Gray areas

Eleanor Roosevelt once said, “If life were predictable it would cease to be life, and be without flavor.” The California Supreme Court’s recent decision in People v. Gray, 15 Cal.5th 152 (2023), has the potential to make California’s hearsay rule a whole lot spicier.

The predictability of a legal rule is in part a function of whether that rule provides a “bright-line” that is easy to apply and regularly leads to similar outcomes on similar facts. See Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 459-60 (1995). The more bright-line the rule, the more predictable it is; on the flip side, the more bright-line the rule, the less flexible it is to respond to the unique equities of a particular case. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 (1994). Flexible rules are typically those that involve a balancing of competing interests on a case-by-case basis. Id.

The architects of the Federal Rules of Evidence made a conscious choice to stick with the English common law’s bright-line approach to the hearsay rule – namely, the adoption of a bright-line general rule that hearsay is inadmissible and the adoption of dozens of specific exceptions to that general rule. The original Advisory Committee on Proposed Rules explicitly declined to adopt a competing approach that would have hinged admissibility of each piece of evidence subject to the hearsay rule on a “weighing [of] the probative force of the evidence against the possibility of prejudice, waste of time, and the availability of more satisfactory evidence.” Notes of Advisory Comm. on Proposed Rules, Introductory Note: The Hearsay Problem (Fed. R. Evid.). Congress and the courts nevertheless left the barn door open a little by adopting a “residual” hearsay exception that grants courts the ability to admit evidence notwithstanding the hearsay rule on a case-by-case basis. See Fed. R. Evid. 807; former Fed. R. Evid 803(24).

The architects of California’s Evidence Code took a similar approach – namely, adopting a general rule prohibiting the admission of hearsay, dozens of specific statutory exceptions, and language in the Code that can be pieced together to imbue courts with some authority to admit hearsay notwithstanding the rule on a case-by-case basis. See Cal. Evid. Code §§ 1200-1390; People v. Ayala, 23 Cal.4th 225, 268 (2000).

Gray addressed the admissibility of statements falling into one of California’s hearsay exceptions during probation violation hearings.

As a general rule, a hearsay statement is admissible if it (1) falls within a hearsay exception, and (2) satisfies any additional constitutional requirements for admissibility. In Gray, a visibly distraught domestic violence victim reported during a police interview how the defendant had attacked her; her statement was recorded on the officers’ bodycams. The parties in Gray conceded that the victim’s statement qualified as an “excited utterance” and hence fell within a hearsay exception. The dispute in Gray centered on whether the Federal Constitution barred the admission of her statement. The Sixth Amendment’s Confrontation Clause would have barred the admission of the victim’s statement at any trial on domestic violence charges because the parties conceded her statement was “testimonial” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004) (because her statement was made as part of a police investigation), and because the victim had absconded and was unavailable for cross-examination at any trial.

But the Confrontation Clause is a protection that applies at trial, and not at probation violation hearings. People v. Johnson, 121 Cal.App.4th 1409, 1411 (2004); Black v. Romano, 471 U.S. 606, 610, 612 (1985). Recognizing this, prosecutors charged the defendant with the same domestic violence incident but as a violation of his probation.

This did not leave the defendant wholly without constitutional protection. For more than a half century, courts have recognized that the “minimum requirements of due process” apply in probation revocation hearings. These minimum requirements include a diluted right to confront and cross-examine witnesses – diluted because it can be dispensed with if the “‘hearing officer specifically finds good cause for not allowing confrontation.’” People v. Vickers, 8 Cal.3d 451, 457-58 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

Prior to Gray, the California Supreme Court had ruled that the “good cause” requirement applied only when the People sought to admit an out-of-court statement that fell outside a hearsay exception. See People v. Arreola, 7 Cal.4th 1144 (1994); People v. Maki, 39 Cal.3d 707 (1985); People v. Winson, 29 Cal.3d 711 (1981). Prior to Gray, no California Supreme Court decision held that statements falling within a hearsay exception also needed to meet a “good cause” requirement before they could be admitted during a probation revocation hearing.

Gray changed that.

Gray held that due process demands that a showing of “good cause” be made before any hearsay statement may be admitted at a probation revocation hearing – even a statement falling within a hearsay exception. Gray’s “good cause” requirement obligates trial judges, on a “case-by-case” basis, “to weigh a defendant’s confrontation rights against the government’s countervailing interests.” Gray at 165, 169. Gray identified several “factor[s]” relevant to this “balancing,” including (1) the government’s reasons for not being able to have the declarant available, (2) the significance of the hearsay statement to the finding of a probation violation, (3) whether other admissible evidence corroborates the statement, and (4) whether the statement evinces “other indicia of reliability.” Id. at 169, 173.

Gray cited two reasons for its expansion of the “good cause” requirement. First, due process is meant to be “flexible” and thus typically involves a “balancing framework.” Gray at 169-70. Second, and even though the Confrontation Clause does not apply to probation revocation hearings, recent changes in the law interpreting that Clause remain “relevant.” Id. at 172-73. Specifically, the U.S. Supreme Court’s 2004 decision in Crawford had overruled prior precedent holding that the Clause was satisfied as long as a statement fell into a firmly rooted hearsay exception; Crawford jettisoned that precedent in favor of a rule that makes all “testimonial” hearsay statements inadmissible – even those falling into a firmly rooted hearsay exception – unless a defendant has had an opportunity to cross-examine the declarant. Crawford’s “underscor[ing of] the importance of confrontation,” Gray reasoned, justified ratcheting up the due process standard applicable during probation revocation hearings. Although Gray applied its new test to a statement that was “testimonial” within the meaning of Crawford, the Court in Gray reserved for another day whether it would also apply its “good cause” requirement to non-“testimonial” statements. Gray at 172 n.7.

Because a statement falling outside of any hearsay exception may still be admitted upon a showing of good cause, and because a statement falling within a hearsay exception must always be accompanied by a showing of good cause, Gray makes the admissibility of “testimonial” hearsay – and, potentially, all hearsay – turn on “good cause.” In so doing, Gray explicitly relegates the applicability of any hearsay exception to the status of being one of many factors rather than a dispositive factor. Gray at 173.

Gray thus effectively swaps the more bright-line approach of a single hearsay rule with specific, enumerated exceptions for a “good cause”-based standard keyed to a “case-by-case analysis” and “balancing” of various factors evocative of a “comprehensive, holistic approach” in which “no single factor is dispositive.” Gray at 168, 169.

This has the potential to significantly dilute the predictability that comes from the brighter lines delineated by the Evidence Code itself.

It is unclear how broadly Gray will be read.

Gray could be confined to its facts as merely erecting a principle that a “testimonial” statement qualifying as an excited utterance is inadmissible without an additional showing of “good cause.”

Will Gray’s “good cause” requirement be confined to the excited utterance exception or be applied to all hearsay exceptions?

Will the “good cause” requirement be confined to “testimonial” hearsay or be applied to non-“testimonial” hearsay as well? Gray left that question open. Unlike the confrontation right, due process does not generally turn on the “testimonial” nature of statements.

Will Gray’s rule be confined to probation violation hearings or be applied to all court proceedings – including all hearings in criminal and civil cases – that also rest on the bedrock of due process? Might Gray’s “good cause” requirement displace the definitiveness of statutory hearsay exceptions in this bigger universe of proceedings as well?

Gray has traveled a new path (which, I should disclose, overturned the lower court opinion I authored). Where that path leads next is uncertain.