the victim would be material. That testimony is directed at proving a fact (the identity of the perpetrator) that is properly provable in that kind of an action. Her testimony remains material and therefore relevant even if the witness does not appreciate her duty to testify truthfully and could impeached on that basis. Since the competency requirements can bar relevant testimony, they are repealed by a literal application of the Right to Truth-in-Evidence provision of Proposition 8.

    Under the Evidence Code, the competency requirements are not limited to ordinary witnesses; they apply also to judges and jurors called as witnesses. Over the objection of a party, judges may not testify as witnesses in trials over which they preside. (184) As the California Law Revision explains:

    Section 703 is based on the fact that examination and cross-examination of a judge-witness may be embarrassing and prejudicial to a party. By testifying as a witness for one party a judge appears in a partisan attitude before the jury. Objections to questions and to his testimony must be ruled on by the witness himself. The extent of cross-examination and the introduction of impeaching and rebuttal evidence may be limited by the fear of appearing to attack the judge personally. (185) Against objection of a party, jurors sworn and impaneled in the trial of an action may not testify before the jury in that trial as witnesses. According to the California Law Revision Commission:

    A juror-witness is in an anomalous position. He manifestly cannot weigh his own testimony impartially. A party affected by the juror's testimony is placed in an embarrassing position. He cannot freely cross-examine or impeach the juror for fear of antagonizing the juror--and perhaps his fellow jurors as well. And, if he does not attack the juror's testimony, the other jurors may give his testimony undue weight. (187) It is immaterial whether the judges' or jurors' testimony would constitute admissible relevant evidence. Precisely because the disqualifications bar the introduction of relevant evidence, they are repealed by a literal application of the Right to the Truth-in-Evidence provision. To date, however, no appellate court has ruled on the initiative's effect on the rules prohibiting the use of judges' or jurors' testimony.

    In California post-verdict proceedings, jurors may be called to testify about "statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such character as [are] likely to have influenced the verdict improperly." (188) But to protect jurors from harassment, jurors may not testify about the effect such statements, conduct, conditions, or events had in influencing them to assent or dissent from the verdict or upon the mental processes by which they reached the verdict. Thus, the Code permits evidence of misconduct by trial jurors to be received but forbids the receipt of juror evidence about the effect of such misconduct on the deliberations of the jurors. (190)

    In proceedings to set aside a guilty verdict, however, the central question is usually whether the erroneous admission of evidence, the use of improper jury instructions, or juror misconduct prejudiced the defendant. Jurors would be the best source of the effect such evidence, instructions, or misconduct had on their deliberations. Accordingly, a literal application of the Right to Truth-in-Evidence provision would repeal the Evidence Code restrictions. In People v. Steele, (191) however, the California Supreme Court rejected this construction of Proposition 8 with respect to evidence of juror misconduct. The court saved the Code's prohibition by holding that it is a substantive, not an evidentiary, limitation. If the bar against the use of evidence proving the effect of the erroneous admission of evidence is substantive, then no party may offer such evidence. Any such evidence would be immaterial because it would be directed at a proposition that is not properly provable at the hearing. Immaterial evidence is irrelevant. This construction allowed the court to conclude that evidence of the effect of juror misconduct can still be excluded because it is outside the purview of the relevance provision of Proposition 8.

    As in the case of expert evidence, it is unlikely that the proponents of Proposition 8 intended to repeal the Evidence Code's restrictions on the use of juror testimony, especially since defendants would most likely be the party offering such testimony. Again, a problem with complex initiatives is that they can have unanticipated consequences.

  2. The Best Evidence Rule

    When Proposition 8 was approved by the voters in 1982, California followed the Best Evidence Rule. Unless certain exceptional circumstances existed, the Best Evidence Rule required the content of a writing to be proved by the original writing and not by testimony recounting its contents or by a copy of the writing. (194) A major purpose of the rule was to minimize the possibility of misinterpretation that could occur if the production of the original writing was not required to prove its contents. (195) Accordingly, if before the initiative the defense offered in evidence a writing claimed to be a confession by a third party, the defense had to authenticate the writing as the third party's. Moreover, in the absence of exceptions, the defense had to persuade the judge that the writing was the original confession. (196)

    But after the initiative, once the writing is authenticated as the third party's, his admissions become relevant. This is true irrespective of whether the writing offered is the third party's original confession or even if instead of the writing the defense offers the testimony of a witness who claims first-hand knowledge about the contents of the writing. In short, the effect of the Right to Truth-in-Evidence provision was to repeal the Best Evidence Rule in criminal cases. However, there are no published opinions about the effect of the initiative on the Best Evidence Rule. The most plausible explanation is that neither prosecutors, defense counsel, nor presiding judges imagined that the Right to Truth-in-Evidence provision repealed the well-established Best Evidence Rule.

    The effect of the initiative became moot in 1999 when the legislature replaced the Best Evidence Rule with the Secondary Evidence Rule by the required super-majority. (197) The new rule generally allows a party to prove the contents of a writing by an otherwise admissible original or secondary evidence of the original. (198) In criminal cases, however, the Secondary Evidence Rule requires the court to exclude secondary evidence of the content of a writing if the judge determines that the original is in the proponent's possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before the trial. (199)

    Like the Best Evidence Rule, the Secondary Evidence Rule disfavors the use of testimony to prove the contents of a writing. Oral testimony is admissible only if (1) the proponent does not have possession or control of a copy of the original and the original was lost or destroyed without fraudulent intent on the part of the proponent, or (2) the proponent does not have possession or control of the original or a copy of the original and (a) neither the original nor a copy was reasonably procurable by the proponent by use of the court's process or other available means, or (b) the writing is not closely related to the controlling issues in the case and it would be inexpedient to require its production. (200) Returning to our example, only if the defense complies with one of these conditions would it be allowed today to offer testimony about the contents of a written confession that has been authenticated as the third party's.


      As discussed in the introduction, under the M'Naghten test, a defendant can be acquitted on the grounds of insanity if at the time he committed the offense he was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know its nature and quality, he did not know that his act was wrong. (201) However, Penal Code section 25(b), which was added by section 4 of Proposition 8, (202) uses "and" instead of "or" in setting out the two prongs. (203) In the case of a defendant charged with homicide by strangulation, the use of the conjunctive would require a defendant to prove that by reason of a mental disease he not only thought that he was squeezing lemons but also that he believed that there was nothing wrong with squeezing necks. As the introduction underscores, such a test has been described as the "wild beast" test because of the belief that such extreme cognitive dysfunctions reduce a human to the cognitive level of a wild beast. (204) Confronted with the question whether...

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