Admissible evidence not required to support pretrial detention order

Having a client released on bail is critical to a successful criminal defense strategy. The California Constitution and implementing statutes generally require that courts grant bail to criminal defendants.

Much recent litigation has focused on the amount of cash bail which trial courts may permissibly set considering a defendant’s financial condition. The Constitution does allow wholesale denial of bail under narrow circumstances, however, including in the case of “[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.” (Cal. Const., art. 1, § 12.)

An open question remained as to what form the evidence supporting a trial court’s detention order under this exception must take: evidence that would be admissible at a criminal trial or simply sufficiently reliable evidence including hearsay or unauthenticated documents which would not be admissible at a trial. On June 27, 2024, the California Supreme Court opted for the latter rule, holding that evidence at the bail hearing need not be admissible at trial if it is sufficiently reliable to establish the fact of the defendant’s guilt.

John Harris, Jr. was charged with attempted first-degree murder and aggravated mayhem after DNA evidence linked him to the violent rape of a San Mateo woman over thirty years prior. At arraignment, the trial court set bail at $5 million. After the Supreme Court decided Humphrey, which held that a trial court must consider a defendant’s financial condition in setting the amount of cash bail, Harris filed a motion for release on his own recognizance arguing, among other things, that he was not a flight risk and had minimal prior criminal history.

The People’s opposition requested that bail remain as set or be denied altogether under the constitutional exception noted above. The opposition relied on officers’ observations in the police reports, a summary of the victim’s interview, and a statement from the victim’s treating physician which emphasized the brutality of the knife wound to her neck, which Harris allegedly inflicted. One critical detail was that Harris had allegedly employed a scarf to strangle the victim or muffle her screams. The People provided evidence that Harris grabbed a woman from behind who was wearing a scarf and pulled it over her head, eventually leading to a petty theft conviction. Several ex-wives and ex-girlfriends interviewed by District Attorney’s office investigators also attested to Harris’ apparent fixation with scarves. They variously recounted him tying them up with scarves and talking about being tied up himself. Harris also reportedly told a former partner when drunk that he had been falsely accused of rape in the past but denied making the statement in the morning after sobering up. As relevant here, most or all this evidence was presented in the form of hearsay as an offer of proof by counsel for the People rather than through live testimony.

In the Supreme Court, Harris argued that only admissible evidence could support a denial of bail without running afoul of the Due Process clause. The Court disagreed. Beginning with the constitutional text, the Court noted that no evidentiary rules are contained in Section 12. It merely requires that the “facts” be evident, or the “presumption” be great. Though the second clause speaks of the People needing to meet a clear and convincing evidence standard, this is best read to describe the weight of the proof required rather than the form in which it must be presented. A review of the relevant enactment history – from the original 1849 Constitution, through 20th century amendments – provided no evidence that either the legislature or voters intended to create a categorical rule requiring admissible evidence at bail hearings.

Practical considerations buttress this conclusion. Bail hearings typically occur at arraignment or shortly thereafter when the parties’ ability to secure witnesses by subpoena is limited. Police officers, for example, may refuse to comply with a subpoena providing them less than five days’ notice. A victim of a violent crime may be physically unable to appear to testify at such an early stage. Other witnesses may be unable to appear at such short notice because of work or other obligations. Moreover, if the witnesses could be secured, Harris’ approach would lead to mini-trials on the ultimate issues of guilt long before discovery is complete, or the parties have had a meaningful opportunity to prepare.

Contemporary practice similarly counseled against adopting Harris’ rule. The leading treatises on criminal practice across jurisdictions describe bail hearings as relatively informal. They are often accomplished through proffers, presentation of declarations, and descriptions of the evidence by attorneys rather than actual presentation of that evidence. The Court noted that in federal procedure, an unsworn proffer has been held to satisfy an analogous standard of proof justifying pretrial detention. Every federal circuit court to consider the constitutionality of that practice has upheld it. The Court acknowledged that state practice is more varied, but that most jurisdictions nevertheless allow a no-bail order to be premised at least in part on hearsay evidence. The Court finally rejected several additional arguments, including that provisions of the Evidence Code require his desired result.

Ultimately, the Supreme Court left trial courts with substantial discretion to determine if evidence, whether admissible under the Evidence Code or not, is sufficiently reliable to support a detention order. In fact, the trial court can require the prosecution to put on live testimony in an appropriate case or reject proffered evidence.

Because the trial court record left open the possibility that the trial court simply accepted the truth of the accusations, rather than specifically finding that the People’s hearsay and proffered evidence was sufficient to establish Harris’ guilt under the appropriate standards, it remanded the case for further proceedings. In sum, a prosecution could not successfully argue because a suspect is criminally charged, the level of bail set is appropriate without evidentiary support.