Tuesday, September 05, 2017

People v. Washington (Cal. Ct. App. - Sept. 5, 2017)

There have been only two published Court of Appeal opinions thus far in September.

The one published today, after the long Labor Day weekend, should definitely be reviewed by the California Supreme Court.

It's an opinion that decides to ditch a central constitutional principle that's stood for over half a century.  The opinion itself accurately describes the contours of this rule:

"Under the so-called Aranda/Bruton doctrine, a trial court may generally not allow a jury in a joint criminal trial of a defendant and codefendant to hear the unredacted confession of the codefendant that also directly implicates the defendant—even if the jury is instructed not to consider the confession as evidence against the defendant. (People v. Aranda (1965) 63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136 (Bruton).) Such a confession is so 'powerfully incriminating,' the doctrine provides, that the jury cannot be expected to heed the court’s instruction and put it out of its collective mind when evaluating the defendant’s guilt."

That rule has not only been consistently applied for the last fifty-plus years, but it's also one that's at issue in a relatively large number of cases.  And it's critically important, as it involves what's thought to be the pinnacle of reliable testimony:  a suspect's confession.

The Court of Appeal holds that this longstanding precedent is no longer good law after the Supreme Court's 13-year old decision in Crawford, which limited the Sixth Amendment right to cross-examine witnesses to "testimonial" statements.  You might rightly think that the fact that confessions are surely "testimonial" means that Crawford doesn't abrogate the Aranda/Burton doctrine at all.  But the Court of Appeal believes that the necessarily implication of that decision (and its progeny) mean that the 50 years of precedent that followed Aranda and Burton are no longer good law.

There are definitely those who will find Justice Hoffstadt's reasoning persuasive.  And there are definitely those who will find it unpersuasive.  To me, given those facts, before we ditch a critical principle of criminal procedure and constitutional law, the California Supreme Court should definitely weigh in, rather than let a panel of the Court of Appeal conclusively decide this issue.

There's a lot to be said for the other side of this dispute.  If only because I think that even if the Sixth Amendment didn't apply here (which it may well), then the Due Process Clause might require the same result.  The Court of Appeal thinks it doesn't, arguing that if a more specific clause doesn't apply, then a more general one shouldn't require a different rule.  But my view is that even if there's not a specific right to cross-examine a particular witness, to admit testimony with a required limiting instruction that we practically know the jury will ignore is indeed something that the Due Process Clause cares about.  Quite a bit.

Moreover, if, indeed, there's no constitutional barrier to admitting the testimony here, then I surely think that separate trials (or at least separate juries) should be required.  Particuilarly in high-stakes cases like the first-degree murder trial here.  The Court of Appeal holds that one trial was just fine.  But if we're indeed going to revolutionize confession admissibility like the panel does here, my own view is that -- at a minimum -- the burden of two juries is definitely worth it.  If only to avoid the manifest prejudice that we all recognize will otherwise arise from admitting the confession.

There are powerful reasons for the Aranda/Burton rule.  There's the Sixth Amendment at stake.  As the opinions recognized, there's also a Due Process issue.  And that rule was also adopted by the judiciary in part pursuant to its inherent supervisory powers.  All those principles are still in play.

The Court of Appeal holds that the law now is different -- beneficially different -- than that of the last fifty years.

The California Supreme Court should grant review and decide whether it agrees.