The Ghosts of California's Gang Policy: the Unconstitutional Gang Hearsay Exception

• Publication year: 2023
• Author: Written by Leah Roemer

THE GHOSTS OF CALIFORNIA'S GANG POLICY: THE UNCONSTITUTIONAL GANG HEARSAY EXCEPTION

Written by Leah Roemer^*

I. INTRODUCTION

Gunshots sound through the neighborhood. Tires squeal. A young man lies bleeding, dying, under a stoic palm tree, his legs splayed out on the cold concrete sidewalk. The car disappears around the corner, the gun withdrawn from the window. The young man's friends hold him and scream for help.

California has seen thousands of tragic killings like this over the past few decades. In response, the state passed a suite of "anti-gang" laws making it easier for prosecutors to convict defendants in cases with little evidence. This paper explores one law in particular: the "gang exception" to hearsay. This hypothetical imagines how such a case might play out.

Say the police ask if the young man had any enemies. "Maybe Elliott, they got in a fight at school last year," says one friend. "Maybe Ian," says the other. "Ian's always driving past here in a car like that."

The police ask the two grieving friends to write affidavits. They write down half-baked thoughts, wild guesses, about the boys who might have had a motive, but they wonder if it even helps. In truth, it all happened so fast. It was dark. Who's to say the shooter hit the intended target?

Six months later, consumed by grief and depression, one of the surviving friends takes his life. Shortly after, the other dies in a car crash.

Meanwhile, with no leads besides the affidavits, the police look into the accused kids, Elliott and Ian. Elliott is a straight-A student, no apparent troubles other than that fight. But Ian's car is blue, which is similar to black, the supposed color of the killer's car. And Ian has a cousin who was arrested once for "gang activity." Anyone who "associates" with that cousin gets added to CalGang, the state's database of gang members. Unfortunately for Ian, that includes him.

The state charges Ian for murder under the California Street Terrorism Enforcement and Prevention Act (STEP), the state's 1988 landmark anti-gang legislation.¹ At trial, the prosecutor enters the long-ago affidavit written by the now-deceased teen. Ian's attorney objects, of course—that's textbook hearsay. It's an out-of-court statement offered for the truth of the matter asserted.

But Ian is unlucky once again. California has deemed such accusations admissible under Evidence Code section 1231, the gang hearsay exception.² This statute is a small piece of the massive law enforcement apparatus the state developed beginning in the 1980s to crack down on the "gang problem." This same apparatus has come under fire in recent years for widespread internal corruption, enormous racial disparities, and coverups at the highest level.³ Some have called to repeal the STEP Act once and for all.⁴

However, the gang exception to hearsay has thus far escaped scrutiny—despite being blatantly unconstitutional under the

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Confrontation Clause of the Sixth Amendment. This paper tracks the development of Confrontation Clause jurisprudence from the Roberts "reliability" test to the much stricter Crawford test, which barred all testimonial hearsay absent a prior opportunity for cross-examination of an unavailable witness. The argument is straightforward: the 1997 gang exception reflects a Roberts-era understanding of the right to confrontation, and in light of the 2004 Crawford decision overturning Roberts, the law is plainly unconstitutional. The paper concludes that Section 1231 must be overturned.

II. THE CONFRONTATION CLAUSE BEFORE CRAWFORD

The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."⁵ This right has ancient roots—it "comes to us on faded parchment."⁶ In the Bible, Roman Governor Festus insists that "it is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges."⁷ When one noble accuses another of treason, Shakespeare's Richard II declares: "Then call them to our presence / Face to face / And frowning brow to brow, ourselves will hear / The accuser and the accused freely speak."⁸

The right to confrontation overlaps with the evidentiary hearsay rule, which forbids out-of-court statements used for the truth of the matter asserted but admits such statements under a long list of exceptions. For many years the Supreme Court treated the right to confrontation as basically the same as evidentiary hearsay. In Ohio v. Roberts, the Court held that the defendant's right to confrontation "does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears 'adequate indicia of reliability."⁹ To meet this test, evidence had to a) "fall within a firmly rooted hearsay exception," or b) "bear particularized guarantees of trustworthiness."¹⁰ Essentially, though the Confrontation Clause mandates that defendants be able to cross-examine witnesses offering statements against them, Roberts allowed courts to admit out-of-court statements by unavailable witnesses if the statements fell within a traditional exception to hearsay or were otherwise considered particularly "trustworthy."

III. THE GANG HEARSAY EXCEPTION IN CONTEXT: CALIFORNIA GANG POLICY AND THE STEP ACT

The STEP Act arose in the midst of the 1980s gang "crisis" as the first comprehensive anti-gang statute in the country.¹¹ If prosecutors could prove that a crime was related to gang activity or a defendant was associated with a gang, STEP allowed them to pile on extra charges and longer sentences (known as "enhancements").¹² Prosecutors could incarcerate someone for mere membership in a gang.¹³

California defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal . . . having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."¹⁴ The group must have "as one of its primary activities the commission of one or more of the criminal acts enumerated" in STEP.¹⁵ There are 26 "criminal acts enumerated," listed perfectly as (A) through (Z), including assault, homicide, drug sales, arson, rape, money laundering, mayhem, extortion, gun possession, and criminal threats.¹⁶

There's one obvious problem with this definition. California says that a gang is a group of people who engage in gang activity, but essentially fails to define gang activity as anything beyond the regular penal code. It barely even requires a "pattern" of that activity: prosecutors need only show that people in the alleged gang attempted to do two things on the list within three years of each other for the group's mutual benefit.¹⁷ This would make most Greek fraternities, Nixon's Watergate conspirators, and the Enron boardroom all gangs.¹⁸Perhaps they are. However, prosecutors used STEP to almost exclusively target poor Black and Latino men. In 2019, 92% of adults incarcerated in California state prison with a gang enhancement were Black or Latino.¹⁹

The statute's broadness meant prosecutors could pursue charges under STEP for even the faintest hints of "gang activity." Lax rules and oversight for the CalGang database produced bad data and gave police officers license to discriminate based on race, class, and social group. Individuals could be added based on as little information as clothing color, and a 2016 audit found 42 babies in the system, with 28 of them apparently "admitting to being members."²⁰ Only 8% of individuals in CalGang were white.²¹In 2007, approximately half of all Black men aged 21-24 in Los Angeles County were listed as gang members or associates.²² Considered together, these results were not a bug, but a feature of California's anti-gang project.

Governor Pete Wilson, known for his "tough on crime" ethos,²³ proposed the gang hearsay exception in 1997.²⁴The bill faced significant pushback. Its opponents argued the right to confrontation meant "full and effective cross-

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examination"; otherwise, there was "no way for the jury to view the demeanor, to evaluate the credibility, or truthfulness, or accuracy of perception of the witness."²⁵ The ACLU, California Attorneys for Criminal Justice, and the California Public Defenders Association argued that "gang-related hearsay is likely to be particularly untrustworthy."²⁶ The initial bill provided no factors a judge should consider when deciding whether the statement was trustworthy, until Los Angeles judges protested and the legislature added a few factors.²⁷Legislators worried that "if the bill becomes law, convictions will be overturned if the law violates the Confrontation Clause."²⁸

The bill did not even target the problems it claimed to. According to the governor, gang prosecutions were "becoming more and more problematic, as gang members have an incentive to harm or kill victims and witnesses to avoid their testimony at trial"; therefore, the legislature needed to protect witnesses from "retaliation."²⁹ However, the state had already addressed this issue. A 1985 rule allowed hearsay statements by unavailable witnesses to come in when the defendant harmed or killed the declarant-witness to prevent their testimony.³⁰ This new bill did not require the death to be at the hands of the defendant, nor did it even require the death to be a murder. Further, the proposed bill did nothing to actually protect witnesses—it in fact made it easier for the prosecution to get a conviction if the witness died. If the witness was alive to testify, they could be cross-examined. But if not, the prosecution could admit their prior statement with the defense virtually powerless to challenge it.

In support, the governor repeatedly cited a 1996 article claiming 40% of L.A. murders were gang-related.³¹ However, that number came from law enforcement's own...