California Constitution article I, § 28

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

 CALIFORNIA CONSTITUTION – CONS

ARTICLE I DECLARATION OF RIGHTS [SECTION 1 – SEC. 32]

  ( Article 1 adopted 1879. )

SEC. 28.  

(a) The People of the State of California find and declare all of the following:

(1) Criminal activity has a serious impact on the citizens of California. The rights of victims of crime and their families in criminal prosecutions are a subject of grave statewide concern.

(2) Victims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. The enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system fully protecting those rights and ensuring that crime victims are treated with respect and dignity, is a matter of high public importance. California’s victims of crime are largely dependent upon the proper functioning of government, upon the criminal justice system and upon the expeditious enforcement of the rights of victims of crime described herein, in order to protect the public safety and to secure justice when the public safety has been compromised by criminal activity.

(3) The rights of victims pervade the criminal justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b).

(4) The rights of victims also include broader shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employed officials. These rights encompass the expectation shared with all of the people of California that persons who commit felonious acts causing injury to innocent victims will be appropriately and thoroughly investigated, appropriately detained in custody, brought before the courts of California even if arrested outside the State, tried by the courts in a timely manner, sentenced, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.

(5) Victims of crime have a collectively shared right to expect that persons convicted of committing criminal acts are sufficiently punished in both the manner and the length of the sentences imposed by the courts of the State of California. This right includes the right to expect that the punitive and deterrent effect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constitution or by the laws of this State to be granted to any person incarcerated in a penal or other custodial facility in this State as a punishment or correction for the commission of a crime.

(6) Victims of crime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must come to an end.

(7) Finally, the People find and declare that the right to public safety extends to public and private primary, elementary, junior high, and senior high school, and community college, California State University, University of California, and private college and university campuses, where students and staff have the right to be safe and secure in their persons.

(8) To accomplish the goals it is necessary that the laws of California relating to the criminal justice process be amended in order to protect the legitimate rights of victims of crime.

(b) In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights:

(1) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.

(2) To be reasonably protected from the defendant and persons acting on behalf of the defendant.

(3) To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.

(4) To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.

(5) To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.

(6) To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.

(7) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.

(8) To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.

(9) To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.

(10) To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.

(11) To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.

(12) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.

(13) To restitution.

(A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.

(B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.

(C) All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.

(14) To the prompt return of property when no longer needed as evidence.

(15) To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.

(16) To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made.

(17) To be informed of the rights enumerated in paragraphs (1) through (16).

(c) (1) A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.

(2) This section does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its political subdivisions, or any officer or employee of the court.

(d) The granting of these rights to victims shall not be construed to deny or disparage other rights possessed by victims. The court in its discretion may extend the right to be heard at sentencing to any person harmed by the defendant. The parole authority shall extend the right to be heard at a parole hearing to any person harmed by the offender.

(e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. The term “victim” does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.

(f) In addition to the enumerated rights provided in subdivision (b) that are personally enforceable by victims as provided in subdivision (c), victims of crime have additional rights that are shared with all of the People of the State of California. These collectively held rights include, but are not limited to, the following:

(1) Right to Safe Schools. All students and staff of public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right to attend campuses which are safe, secure and peaceful.

NICE ONE FOR ALL WHO ARE FUCKING SHIT FUCK LYING DEVIANT SETUP ARTISTS AND PEOPLE COMMITING CRIMES THINKING THEY ARE PROTECTED FROM RECORDINGS

(2) Right to Truth-in-Evidence.  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, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. 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. Nothing in this section shall affect any existing statutory or constitutional right of the press.

(3) Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.

A person may be released on his or her own recognizance in the court’s discretion, subject to the same factors considered in setting bail.

Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney and the victim shall be given notice and reasonable opportunity to be heard on the matter.

When a judge or magistrate grants or denies bail or release on a person’s own recognizance, the reasons for that decision shall be stated in the record and included in the court’s minutes.

(4) Use of Prior Convictions. Any prior felony 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 felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.

(5) Truth in Sentencing. Sentences that are individually imposed upon convicted criminal wrongdoers based upon the facts and circumstances surrounding their cases shall be carried out in compliance with the courts’ sentencing orders, and shall not be substantially diminished by early release policies intended to alleviate overcrowding in custodial facilities. The legislative branch shall ensure sufficient funding to adequately house inmates for the full terms of their sentences, except for statutorily authorized credits which reduce those sentences.

(6) Reform of the parole process. The current process for parole hearings is excessive, especially in cases in which the defendant has been convicted of murder. The parole hearing process must be reformed for the benefit of crime victims.

(g) As used in this article, the term “serious felony” is any crime defined in subdivision (c) of Section 1192.7 of the Penal Code, or any successor statute.

(Sec. 28 amended Nov. 4, 2008, by Prop. 9. Initiative measure.)VICTIMS’ BILL OF RIGHTS—THIRTY

YEARS UNDER PROPOSITION 8

Miguel A. Méndez*

INTRODUCTION ………………………………………………………………………………………….380 I.   EVIDENCE CODE SECTIONS AFFECTED BY PROPOSITION 8 ………………………….385 A.  Character Evidence Limitations ………………………………………………………..385

1. B.Expert Testimony and Scientific Evidence …………………………………………..389
2. C.Evidence Excluded on the Basis of Extrinsic Policies …………………………..390
3. D. Proposition 8 and Credibility Restrictions ………………………………………….391
4. 1.Prior Bad Acts as Evidence of Lack of Veracity ……………………………392
5. 2.Prior Bad Acts as Evidence of Lack of Credibility other than Lack

of Veracity ……………………………………………………………………………….394

3. 3.Felony Convictions ……………………………………………………………………395
4. 4.Misdemeanor Convictions ………………………………………………………….399
5. 5.Juvenile Adjudications and Proposition 8 …………………………………….400
6. 6.Expungement and Proposition 8 ………………………………………………….400
7. 7.Reputation and Opinion Regarding Veracity ………………………………..401
8. 8.Religious Beliefs……………………………………………………………………….403
9. 9.Inconsistent Statements ……………………………………………………………..403
10. 10. Prior Consistent Statements ………………………………………………………..405 E. Competency of Witnesses ………………………………………………………………….406 F. The Best Evidence Rule…………………………………………………………………….408
11. PROPOSITION 8 AND THE INSANITY DEFENSE …………………………………………….410 III. PROPOSITION 8 AND INTOXICATION AND DIMINISHED CAPACITY EVIDENCE …412 IV. ADDITIONAL LEGISLATIVE PATCHES ……………………………………………………….416 A. Hypnotized Witnesses……………………………………………………………………….416
12. B.Polygraph Results ……………………………………………………………………………417
13. C.Truth Serum ……………………………………………………………………………………417
14. D. Psychiatric Examinations …………………………………………………………………418
15. V. THE WISDOM OF LEGISLATING THROUGH INITIATIVES ……………………………….419

* Professor of Law & Martin Luther King, Jr. Scholar, U.C. Davis School of Law; Adelbert H. Sweet Professor of Law, Emeritus, Stanford University. I want to thank my col- leagues Floyd Feeney, George Fisher, Christine Chambers Goodman, Edward Imwinkelried, Albert Lin, and Deborah Shefler for their helpful comments. I alone, however, am responsi- ble for any errors or omissions.

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INTRODUCTION

In 1982, the California electorate approved an initiative entitled the “Vic- tims’ Bill of Rights.” Though the initiative made broad changes in the state’s criminal  justice  system,1  this  Article  focuses  on  those  provisions  that  intro- duced radical changes in the state’s rules of evidence and some aspects of crim-

inal 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 crimi- nal 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 Evi-

dence 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 super- sedes 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, sec- tion 28(d) creates a new evidence code for regulating the admissibility  of evi- dence in criminal proceedings.  In effect, the section gives the prosecution and the defense a constitutional right to introduce relevant evidence. Unless the ev- idence 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 eviden- tiary principles  of general application,  an approach  adopted  by the American Law Institute in 1942 and followed by all American evidence systems:

1. 1. Among the changes the initiative called for in the criminal justice system are resti- tution for crime victims, the right to attend  safe schools,  consideration  of public  safety  in setting  bail, enhanced  punishment  for habitual  criminals,  the right  of crime  victims  to be heard at sentencing,  and prohibiting  plea bargaining  where enumerated  crimes are See CALIFORNIA BALLOT PAMPHLET, PRIMARY ELECTION, JUNE 8, 1982 33, 56 (March Fong Eu ed., 1982).
2. 2. See CAL. CONST. art. I, 28(d). This provision is now section  28(f)(2).  Because many cases use the original designation, this article uses 28(d).
3. 3. Id. Section 28(d), of course, cannot override federal constitutional provisions pro- hibiting the use of evidence acquired in violation of the Fourth (unreasonable searches and seizures),  Fifth  (self-incrimination),  and  Sixth  (right  to  counsel)  Amendments.  See  U.S. CONST. amends. IV-VI.

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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 provi- sions that form the cornerstone upon which the entire evidence structure is con- structed. 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 indis- pensable 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 tenden- cy 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 evi- dence. This aspect is known as the probative value of an item of evidence.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 relation- ship 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 de- fined by the substantive law, it is immaterial.

Materiality also encompasses the credibility of witnesses. Section 210 ex- pressly 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 ac- tion. To underscore the importance of evidence relating to credibility, the semi-

4. 4. MODEL CODE OF EVIDENCE 11 (1942).
5. 5. See CAL. EVID. CODE 350 (West 2013).
6. 6. See id. 351.
7. 7. See id. 210.
8. 8. See generally  MIGUEL  A.  MÉNDEZ,  THE  CALIFORNIA  CODE  AND  THE  FEDERAL

RULES—A PROBLEM APPROACH § 2.01 (5th ed. 2012).

9. 9. Id.
10. 10. Id.
11. 11. Id.
12. 12. See CAL. EVID. CODE 210 (West 2013).
13. 13. See generally MÉNDEZ, supra note 8, 2.03.

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nal 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 evi- dence. 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  wit- ness’s sexual conduct when offered to attack the credibility of the complaining

witness in sexual assault prosecutions.15  Even if the evidence is relevant, judg-

es may exclude it if its probative value on the witness’s credibility is substan- tially outweighed by other concerns, such as undue prejudice to the complain- ing witness.16 Section 1103(c) embodies California’s rape shield law. In sexual assault prosecutions, it limits defendants to offering only evidence of the com- plaining  witness’s  sexual  conduct  with them  when  offered  to prove  the wit- ness’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  out- weighed 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 dis- cuss approving  the Model  Code of Evidence,  at least one member  described such discretion as “dangerous.”21  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.22  His view pre- vailed, but as will be discussed, the discretionary principle embodied in provi- sions 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

14. 14. See CAL. EVID. CODE 780 (West 2013).
15. 15. See id. 782(a).
16. 16. See id. 782(a)(3).
17. 17. See id. 1103(c)(3).
18. 18. See id. 1103(c)(1).
19. 19. See id. 352.
20. 20. See FED. R. EVID.
21. 21. See 19 A.L.I. PROC. 221 (1941-42).
22. 22. See id. at 223.

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use his or her discretionary power to exclude it. Proposition 8 expands enor- mously a judge’s power to exclude otherwise admissible evidence by eliminat- ing 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 evi- dence formerly inadmissible  to discretionary  exclusion complicates  trial plan- ning 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 im- peachment  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 Evi- dence 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 exclude  convictions  whose  probative value on a witness’s credibility is substantially  outweighed by other concerns, including unfair prejudice.25  But stripping judges of their discretion to exclude convictions  of marginal  utility conflicts  with another  constitutional  provision also enacted by Proposition  8, namely, section 28(d), which constitutionalizes their discretion  to exclude  marginal  evidence  under section 352. This Article traces how the California  Supreme  Court has attempted  to reconcile  the two

conflicting constitutional provisions.

Another  Proposition  8 provision  defines  legal insanity  for the first time. Prior to the initiative, the California Penal Code simply recognized that a crim- inal defendant could be acquitted on the basis of insanity.26 The Penal Code, however, did not define insanity. The courts initially filled the gap by adopting the well-known M’Naghten test of legal insanity.27 Dissatisfaction with this test led the California Supreme Court to replace it with the test formulated by the American Law Institute in the Model Penal Code.28 The proponents of Proposi- tion 8 disliked the more expansive A.L.I. test, so they proposed adding section

25(b) to the Penal Code:

23. 23. See CAL. CONST. art. I, 28(f). This provision is now § 28(f)(4).  Because  many cases use the original designation, this article uses 28(f).
24. 24. See generally MÉNDEZ, supra note 8, 15.07.
25. 25. Id.
26. 26. See CAL. PENAL CODE 26 (West 2013).
27. 27. See People v. Drew, 583 2d 1318, 1321 (Cal. 1978).
28. 28. Id. at 1326.

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In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the na- ture and quality of his or her act and of distinguishing right from wrong at the

time of the commission of the offense.29

Apparently,   the  proponents   wanted  much  more  than  a  return  to  the M’Naghten test. Under that test, a defendant can be acquitted on the grounds of insanity if at the time he committed the offense he was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quali- ty of his act, or if he did know it, as to not know that his act was wrong.30  As the example provided by the Model Penal Code illustrates, under this formula- tion a defendant is not guilty by reason of insanity if as a result of a mental dis- ease  she  believes  she  is  squeezing  lemons  when  in  fact  she  is  squeezing

necks.31  Moreover,  even if she was aware that she was squeezing  necks, she would not be guilty by reason of insanity if as a result of a mental disease she believes  that  there  is  nothing  wrong  with  squeezing  necks.  However,  Penal Code section 25(b), as approved in the initiative, uses “and” instead of “or” in setting out the two prongs.32 The use of the conjunctive would require the de- fendant to prove that by reason of a mental disease she not only thought that she was squeezing  lemons  but also that she believed  that there  was nothing wrong with squeezing necks. Such a test has been described as the “wild beast” test on the assumption that such extreme cognitive dysfunctions would reduce a human to the cognitive level of a wild beast.33  As will be discussed below, in People v. Skinner34 the California Supreme Court confronted the difficult ques- tion of whether Proposition  8 indeed called for the application  of an insanity

test much more restrictive than the M’Naghten test.35

Part I of this Article examines the extensive changes that section 28(d), the Right to Truth-in-Evidence  provision, made to the rules of evidence that apply in  criminal  proceedings.   That  Part  also  describes  the  California  appellate courts’  response  to changes  that a literal  application  of section  28(d)  would make to these rules and evaluates the changes from a policy perspective. Lastly, Part I explores the impact that section 28(f) would have on the use of convic- tions to impeach witnesses in criminal proceedings and describes how the Cali- fornia  appellate  courts  have  attempted  to reconcile  the  apparent  conflict  be-

29. 29. See CAL. PENAL CODE 25(b) (West 2013) (emphasis added).
30. 30. See WAYNE R. LAFAVE, CRIMINAL LAW 7.1 (West 4th ed. 2003).
31. 31. See MODEL PENAL CODE & COMMENTARIES 4.01 (1985).
32. 32. See CAL. PENAL CODE 25(b) (Deering 2008).
33. 33. See Trial of Edward Arnold, Kingston Assizes, 16 How. St. Tr. 695, 764 (1724), reprinted in J. MICHAEL  & H. WECHSLER, CRIMINAL  LAW  AND ITS  ADMINISTRATION  809 (1940); see also People v. Skinner, 704 2d 752, 759 (Cal. 1985). Wild beasts might object to this comparison.
34. 34. 704 2d at 752.
35. 35. Id. at 759.

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tween section 28(f), which eliminates  judicial discretion  in admitting  convic- tions, and section 28(d) which constitutionalizes the discretion judges have in excluding evidence of marginal value, including conviction evidence. Part II describes how the California Supreme Court resolved the question of whether Proposition 8 called for the use of an insanity test even more restrictive than the M’Naghten test. Part III examines the impact section 28(d) had on Penal Code provisions restricting the use of intoxication and diminished capacity evidence in criminal cases. Part IV enumerates some of the corrective measures the leg- islature has undertaken to undo the unanticipated effects of section 28(d).

Part  V  examines  two  important  questions.  One  is whether  the  initiative process is a sound way to effect significant changes in California law. Should the electorate be entrusted with the responsibility of deciding complex legal questions, such as enacting an evidence code, and determining when cognitive and  volitional  deficits  should  result  in  acquittals  and  whether  convictions should be used without limitation to impeach witnesses in criminal cases? The second,  equally  important  question  is whether  California’s  initiative  process needs  to be reformed  to help ensure  an informed  electorate  when  voters  are asked to enact statutes and constitutional amendments.

1. I. EVIDENCE CODE SECTIONS AFFECTED  BY PROPOSITION 8

If Proposition 8 is construed literally, the Evidence Code provisions most affected are (1) the rules governing the use of character evidence, (2) the rules pertaining to experts and expert evidence, (3) some rules disfavoring the use of evidence for “extrinsic” or policy reasons, (4) the rules regulating the use of ev- idence to attack or support the credibility of witnesses, (5) the rules determin- ing whether witnesses are qualified to testify, and (6) the rules generally requir- ing a party to prove the contents of a writing by offering the original writing and not a copy or testimony about its contents. As we shall see, however, ap- pellate decisions and legislative amendments have limited the effect of the ini- tiative principally to the rules governing credibility.

1. A. Character Evidence Limitations

The Code generally prohibits the prosecution from offering evidence in its case-in-chief of the accused’s bad character to prove his or her propensity to commit the offense charged.36  Two main concerns account for the ban. One is that  the fact  finder  might  overestimate  the probative  value  of character  evi- dence: if jurors learn that on other occasions the accused engaged in the mis- conduct charged, they might jump to the unwarranted  conclusion  that the ac-

36. 36. See CAL. EVID. CODE 1102 (West 2013). Recent amendments allow the prosecu- tion to offer the defendant’s misconduct as proof of his or her propensity to commit the mis- conduct charged. See, e.g., id. § 1108 (sexual assault prosecutions); id. § 1109 (domestic vio- lence prosecutions).

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cused must be guilty of the misconduct charged.37 The other is the belief that character evidence might invite jurors to return verdicts against “bad” persons. Especially  in criminal  cases,  a major  concern  is that bad character  evidence might tempt jurors to apply a theory of culpability that is based on character ra- ther than on the commission of a punishable act. Having heard evidence of the accused’s bad character, jurors might conclude that the accused is a bad person deserving of punishment, irrespective of whether the other evidence convinces them of the accused’s guilt.38 The principle that individuals are accountable on- ly “for what they do and not for what they are”39 is central to the law’s concept of criminal  blameworthiness.  The United  States  Supreme  Court has elevated the principle to constitutional status.40

Evidence that the accused is predisposed to commit the offense charged is, however, relevant. The Right to Truth-in-Evidence provision would thus appear to repeal the character evidence ban. For over thirteen years the California Su- preme Court declined to rule on the effects a literal construction of Proposition

8 would have on the character  evidence  rules.41  When the court finally con-

fronted the question in People v. Ewoldt,42 it held that amendments to the char- acter evidence rules enacted after the initiative had been approved rendered it unnecessary  to answer the question.43  Because the re-enactment  was by more than the two-thirds vote required by Proposition 8 for amendments to the initia- tive, the court ruled that the re-enactment superseded any repealing effects that the initiative may have had on the character evidence rules.44 Ewoldt thus rein-

stated in criminal cases the limitations the Code places on the use of character evidence. But, as will be explained, the reinstatement was inadvertent.

Prior to Ewoldt,  the California  Supreme  Court in People  v. Tassell45 fo- cused on when evidence of specific misdeeds can be offered, not as evidence of a person’s predisposition  to commit the misdeed charged, but as evidence of a

37. 37. See 1 J. WIGMORE, EVIDENCE 194 (3d ed. 1940).
38. 38. Id. Bad character evidence also presents the risk that the jurors might convict for crimes  other  than  those  charged.  See  United  States  v. Moccia,  681  2d  61, 63 (1st  Cir.

1982).

39. 39. See H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 73–74 (1968).
40. 40. See Robinson v. California, 370 U.S. 660, 667 (1962), reh’g denied, 371 U.S. 905 (1962) (holding that the Eighth Amendment’s prohibition  of cruel and unusual punishments prohibits  punishing  an addict on account of his narcotics  addiction).  The United States Su- preme Court has not ruled on the question of whether the prosecution’s use of propensity evidence against the accused violates due process. See Estelle v. McGuire, 502 U.S. 62, 75 5 (1991).
41. 41. See People v. Sully, 812 2d 163, 180-81 (Cal. 1991); People v. Harris, 767 P.2d

619, 640 (Cal. 1989).

42. 42. 867 2d 757 (Cal. 1994).
43. 43. Id. at 762.
44. 44. Id. at 763.
45. 45. 679 2d 1 (Cal. 1984), overruled by People v. Ewoldt,  867 P.2d 757, 769 (Cal.

1994).

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relevant non-character  proposition.46  The court was especially concerned with the  common  plan  or scheme  doctrine.  Under  this  doctrine,  prosecutors  may seek to prove guilt by offering uncharged misdeeds as evidence the defendant committed the misdeed charged. The uncharged misdeeds are not offered as character  evidence,  that  is,  as  evidence  that  the  defendant  committed  the charged misdeed because he is the kind of person who commits those types of misdeeds. Rather, the theory of admissibility is that the defendant is guilty of committing  the  misdeed  charged  because  he  committed  the  uncharged  and charged misdeeds as part of a single conception or plot.47 Because of the risk that jurors might misuse the uncharged misdeeds as evidence of the defendant’s predisposition  to commit the misdeed charged, the court emphasized  the need for the prosecution to explain how the uncharged misdeed evidence is probative

of a relevant proposition  other than the defendant’s  predisposition  to commit the misdeed charged.48

Tassell was convicted of rape. He claimed that the victim had consented. In his concurring and dissenting opinion, Justice Reynoso emphasized  that forci- ble rape is a crime of negligence.49  Even if the victim did not consent, a de- fendant is not guilty of forcible rape if he reasonably  believed that the victim had consented.50 Accordingly, he disagreed with the majority’s holding that because Tassell had conceded having sex with the victim, the prosecution’s ev- idence that he committed other rapes was probative only of his predisposition to commit the rape charged.51

In 1986 the legislature sided with Justice Reynoso by amending Evidence Code subdivision 1101(b) to include among the illustrative list of matters that can be proved by evidence of uncharged offenses “whether a defendant in a prosecution for an unlawful sexual act or attempted sexual act did not reasona- bly and in good faith believe that the victim consented.”52  Except as otherwise provided,  subdivision  1101(a)  prohibits  the use of evidence  when  offered  to prove that on a particular occasion a person conformed his or her conduct to a character trait.53 Each house of the legislature approved the amendment to sub- division  1101(b)  by more  than  a two-thirds  vote  of the members  entitled  to vote.54 Because the votes exceeded the number required by the Right to Truth-

in-Evidence provision for approval of statutes restricting the right to offer rele-

46. 46. Tassell, 679 2d at 4.
47. 47. Id. at 5.
48. 48. Id. at 7.
49. 49. Id. at 11 (Reynoso, , concurring in part and dissenting in part).
50. 50. Id.
51. 51. Id.
52. 52. See CAL EVID. CODE 1101(b) (West 2013).
53. 53. See id. 1101(a).
54. 54. People v. Ewoldt, 867 2d 757, 762 (Cal. 1994).

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vant evidence,  Ewoldt held that the effect of the vote was to re-enact section

1101 in its entirety, including subdivision (a).55

Restoring the character evidence ban was not the legislature’s goal; it was simply adding another example of the kind of specific acts that can be offered to prove propositions other than a person’s predisposition to conform his or her conduct to a trait of character. Nonetheless, the legislature’s action in amending subdivision  1101(b) had the effect of re-enacting  the entire section, including the character evidence ban.

Of course, there was no way that voters untrained in the law of evidence could have contemplated the adverse effects the Right to Truth-in-Evidence provision  would have on the values that moved  the California  Legislature  to enact the character evidence restrictions.  The legislative analyst’s overview in the  ballot  pamphlet  merely  notes  in  the  evidence  section  that  the  initiative “would all allow most relevant evidence to be presented in criminal cases” even though under current law “certain evidence is not permitted to be presented in a

criminal trial or hearing.”56 The proponents of Proposition 8 make no mention

of the effect of the initiative on the general ban on the use of bad character evi- dence against those accused of crimes. In the ballot pamphlet Mike Curb, then Lieutenant Governor, urged voters to vote for the initiative to “restore balance to the rules governing the use of evidence against criminals.”57 He does not say

“against those accused of committing crimes”; instead, he equates prosecution with guilt, ignoring the time-honored constitutional principle that the accused is presumed to be innocent until the state proves his guilt beyond a reasonable doubt.58 Another proponent, George Deukmejian, then Attorney General, com- plains in his argument that “higher courts of this state have created additional rights for the criminally accused” and argues that the proposition would “over- come some of the adverse decisions by our higher courts.”59 That argument, however, would not put the electorate on notice of the repealing effect the initi- ative would have on the character  evidence  rules. These rules and the values they protect were created by the legislature, not the higher courts. Deukmejian, however, did get it right when he argued in upper case letters that “THERE IS ABSOLUTELY    NO    QUESTION    THAT    THE    PASSAGE    OF    THIS

PROPOSITION  WILL RESULT IN MORE CRIMINAL  CONVICTIONS.”60

Admittedly,  eliminating  any evidentiary  barrier to conviction  will, of course, favor prosecutors by improving their conviction-acquittal ratio, but easing the proof problems confronting  prosecutors  cannot be the overriding liberty value in a free society. The third proponent, Paul Gann (co-author of Proposition 13, the anti-tax initiative), made no reference to the effect the initiative would have

55. 55. Id.
56. 56. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 54.
57. 57. Id. at 34.
58. 58. See In re Winship, 397 U.S. 358, 364 (1970).
59. 59. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 34.
60. 60. Id.

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on any of the evidence rules; instead, he viewed the initiative as essential to protecting crime victims, whom he saw not just as crime victims but also as “victims  of our criminal  justice system—the  liberal reformers,  lenient judges and behavior  modification  do-gooders  who  release  hardened  criminals  again and again to victimize the innocent.”61

To be fair to the proponents and opponents of Proposition 8, a ballot pam- phlet  is not the place  for detailed  and considered  arguments  concerning  im- portant legal rights. Those discussions need to occur in such places as legisla- tive  hearings,  appellate  arguments  and  opinions,  and  debates  among  legal experts, among others. Nor can such discussions take place in the sound bites accompanying  political  ads  favoring  or opposing  complex  initiatives.  But  if that is the case, one cannot avoid asking whether initiatives are a sound means for implementing the kind of extensive changes Proposition 8 effected in the Evidence Code, a question examined in detail in Part V.

1. B. Expert Testimony and Scientific Evidence

The Code imposes  a number of limitations  on the use of expert testimo- ny.62 Before a judge may admit expert evidence, the judge must find, among other matters, that the jurors need the expert’s help, the expert is qualified to provide that help by virtue of education, training, or experience, and the expert

followed  accepted  protocols  in reaching  his or her opinion.63  In addition,  in cases involving  novel scientific  principles  or techniques,  the judge must also find that the technique or principle has been generally accepted as reliable by the  pertinent  scientific  community.64  Because  the  California  Supreme  Court has acknowledged  that some of these limitations exclude unquestionably  rele- vant evidence,65 a literal application of Proposition 8 would repeal the Evidence Code limitations on the use of expert opinion in criminal cases since the limita- tions are not among the enumerated exceptions. But in People v. Harris,66 the California  Supreme  Court rejected  the claim that Proposition  8 mandated  the use of polygraph evidence that failed California’s general acceptance test. Mis- takenly assuming that unreliable evidence is irrelevant, the court held that judg- es may use section 352 to exclude scientific evidence that fails the general ac-

ceptance  test.67  Section  352 is expressly  exempted  from the operation  of the

Right to Truth–in–Evidence  provision. In the court’s view, this section incorpo-

61. 61. Id. at 35.
62. 62. See CAL. EVID. CODE § 800-05 (West 2013).
63. 63. See generally MÉNDEZ, supra note 8, 16.04.
64. 64. See generally id. 16.04.
65. 65. See People  v. Kelly,  549  2d  1240,  1244  (Cal.  1976)  (acknowledging  that  the general acceptance test excludes relevant evidence).
66. 66. 767 2d 619 (Cal. 1989).
67. 67. Id. at 649.

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rates section 350, which mandates the exclusion of irrelevant evidence,68 and evidence that fails to meet the general acceptance test is, according to the court, irrelevant.69  Whether the court’s analysis is right or wrong, Harris’s effect has been to exempt the Code’s limitations  on expert testimony  from the Right to Truth-in-Evidence provision of Proposition 8.

It is unlikely that the proponents of the initiative foresaw that a literal ap- plication of the Right to Truth-in-Evidence provision could repeal the Code’s limitations  on  the  use  of  expert  testimony  and  scientific  evidence.  While  a judge could still invoke section 352 to exclude evidence of doubtful scientific validity, the accepted practice in all jurisdictions  is that judges should play an important role in screening expert testimony to ensure its reliability before it is

offered to the jury.70 The detailed Evidence Code standards that guide judges in

making this determination  are far superior to the balancing test of section 352. Moreover, these standards offer parties clear guidelines in preparing, offering, and opposing  expert  testimony  and scientific  evidence.  Contemporary  stand- ards for the admissibility of expert evidence are the product of decades of thoughtful judicial and scholarly evolution.71 In their ballot arguments, the pro- ponents of Proposition 8 make no reference to the Code’s rules on expert evi- dence. It seems inconceivable that they would seek to eliminate these rules and instead have individual judges determine the use of expert evidence in a partic- ular criminal case under the necessarily general but imprecise standards of sec- tion  352.  A problem  with  initiatives,  especially  those  dealing  with  complex

subjects, is that they can carry unanticipated consequences.

1. C. Evidence Excluded on the Basis of Extrinsic Policies

Like other evidence systems, the Code excludes classes of evidence on ac- count of “extrinsic” policies.72 These policies refer to the legislature’s decision to exclude unquestionably  relevant evidence in order to promote other policies it considers more important. A policy rule potentially affected by Proposition 8 is the section  prohibiting  the use of evidence  of a plea of guilty,  later with- drawn, or of an offer to plead guilty in unsuccessful plea negotiations.73

Prosecutors would have an easier time obtaining convictions if they could offer the jury evidence that prior to the trial the accused offered to plead guilty to the offense charged or to some lesser offense. Though such evidence would constitute a relevant admission, it is nonetheless excluded in order to encourage plea bargains. Evidence Code section 1153 prohibits the use of such evidence

68. 68. Id.
69. 69. Id.
70. 70. See, g., FED. R. EVID. 702-04; CAL. EVID. CODE §§ 800-05 (West 2013).
71. 71. See generally MÉNDEZ, supra note 8, 16.03.
72. 72. Compare CAL. EVID. CODE § 1150-55  (West  2014),  with FED. R. EVID. 407-11 (West 2011).
73. 73. See CAL. EVID. CODE 1153 (West 2014).

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in “any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.”74  Moreover, evidence of a plea of guilty, later withdrawn, is also made inadmissible by section 1153,75 and in the case of some felonies, by section 1192.4 of the Penal Code.76 Since ordinar- ily the accused is not permitted  to withdraw  a plea of guilty except for good cause shown,77 the policies favoring the withdrawal of the plea in a given case would  be  defeated  if  the  prosecution  were  permitted  to  use  the  withdrawn guilty plea against the accused at the trial. Evidence of a withdrawn guilty plea, however, would nonetheless constitute a relevant admission at the trial.

To date, no appellate court has considered the applicability of the initiative to these rules. Practicality, however, may account for the dearth of cases re- garding  the admissibility  of the accused’s  admissions  in plea bargaining  ses- sions. Because prosecutors have an interest in preserving plea bargaining, they have no incentive to overturn the prohibition on the use as admissions of offers to plead guilty and related plea statements.

1. D. Proposition 8 and Credibility Restrictions

Trial lawyers know that the outcome of a trial will be determined in almost all cases by which witnesses the jurors choose to believe and which ones they decide to ignore. Telling jurors which witnesses to believe or disbelieve is thus a crucial part of a closing argument. But such an appeal will not be persuasive unless the lawyer can give the jurors reasons rooted in the evidence about why a witness should be believed or disbelieved. This inescapable dynamic of jury trials encourages lawyers to produce the most favorable evidence about the credibility of their witnesses and the most unfavorable  about their opponents’

witnesses.78  As we shall see, however, the rules of evidence counter this incli-

nation by placing strict limits on the use of evidence to support or attack the credibility of witnesses. Despite the unquestioned  relevance of such evidence, the rules proceed on the assumption that the unrestrained use of evidence on witness credibility may distract from and confuse jurors about the issues to be decided.79 In the memorable words of Dean Charles McCormick, without limi-

74. 74. See id. 1153.
75. 75. Id.
76. 76. The Penal Code provides that if an accused’s plea of guilty to certain felonies is re- jected by the  prosecuting  attorney  and  the  court,  the  plea  is deemed  withdrawn,  and  the “pleas so withdrawn may not be received in evidence in any criminal, civil, or special action or proceeding  of any nature,  including  proceedings  before  agencies,  commissions,  boards, and ” See CAL. PENAL CODE § 1192.4 (West 2013).
77. 77. See CAL. PENAL CODE 1018 (West 2013).
78. 78. See generally MÉNDEZ, supra note 8, 15.01.
79. 79. See generally id. 15.01.

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tations, the “sideshow”  on witness credibility  would threaten to take over the

“circus” on the disputed issues.80

The Evidence Code restricts the use of evidence on witness credibility  in two ways. First, the rules limit the kind of evidence that can be used to support or attack the credibility of witnesses. Other than convictions,  for example, the Code does not permit a party to offer specific acts of misconduct as evidence of a witness’s predisposition  to lie under oath.81 Second, the Code limits the cir- cumstances  under which such evidence  can be used. For example,  under the Code, evidence that a witness has made statements that are consistent with the witness’s testimony on direct examination is generally inadmissible to support

the witness unless the opposing party has first attacked the witness’s credibil- ity.82

Since evidence attacking or supporting the credibility of witnesses is obvi- ously relevant, the Right to Truth-in-Evidence  provision repeals those sections of the Evidence Code that ban or limit the use of such evidence.83 The initiative also threatens to overturn the decisional restraints on the use of such evidence.

1. 1. Prior Bad Acts as Evidence of Lack of Veracity

The Evidence Code rejects the common law prior bad acts doctrine.84  This doctrine allows the cross examiner to impeach a witness by inquiring into acts of misconduct by the witness that have not been the subject of a conviction.85

Other than convictions, section 787 prohibits the use of specific instances of a

80. 80. See CHARLES MCCORMICK, MCCORMICK ON EVIDENCE 41 (Edward W. Cleary et al. eds., 2d ed. 1972). In deciding whether to go forward with a case, lawyers often take into account their assessment  of the credibility  of key witnesses.  For example,  a review  of the forensic  evidence  for all sexual  assault  cases  reported  in Duval  County,  Florida  during  a two-year period showed that prosecutors cited problems with the credibility of the complain- ing witness as the most common  reason for dropping  cases. See also Kelly Gray-Eurom  et al.,  The  Prosecution   of  Sexual  Assault  Cases:  Correlation  with  Forensic  Evidence,  39

ANNALS EMERGENCY MED. 39-46 (Jan. 2002).

81. 81. See CAL. EVID. CODE 787 (West 2013).
82. 82. See id. 791.
83. 83. See People v. Stern, 3 Cal. Rptr. 3d 479, 489 (Cal. Ct. App. 2003) (holding that the Evidence Code’s ban on the use of prior bad acts to attack the credibility  of witnesses  has been abrogated by Proposition  8 in criminal cases); see also In re Freeman, 133 3d 1013,

1020, n.5 (Cal. 2006) (same).

84. 84. Even before the Evidence Code was adopted, California did not recognize the prior bad acts doctrine. See CAL. PROC. CODE 2051, repealed by CAL. EVID. CODE § 1101 (West

1966) (excluding evidence of specific acts that had not been the subject of a conviction).

85. 85. See CHARLES MCCORMICK, MCCORMICK ON EVIDENCE 41 (Kenneth S. Broun et al. eds., 6th ed. 2006). Among the reasons some jurisdictions reject the prior bad acts doc- trine are “the dangers of prejudice  (particularly  if the witness is a party), of distraction  and confusion,  of abuse by asking unfounded  questions, and of the difficulties,  as demonstrated in the appellate cases, of determining  whether particular acts relate to character for truthful- ness.” Id. To that list can be added the danger of surprise to lawyers who cannot reasonably be expected to know all of the past misdeeds of the witnesses they sponsor.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 393

witness’s conduct to prove the witness’s predisposition to testify truthfully or untruthfully.86  In civil proceedings, the Code’s ban on the use of prior bad acts continues  in effect. In criminal  cases, however,  Proposition  8 repeals section

787.87 Evidence that a witness has cheated on his income tax returns is proba- tive of the witness’s character for lack of veracity. The proposition that the wit- ness is the kind of person  who will not tell the truth under oath is rendered more likely by evidence that he lies on his income tax returns than the proposi- tion would be without the evidence.88 Accordingly, under Proposition 8 such evidence  is admissible  in criminal  cases unless  excluded  by the judge  under section 352.89

The common law restricted the use of the prior bad acts doctrine by bind- ing the cross examiner to the witness’s answer.90 If the witness, for example, denied having cheated on his taxes, the cross examiner could not call other wit-

nesses to contradict the witness. Even if IRS witnesses were willing and availa- ble to testify, their testimony could not be received over objection. This limita- tion was designed to prevent the current trial from being converted into one on whether or not the witness engaged in the bad act, here, evasion of taxes.91

But testimony by the IRS agents that the witness cheated on his taxes is as probative of the witness’s penchant for lack of veracity as is the witness’s ad- mission that he evaded taxes. Under a literal application  of Proposition  8, the IRS agent’s testimony would be admissible, unless excluded by the trial judge

under section 352.92 Similarly, countervailing evidence that the witness did not

cheat on his taxes would likewise be relevant and admissible. Thus, under Proposition 8, unless the judge firmly restricts the use of the prior bad acts doc- trine, a lurking danger is that the doctrine will overwhelm the issues to be de- cided in the current trial. A trial over whether the accused committed a feloni- ous assault  could  also become  a trial over whether  a defense  or prosecution witness evaded income taxes.93

86. 86. See CAL. EVID. CODE 787.
87. 87. See People v. Harris, 767 2d 619, 639-41 (Cal. 1989); see also People v. Adams,

243 Cal. Rptr. 580, 584 (Cal. Ct. App. 1988) (holding that under Proposition  8 the accused was entitled to offer evidence that the complaining witness in a rape case had falsely accused others of rape).

88. 88. See CAL. EVID. CODE 210.
89. 89. See People v. Hill, 41 Cal. Rptr. 2d 39, 45 (Cal. Ct. App. 1995) (holding that the accused was entitled to impeach a prosecution  witness by evidence  that the witness threat- ened to kill a woman who had reported a criminal incident involving the witness’s boyfriend to the police).
90. 90. See MCCORMICK ON EVIDENCE (2d ), supra note 90, § 42.
91. 91. Id.
92. 92. See Hill, 41 Cal. Rptr. 2d at 45 (allowing the accused to offer extrinsic evidence of the witness’s prior bad act after the witness denied the act on cross-examination).
93. 93. See id. (holding that, even though the accused could impeach a prosecution witness with evidence that she threatened to kill a woman who reported to the police a “criminal in- cident” involving the witness’s boyfriend, the accused was not entitled to show that the inci- dent concerned a charge of rape); accord People v. Box, 5 3d 130, 163 (Cal. 2000) (hold-

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Under Proposition 8, the prior bad acts doctrine has a flipside. Evidence relevant to the credibility of witnesses includes evidence supporting as well as attacking  their  veracity.  Accordingly,  Proposition  8  also  introduces  a “prior good acts doctrine” which sanctions the use of specific instances of conduct to

support the credibility of witnesses. In People v. Harris,94 for example, the Cal-

ifornia Supreme Court held that Proposition 8 allowed the prosecution to sup- port the credibility of a witness who had served as an informant by calling an officer to testify that the witness had proved reliable in past cases.95 Prior to Proposition 8, section 787 would have prohibited the use of the witness’s past reliability to prove that the witness should be believed because his behavior in the past made him the kind of person worthy of belief.96

2. 2. Prior Bad Acts as Evidence of Lack of Credibility other than Lack of Veracity

Under the Code, a party may seek to impeach a witness by evidence, for example, that a witness was under the influence of a mind-distorting  substance at the time the witness claims to have made the crucial observations. Such evi- dence is relevant under section 780(c), as mind-altering substances could ad- versely  affect the witness’s  capacity  to perceive,  and perhaps  recollect  accu- rately, the subject matter of his or her testimony.97  Under the Code, however, a party may not prove that a witness was under the influence of such a substance by evidence of the witness’s propensity to use such substances.98 A party, for example, may not offer evidence that on other occasions, the witness was under

the influence of such a substance when offered for this purpose. Although the ban on the use of character evidence does not apply when the evidence is of- fered to attack the credibility of a witness,99 the Evidence Code provisions reg- ulating credibility  limit the use of character  evidence  to establish  only a wit- ness’s  character  for  veracity  or  lack  of  veracity.100   Moreover,  even  when offered to prove a witness’s character for veracity or lack of veracity, the only evidence of specific instances permitted by the Code is felony convictions.101

But as we have seen, the Code’s limitations on the use of specific instances to prove a witness’s  character  for lack of veracity have been repealed  by the

ing that the accused was entitled to impeach a mental health expert by evidence that the state had filed charges of unprofessional  conduct that could result in the revocation of his license, but the accused was not entitled to show that the charges stemmed from allegations of sexual misconduct with six patients).

94. 94. 767 2d 619 (Cal. 1989).
95. 95. Id. at 639-41.
96. 96. See CAL. EVID. CODE 787 (West 2013).
97. 97. See id. 780(c).
98. 98. See id. 1101(a).
99. 99. See id. 1101(c).
100. 100. See id. 786.
101. 101. See id. 787.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 395

Right  to Truth-in-Evidence  provision.  Proposition  8 has introduced  the prior bad acts doctrine. But under the relevance provisions of the Code, any character evidence relating to credibility—not just veracity—would be relevant.102 Ac- cordingly, evidence of a witness’s prior drug use should now be admissible to establish the witness’s predisposition  to be under the influence of that drug on the occasion in question.

3. 3. Felony Convictions

Evidence Code section 788 embodies the common law rule that a witness’s credibility can be attacked by evidence that the witness has been convicted of a

crime.103  Section 788 follows this tradition by allowing  a party to impeach a

witness by evidence that the witness has been convicted of a felony.104

The California Evidence Code justifies the use of convictions to impeach witnesses on the basis of a character theory of relevance.105  Convictions allow the fact finders  to consider  the misconduct  underlying  the conviction  as evi- dence of a flaw in the witness’s character for truth telling under oath. Logically, only convictions for criminal misconduct that is probative of a witness’s pre- disposition  to lie under oath should be admissible.  The Code, however,  does not limit the use of convictions to those involving dishonesty or false statement. Moreover,  the Code  does  not distinguish  between  convictions  predicated  on

negligence or strict liability and convictions based on a higher mens rea, such as recklessness, knowledge or purpose, or the nature of the crime committed. Section  788 permits  impeachment  by any felony  conviction.106  Accordingly, the impeaching party may use even felony convictions based on unintentional misconduct having no probative value on the witness’s predisposition to lie un- der oath.

The logical flaw in section 788 could have been eliminated if the California Legislature  had  adopted  the  recommendation  of  Professor  James  H.  Chad- bourne who, at the request of the California  Law Revision  Commission,  pre- pared  the  study  that  eventually  gave  rise  to the  Evidence  Code.  He  recom- mended a rule that would have limited convictions offered to impeach a witness to those in which an essential element of the crime is dishonesty or false state-

ment.107 Perjury is an example of such a crime. A violation requires proof that

a person  knowingly  stated  as  true  a material  matter  the  person  knew  to  be

102. 102. See id. § 210, 780.
103. 103. See id. 788.
104. 104. Id.
105. 105. Id.
106. 106. Id.
107. 107. See CALIFORNIA LAW REVISION COMMISSION, TENTATIVE RECOMMENDATION AND A

STUDY RELATING TO THE UNIFORM RULES OF EVIDENCE, ARTICLE IV. WITNESSES 715 (Mar.

1964).

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false.108 But in enacting section 788, the legislature rejected Professor Chad- bourne’s recommendation and instead opted to retain the approach formerly contained in the Civil Procedure Code. That approach allows a witness to be impeached by any felony conviction.109

Section 788, however, does not strip California trial judges of discretion to exclude felony convictions when offered to impeach a witness. Because section

788 merely states that a party “may” show that the witness has been convicted of a felony, the use of the permissive term “may” has enabled the California appellate courts to employ section 352 to formulate rules disfavoring the use of convictions that say little or nothing about a witness’s character for lack of ve-

racity but pose a substantial risk of undue prejudice to the objecting party.110

Beginning with its 1972 decision in People v. Beagle,111 the California Su- preme  Court sought  to limit impeachment  with convictions  to those felonies that tell the fact finder something about the witness’s character for lack of ve- racity. The court held that judges should use section 352 to exclude those felo- nies “when the probative value of such evidence is substantially outweighed by the risk of undue prejudice.”112  To guide judges and litigants, the court speci- fied five circumstances when the risk of undue prejudice outweighs the proba- tive value of the conviction.

First, when the conviction  has little or no direct bearing on the witness’s lack of veracity, it should be excluded.113 As a rule, the court held that only convictions  involving  dishonesty  are probative  of a witness’s  lack of veraci-

ty.114 Second, even when the conviction involves dishonesty and is not remote, the conviction should be excluded if it is remote in time and the witness has led a blameless  life since the conviction.115  Third, even when the conviction  in- volves dishonesty, the conviction should be excluded if it is for conduct identi- cal or substantially  similar to that for which the witness is on trial.116 Fourth, where the witness  has many convictions,  the convictions  should be excluded even when they involve dishonesty and are dissimilar to the conduct for which the witness is on trial because of the prejudice inherent in their numbers.117 Fi-

nally, even when the conviction involves dishonesty and is dissimilar to the conduct for which the witness is on trial, it should be excluded when its intro- duction would deter the witness from taking the stand, and the judge concludes

108. 108. See CAL. PENAL CODE 118 (West 2013).
109. 109. See CALIFORNIA LAW REVISION COMMISSION, supra note 107, at 716.
110. 110. For extended discussion of how the California appellate courts have limited the use of felony convictions to impeach witnesses, see MÉNDEZ, supra note 8, 15.07L.
111. 111. 492 2d 1 (Cal. 1972).
112. 112. Id. at 4.
113. 113. Id.
114. 114. Id.
115. 115. Id.
116. 116. Id.
117. 117. Id.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 397

that it is more important to let the jury have the benefit of the witness’s testi- mony than to have the witness remain silent.118 In People v. Woodard119 the California Supreme Court made it clear that Beagle applied to all witnesses, not just the accused, and in all trials, not just criminal cases.120

A literal application of Proposition 8̓s state constitutional mandate that in criminal  proceedings  any  felony  conviction  be  used  to  impeach  a  witness “without limitation” would not only overturn Beagle and its progeny but would suspend all statutory limitations on the use of convictions. Only the Federal Constitution would constrain the right of parties to criminal proceedings to im- peach witnesses with their felony convictions.

Not surprisingly, the California Supreme Court relied on the Fourteenth Amendment to place limits on this provision of Proposition 8. In People v. Cas- tro121 the court held that due process requires the exclusion of felony convic- tions that do not involve moral turpitude.122 In the court’s view, the use of such convictions  offends due process because they say nothing about the witness’s lack of veracity.123  Therefore, to permit the fact finder to consider convictions devoid of moral turpitude would deprive the accused of a fair trial in which the fact finder considers only relevant and competent evidence on the issue of guilt or innocence.124

Why  are  convictions  involving  moral  turpitude  probative  of a witness’s lack of veracity? According to the court, because “a witness’s moral depravity of any kind has some ‘tendency in reason’ . . . to shake one’s confidence in his

honesty.”125  Which felonies involve moral turpitude? Clearly, felonies involv-

ing false statement—of which perjury is the paradigm—since these felonies say something about a witness’s willingness to lie under oath.126 But according to Castro, any crime evincing a “readiness to do evil” involves moral turpitude.127

Presumably,  witnesses  with  such  a character  trait  might  do  mischief  on  the stand by disregarding their obligation to testify truthfully under oath.

In determining whether a felony involves moral turpitude, a judge may not consider  the evidence  that gives rise to the conviction.  As the court empha-

118. 118. Id.
119. 119. 590 2d 391 (Cal. 1979).
120. 120. Id. at 395. Applying Beagle to civil cases encourages the parties to call witnesses who possess relevant information but who otherwise might not be called if they could be im- peached by convictions that do not involve dishonesty  or that are remote. In addition to the harm suffered by the parties, “the search for truth in our system of justice is impeded when prior felony convictions are improperly admitted to impeach the credibility of a nonparty w” Id.
121. 121. 696 2d 111 (Cal. 1985).
122. 122. Id. at 118.
123. 123. Id.
124. 124. Id. at 119.
125. 125. Id.
126. 126. Id.
127. 127. Id.

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sized, if moral turpitude “can only be established through extrinsic evidence, confusion of issues becomes inevitable and unfair surprise more than probable. Therefore, . . . a witness’s prior conviction should only be admissible for im- peachment  if the least adjudicated  elements  of the conviction  necessarily  in- volve moral turpitude.”128 A trial judge, therefore, must determine whether a conviction qualifies from a facial assessment of the statute violated.129

As has been noted, Proposition 8 contains two seemingly conflicting posi- tions on a judge’s discretionary power to exclude convictions. Section 28(f) of Article 1 of the California Constitution strips judges of any such discretion by requiring that felony convictions be used to impeach witnesses “without limita-

tion.”130 On the other hand, section 28(d) (the Right to Truth-in-Evidence  pro-

vision) reaffirms a judge’s power to exclude relevant evidence whenever its probative value is substantially outweighed by the concerns enumerated in sec- tion 352. To reconcile the two constitutional provisions, Castro interpreted Proposition 8 as restoring the kind of discretion judges had to exclude convic- tions for undue prejudice prior to Beagle.131  But in exercising their discretion, judges are to be guided, not bound, by the limitations set out in Beagle.132 Ap- plying these guidelines, the California Supreme Court has held that even a fel- ony conviction involving moral turpitude (voluntary manslaughter) may be ex- cluded  under  section  352  if it is remote  in time  (twenty-two  years)  and  the witness has led a blameless life since the conviction.133

128. 128. Id. at 120.
129. 129. See People v. Feaster, 125 Cal. Rptr. 2d 896, 900 (Cal. Ct. App. 2002). Since Cas- tro, the California appellate courts have had to determine  whether  diverse felonies  involve moral turpitude. For a collection of the most significant cases, see MÉNDEZ, EVIDENCE, supra note 8, 15.07.
130. 130. CAL. CONST. art. I, 28(f).
131. 131. People v. Castro, 696 2d 111, 119 (Cal. 1985). Most likely because  of its due process concerns, the court did not employ a rule of statutory interpretation  that would have exempted section 28(f) from the operation of section 28(d): where constitutional provisions cannot be harmonized or reconciled, the specific provision (section 28(f)) should control the general one (section 28(d)). See, e.g., People v. W. Air Lines, 268 P.2d 723, 732 (Cal. 1954).
132. 132. See People v. Clair, 828 2d 705, 719 (Cal. 1992) (applying Beagle to a witness who was not the accused); People v. Collins, 722 P.2d 173, 175, 182 (Cal. 1986) (applying Beagle to the accused).
133. 133. See Clair, 828 2d at 719. In determining whether the witness has led a blameless life since the conviction, the judge  may disregard  convictions  that are remote.  But in as- sessing whether the witness has led a blameless life for a time sufficiently long to render the conviction  remote,  the court may discount  periods  in which  the witness  was incarcerated. See People v. Turner, 878 P.2d 521, 557 (Cal. 1994).

The California  Court of Appeal  has relied on the continued  vitality  of section  352 in holding that, even after Proposition 8, trial judges retain discretion to withhold from the jury the nature of a conviction offered to impeach the accused if the conviction is similar or iden- tical to the charge filed against the accused. See People v. Ballard, 16 Cal. Rptr. 2d 624, 630-

31 (Cal. Ct. App. 1993). In these circumstances,  a judge may simply tell the jurors that the accused has been convicted of a crime involving moral turpitude. Id.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 399

In his ballot argument in favor of Proposition 8, then-Attorney General Deukmejian argued that the “higher courts of this state [had] created additional rights for the criminally accused” and that the “proposition  [would] overcome

some of the adverse  decisions  by our higher courts.”134  Although  he did not

mention Beagle by name, it is inconceivable  that the Attorney General did not have Beagle and its progeny in mind. But by placing two seemingly contradic- tory provisions in the same initiative, the proponents opened the door to judi- cial efforts to reconcile the provisions. The result has been a substantial revival of the Beagle rules in criminal cases,135 though judges and counsel no longer refer to the rules by this name.

4. 4. Misdemeanor Convictions

Under the Evidence Code, misdemeanor convictions may not be used to es- tablish a witness’s character for lack of veracity. Only felony convictions may be used for this purpose.136  Misdemeanor  convictions,  moreover,  may not be used  for this  purpose  in criminal  cases  under  section  28(f)  of the  initiative, since this provision focuses exclusively on the use of felony convictions. How- ever, misdemeanor  convictions  that are probative  of a witness’s  character  for lack of veracity are relevant. Accordingly, over an irrelevance objection, such convictions are now admissible under the Right to Truth-in-Evidence provi- sion.137 To qualify for impeachment, however, misdemeanor convictions, like felonies, must evince “moral turpitude.”138

134. 134. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 34.
135. 135. See, g., Clair, 828 P.2d at 179 (holding that trial judges may apply the Beagle limitations as guidelines); Collins, 722 P.2d at 175, 182 (holding that judges may apply the Beagle limitations  when the accused testifies); Ballard, 16 Cal. Rptr. 2d at 630-31 (holding that judges may withhold the nature of the conviction  offered to impeach the accused when the conviction is for misconduct similar or identical to the misconduct for which the accused is on trial).
136. 136. See CAL. EVID. CODE 788 (West 2013).
137. 137. See People v. Wheeler, 841 2d 938, 944 (Cal. 1992).
138. 138. See id. at 945. Misdemeanor convictions qualifying  as crimes of moral turpitude include possessing a concealed handgun, People v. Robinson, 124 3d 363, 385 (Cal. 2005), embezzlement,  People v. Martinez, 127 Cal. Rptr. 2d 305, 312 (Cal. Ct. App. 2002), failing to appear in court, People v. Maestas,  34 Cal. Rptr. 3d 503, 506 (Cal. Ct. App. 2005), and sexual battery, People v. Chavez, 100 Cal. Rptr. 2d 680, 682 (Cal. Ct. App. 2000). But mis- demeanor simple battery convictions do not qualify as crimes involving moral turpitude. See People v. Lopez, 29 Cal. Rptr. 3d 586, 597 (Cal. Ct. App. 2005).

The  party  opposing  the  use  of  a  misdemeanor   conviction  may  object  on  hearsay grounds. For a discussion of how this objection is resolved after Proposition 8, see MÉNDEZ, supra note 8, § 15.07.

400                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

5. 5. Juvenile Adjudications and Proposition 8

The Evidence Code is silent on whether juvenile adjudications can be used to impeach witnesses. People v. Sanchez139 holds that juvenile adjudications cannot be used because juvenile proceedings are not criminal proceedings and do not result in criminal convictions.140 But People v. Lee141 holds that in Cali-

fornia criminal cases the misconduct giving rise to juvenile adjudications  may be used to impeach a witness if the misconduct evinces moral turpitude as re- quired by Castro and the juvenile has not been released from the penalties and disabilities arising from the adjudication by having been discharged honorably by the California Youth Authority.142  In effect, the Right to Truth-in-Evidence provision allows the misconduct giving rise to the juvenile adjudication to be offered as a prior bad act, though the juvenile adjudication itself remains inad- missible.

Under Lee it is immaterial whether the juvenile adjudication is for miscon- duct that violates a felony or misdemeanor.143  Thus in Lee the witness was im-

peached by evidence of misconduct giving rise to felony burglary as well as misdemeanor theft.144

6. 6. Expungement and Proposition 8

As enacted, section 788(c) prohibits  the use of felony convictions  to im- peach a witness where the conviction  has been expunged.145  Under the Penal Code, a defendant who has fulfilled the conditions  of probation may move to set aside his guilty plea or guilty verdict and enter a plea of not guilty.146 If the motion is granted, the court must dismiss the accusations against the defendant, thereby  releasing  the  defendant  “from  all  penalties  and  disabilities  resulting

from the offense of which he or she [had] been convicted.”147  Since a convic- tion that is probative of a witness’s lack of veracity is nonetheless legally rele- vant even if it has been expunged, one would expect the Right to Truth-in- Evidence provision of Proposition 8 to override section 788(c)ʼs expungement provisions  in  criminal  cases.  People  v.  Field,148  however,  holds  otherwise. Though expunged convictions say almost nothing about a witness’s lack of credibility and should be excluded under a judge’s section 352 authority to ex-

139. 139. 216 Cal. Rptr. 21 (Cal. Ct. App. 1985).
140. 140. Id. at 23.
141. 141. 34 Cal. Rptr. 2d 723 (Cal. Ct. App. 1994).
142. 142. Id. at 730–
143. 143. Id.
144. 144. Id.
145. 145. See CAL. EVID. CODE 788(c) (West 2013).
146. 146. See CAL. PENAL CODE 1203.4 (West 2013).
147. 147. Id.
148. 148. 37 Cal. Rptr. 2d 803 (Cal. Ct. App. 1995).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 401

clude evidence of dubious value, Field mistakenly holds that such convictions are inadmissible because they are irrelevant.149

Expunged convictions are also implicated by the initiative’s constitutional provision mandating the use of felony convictions for impeachment without limitation.  The defendant in Field urged the appellate court to use this provi- sion to authorize the use of expunged felony convictions to impeach a witness. But the court declined to do so. It held the provision inapplicable because “by virtue of expungement, there no longer is a prior conviction.”150

Section 788 prohibits the use of felony convictions in four circumstances. A felony conviction may not be used to impeach a witness where (1) a pardon based on the witness’s innocence has been granted by the jurisdiction in which the witness was convicted, (2) a pardon has been granted on the basis of a cer- tificate of rehabilitation, (3) the conviction has been expunged because the fel- on has fulfilled the conditions of probation, or (4) the witness has been convict- ed by another jurisdiction and the witness has been relieved of the penalties and disabilities  arising  from  the  conviction  pursuant  to  procedures  substantially

equivalent to those described in (2) and (3).151

These limitations, however, conflict with section 28(f)’s constitutional mandate that felony convictions be used without limitation and section 28(d)’s constitutional mandate to admit relevant evidence, and presumably have been repealed by the initiative in criminal cases. Nonetheless, because the probative value of these convictions on the witness’s character for lack of veracity would appear at best to be slight, they should ordinarily be subject to exclusion under section 352 as unduly prejudicial.

7. 7. Reputation and Opinion Regarding Veracity

Evidence Code sections 786-87 permit a party to impeach the credibility of a witness by opinion or reputation evidence impugning the witness’s character

for honesty or veracity.152 The same sections also permit a party to rehabilitate

a witness by opinion or reputation evidence supporting the witness’s character for honesty  or veracity.153  But under  section  790,  evidence  of the witness’s good character is inadmissible  unless the witness’s character has first been at- tacked and then only if the attack takes one of two forms—by opinion or repu- tation evidence impugning the witness’s character for honesty or veracity,154 or

149. 149. Id. at 810. Evidence that a witness has been convicted of a crime that is probative of the witness’s character for lack of veracity is relevant irrespective of whether the convic- tion has been expunged. For an extended  discussion  of this point, see MÉNDEZ, EVIDENCE, supra note 8, 2.04.
150. 150. See Field, 37 Cal. Rptr. at 810.
151. 151. See CAL. EVID. CODE 788(a)-(d) (West 2013).
152. 152. See id. § 786-87.
153. 153. Id.
154. 154. See id. 786.

402                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

by a felony conviction.155 Prior bad acts do not qualify because the Code, as previously noted, does not recognize the doctrine.

In criminal cases, a literal application of Proposition 8 repeals the statutory and judicial restraints on the use of character evidence to attack or support the credibility  of  witnesses.  A  literal  interpretation   of  the  Right  to  Truth-in- Evidence provision has the following effects:

First, it repeals section 790, which prohibits the introduction of good char- acter evidence until after the witness’s character for honesty and veracity has

been attacked.156 A witness’s credibility becomes an issue the moment the wit-

ness takes the stand. Therefore, the calling party should be able to support the witness’s credibility even though it has not been attacked. Accordingly, People v. Taylor holds that a criminal defendant who takes the stand is entitled to offer good character evidence of his honesty and veracity even if the prosecution has not first attacked the defendant’s character as a witness.157

Second, in proving a witness’s character for honesty or dishonesty, the proponent is no longer limited to reputation or opinion evidence. Because spe- cific instances of honesty or dishonesty are also probative of a witness’s char- acter  for  honesty  or dishonesty,  specific  acts  are  now  admissible.  People  v. Harris, for example, holds that the prosecution may prove an informant’s pre- disposition to testify honestly at the trial by evidence of his past reliability as an

informant,158 and People v. Adams holds that the accused in a rape prosecution

may prove the complaining  witness’s character for dishonesty as a witness by evidence that she had falsely accused others of rape.159 Accordingly,  Proposi- tion 8 repeals section 787, which bans the use of specific acts (other than con- victions) to prove a witness’s character for veracity or lack of veracity.160 Since this outcome favors defendants as well as prosecutors, it is doubtful that the proponents  of Proposition  8 foresaw the benefits that could accrue to defend- ants in an admittedly anti-defendant initiative.

The use of character evidence—whether  in the form of opinion, reputation, or specific  acts—is  still subject  to discretionary  exclusion  under  section  352 after Proposition 8. A California judge can exclude all or some of this evidence if its prejudicial  effects substantially  outweigh  its probative  value on the wit- ness’s character for honesty or dishonesty. Where the witness who is to be im- peached by the character evidence is the accused, special concerns arise. A risk exists that the jury might improperly convict the accused on account of his or

155. 155. Convictions are admissible on the theory  that  they  are probative  of a witness’s character  for lack of honesty  and veracity.  See id. 788. Accordingly,  their use permits  a witness to be rehabilitated  by good character evidence for honesty and veracity in the form of opinion or reputation evidence. See id. §§ 787, 790, and comments.
156. 156. See id. 790.
157. 157. 225 Cal. Rptr. 733, 738 (Cal. Ct. App. 1986).
158. 158. 767 2d 619, 639-41 (Cal. 1989).
159. 159. 243 Cal. Rptr. 580, 584 (Cal. Ct. App. 1988).
160. 160. See CAL. EVID. CODE 787 (West 2013).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 403

her bad character rather than upon the evidence of his or her guilt. The risk is especially pronounced when the prosecution seeks to impeach the accused with specific acts of dishonesty that are similar to the offenses charged against the accused. In this circumstance,  judges can use section 352 to diminish the risk so as to ensure that those accused of crime are convicted on the basis of evi- dence of what they did and not who they are.

8. 8. Religious Beliefs

To prevent the injection of religious bias in trials,161 Evidence Code sec- tion 789 prohibits the use of a witness’s religious beliefs (or lack thereof) to es- tablish  the witness’s  character  for veracity  or lack  of veracity.162  The  Code

does not prohibit the use of a witness’s religious affiliations if offered for some other purpose, for example, to prove bias or interest. In criminal cases, howev- er, the Right to Truth-in-Evidence  provision repeals the Code’s prohibition on the use of a witness’s religious beliefs to attack or support the credibility of the witness. Evidence that a witness belongs to a religious organization that prohib- its “bearing false witness” would be probative of the witness’s predisposition to tell the truth under oath, and hence would be relevant. The California appellate courts, however, have yet to pass on the effect on section 789 of the Right to Truth-in-Evidence provision.

9. 9. Inconsistent Statements

The Code recognizes that a witness’s credibility can be impeached by evi- dence that the witness has made statements that are inconsistent with the wit- ness’s testimony at the trial.163 The Code abandons the common law require- ment   that   before   witnesses   can   be  asked   about   their   prior   inconsistent statements, the examiner must disclose the contents of the statement to the wit- ness.164 Disclosure diminishes the effectiveness of the attack by removing the element of surprise  and giving dishonest  witnesses  an opportunity  to reshape their testimony in conformity with their earlier statements.165

The Code also rejects the common  law requirement  that a party confront the witness with the prior inconsistent  statement before offering extrinsic evi-

dence of the statement.166  From an advocacy perspective, confronting the wit-

ness with the prior statement has advantages. The examiner may persuade the witness to acknowledge making the prior statement and to adopt it as reflecting

161. 161. See CHARLES MCCORMICK, MCCORMICK ON EVIDENCE 46 (Kenneth S. Broun et al. eds., 7th ed. 2006).
162. 162. See CAL. EVID. CODE 789.
163. 163. See id. 770.
164. 164. See id. 769.
165. 165. See id.
166. 166. See

404                              STANFORD LAW & POLICY REVIEW                [Vol. 25:379

the truth. If she fails in this endeavor, the examiner is still free to impeach the witness with the statement.167

In some cases, however, the examiner may not want to confront the witness with  his  prior  inconsistent  statement.  Disclosure  may  prevent  the  effective cross-examination   of  several  collusive  witnesses.168   Accordingly,  the  Code permits the examiner to forego confronting  the witness.169  The examiner will still be allowed to offer extrinsic evidence of the statement, so long as the wit- ness has not been permanently excused from giving further testimony in the ac- tion.170 Since the unexcused witness remains subject to being recalled, the op- posing party and the witness are afforded  an opportunity  to have the witness

explain or deny the statement before the evidence is closed.171

Where the interests of justice require, the Code permits the introduction of extrinsic  evidence  of an inconsistent  statement  even  though  the  witness  has been  excused  and  has  not  had  an  opportunity  to  explain  or  deny  the  state- ment.172

An absolute rule forbidding introduction of such evidence where the specified conditions  are not met may cause hardship  in some cases. For example,  the party seeking to introduce the statement may not have learned of its existence

until after the witness has left the court and is no longer available to testify.173

A  literal  interpretation  of  the  Right-to-Truth  provision  of  Proposition  8 would repeal the Code limitations on the use of extrinsic evidence to prove a witness’s prior inconsistent statement. Such a statement would be probative of the witness’s credibility irrespective of whether the witness has been given an opportunity  to explain or deny the statement before the close of the evidence. The California courts, however, have not decided whether the initiative has re-

pealed these restrictions.174

167. 167. See MÉNDEZ, supra note 8, 15.03. Moreover, if the examiner anticipates claiming in summation that the witness lied, the examiner  is likely to confront  the witness  with the prior inconsistent statement. Jurors are more likely to accept this claim when the examiner confronts  the witness directly. Conversely,  if the examiner  simply anticipates  claiming  that the witness was mistaken, the examiner may forego confronting the witness with the prior inconsistent statement.
168. 168. Id.
169. 169. Id.
170. 170. Id. 770(b).
171. 171. Id.
172. 172. Id. 770.
173. 173. Id.
174. 174. A post-Proposition 8 decision discussing the need to give the witness an opportuni- ty to explain or deny the statement fails to mention the impact of Proposition 8 on this re- quirement. See People v. Garcia, 273 Cal. Rptr. 666, 669-70 (Cal. Ct. App. 1990).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 405

10. 10. Prior Consistent Statements

Evidence Code section 791 allows a party to support the credibility of wit- nesses with statements by the witnesses that are consistent with their testimony if one of two conditions is satisfied.175 First, if the witness was impeached with a prior inconsistent statement, the witness can be rehabilitated with a consistent

statement,  if  the  statement  was  made  before  the  alleged  inconsistent  state- ment.176  Second,  where the witness  has been expressly  or impliedly  charged with  fabricating  his testimony  or allowing  bias  or other  improper  motive  to shape his testimony, the witness can be rehabilitated with a prior consistent statement if the statement was made before the motive to fabricate or other im- proper motive is alleged to have arisen.177

Evidence that a witness has made statements that are consistent with his testimony is as probative of the witness’s credibility as is evidence that the wit- ness has made statements that are inconsistent with his testimony. A witness’s credibility becomes an issue the moment the witness takes the stand. Accord- ingly, a literal application  of the Right to Truth-in-Evidence  provision repeals the limitations of section 791 and permits parties in criminal proceedings to of- fer prior consistent statements to support the witness’s credibility even though the witness’s credibility has not been attacked. The fact that the Code creates a hearsay exception  for prior consistent  statements  does not exempt them from the operation of the Right to Truth-in-Evidence  provision. Section 1236 simply

creates a hearsay exception for prior consistent statements.178  It does not pur-

port to regulate  the circumstances  of their admissibility.  Section  791, on the other hand, is limited to prescribing the circumstances when prior consistent statements may be offered to support the credibility of a witness. Only if the offering party first satisfies one of the conditions of admissibility under section

791, may that party take advantage of the hearsay exception in section 1236.

Nonetheless, under Proposition 8, judges can still exclude evidence of prior consistent  statements  under section 352 if they determine  that their probative value is substantially outweighed by such concerns as waste of time. A Califor- nia judge could thus find that the probative value of prior consistent statements that fail to satisfy the conditions of section 791 is so slight that they do not jus- tify the time needed to receive them. But whether a judge will use section 352 to  exclude  such  statements  in  a  given  trial  cannot  be  known  ex  ante.  The judge’s decision may well depend on her assessment  of the need for the evi- dence and the time required to receive it. To be sure, neither the California Su- preme Court nor the Court of Appeal has decided whether Proposition 8 repeals section 791, and cases decided since the adoption of the initiative in June 1982

175. 175. See CAL. EVID. CODE 791 (West 2013).
176. 176. See id. 791(a).
177. 177. See id. 791(b).
178. 178. See id. 1236.

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assume  the continuing  validity  of the section.179  The  point,  however,  is not when the appellate courts will determine whether section 791 has been repealed by the Right to Truth-in-Evidence  provision. Rather, it is that the certainty sup- plied by such sections as 791 has now been replaced by the necessarily impre- cise standards of section 352. As we shall see, trial lawyers do not welcome this kind of uncertainty in planning their trials. Nor do most trial judges relish the task of having to engage in a section 352 on-the-record analysis when in former times sustaining  an objection  on the basis of a clear, simple rule would take care of the matter.180

1. E. Competency of Witnesses

The Evidence Code disqualifies persons from testifying if they cannot ex- press themselves in a manner in which they can be understood or cannot under- stand their duty to testify truthfully.181 The competency requirements would prevent a person from offering otherwise admissible relevant testimony if that person, for example, does not understand the duty to testify truthfully. The fact that such a person might not be credible would not render his or her testimony irrelevant. Although credibility is an aspect of relevance, it is not the only one.

Under the Evidence Code, an item of evidence is relevant if it has “any tendency  in reason  to prove  or disprove  any  disputed  fact  that  is of conse-

quence to the determination  of the action.”182  In other words, the item of evi-

dence must be material, that is, it must be directed at proving a proposition that is properly provable in the action.183 In a homicide prosecution, for example, testimony  by a witness with first-hand  knowledge  that she saw the defendant shoot the victim would be material. That testimony is directed at proving a fact (the identity of the perpetrator) that is properly provable in that kind of an ac- tion. Her testimony remains material and therefore relevant even if the witness does not appreciate her duty to testify truthfully and could impeached  on that basis. Since the competency requirements can bar relevant testimony, they are repealed by a literal application of the Right to Truth-in-Evidence  provision of Proposition 8.

179. 179. See, g., People v. Hayes, 802 P.2d 376, 394 (Cal. 1990); People v. Frank, 798

P.2d 1215, 1224 (Cal. 1990); People v. Andrews, 776 P.2d 285, 289-91 (Cal. 1989).

180. 180. Trial judges are required to engage in on-the-record weighing in order to provide reviewing courts with an adequate record for meaningful review of claims of abuse of discre- tion under Evidence Code section 352. See, g., People v. Green, 609 P.2d 468, 482 (Cal.

1980). No such weighing  is required  when a judge excludes  the evidence  by properly  sus-

taining the opponent’s  objection  to the introduction  of evidence  that is based on a specific rule of evidence. Thus, as a trial management  matter, it was easier for trial judges to admin- ister the admissibility of evidence prior to the enactment of the Right to Truth-in-Evidence provision of Proposition 8.

181. 181. See CAL. EVID. CODE 701(a) (West 2014).
182. 182. See id. 2.10.
183. 183. See generally MÉNDEZ, supra note 8, 2.01.

2014]                               THE VICTIMS’ BILL OF RIGHTS                                      407

Under the Evidence Code, the competency requirements are not limited to ordinary  witnesses;  they apply  also to judges  and jurors  called  as witnesses. Over the objection of a party, judges may not testify as witnesses in trials over

which they preside.184 As the California Law Revision explains:

Section 703 is based on the fact that examination and cross-examination  of a judge-witness may be embarrassing and prejudicial to a party. By testifying as a witness for one party a judge appears in a partisan attitude before the jury. Objections to questions and to his testimony must be ruled on by the witness himself. The extent of cross-examination  and the introduction  of impeaching and rebuttal  evidence  may be limited  by the fear of appearing  to attack the

judge personally.185

Against objection of a party, jurors sworn and impaneled in the trial of an action may not testify before the jury in that trial as witnesses.186 According to the California Law Revision Commission:

A juror-witness  is in an anomalous  position. He manifestly  cannot weigh his own testimony impartially. A party affected by the juror’s testimony is placed in an embarrassing  position.  He cannot freely cross-examine  or impeach the juror for fear of antagonizing the juror—and perhaps his fellow jurors as well. And, if he does not attack the juror’s testimony, the other jurors may give his

testimony undue weight.187

It is immaterial whether the judges’ or jurors’ testimony would constitute admissible relevant evidence. Precisely because the disqualifications bar the introduction  of relevant evidence, they are repealed by a literal application  of the Right to the Truth-in-Evidence  provision.  To date, however,  no appellate court has ruled on the initiative’s effect on the rules prohibiting the use of judg- es’ or jurors’ testimony.

In California post-verdict proceedings, jurors may be called to testify about “statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such character as [are] likely to have influenced the

verdict improperly.”188  But to protect jurors from harassment,  jurors may not

testify about the effect such statements,  conduct, conditions,  or events had in influencing them to assent or dissent from the verdict or upon the mental pro-

184. 184. See CAL. EVID. CODE 703 (West 2014).
185. 185. Id.
186. 186. See id. 7.04(b).
187. 187. Id.
188. 188. See CAL. EVID. CODE 1150 (West 2013). A trial judge is not limited to consider- ing declarations and affidavits in determining  whether  juror misconduct  has occurred.  The judge may hold an evidentiary  hearing on the question  of misconduct.  However,  the judge does not need to hold the hearing  unless  the party charging  the misconduct  convinces  the judge that the hearing will be productive.  Where the misconduct  evidence to be produced at the hearing consists of inadmissible  hearsay, the judge may decline to hold the hearing. See People v. Hayes, 989 P.2d 645, 673 (Cal. 1999).

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cesses by which they reached the verdict.189  Thus, the Code permits evidence of misconduct by trial jurors to be received but forbids the receipt of juror evi- dence about the effect of such misconduct on the deliberations of the jurors.190

In proceedings to set aside a guilty verdict, however, the central question is usually whether the erroneous admission of evidence, the use of improper jury instructions, or juror misconduct prejudiced the defendant. Jurors would be the best source of the effect such evidence, instructions, or misconduct had on their deliberations.   Accordingly,   a  literal  application   of  the  Right  to  Truth-in- Evidence provision would repeal the Evidence Code restrictions. In People v. Steele,191  however, the California Supreme Court rejected this construction  of

Proposition 8 with respect to evidence of juror misconduct. The court saved the Code’s prohibition by holding that it is a substantive, not an evidentiary, limita- tion. If the bar against the use of evidence proving the effect of the erroneous admission  of evidence  is substantive,  then no party may offer such evidence. Any such evidence would be immaterial because it would be directed at a proposition that is not properly provable at the hearing. Immaterial evidence is irrelevant.192  This construction  allowed the court to conclude that evidence of the effect of juror misconduct can still be excluded because it is outside the purview of the relevance provision of Proposition 8.193

As in the case of expert evidence, it is unlikely that the proponents of Proposition 8 intended to repeal the Evidence Code’s restrictions on the use of juror testimony, especially since defendants would most likely be the party of- fering such testimony.  Again, a problem with complex initiatives  is that they can have unanticipated consequences.

1. F. The Best Evidence Rule

When Proposition  8 was approved  by the voters in 1982, California  fol- lowed the Best Evidence Rule. Unless certain exceptional circumstances exist- ed, the Best Evidence Rule required the content of a writing to be proved by the original writing and not by testimony recounting its contents or by a copy of the

writing.194 A major purpose of the rule was to minimize the possibility of mis-

interpretation that could occur if the production of the original writing was not

189. 189. See CAL. EVID. CODE 1150 (West 2014). Other goals include preserving the sta- bility of verdicts, discouraging postverdict jury tampering, and protecting the privacy of jury deliberations. See In re Hamilton, 975 P.2d 600, 614 n.18 (Cal. 1999).
190. 190. See CAL. EVID. CODE 1150 (West 2014); see also In re Hamilton, 975 P.2d at

616, n.19 (1999) (“However, the rule against proof of juror mental processes is subject to the well-established  exception  for claims that a juror’s preexisting  bias was concealed  on voir dire.”).

191. 191. 47 3d 225, 247 (Cal. 2002).
192. 192. For an extended discussion of this point, see MÉNDEZ, supra note 8, 2.01.
193. 193. Steele, 47 3d at 247.
194. 194. See former CAL. EVID. CODE 1500 (repealed 1998).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 409

required  to prove its contents.195  Accordingly,  if before the initiative  the de- fense offered in evidence a writing claimed to be a confession by a third party, the defense had to authenticate the writing as the third party’s. Moreover, in the absence of exceptions,  the defense had to persuade the judge that the writing was the original confession.196

But after the initiative, once the writing is authenticated as the third party’s, his admissions become relevant. This is true irrespective of whether the writing offered is the third party’s original confession or even if instead of the writing the defense offers the testimony of a witness who claims first-hand knowledge about the contents of the writing. In short, the effect of the Right to Truth-in- Evidence provision was to repeal the Best Evidence Rule in criminal cases. However, there are no published opinions about the effect of the initiative on the Best Evidence Rule. The most plausible explanation is that neither prosecu- tors, defense counsel, nor presiding judges imagined that the Right to Truth-in- Evidence provision repealed the well-established Best Evidence Rule.

The effect of the initiative became moot in 1999 when the legislature re- placed the Best Evidence  Rule with the Secondary  Evidence  Rule by the re- quired super-majority.197 The new rule generally allows a party to prove the contents of a writing by an otherwise admissible original or secondary evidence of the original.198 In criminal cases, however, the Secondary Evidence Rule re-

quires the court to exclude secondary evidence of the content of a writing if the judge determines that the original is in the proponent’s possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before the trial.199

Like the Best Evidence  Rule, the Secondary  Evidence  Rule disfavors  the use of testimony to prove the contents of a writing. Oral testimony is admissi- ble only if (1) the proponent does not have possession or control of a copy of the original and the original was lost or destroyed without fraudulent intent on the part of the proponent, or (2) the proponent does not have possession or con- trol of the original or a copy of the original and (a) neither the original nor a copy was reasonably procurable by the proponent by use of the court’s process

195. 195. See generally MÉNDEZ, supra note 8, 13.06.
196. 196. In addition, the defense would have to overcome the prosecution’s hearsay objec- tion. The confession would be hearsay,  as it would be offered by the defense  to prove the truth of the matter  asserted,  namely,  the third party’s  responsibility  for the crime  charged against the accused. The confession, however, would be admissible under the exception for declarations  against penal interest if the defense persuades the judge of the unavailability  of the third party to appear as a witness. See CAL. EVID. CODE 1230 (West 2013).
197. 197. See CAL. EVID. CODE 1521 (West 2013). The Secondary Evidence Rule became operative on January 1, 1999. Id. The vote in the Senate was 33 to 2 and in the Assembly, 56 to  15.   See   Complete    Bill   History,    S.B.   No.   177,   OFFICIAL    CAL.   LEGIS.   INFO., http://www.leginfo.ca.gov/pub/97-98/bill/sen/sb_0151-0200/sb_177_bill_19980706_ history.html (last visited May 7, 2014).
198. 198. See
199. 199. See id. 1522(a).

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or other available means, or (b) the writing is not closely related to the control- ling issues in the case and it would be inexpedient to require its production.200

Returning to our example, only if the defense complies with one of these condi- tions would it be allowed today to offer testimony about the contents of a writ- ten confession that has been authenticated as the third party’s.

1. II. PROPOSITION 8 AND THE INSANITY DEFENSE

As discussed  in the introduction,  under  the M’Naghten  test, a defendant can be acquitted on the grounds of insanity if at the time he committed the of- fense he was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know

its nature and quality, he did not know that his act was wrong.201 However, Pe-

nal Code section 25(b), which was added by section 4 of Proposition 8,202 uses “and” instead of “or” in setting out the two prongs.203 In the case of a defend- ant charged with homicide by strangulation, the use of the conjunctive would require  a defendant  to prove  that by reason  of a mental  disease  he not only thought that he was squeezing lemons but also that he believed that there was nothing wrong with squeezing  necks. As the introduction  underscores,  such a test has been described as the “wild beast” test because of the belief that such extreme cognitive dysfunctions reduce a human to the cognitive level of a wild beast.204  Confronted  with the question whether the use of the conjunctive  in- stead of the disjunctive  was a drafting error, the California  Supreme Court in

People v. Skinner205 held that it was.206

Prior to the codification of the insanity test by Proposition 8, California had no statutory definition of insanity, and the courts employed the M’Naghten test as a result of judicial  decision.207  In People  v. Drew the California  Supreme Court replaced the M’Naghten test with the more liberal test formulated by the American Law Institute.208 Unlike M’Naghten the A.L.I. test also includes a volitional  prong:  “A person  is not responsible  for criminal  conduct  if at the time of such conduct as a result of mental disease or defect he lacks a substan- tial capacity either to appreciate the criminality [wrongfulness]  of his conduct or to conform his conduct to the requirements of the law.”209 As the court ex-

plained:

200. 200. See id. 1523(b)-(c).
201. 201. See LAFAVE, supra note 30, 7.1.
202. 202. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 33.
203. 203. See CAL. EVID. CODE 25(b) (Deering 2008).
204. 204. See People v. Skinner, 704 2d 752, 759 (Cal. 1985).
205. 205. Id. at 752.
206. 206. Id. at 759.
207. 207. See People v. Drew, 583 2d 1318, 1321 (Cal. 1978).
208. 208. Id. at
209. 209. See MODEL PENAL CODE 4.01(1) (Am. Law Inst. 1962).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 411

M’Naghten’s  exclusive emphasis on cognition would be of little consequence if all serious  mental  illness  impaired  the capacity  of the affected  person  to know the nature and wrongfulness  of his action. Indeed, the early decision of People v. Hoin, rejecting the defense of “irresistible impulse,” rested on this gratuitous  but  doubtful  assumption.  Current  psychiatric  opinion,  however, holds that mental illness often leaves the individual’s  intellectual understand- ing relatively unimpaired, but so affects his emotions or reason that he is una- ble to prevent himself from committing the act. “[I]nsanity does not only, or primarily, affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including both the will and the emotions. An insane person may therefore often know the nature and quality of his act and that it is wrong and forbidden  by law, and yet commit it as a result of the mental dis-

ease.”210

Because  the subsequent  codification  of the definition  of insanity  was ef- fected through Proposition 8, the court reviewed the ballot summaries and ar- guments and found them unhelpful.211

The Attorney General’s summary of Proposition 8 advises only that the meas- ure included a provision “regarding . . . proof of insanity.” The analysis of the Legislative Analyst quotes the conjunctive language and states only that the provision “could increase the difficulty of proving that a person is not guilty by reason of insanity.”  No reference  to the insanity provision  appears in the

arguments for or against Proposition 8.212

The court turned to the history of the insanity defense and found that the use of the M’Naghten test since 1850 had been accepted:

[A]s the rule by which the minimum cognitive function which constitutes wrongful intent will be measured in this state. As such it is itself among the fundamental principles of our criminal law. Had it been the intent of the draft- ers of Proposition 8 or of the electorate which adopted it both to abrogate the more expansive ALI-Drew  test and to abandon that prior fundamental  princi- ple of culpability for crime, we would anticipate that this intent would be ex- pressed  in some more obvious  manner than the substitution  of a single con-

junctive in a lengthy initiative provision.213

Having framed the issue as one implicating fundamental principles of criminal responsibility, the court concluded that the drafters of the initiative had inad- vertently erred when they used “and” instead of “or” in defining the two prongs of the insanity test.

As the court recognized, the problem with Proposition 8 is that a literal ap- plication of its language would have made sweeping and radical changes to California’s law of criminal responsibility. Other than the use of “and” instead

210. 210. See Drew, 583 2d at 1322 (citations omitted).
211. 211. See People v. Skinner, 704 2d 752, 758 (Cal. 1985).
212. 212. Id. (citations omitted). In his argument in favor of Proposition 8, Mike Curb, the Lieutenant Governor, did argue that by approving Proposition 8 voters would “limit the abil- ity of violent criminals to hide behind the insanity ” CALIFORNIA BALLOT PAMPHLET, supra note 1, at 56. But it is unclear whether he had the M’Naghten or “wild beast” test in mind.
213. 213. See Skinner, 704 2d at 759.

412                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

of “or,” the court was unable to find any language  in the initiative  that con- veyed an informed choice by the electorate to revert to the wild beast test of in- sanity. Of course, this is not surprising,  since only criminal law experts (e.g., the criminal bench, the criminal bar, criminal law professors, and law students fortunate enough to have a comprehensive  criminal law course) would under- stand the relationship of mental illness to mens rea and criminal responsibility. Only they would understand  that a literal construction  of the provision would place California in a class of one when defining insanity. But even the court’s construction of Proposition 8 is troubling in this respect. To believe that voters chose to return only to the M’Naghten test assumes that voters understood the relationship of mental disease to volition and of volition to the fundamental principles of criminal responsibility, including a blameworthy state of mind. Of course,  ballot  statements  are  hardly  the  means  to  instruct  on  these  difficult criminal law concepts. But if they are not, should such choices be placed before the electorate?

III.   PROPOSITION 8 AND INTOXICATION AND DIMINISHED  CAPACITY

EVIDENCE

California adopted its most influential penal code in 1872. Although exten- sively amended, it has endured to this day. Section 22 of the Penal Code as originally  enacted  provided  that “[n]o  act committed  by a person  while  in a state of voluntary intoxication is less criminal by reason of his having been in such condition.”214  The next sentence,  however,  undercut  this prohibition  by

providing that:

[W]henever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration  the fact that the accused was intoxicated  at the time, in determining the purpose, motive, or intent with which he commit-

ted the act.215

Section 22 could thus be viewed as a legislative  compromise,  one that disal- lows the use of intoxication to escape criminal liability unless it disproves some mental element of the offense charged.

The problem with this view is that the legislature’s  choice of terms in the second sentence makes this construction less than certain. Terms such as “par- ticular purpose” or “intent” do not embrace the entire universe of mental states. Today, with the benefit of the Model Penal Code, we know that offenses can be committed purposely, knowingly, recklessly, negligently, and even without any state of mind.216 Logically, intoxication can disprove purpose, knowledge, and

recklessness if one accepts the scientific claim that intoxication reduces or de- stroys cognitive capacity. But the framers of section 22 did not have the benefit

214. 214. CAL. PENAL CODE 22 (1872).
215. 215. Id.
216. 216. See MODEL PENAL CODE § 2.02(1)-2.02(2) (Am. Law Inst. 1962).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 413

of the clarity introduced by the Model Penal Code. The legislators used terms familiar in their times, including “motive,” which today is generally understood as evidence that may help prove an element of a particular offense, but is not necessarily as an element of the offense itself.

To eliminate the uncertainties inherent in section 22, in People v. Hood, the California Supreme Court adopted the “specific” and “general” intent formula- tion.217 According to the court, a defendant could offer evidence of his volun- tary intoxication under section 22 only to disprove the mental state of a “specif- ic intent” but not a “general intent” offense.218 To guide judges and parties in determining  whether  intoxication  should  be admitted,  the court  provided  the

following definitions:

When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future conse- quence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional conse-

quence, the crime is deemed to be one of specific intent.219

This  construction  of  section  22  remained  intact  until  shortly  after  Dan White’s infamous assassinations of San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978. In its case-in-chief, the prosecution made out a prima facie case that White, a former member of the board of supervisors, had

killed Moscone and Milk with express malice.220  The defense countered with

evidence  that White killed while under the heat of passion (specifically,  rage upon finding out from the mayor that he was not going to be reappointed to the board  of supervisors)  and  under  circumstances  that  impaired  his capacity  to harbor malice aforethought, the element that distinguishes murder from man- slaughter, and to premeditate and deliberate, the elements that distinguish first degree from second degree murder.221  Apparently choosing to rely on the de- fense experts, the jury returned voluntary manslaughter convictions.

217. 217. 462 2d 370, 371 (Cal. 1969).
218. 218. Id. at 378.
219. 219. Id.
220. 220. For an extended statement of the evidence presented in this prosecution, see gener- ally Miguel A. Méndez, Diminished  Capacity  in California:  Premature  Reports  of its De- mise, 3 STAN. L. & POL’Y REV. 216 (1991).
221. 221. Id. at 219. Some of the evidence offered by the defense in support of diminished capacity instructions focused on the effect that excessive consumption of sugar had on Dan White’s inability to form an intent to kill. Because much of his sugar intake resulted from his consumption of Twinkies, the press labeled this evidence as the “Twinkie D” The ju- ry, however, convicted  Dan White  of voluntary  manslaughter,  which  at the time required proof that White intended to kill his victims. Had the jury accepted the defense evidence of diminished capacity, the jury would have convicted White of involuntary (negligent) man- slaughter, as they would have accepted the defense claim that White did not have the ability to entertain the mens rea of either murder or voluntary manslaughter.  For further discussion of this point, see id. at 222-23.

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Much of the public disagreed with their verdict, however. By nightfall on the day the verdicts  were announced,  several  thousand  protestors  surrounded San Francisco’s  city hall, where a brawl broke out between them and the po- lice. Before the night was out, over 120 people were injured, many more were arrested, and property damage totaled tens of thousands of dollars. Members of San Francisco’s gay community were especially offended by a verdict that seemingly devalued the life of the city’s top gay leader, Harvey Milk, a verdict that in their view allowed Dan White to literally get away with murder. Their sense of injustice was shared by many others and prompted the introduction of

Senate Bill 54 (SB 54) the following year.222

When introduced in December 1980, SB 54 took direct aim at those provi- sions  of California  law that had allowed  Dan White’s  experts  to contest  the mens rea of the murder charges. As enacted in September 1981, SB 54 amend- ed the Penal Code by declaring that, “[a]s a matter of public policy, there shall

be no defense of diminished capacity.”223 To dispel any uncertainties about the

legislature’s intention, a companion provision as enacted stated that “[e]vidence of mental disease,  mental defect, or mental disorder  shall not be admitted  to show or negate the capacity to form any mental state.”224 A final enacted pro- vision prohibits mental health experts from telling jurors whether the defendant entertained  the mental  state of the crime  charged  at the time of its commis- sion.225

Although Dan White had not offered any evidence of intoxication, another provision targeted its use in disproving the mens rea of an offense. As enacted, it provided that:

(a) No act committed by a person while in a state of voluntary intoxication  is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crime charged, including, but not limited to, purpose, in- tent,  knowledge,  premeditation,  deliberation,  or  malice  aforethought,  with

which the accused committed the act.226

But the legislature’s resolve to crack down on criminals was less firm than initially appears. As finally approved,  SB 54 allowed  the mental disease, de- fect, or disorder evidence to be offered “solely on the issue of whether or not the accused  actually  formed”  the mens rea of the offense  charged.227  In the case of intoxication, a parallel provision states that:

Whenever the actual existence of any mental state, including, but not limited to, purpose, intent, knowledge,  or malice aforethought  is a necessary element

222. 222. Id. at 222-23.
223. 223. See CAL. PENAL CODE 28(c) (West 2001).
224. 224. Id. 28(a).
225. 225. Id. 29.
226. 226. See CAL. PENAL CODE 22(a) (West 2013).
227. 227. Id. The provision was subsequently amended  to limit the evidence  to disproving the mental state only of specific intent offenses.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 415

to constitute any particular species of or degree of crime, evidence that the ac- cused was voluntarily intoxicated at the time of the commission of the crime is admissible on the issue as to whether the defendant actually formed any such

mental state.228

A facial analysis of the intoxication section reveals that this provision elim- inated the general intent offense limitation imposed by Hood and, instead, sub- stituted a relevance approach. If intoxication helps disprove “any mental state,” it is admissible  irrespective  of whether  the crime  charged  is designated  as a general or specific intent offense.

The relevance approach of SB 54 is consistent with the Right to Truth-in- Evidence provision. Indeed, the initiative would go further by allowing the in- toxication evidence to also disprove a defendant’s capacity to form the mental state of the offense charged. It is ironic that two anti-crime  measures,  SB 54 and  Proposition  8,  had  the  effect  of  freeing  defendants  from  the  Hood  re- strictions on the defense use of intoxication evidence.

In late 1982, the legislature re-enacted section 22 by the required super- majority  but  with  a  significant  change.  The  amendment  revived  Hood  by providing  that  “[e]vidence  of  voluntary  intoxication  [would  be]  admissible solely on the issue of whether or not the defendant actually formed a required

specific intent when a specific intent crime is charged.”229

Although the intoxication provisions of SB 54 play a significant role in the trial of criminal cases, it was the evidence of diminished capacity introduced at Dan White’s trial that moved the legislature to enact SB 54. As originally en- acted, section 28(a) of the Penal Code prohibited the use of evidence of “mental disease, mental defect, or mental disorder” “to negate the capacity to form any mental state . . . with which the accused committed  the act.”230  But as in the

case of the intoxication  statute, the legislature’s  resolve turned out to be less than firm.  A second  sentence  allowed  the use of the very same  evidence  to prove that the accused did not “actually” form the mental state of the offense charged.231

Opening the door to this kind of evidence would, of course, be consistent with the Right to Truth-in-Evidence  provision. Moreover, as in the case of the intoxication statute, the initiative would be even more generous to defendants. It would allow them to offer the diminished  capacity evidence to disprove as well their capacity to form the mental state of the offense charged.  To avoid this outcome, in August 1982 the legislature re-enacted section 28 by the super- majority vote required by Proposition 8. It now limits the use of evidence of “mental  disease,  mental  defect,  or  mental  disorder”  “solely  on  the  issue  of

228. 228. See id. 22(b) (West 2013). For a summary of the history of SB 54, including its predecessors, see Méndez, supra note 220, at 219 n.15, 220 n.16.
229. 229. See CAL. PENAL CODE 22(b) (1982).
230. 230. See id. 28(a).
231. 231. Id.

416                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

whether or not the accused actually formed a required specific intent . . . when a specific intent crime is charged.”232

The  mischief  caused  by  the  Right  to  Truth-in-Evidence  provision  went even further. SB 54 also added section 29 to the Penal Code. This section pro- hibits an expert from telling the jurors whether a defendant’s mental illness, disorder, or defect prevented the defendant from forming the mental state of the crime  charged.233  “The  question  as to whether  the defendant  had or did not have the required mental states shall be decided by the trier of fact.”234 But an expert’s  testimony  about whether  a defendant  entertained  the mental  state of crime charged on account of mental infirmities is obviously relevant. Accord-

ingly, SB 54’s restriction was repealed by the Right to Truth-in-Evidence  pro- vision. To nullify this outcome, in 1984 the legislature re-enacted section 29 by the super-majority vote required by Proposition 8.

Until Proposition 8 was enacted, SB 54 was California’s major anti-crime measure. It says something about the shortcomings of Proposition 8 that the ini- tiative, itself anti-crime measure, undermined the aims of SB 54 until the legis- lature came up with corrective action.

1. IV. ADDITIONAL  LEGISLATIVE PATCHES

1. A. Hypnotized Witnesses

In People v. Shirley, the California Supreme Court held that “the testimony of  a  witness  who  has  undergone  hypnosis  for  the  purpose  of  restoring  his memory of the events in issue is inadmissible as to all matters relating to those

events,  from  the hypnotic  session  forward.”235  The court was not convinced

that the relevant scientific community had generally accepted the use of hypno- sis to restore the memory of a potential witness as a reliable technique.236  On the contrary, the court was troubled that “[d]uring the hypnotic session, neither the subject nor the hypnotist [could] distinguish between memories and pseudo memories . . . and when the subject [repeated the] recall in a waking state (e.g., in a trial) neither an expert nor a lay observer (e.g., the judge or jury) [could] make a similar distinction.”237  The court was equally concerned with the inef- fectiveness of cross-examination in exposing pseudo memories. Since a witness who has undergone hypnosis sincerely believes that his testimony on the stand is his true recall and not the product of deliberate or inadvertent suggestion dur-

232. 232. See id.
233. 233. See CAL. PENAL CODE 29 (West 2013).
234. 234. Id.
235. 235. 723 2d 1354, 1383 (Cal. 1982).
236. 236. Id.
237. 237. Id. at 1382.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 417

ing the hypnotic session, even the most vigorous cross-examination  cannot ex- pose pseudo memories.238

Barring the testimony of previously hypnotized witnesses, however, can exclude relevant evidence. A literal application of Proposition 8 would thus overturn Shirley. Concerned that the initiative would permit previously hypno- tized witnesses to testify in all criminal cases, the legislature reinstated Shirley in part by adding section  795 to the Evidence  Code in 1984.239  This section strikes  a  middle  ground  between  Proposition  8  and  the  disqualification  an- nounced in Shirley by permitting  a previously  hypnotized  witness to testify if the judge finds that strict guidelines have been followed. These guidelines are

designed to prevent the hypnotic session from improperly contaminating the witness’s recall.240

1. B. Polygraph Results

Prior to the passage of Proposition 8, California courts excluded evidence based on polygraph examinations on the ground that the relevant scientific community had not generally accepted the scientific principles underlying pol- ygraphy.241  A literal application  of the Right to Truth-in-Evidence  provision would overturn the judicially created exclusionary rule and commit the admis- sibility of the evidence  to the judge’s discretion,  since the proposition  favors

the admissibility of all relevant evidence irrespective of whether it has the sup- port of the scientific community.242  A year after Proposition 8 was enacted, the legislature  revived the prohibition  by adding Evidence  Code section 351.1 to ban “the results of a polygraph examination, the opinion of a polygraph exam- iner, or any reference  to an offer to take, failure to take, or taking of a poly- graph examination . . . in any criminal proceeding . . . unless all parties stipu- late to the admission of such results.”243

1. C. Truth Serum

Because   truth   serum   dispels   inhibitions,   it  induces   subjects   to   talk freely.244 But a looser tongue is not necessarily a more truthful one.245 What a

238. 238. Id. at 1383.
239. 239. See CAL. EVID. CODE 795.  Section  795  complies  with  the  super-majority  re- quirement. See A.B. 2669, at 1656 (Cal. 1984); 2 ASSEMBLY FINAL HISTORY (1983-84).
240. 240. See People v. Aguilar, 218 Cal. App. 3d 1556, 1563 (Cal. Ct. App. 1990).
241. 241. See People v. Wochnick, 219 2d 70, 72 (Cal. 1950).
242. 242. See supra text accompanying notes 65-67.
243. 243. See CAL. EVID. CODE 351.1 (West 2013). Section 351.1 complies with the super- majority requirement. See S.B. 266, at 185 (Cal. 1984); SENATE FINAL HISTORY (1983-84).
244. 244. See Ramona v. Superior Court (Ramona), 57 Cal. App. 4th 107, 116, 10 (Cal. Ct. App. 1997).
245. 245. Id.

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person says under the influence of sodium amytal may be no more reliable than what he says under the influence of large amounts of alcohol.246 Consequently, the courts have excluded evidence of what a person says under the influence of sodium amytal on the ground that the relevant scientific community has not generally accepted the scientific principles underlying truth serum.247 But truth serum evidence, like polygraph evidence, is relevant. In this instance, however, the legislature has not acted to revive the judicial ban. This may be due to the fact that the leading case on truth serum, Ramona v. Superior Court,248 arose fifteen years after the initiative was enacted, and by that time the California Su- preme Court had ruled that the Right to Truth-in-Evidence  provision  did not repeal the limitations on the use of expert testimony.249  Accordingly, until the courts find otherwise, truth serum evidence should be excluded under the rules

pertaining to expert testimony and scientific evidence, without regard to the ef- fect of the Right to Truth-in Evidence provision.

1. D. Psychiatric Examinations

Prior to the adoption of the Evidence Code in 1965, California shared the common law’s antipathy to the use of expert testimony to attack or support the credibility of witnesses.250  The reason given for rejecting “psychiatric testimo- ny as to the mental or emotional condition of a witness for purposes of im- peachment”251 was that the law governing impeachment said nothing about the use of expert testimony.252  More to the point were the policy concerns raised

by the California Supreme Court in Ballard v. Superior Court:

We do not overlook  Judge  Jerome  Frank’s  warning  against  needlessly  em- barking  “on an amateur’s  voyage on the fog-enshrouded  sea of psychiatry.”

. . . A psychiatrist’s  testimony on the credibility of a witness may . . . not be relevant; the techniques used and theories advanced may not be generally ac- cepted; the psychiatrist may not be in any better position to evaluate credibil- ity than the juror; difficulties may arise in communication between the psychi- atrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify issues; the tes-

timony may be distracting, time-consuming and costly.253

Since jurors were assumed to be as good as experts in assessing the credibility of witnesses, there simply was no need for expert testimony.254  The courts, for

246. 246. Id.
247. 247. Id. at 116 and cases cited therein.
248. 248. See
249. 249. See supra text accompanying note 65.
250. 250. See MÉNDEZ, supra note 8, 15.09.
251. 251. Ballard v. Superior Court, 410 2d 838, 846 (Cal. 1966).
252. 252. Id. at 847.
253. 253. Id. at 848 10.
254. 254. For a discussion of how common law trials evolved to using jurors as lie detectors, see George Fisher, The Jury’s Rise As Lie Detector, 107 YALE J. 575, 577 (1997).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 419

example, were unreceptive to expert testimony explaining why eyewitnesses, though honest, could be mistaken on account of stress and other factors.255

Only in one area were the California courts somewhat receptive to the use of expert testimony to assess a witness’s credibility. In cases involving sexual assaults,  especially  on  females,  fear  of  psychotically  induced  false  charges moved the courts to permit the use of expert testimony about the victim’s men- tal and emotional instability.256 Relying on its authority to promulgate rules of criminal procedure in the absence of legislation, the California Supreme Court gave trial judges discretion to “order a psychiatric examination of the com- plaining witness in [cases] involving a sex violation if the defendant [present-

ed] a compelling reason for such an examination.”257 But in a move favoring prosecutors, the legislature in 1980 amended the Penal Code to eliminate this judicial discretion.258  Concerned that the Right to Truth-in-Evidence  provision might repeal the amendment, the legislature in 1984 re-enacted the amendment by the super-majority required by the proposition.259

1. V. THE WISDOM OF LEGISLATING THROUGH INITIATIVES

One problem with complex initiatives, such as the Victims’ Bill of Rights, is  that  the  large  number  of  measures  contained  in  a  single  ballot  pamphlet makes it difficult for voters to focus on a particular initiative. For example, the Victims’ Bill of Rights was in a ballot pamphlet  that comprised  eighty-seven pages covering a new prison construction  bond act, three legislative  constitu- tional amendments,  three initiative  statutes  relating  to taxes, four referendum

statutes  covering  reapportionment  and  water  facilities,  and  Proposition  8.260

Another difficulty with complex initiatives is that specific provisions that might be of special interest to voters may be part of a single measure covering numer- ous subjects. The Victims’ Bill of Rights is again illustrative. It contains ten sections that in addition to relevant evidence, convictions, and insanity, address restitution, safe schools, diminished capacity, habitual criminals, victim state- ments, plea-bargaining, sentencing, and mentally disordered offenders.261

In this regard, another anti-crime initiative, the Safe Neighborhood  Act, is a worse  example.  Among  other  matters,  it asked  the  voters  to  approve  im- portant amendments to the Evidence Code creating a forfeiture hearsay excep- tion  and  declaring  contumacious  witnesses  unavailable.  These  amendments were among many other provisions that ranged from establishing a commission to  evaluate  publicly-funded  programs  designed  to  deter  crime,  to  a  crime-

255. 255. See People v. Guzman, 121 Cal. Rptr. 69, 71-72 (Cal. Ct. App. 1975).
256. 256. See People v. Neely, 39 Cal. Rptr. 251, 253 (Cal. Ct. App. 1964).
257. 257. See Ballard v. Superior Court, 410 2d 838, 846 (Cal. 1966).
258. 258. See CAL. PENAL CODE 1112 (West 2013).
259. 259. Id.
260. 260. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 56.
261. 261. Id. at 3.

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stoppers  reward  fund, a new witness  tampering  offense,  new assessments  on fines, new parole procedures, increased penalties for vandalism, increased pen- alties for joyriding, new probation limitations for persons who have committed more than one act of vehicle theft, expanded accomplice liability in some ob- struction of justice cases, new penalties for violating criminal gang injunctions, a new cause of action for suing criminal street gangs, a new convict registration statute, new prison sentences for possession of enumerated controlled substanc- es, increased penalties for some felons who possess firearms, new prohibitions on the release of illegal immigrants on bail or their own recognizance when charged with enumerated crimes, new prohibitions on the release of defendants on bail or their own recognizance when charged with violent crimes if they previously have failed to appear in court, new parole procedures, and the estab- lishment of a new annual half billion dollar fund (to be adjusted for inflation) to

support  public  safety,  anti-gang,  and  juvenile  justice  programs.262  The  Safe

Neighborhood Act, which appeared on the November 2008 ballot, was rejected by the voters.

But even if voters could easily find important  provisions  in initiatives,  a much more serious issue is the competency  of the electorate to pass on initia- tives affecting complex legal matters. The Right to Truth-in-Evidence provision asked the electorate  to adopt a new evidence  code for use in criminal  cases. That was tantamount to asking the voters to sit as a legislative committee of the whole to propose, assess, and approve at one sitting the rules that should gov- ern the admissibility of evidence in the most important of hearings⎯¾the trial on guilt or innocence. In this regard, the extensive legislative history of the Cali- fornia Evidence Code and the Federal Rules of Evidence is instructive. Unlike the electorate, neither Congress nor the California Legislature was asked to ap- prove an evidence code at the time of its introduction. The rules Congress and the California Legislature considered had been vetted by their respective com- mittees,  which had approved  the rules after extensive  hearings.  Moreover,  in each instance the rules their respective committees  considered  had been inde- pendently formulated by experts after years of study and public hearings. These experts did not create the rules out of whole cloth. They had the benefit of three decades of research on an ideal set of evidence rules. They were able to draw on earlier model codes, including the Model Code of Evidence approved by the

American  Law  Institute  in 1942263  and  the  Uniform  Rules  of Evidence  ap-

proved by the National Conference of Commissioners  on Uniform State Laws in  1953.264  Moreover,  the  members  of  the  American  Law  Institute  and  the

262. 262. Office of the Attorney General, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE, http://ca.gov (search “Safe Neighborhood Act”; follow link) (last visited Apr. 25, 2014). The summary provided here is designed to give the reader only a sense of the breadth of top- ics covered  by the initiative.  Readers  interested  in all its provisions  as well as in the com- plete text should consult the initiative.
263. 263. See MODEL CODE OF EVIDENCE 7 (Am. Law Inst. 1942).
264. 264. See UNIF. R. EVID. (Nat’l Comm’rs on Uniform State Laws 1953).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 421

Commissioners  on Uniform State Laws could look for guidance to the detailed traditions of the common law.

In 1958 the House of Delegates of the American Bar Association recom- mended  the  adoption  of  uniform  rules  of  evidence  for  use  in  the  federal courts.265  In 1961 the United States Supreme Court appointed a committee to do  a  feasibility  study,  and  the  committee  recommended   drafting  uniform rules.266 In 1965 the Court appointed judges, lawyers, and law professors to an Advisory Committee to draft the rules and four years later, in 1969, the Judicial Conference  Standing  Committee  circulated  the  Advisory  Committee’s  pro- posed draft for comment.267  After reviewing the comments, first the Advisory

Committee and then the Judicial Conference approved the revised draft and submitted  it to the Court for promulgation  in 1970. The Court, however,  re- turned the draft to the Judicial Conference for further comment, and in 1971 a final draft was forwarded to the court.268 In 1972 the Court promulgated the Federal Rules of Evidence to take effect in July 1973.269 Congress, however, deferred the implementation  of the Rules until it had an opportunity to review and  approve  them.270  Both  the  House  and  the  Senate  Judiciary  Committees held  extensive  hearings  at  which  numerous  witnesses  testified,271  and  after making revisions Congress approved the Rules in January 1975 to take effect in July of that year.272

The history  of the Evidence  Code reveals  a similar  deliberative  process. The Code is the product of an exhaustive study commenced in 1956 by the Cal- ifornia Law Revision Commission  to determine whether California should re- place its hodgepodge  rules of evidence  with a modern  code modeled  on the

Uniform  Rules of Evidence.273  The Commission  retained a nationally  known

evidence expert, Professor James H. Chadbourne, to head the study. As a result of his work, nine tentative recommendations and research studies relating to the Uniform Rules were published by the Commission and circulated for public comment.274

In January 1965, the Commission  published its Recommendation  Propos- ing an Evidence  Code and presented  it to the California  Legislature.275  Each house of the legislature referred the recommendation  to its respective Judiciary

265. 265. See R. SCHMERTZ, PROPOSED FEDERAL RULES OF EVIDENCE 2, 201-02 (Callaghan

& Co. 1974).

266. 266. Id.
267. 267. Id.
268. 268. Id.
269. 269. Id.
270. 270. Id.
271. 271. Id.
272. 272. See MIGUEL MÉNDEZ, EVIDENCE: A CONCISE COMPARISON OF THE FEDERAL RULES WITH THE CALIFORNIA CODE 325 (West 2013).
273. 273. See PARKER’S EVIDENCE CODE OF CALIFORNIA vi-vii (1979).
274. 274. Id.
275. 275. Id.

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Committee for further study. In April 1965, the Assembly Committee on the Judiciary provided the Assembly with a special report on the Commission’s recommendation.  Later that month, the Senate Judiciary Committee  presented its report. Except for a limited number of “new or revised” comments, the Sen- ate committee adopted the recommendation as revised by the Assembly com- mittee. Later that year, both houses approved the recommendation  and the Evi- dence  Code  became  effective  on  January  1,  1967.  The  Code  was  the  first complete  revision  of the rules of evidence  since  the evidence  portion  of the Civil Procedure Code was enacted in 1872.276

In contrast to the comparatively  open, transparent process followed by the

Advisory Committee and Congress and by the California Law Revision Com- mission  and  the  California  Legislature,277   the  framers  of  Proposition  8  are largely unknown and conducted their work in private.278 They did not circulate their draft to the public or hold public hearings to hear from supporters and op- ponents.279 As is apparent from the many patches the courts and the legislature have had to devise to fix unanticipated consequences, the proponents apparent- ly did not undertake a systematic study to identify flaws in the proposed meas- ure. Given the proponents’ goal, their most glaring failure was not anticipating the adverse effects their anti-crime measure would have on existing anti-crime laws, most notably SB 54.

But as we have seen, the proponents’  apparent shortsightedness  extended to other areas of the law affected by a literal application of the Right to Truth- in-Evidence provision. Eliminating the character evidence ban would help prosecutors secure convictions by enabling them to offer evidence of the de- fendant’s bad character. But ending the ban also opened the door to the use of

specific instances of conduct by defendants to clear their names.280 Removing

276. 276. Id.
277. 277. For a critique of the influence of special  interests  in shaping  the California  Evi- dence Code, see Kenneth W. Graham, , California’s “Restatement” of Evidence: Some Reflections  on  Appellate  Repair  of the  Codification  Fiasco,  4 LOYOLA L. REV. 279,  291 (1971).
278. 278. In his Rebuttal to Argument Against Proposition 8, Paul Gann identifies then Sen- ior Assistant Attorney General George Nicholson as “a chief architect” of the initiative. See CALIFORNIA BALLOT PAMPHLET, supra note 1, at 35. Justice Nicholson has served on the California Court of Appeal, Third District, since 1990. See Greg Nicholson, CALIFORNIA COURTS, http://www.courts.ca.gov/htm (last visited Apr. 25, 2014). The court’s  web- site identifies him as the “Statewide Co-Chair and Principal Author, Proposition 8, Victims’ Bill of Rights.” Id.
279. 279. On March 24, 1982  the  Chair  of the  Assembly  Committee  on Criminal  Justice provided the Speaker of the Assembly with its staff analysis of Proposition 8. See ASSEMBLY CMTY. ON CRIMINAL JUSTICE, ANALYSIS OF PROPOSITION 8 THE CRIMINAL JUSTICE INITIATIVE (March 24, 1982). Not counting the transmittal  letter and the table of contents, the analysis takes up ninety-nine  typewritten  pages. Id. Despite its length, the staff warns that the analy- sis “is not meant to be an exhaustive review” in light of the extensive nature of the Id. at 1.
280. 280. See supra text accompanying note 40.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 423

the Code’s ban on the use of specific instances of misconduct (other than con- victions)  to impeach  witnesses  has allowed  defendants  to use such  evidence against  prosecution  witnesses,  including  victims  in  sexual  assault  cases.281

Moreover, without the benefit of the California Supreme Court’s post-initiative Harris analysis,  a literal application  of the Right to Truth-in-Evidence  provi- sion would have led an informed reader of the ballot pamphlet to conclude that the initiative would repeal the Evidence Code limitations on the use of expert evidence.282 To make the admissibility of expert evidence turn on individual judges’ exercise of discretion would introduce an almost intolerable level of uncertainty in the planning and administration of criminal trials.

Likewise, without the benefit of the Supreme Court’s post-Proposition 8 analysis of the restrictions on the use of juror evidence, an informed reader of the Right to Truth-in-Evidence  provision would have concluded that the initia-

tive would repeal the restrictions.283  And although the issue has not been de-

cided by the appellate courts, a literal application  of the initiative would also repeal the Code’s  provisions  prohibiting  judges  and jurors  from testifying  in trials in which they are participants and encouraging plea bargaining by barring the use of admissions  defendants  make in the course of plea negotiations.284

Without  plea bargains,  California  would  be unable  to process  those  charged with crimes. Even with the continued exclusion of plea-bargaining  admissions, the state  lacks  the courts,  prosecutors,  public  defenders,  and other  resources needed to process adequately the cases pending before the courts.

A literal application of the Right to Truth-in-Evidence  provision would re- peal as well the Code’s prohibition on the use of a witness’s religious belief to attack or support the credibility of the witness.285 Although the courts have not passed on this issue, lifting the ban risks injecting religious bias into criminal proceedings. A literal application of the initiative would also repeal the limita- tions the Code places on the use of consistent and inconsistent statements, limi- tations designed to enhance the probative value of consistent statements and prevent the unfair use of inconsistent statements.286

One of Proposition 8’s greatest weakness stems from the proponents’ ap- parent inability  to appreciate  fully the adversarial  nature of trials. Because in the United States the lawyers—not  the trial judge—play the key role in how a trial unfolds, in planning their trials lawyers need to know whether the judge will admit or exclude evidence they want to offer. An evidentiary regime that commits the admissibility of evidence to the trial judge’s discretion ignores this reality and cannot work in the American-style adversarial trial.

281. 281. See supra text accompanying note 87.
282. 282. See supra text accompanying note 65.
283. 283. See supra text accompanying note 185.
284. 284. See supra text accompanying note 73.
285. 285. See supra text accompanying note 163.
286. 286. See supra text accompanying notes 78 and 82.

424                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

If asked, most first-year law students will respond that the judge is the most important person in a trial. Judges, after all, dress differently from all others— whether lawyers, parties, jurors, or spectators—attending  the trial. Only judges wear a black robe. Moreover, they sit at a special place (the bench), which is usually elevated. When a judge enters the courtroom, an armed guard (the bail- iff) orders all others to stand. No one can sit until after the judge sits. No one can speak until after the judge formally opens the proceedings, usually by an- nouncing the case to be heard that day.

The reality is otherwise, however. In jury trials, it is the lawyers who are the most important players. In criminal trials, for example, the prosecutor and defense counsel are responsible for the manner in which the trial unfolds. The lawyers decide which witnesses to call and the order in which they will testify. The lawyers decide whether non-testimonial evidence will be offered and when it will be offered. The lawyers determine what the witnesses will say, since witnesses are expected to respond only to the questions put to them. The law- yers formulate these questions and put them to the witnesses. Even though the presiding judge is free to ask questions of witnesses, most judges leave this task

almost exclusively to the lawyers.287

Other than ministerial  duties such as opening trials and informing  the ju- rors of the law that applies to the case, a judge’s principal role in a jury trial is to rule on objections to the introduction  of evidence. But even this role is cir- cumscribed.  The  rules  of  evidence  operate  in  an  adversarial  environment. Whether a particular rule of evidence will be applied will depend initially on whether its application  is invoked by a party. If a party fails to object to evi- dence  offered  by the opponent,  the party as a general  rule loses the right to

complain on appeal about the introduction of inadmissible evidence.288

Judges also benefit from an evidence system that prescribes in detail what evidence is inadmissible. Ruling on objections is a much simpler task under the Evidence Code than under a system that commits the admissibility of evidence to the judge’s discretion. It is in this context that the role of Evidence Code sec- tion 352 must be understood.  Under the Code, a party may not resort to this section to exclude evidence  unless the judge has overruled  all of his specific

objections.289 To be sure, Proposition 8 does not commit the admissibility of all

relevant evidence to the judge’s discretion. The Right to Truth-in-Evidence provision  exempts  the exclusionary  rules  pertaining  to hearsay,  privileges,  a crime victim’s character, and the credibility of sexual assault victims. Nonethe- less,  the  admissibility  of much  evidence  formerly  restricted  by  the  Code  in criminal cases is now subject to discretionary admission. Yet, in their ballot ar-

287. 287. The degree to  which  the  lawyers  control  the  interrogation  of  witnesses  is  evi- denced by the virtual disuse of a procedure available in California and some other states. Ju- rors, under certain circumstances,  can ask questions of witnesses. See MÉNDEZ, supra note 8,

• 17.12.

288. 288. See CAL. EVID. CODE 353 (West 2013).
289. 289. See id. 352.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 425

guments  in support  of the  Victims’  Bill  of Rights,  the  proponents  made  no mention of the adverse consequences  the initiative could have on the planning and administration of criminal trials.

The drafting flaws are not limited to the proponents’ failure to foresee the full consequences of the Right to Truth-in-Evidence  provision. The proponents included  in the same initiative  two conflicting  constitutional  amendments.290

One requires judges in criminal cases to admit felony convictions offered to impeach without limitation. The other vouchsafes to judges their discretionary power to exclude relevant evidence (including convictions) whenever in their estimation the probative value of the evidence is substantially outweighed by countervailing concerns. Any second or third-year law student would have foreseen  that the presence  of two conflicting  provisions  of equal legal status would necessarily force the courts to attempt to reconcile them. This is precise- ly what the appellate courts have done, with the result being a substantial resur- rection of the Beagle limitations that existed prior to the voters’ approval of the

initiative.291

Suppose, however, that the proponents had anticipated all of the Evidence Code sections that would have been repealed by the Right to Truth-in-Evidence provision and had listed all of these sections in the initiative. Would these addi- tional steps have allowed most voters to make an informed choice? The answer is obviously “no” since an informed choice presupposes an appreciation of the interests advanced by the rules that would be affected. A grounding in evidence law and trial advocacy would be essential. The Right to Truth-in-Evidence  pro- vision also would have repealed the Penal Code limitations on the use by de- fendants of intoxication and diminished capacity evidence. An informed choice on whether  to repeal these limitations  would require an understanding  of the role that intoxication and cognitive disabilities should have on culpability. As a normative matter, should California allow those who commit criminal harms escape liability on these bases? Most voters lack the legal knowledge needed to make this normative decision.

There  is nothing  ambiguous  about  the provision  requiring  defendants  to prove both M’Naghten prongs to be acquitted on the grounds of insanity. Sup- pose that the proponents of the initiative had taken the additional step of in- forming the voters that approval of this provision would have taken California back to the almost medieval “wild beast” test. Would that have enabled the vot- ers to make an informed choice about whether to retain the A.L.I. test, return to M’Naghten, or adopt the wild beast test? The answer again is “no.” Most voters have not had the opportunity to study and reflect on the relationship of mental disease to cognition and volition and their link to the fundamental principles of criminal  responsibility,  including  a blameworthy  state  of mind.  And,  as has

290. 290. See supra text accompanying note 130.
291. 291. See supra text accompanying note 130.

426                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

been pointed out, ballot pamphlet statements are hardly the place to instruct on these difficult criminal law concepts.

The  legislative  process,  to be sure,  does  not always  guarantee  a perfect statute. But it does afford an opportunity  for the kind of scrutiny designed to flag the type of unanticipated  difficulties posed by such sweeping measures as Proposition 8. For all their faults, properly conducted legislative hearings can generate the information needed for a more complete analysis and an informed choice. The legislative  process is simply better at identifying  and eliminating the uncertainties and ambiguities that can plague initiatives. Current law, how- ever, does not require the legislature to hold hearings on initiatives that have qualified for the ballot. Instead, the Elections Code places a much less onerous burden on the legislature. Upon preparing the circulating title and summary of a proposed initiative, the Attorney General is required to transmit copies of the text of the measure and the circulating title and summary to the Senate and the

Assembly.292  The appropriate  committees  may, but are not required  to, hold

public hearings on the subject of the proposed measure.293 And even if the leg- islature holds hearings, it may not alter or prevent the initiative from appearing on the ballot.294

Initiatives, such as Proposition 8, can make it more difficult for the legisla- ture to do its job. The Right to Truth-in-Evidence  and insanity provisions  re- quire the membership of each house to approve by at least a two-thirds vote amendments to exclude relevant evidence or make changes to the insanity defi-

nition.295 As we have seen, occasionally  the legislature has had to act to void

unanticipated  changes  made  by the Right  to Truth-in-Evidence  provision.  In each instance, the legislature succeeded only because the proponents of the amendments were able to garner the required super-majority.

Although the use of the initiative has been viewed as a progressive reform measure, not all agree about the role it should have in a representative  democ- racy.  In  their  study,  Lawmaking  by  Initiative,296   Phillip  Dubois  and  Floyd Feeney identify direct participation by the people as a subject of classic debates

about democracy.

James Madison  and those who wrote the United  States Constitution  pre- ferred a system of representative government. Believing that most important public questions were too complicated to be decided by popular vote, they de- signed a system calling for elected representatives who would have the time to study  and  understand  the  issues.  The  Populists  and  Progressives  who  fash- ioned and promoted  the initiative,  the referendum,  and the recall in the late

1800s and the early 1990s, saw a somewhat  different picture. They believed

292. 292. See CAL. ELEC. CODE 9007 (West 2013).
293. 293. See
294. 294. See
295. 295. See CAL. CONST. art. I, 28(f)(2); CAL. PENAL CODE § 28(d) (West 2013).
296. 296. PHILIP L. DUBOIS & FLOYD FEENEY, LAWMAKING BY INITIATIVE (Bernard Grofman , 1998).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 427

that legislators  and political machines had become far too dependent  on spe- cial  interests.  Trusting  the  populace  itself  to  make  better  judgments,  they thought that the cure was more democracy. While they did not want to abolish

representative government, they wanted much more popular participation.297

Initiatives, however, also have their detractors. As Dubois and Feeney note, those disfavoring initiatives believe that “societal problems have become much too complicated for the black and white kind of solutions [supporters] believe possible through the use of the initiative process. Detractors are also appalled by the demagoguery  and simple-minded  campaigns that characterize  initiative

elections.”298

The  initiative,  nonetheless,   has  taken  root  nationwide.   Between  1898 (when South Dakota became the first state to adopt the initiative) and 1992, twenty-five states have adopted this device.299 Nineteen had done so by 1918, when the Populist and Progressive influences were at their height.300 California was among these states, having adopted the initiative in 1911 to allow the elec- torate to enact statutes as well as constitutional amendments.301 California’s initiative process is of the more expansive type. It authorizes the direct initia- tive that allows the electorate to vote on a measure that qualifies for the ballot

by citizen petition.302 A few states permit only the indirect initiative. Once the required number of signatures is gathered, the measure goes to the legislature for consideration. If the legislature adopts the measure, it becomes law. If it re- jects the measure or fails to act within a prescribed time, the measure is placed on the ballot at the next election.303 A few states permit both direct and indirect initiatives. At the time of their study, Dubois and Feeney found that three states use the indirect initiative for statutes and the direct initiative for constitutional amendments, and that two use both the direct and indirect initiative for stat- utes.304

California is among the states making the most extensive use of the initia- tive. From the time the first state adopted the initiative through 1996, only Ore- gon has exceeded California in the number of measures appearing on the ballot

(292 to 257).305 Between 1978 and 1996, however, California overtook Oregon

(98 to 86).306

297. 297. Id. at 2.
298. 298. Id.
299. 299. Id. at 28.
300. 300. Id. at 28-29.
301. 301. Id.
302. 302. Id. at 27.
303. 303. Id. at 35.
304. 304. Id. at 27-29.
305. 305. Id. at 30.
306. 306. Id. at 31.

428                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

Of the 257 measures on the California ballot between 1911 and 1996, the voters approved 85, or 33%.307 Among those approved are measures eliminat- ing the poll tax, creating  the governor’s  line item veto in appropriation  bills,

repealing prohibition, eliminating partisan elections for the selection of judges, reinstating the death penalty, creating environmental protections for coastal ar- eas, enacting campaign and political ethics legislation, reducing property tax- es,308 restricting ownership of land by persons ineligible for naturalization  (at the time mainly Japanese immigrants), repealing a fair housing law previously approved by the legislature,309  and making undocumented  aliens ineligible for public social services, health services, and education.310 More recent initiatives prohibit the state from granting preferential treatment on the basis of race, sex, color,  ethnicity,  or national  origin  in public  employment,  education,  or con-

tracting,311 but allow the use of marijuana for medical purposes,312 and specify that only a marriage between a man and a woman is valid in California.313

Based on their review  of polling  data, Dubois  and Feeney  conclude  that while Californians  continue to express “strong support” for the initiative pro- cess, that support is waning.314  Support declined from 83% in 1979 to 73% in

1989 to 62% in 1991.315

A 1982 poll, for instance, showed that 84 percent of those questioned doubted the capacity  of many voters to make an informed  decision  on initiatives;  86 percent thought special interests benefit from the process; 82 percent believed that one-sided  campaign  spending  distorts  election  outcomes  away from the will of the people and toward the interests of big-campaign contributors; 63 percent agreed that campaign spending has “a great deal of effect” on the out- come of proposition elections; and 78 percent agreed that most of the ballot is- sues are too complicated to be decided by a simple yes or no vote. A 1990 poll revealed  that only  21 percent  of those  questioned  thought  the typical  voter

could understand most or all of the ballot propositions.316

More recent polling data of voter sentiment  are consistent.  A 2011 Field

Poll found that support for initiatives declined to 53% and that twice as many

307. 307. Id. at 13.
308. 308. Id. at 13-14.
309. 309. Id.
310. 310. See CALIFORNIA BALLOT PAMPHLET GENERAL ELECTION NOV. 8, 1994, 91-92.
311. 311. See CAL. CONST. art. I, 31. For an examination of how initiatives can be misused to undermine rights accorded to disadvantaged  groups,  see Christine  Chambers  Goodman, (M)Ad Men: Using Persuasion  Factors in Media Advertisements  to Prevent a “Tyranny  of the Majority” on Ballot Propositions, 32 HASTINGS COMM. & ENT. L.J. 247 (2010).
312. 312. See CAL. HEATH & SAFETY CODE 11362.5 (West 2013) (added by Proposition

215, § 1 in November 1996).

313. 313. See CAL. CONST. art. I, 7.5.
314. 314. See DUBOIS & FEENEY, supra note 296, at 4-6.
315. 315. Id.
316. 316. Id. at 5 (footnotes omitted).

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 429

voters  believe  that  the  results  of most  statewide  ballot  proposition  elections come out the way organized special interests want.317

Dubois and Feeney’s review of polling data shows that Californians strong- ly favor some reforms to the initiative process. Large majorities support sub- mitting “proposed initiatives to the secretary of state for review and comment on conformity to law and clarity of language prior to their circulation for signa- tures.”318 An overwhelming majority (87%) favor “full disclosure in initiative campaign  advertisements   of  the  sponsoring  industry  or  interest  group.”319

However, other reform proposals, such as limiting the number of initiatives on a single ballot, increasing the number of signatures for initiatives to qualify for the ballot, and prohibiting  the use of paid signature gatherers, while still sup-

ported by a majority, are favored only by two to four percentage points.320

With respect to the public’s view of the competency of voters to assess technical  matters, Dubois and Feeney cite a 1982 poll that reveals that “two- thirds of the population saw the legislature as better suited than voters to make decisions about highly technical or legal policy matters.”321 A 2011 Field Poll echoes the same sentiment. A “55% to 34% majority believes elected repre- sentatives rather than the voting public are ‘better suited to decide upon highly technical or legal policy matters.’”322 That view, however, has not resulted in changes giving the legislature exclusive authority to legislate on such matters.

Nor has it revived the use of the indirect initiative with regard to these matters. Because the indirect initiative was used so rarely, it was deleted from the Cali- fornia Constitution  in 1966 on the recommendation  of the Constitution  Revi- sion Commission.323

Some reforms of the initiative process have taken place, however. One re- quires the Secretary of State to send each voter a pamphlet outlining the argu- ments for and against each proposed initiative.324 Another restricts initiatives to the November ballot when voters turn out in greater numbers than in June pri- mary elections.325 A third, added to the California Constitution in 1948, impos-

317. 317. See MARK DICAMILLO & MERVIN FIELD, THE FIELD POLL (Oct. 13, 2011), availa- ble at http://www.field.com/fieldpollonline/subscribers/Rpdf.
318. 318. See DUBOIS & FEENEY, supra note 296, at 5 (emphasis in original).
319. 319. Id. (footnote omitted).
320. 320. Id.
321. 321. Id. at 6.
322. 322. DICAMILLO, supra note 317.
323. 323. See DUBOIS & FEENEY, supra note 296, at 92. Legislation was introduced in the

2011-2012  Regular  Session  of the Assembly  reviving  the indirect initiative.  See also Cali- fornia Constitutional  Amendment  No. 12, ACA 12 Amended  (Aug. 21, 2012), available  at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0001-0050/aca_12_bill_20140305_ introduced.htm.

324. 324. See DUBOIS & FEENEY, supra note  296,  at 4 8.  See  also  CAL. ELEC. CODE  §

9094(a) (West 2013).

325. 325. See CAL. CONST. art. II, 8(c).

430                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

es the single subject rule.326 It provides that “an initiative embracing more than one subject may not be submitted to the electors or have any effect.”327 The limitation, however, has not reduced the complexity of initiatives. To date, the California Supreme Court has not found any initiative, including the Victims’ Bill of Rights, in violation of this provision.328 One reason is that the court has interpreted the provision in the same way it has interpreted a similar, but older, constitutional provision requiring legislative acts to “embrace but one subject, which subject shall be expressed in its title.”329 The court has construed the legislative restriction as allowing the legislature to “insert in a single act all leg- islation germane to the general subject as expressed in its title and within the field of legislation suggested thereby.”330  With respect to initiatives, the court has taken the view that an initiative does not violate the single subject rule if all

of its parts are “reasonably germane” to each other and to the “general purpose or object of the initiative.”331  Despite its numerous and diverse provisions, the court has held that the Victims’ Bill of Rights meets this standard:

Each of its several facets bears a common concern, “general object” or “gen- eral subject,” promoting the rights of actual or potential crime victims. As ex- plained in the initiative’s preamble, the 10 sections were designed to strength- en procedural and substantive safeguards for victims in our criminal justice system. These changes were aimed at achieving more severe punishment  for, and more effective deterrence of, criminal acts, protecting the public from the premature  release  into  society  of  criminal  offenders,  providing  safety  from crime to a particularly vulnerable group of victims, namely school pupils and

staff, and assuring restitution for the victims of criminal acts.332

The court’s reluctance to strike initiatives on the basis of the single subject rule is rooted in its respect for the role of initiatives.  It believes that it has a “solemn duty jealously to guard the sovereign people’s initiative power, ‘it be- ing one of the most precious rights of our democratic process.’”333 When pass- ing on the validity of initiatives, the court uses an interpretative  rule resolving

“any reasonable doubts in favor of the exercise of this precious right.”334

In their study, Dubois and Feeney include a number of recommendations for improving initiatives. Had they been enacted, some could have applied to Proposition  8. One recommendation  aims to reduce  the complexity  of initia- tives by adopting rules that define “single subject” more narrowly for initiatives

326. 326. See id. 8(d).
327. 327. Id.
328. 328. See DUBOIS & FEENEY, supra note 296, at 130.
329. 329. See CAL. CONST. art. IV, 9.
330. 330. Perry v. Jordan, 207 2d 47, 50 (Cal. 1949).
331. 331. Brosnahan v. Brown, 651 2d 274, 279 (Cal. 1982).
332. 332. Id. at 274.
333. 333. Id. at 277 (quoting from Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 2d 1281, 1290 (Cal. 1978)).
334. 334. Brosnahan, 651 2d at 277.

2014]                           THE VICTIMS’ BILL OF RIGHTS                                 431

than for legislation.335 A rule, for example, that classifies as separate subjects criminal law and criminal procedure would have divorced the Right to Truth- in-Evidence provision from others affecting the substantive criminal law, such as the definition of insanity and the punishment of habitual criminals. Isolating the provision on criminal evidence would have given proponents and opponents a greater opportunity to comment on the implications of the changes called for by the provision.

Dubois and Feeney also recommend creating a board consisting of the At- torney General, the Secretary of State, and Legislative Counsel, to review initi- atives that have qualified to determine if they contain provisions whose conse-

quences  are  not  readily  apparent.336   Unless  a  voter  was  familiar  with  the

Evidence Code, the voter would be unlikely to understand that a purpose of the Right to Truth-in-Evidence  provision was to create a special evidence code for criminal cases.

Dubois and Feeney approve the use of the indirect initiative. They recom- mend that all initiatives adding or making statutory changes be submitted first to the legislature and not be submitted to the voters if the legislature adopts the substance of the initiative. As they explain:

The theory of the initiative is that it is a way of adopting legislation when the legislature refuses to act. Allowing the legislature the option of acting on initi- atives gives practical meaning to this theory. It forces the legislature to be ac- countable, saves the electorate from voting on matters unnecessarily, and need

not be harmful to the proponents’ interests.337

Had this recommendation been in effect in 1982, it would have given the legislature an opportunity to consider whether adopting a special evidence code for criminal cases was consistent with California’s policies as expressed in the Penal Code and by the courts. Legislative hearings on the initiative would have given both proponents and opponents an opportunity to explain and justify their respective  positions  at a level  of detail  that  is simply  beyond  the  space  re- strictions of ballot pamphlets and in language free of the uninformative  politi- cal sloganeering so prevalent in the ballot arguments. California voters, howev- er, are  skeptical  about  enlarging  the  legislature’s  role  in initiatives.  A 2011

Field Poll found that—by 53% to 35%—voters disapprove “of allowing the legislature to place a companion proposal on the same election ballot after an initiative qualifies that, if approved,  can amend all or some of the initiative’s

provisions.”338

Dubois and Feeney also target the super-majority  provisions of initiatives such as Proposition 8. As they point out:

335. 335. DUBOIS & FEENEY, supra note 296, at 229.
336. 336. Id.
337. 337. Id. at 224.
338. 338. See DICAMILLO, supra note 317.

432                          STANFORD LAW & POLICY REVIEW              [Vol. 25:379

Statutes enacted by the legislature may be amended or repealed at any time by the legislature. Initiatives in some states, however, may be changed only by very difficult procedures, such as a two-thirds vote of both houses of the legis- lature. These highly restrictive rules make it very difficult to change initiative statutes and in effect give initiative statutes some of the qualities of constitu- tional amendments. . . .

While there may have once been fears that legislatures  would hastily tear down what the people enacted through the initiative process, the general expe- rience in the United States is that legislatures are reluctant to change laws that have been adopted through the initiative process. There is no valid reason, therefore,  for significantly  limiting the legislature’s  ability to amend and re-

peal initiative statutes.339

As we have seen, on several occasions the California Legislature has had to act  to  prevent  unanticipated  consequences  made  by  the  Right  to  Truth-in- Evidence provision. In each instance, the fixes or patches required the legisla- ture to garner at least a two-thirds vote of the membership of each house.

Dubois  and Feeney  would  also tighten  the rules for initiatives  amending state constitutions. They point out, for example, that in California constitutional amendments initiated by the legislature require a two-thirds vote of each house

as well as approval by a majority of the electorate.340  In contrast, an initiative

amending  the constitution  requires  only gathering  signatures  at least equal to eight percent of those who voted in the last election and approval by a majority of the voters at the next election.341 Since the collection of signatures is “simp- ly a matter of being able to spend enough money,”342 this “means that in many instances it is easier for proponents with resources to use the initiative than to use the legislative process to secure consideration of proposed constitutional amendments.”343

Any structure that makes it easier to amend the state constitution  through the initiative than through the legislature is unsound. We therefore recommend that the number of signatures required for initiative constitutional amendments be  made  high  enough  to  encourage  proponents  to  seek  amendment  first through the legislative process. In California, for example, the number of sig- natures should be increased from 8 to at least 10 percent of the voters at the last gubernatorial election. . . .

An increase  in the number  of signatures  required  for amendments  to the state constitution would have the additional positive effect of creating an addi- tional incentive for proponents to propose statutory changes rather than consti- tutional amendments.  This is in keeping  with the general policy that change

should be placed in constitutional form only if it is of a fundamental nature.344

339. 339. See DUBOIS & FEENEY, supra note 296, at 224.
340. 340. Id. at 223.
341. 341. See CAL. CONST. art. 2, 8.
342. 342. See DUBOIS & FEENEY, supra note 296, at 223.
343. 343. Id.
344. 344. Id. at 223-24.

2014]                               THE VICTIMS’ BILL OF RIGHTS                                      433

This recommendation, if implemented prior to 1982, would have affected Proposition   8̓s  constitutional   amendments   creating  the  Right  to  Truth-in- Evidence provision and the provision requiring felony convictions offered for impeachment to be used without limitation. Had the legislature chosen to make these changes, it would have not resorted to amending the constitution. It simp- ly would have enacted the changes as amendments to the Evidence Code or as part of a new evidence code applicable only to criminal cases. Combined with the  change  Dubois  and  Feeney  recommend  for  the  indirect  initiative,  the changes would have given the legislature an opportunity to hold hearings on the two provisions where both proponents and opponents could explain and justify their respective positions.

A 2007 Field Poll suggests that most California voters are prepared to go even farther in making changes to initiatives that amend the California Consti- tution. “Most voters (56%) support the idea of increasing the vote requirements needed to approve amendments to the state constitution from a simple majority to a two-thirds majority vote of the people in an election.”345

Another aspect of Proposition  8 bears elaborating.  It was not coincidental that the proponents titled their initiative, “The Victims’ Bill of Rights,” and the provision banning the exclusion of relevant evidence, “The Right to Truth-in- Evidence.” Who can be against crime victims and the truth?

Embedded  in  such  anti-crime  measures  as  the  Crime  Victims’  Bill  of Rights  and  the  Safe  Neighborhood  Act346  is  a dangerous  artificial  dualism. These measures reflect a “we versus them” attitude that is pointedly missing in the Bill of Rights. Surely, criminals were no more loved at the adoption of the Constitution  than  they  are  today.  Yet,  one  cannot  help  but  sense  that  the Founders were thinking about themselves, not just muggers, rapists, child abus- ers,  batterers,  and  murderers,  when  contemplating  the  rights  that  all  of  us should enjoy when our freedom is threatened by the state. They understood the need to grant the state a virtual monopoly on lawful violence, including the cur- tailment of freedom and even the imposition of death, but in turn the Founders

appreciated the need to place strict limits on that “awe full” power.

The Founders’ sense that “we” too can be fair game in the state’s quest for order appears to have been largely lost. In the anxieties unleashed by the 1960s generational  conflict,  Richard  Nixon  hit pay dirt on the 1968 campaign  trail with his “law and order” theme. Politicians know a good thing when they see it. They still play the theme today. Regrettably,  deliberately  playing to the pub- lic’s fears can impede the kind of measured discourse urgent societal problems require. In the field of criminal law and evidence, a “we versus them” mentality not only obscures what needs to be done to make us safer, but can lead to ill

345. 345. MARK DICAMILLO & SARAH HENRY, THE FIELD POLL 3 (Oct. 14, 2009), available at http://www.field.com/fieldpollonline/subscribers/Rpdf.
346. 346. See supra text accompanying note 247.

434                              STANFORD LAW & POLICY REVIEW                [Vol. 25:379

thought-out  measures  that  threaten  hard-won  rights  and  liberties  all  of  us should cherish.

cited from https://law.stanford.edu/wp-content/uploads/2018/03/mendez.pdf

or you can download your PDF version here

People v. Guzman – Secret Recordings – Right To Truth Prop 1982

The Truth Wins, Finally! (PEOPLE V. GUZMAN)

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

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