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

• Author: Mendez, Miguel A.
• Position: Introduction through I. Evidence Code Sections Affected by Proposition 8 D. Proposition 8 and Credibility Restrictions, p. 379-406 - California

INTRODUCTION I. EVIDENCE CODE SECTIONS AFFECTED BY PROPOSITION 8 A. Character Evidence Limitations B. Expert Testimony and Scientific Evidence C. Evidence Excluded on the Basis of Extrinsic Policies D. Proposition 8 and Credibility Restrictions 1. Prior Bad Acts as Evidence of Lack of Veracity 2. Prior Bad Acts as Evidence of Lack of Credibility other than Lack of Veracity 3. Felony Convictions 4. Misdemeanor Convictions 5. Juvenile Adjudications and Proposition 8 6. Expungement and Proposition 8 7. Reputation and Opinion Regarding Veracity 8. Religious Beliefs 9. Inconsistent Statements 10. Prior Consistent Statements E. Competency of Witnesses F. The Best Evidence Rule II. PROPOSITION 8 AND THE INSANITY DEFENSE III. PROPOSITION 8 AND INTOXICATION AND DIMINISHED CAPACITY EVIDENCE IV. ADDITIONAL LEGISLATIVE PATCHES A. Hypnotized Witnesses B. Polygraph Results C. Truth Serum D. Psychiatric Examinations V. THE WISDOM OF LEGISLATING THROUGH INITIATIVES INTRODUCTION

In 1982, the California electorate approved an initiative entitled the "Victims' Bill of Rights." Though the initiative made broad changes in the state's criminal justice system. (1) this Article focuses on those provisions that introduced radical changes in the state's rules of evidence and some aspects of criminal law and procedure. The most far-reaching provision, entitled the "Right to Truth-in-Evidence," resulted in a new evidence code that applies only to criminal cases. Section 28(d) provides:

Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding.... Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103...." (2) Section 28(d) is not simply a statutory change in the rules of evidence. The section is an amendment to the California Constitution. Accordingly, it supersedes any statutory or decisional bar to the introduction of relevant evidence unless the evidence is governed by the rules relating to privilege, hearsay, or Evidence Code sections 352, 782, or 1103. The effect of the section is to create two evidence codes. The California Evidence Code, enacted in 1965 to govern the admissibility of evidence, still applies in civil proceedings. However, section 28(d) creates a new evidence code for regulating the admissibility of evidence in criminal proceedings. In effect, the section gives the prosecution and the defense a constitutional right to introduce relevant evidence. Unless the evidence is barred by the rules relating to privilege, hearsay, or Evidence Code sections 352, 782, or 1103, the evidence must be admitted as a matter of state law. (3)

This approach turns evidence theory and doctrine on its head. The rules of evidence, including the California Evidence Code, can be viewed as a body of law designed to bar or limit the introduction of relevant evidence. Professor Edmund Morgan underscored this approach to modern evidence theory in his foreword to the Model Code of Evidence, the first concise statement of evidentiary principles of general application, an approach adopted by the American Law Institute in 1942 and followed by all American evidence systems:

A code of evidence should concern itself primarily with admissibility, and in this respect it should be complete in itself. Consequently it should begin with a sweeping declaration that all relevant evidence is admissible, that no person is incompetent as a witness and that there is no privilege to refuse to be a witness or to disclose relevant matter or to prevent another from disclosing it. Then it should set up specific exceptions to this fundamental rule. (4) Following this model, the California Evidence Code contains two provisions that form the cornerstone upon which the entire evidence structure is constructed. Section 350 provides that "[n]o evidence is admissible except relevant evidence." (5) Section 351 then postulates that "[e]xcept as otherwise provided by statute, all relevant evidence is admissible." (6) Since these two sections form the cornerstone upon which the entire evidence structure is constructed, it is indispensable to know what is meant by "relevance."

Section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (7) This section defines relevance in terms of two components. One refers to the proving or disproving quality of an item of evidence. This aspect is known as the probative value of an item of evidenced. (8) The other focuses on the relationship between an item of evidence and disputed facts that are of consequence to the determination of the action. This relationship is known as materiality. (9)

To be material, an item of evidence must be directed at a proposition that is properly provable in the action being tried. (10) Typically, that determination can be made by referring to the pleadings and the substantive law that governs the action. (11) If the proffered evidence is beyond the definition of the action as defined by the substantive law, it is immaterial.

Materiality also encompasses the credibility of witnesses. Section 210 expressly includes "evidence relevant to the credibility of a witness or hearsay declarant" within the definition of "relevant evidence." (12) This is not surprising, as often a trial's outcome will depend on which of two conflicting versions of an event a jury believes. (13) Accordingly, evidence of the veracity or mendacity of the witnesses may be of special consequence to the determination of the action. To underscore the importance of evidence relating to credibility, the seminal rule on credibility, section 780, provides that in determining the credibility of a witness the trier of fact may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony." (14)

Having defined relevant evidence expansively, the vast majority of the rules in the Evidence Code then ban or limit the introduction of relevant evidence. These are the rules abolished by section 28(d), with the exceptions of the rules contained in the sections relating to privilege, hearsay, or Evidence Code sections 352, 782, or 1103.

Section 782 requires judges to screen evidence of the complaining witness's sexual conduct when offered to attack the credibility of the complaining witness in sexual assault prosecutions. (15) Even if the evidence is relevant, judges may exclude it if its probative value on the witness's credibility is substantially outweighed by other concerns, such as undue prejudice to the complaining witness. (16) Section 1103(c) embodies California's rape shield law. In sexual assault prosecutions, it limits defendants to offering only evidence of the complaining witness's sexual conduct with them when offered to prove the witness's propensity to engage in consensual sex. (17) It prohibits defendants from offering the complaining witness's sexual conduct with others when offered for this purpose. (18)

Section 352 empowers California judges to exclude otherwise admissible evidence when they determine that its probative value is substantially outweighed by such countervailing concerns as undue consumption of time, undue prejudice, confusion of issues, or misleading the jury. (19) Although giving judges discretion to exclude otherwise admissible evidence of marginal value is found in the Evidence Code, the Federal Rules of Evidence, (20) and state evidence codes based on the Federal Rules, entrusting trial judges with such power was initially controversial. When the American Law Institute ("A.L.I.") met to discuss approving the Model Code of Evidence, at least one member described such discretion as "dangerous." Professor Morgan, the reporter, defended the rule on the ground that detailed rules would be required to regulate evidence of marginal value if the judges lacked discretion to exclude it. His view prevailed, but as will be discussed, the discretionary principle embodied in provisions such as section 352 assumes the existence of a large body of rules that excludes or otherwise limits the use of relevant evidence. Only if the evidence offered overcomes all of these obstacles can the objecting party ask the judge to use his or her discretionary power to exclude it. Proposition 8 expands enormously a judge's power to exclude otherwise admissible evidence by eliminating numerous limitations the Code imposes on the use of broad categories of evidence. Evidence that was formerly inadmissible under discrete rules is now subject to discretionary exclusion by the judge. This clearly was not the judicial role the framers of modern evidence codes, including the California Evidence Code, envisaged. Moreover, as will be explained, subjecting categories of evidence formerly inadmissible to discretionary exclusion complicates trial planning both for prosecutors and defense counsel.

Two other provisions of Proposition 8 will be examined. Section 28(f), also a constitutional amendment, provides that:

Any prior conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior conviction is an element of any felony offense, it shall be proven to the trier of fact in open court. (23) This provision literally overturns a number of important limitations the California Supreme Court imposed on the use of convictions under the Evidence Code to impeach witnesses, including criminal defendants. (24) The court used section 352 as the statutory basis for imposing rules trial judges should follow in exercising their discretion to...