Proposals for Streamlining Hearings Weighed

Prosecutors, defense attorneys, judges and court administrators all have ideas for streamlining the preliminary hearing process.

Perhaps the most sweeping suggestion--and the most controversial--is using hearsay evidence or written statements, eliminating the need for all witnesses to attend court and ending lengthy verbal questioning and cross-examination.

Although defense attorneys largely oppose such testimony because it precludes them from cross-examining witnesses, Public Defender Wilbur F. Littlefield approves of one such law already on the books and chides prosecutors for failing to use it. The statute permits written statements, rather than live testimony, from victims of crimes against property (such as grand theft auto or burglary) who are not eyewitnesses.

Stolen Cars

For example, a motorist who did not see his car stolen could make a statement, which a policeman could write out for court use, that he had left his car at a certain place, had locked it, had not given the defendant permission to enter or use it, and that it was missing. If he saw the car stolen or got slugged by the thief, he would have to go to court to testify.

Los Angeles County Chief Deputy Dist. Atty. Gilbert I. Garcetti and Assistant Dist. Atty. Curt Livesay concede that they rarely use the law, claiming they cannot reasonably expect overburdened police officers to question witnesses for them during initial investigations.

Sacramento County Deputy Dist. Atty. Susan L. Aguilar said the law is impractical because of timing--it requires prosecutors to notify defense attorneys that they plan to use written testimony 10 days in advance, or virtually at the time of arrest, because defendants in custody must have a preliminary hearing within 10 days of arrest.

Far broader is a bill sponsored by state Sen. Art Torres (D-Los Angeles) which Aguilar, as legislative advocate for Sacramento County Dist. Atty. John Dougherty, pushed through the Senate. An Assembly committee ordered an interim study on the bill, which backers say will be resurrected next year.

Bill’s Requirements

The bill specifically rules out use of the preliminary hearing for discovery and permits use of written statements or hearsay evidence from any witnesses at the prosecutor’s election. If a defense attorney wants a certain witness brought to court for cross-examination, he must prove why that is necessary. The decision is made by the judge.

“Twenty-seven states and all federal court districts now permit hearsay,” Aguilar said. “It would drastically shorten the time of a preliminary hearing. As a graphic example, we had a robbery case we filed in both state and federal courts. The preliminary hearing took a day and a half in state court and less than an hour in federal. The single difference was that you are allowed to use hearsay in federal court.”

(Under federal court rules, all felonies must proceed by way of grand jury indictment. A defendant is entitled to an indictment or a preliminary hearing within 10 days of arrest if he is in custody and within 20 days if released on bond. So a preliminary hearing is occasionally held--an estimated one in 1,300 cases annually in the Central District surrounding Los Angeles--to keep a defendant under arrest pending indictment.)

Conceding the bill might do little to shorten an “unusual” case like McMartin, Aguilar believes the measure would at least halve “garden variety” routine preliminary hearings, chopping the state cost from $65 million to $30 million or so a year.

Some Questions

Although the bill has the backing of the California Deputy District Attorneys’ Assn., some prosecutors like Garcetti and Livesay question omitting live testimony.

“It is one thing in Sacramento or Santa Barbara to have hearsay evidence. They may wind up having more jury trials, but they don’t have the flood of cases we have,” said Garcetti, who is willing to try a pilot project but not ready to accept wholesale use of hearsay statements. “We don’t believe we would get as many guilty pleas before trial without live witnesses.”

But defense attorneys are adamantly opposed to the legislation.

“This bill would neuter the preliminary hearing and make it into a rubber stamp,” said San Diego attorney Alex Landon, president of California Attorneys for Criminal Justice, the defense attorney group. “You would not have a spelling out of the case, and you would take away the defendant’s right to confront his accusers.”

Other suggestions for streamlining preliminary hearings include both technical and judicial changes. Edward M. Kritzman, administrator of the 84-judge Los Angeles Municipal Court, which handles half the county’s prelims and virtually all of the lengthy ones, suggests using photos of evidence rather than actual evidence (such as one photo instead of two trunks full of marijuana) to save court time while a clerk labels and records the exhibits.

Up to the Courts

U.S. District Judges James M. Ideman and Richard A. Gadbois Jr., veterans of the state prosecutor offices and bench, said state appellate and Supreme Court decisions encouraging discovery have lengthened prelims, and that those higher courts could as easily turn around their rulings to shorten the hearings. Judges conducting prelims, they added, can also shorten hearings by strictly controlling questioning of witnesses.

Experts agree that, costly or cheap, lengthy or short, the preliminary hearing is here to stay. The Legislature has balked at the perennial constitutional amendment by Sen. Ed Davis (R-Valencia) to return to a pre-Hawkins option of using the grand jury in some cases, Aguilar says, because members distrust what they view as the one-sided grand jury system.

As for scrapping preliminary hearings altogether in favor of a grand jury system, she said:

“That is just not even in the cards. That won’t happen.”