Justices Appear Divided on Evidence Ban Issue

An apparently divided California Supreme Court was urged Wednesday to abandon its longstanding ban on improperly obtained statements and to permit them to be used to challenge a criminal defendant who tries to tell a different story later at trial.

Deputy state Atty. Gen. Sharlene A. Honnaka argued that under Proposition 8, the Victims Bill of Rights initiative of 1982, such statements could no longer be completely excluded from the courtroom, as the court has required since 1976.

“To not allow these statements to be used for impeachment purposes would be a gross miscarriage of justice,” Honnaka said. “It just gives defendants a windfall benefit.”

Fear of Police Abuse

But defense attorneys countered that an exception in the initiative permitted the 1976 prohibition to stand, and that discarding the ban would open the way for police abuse of a defendant’s privilege against self-incrimination.

George Schraer of San Diego, a lawyer for the defendant in a rape and robbery case before the justices, also sought to refute contentions by state prosecutors that barring the use of such statements to later impeach defendants would invite defendants to lie on the witness stand.

“There’s strong reason to believe that the statement made on the witness stand, rather than one made to police, is a truthful one,” argued Schraer. “The pressure of custodial interrogation by police can more often result in a false statement.”

The case presents the first key test of the sweeping 1982 anti-crime measure since the departure of former Chief Justice Rose Elizabeth Bird and two other justices who were defeated in the Nov. 4 election.

Question for Court

At issue is whether the initiative allows the court to follow its own 1976 ruling or whether it must adhere to a contrary ruling by the U.S. Supreme Court in 1971.

The federal high court had banned the direct use of such statements in its landmark ruling in Miranda vs. Arizona in 1966, but said five years later that these statements could be used for impeachment if voluntarily made to police by a defendant.

The California Supreme Court, in an opinion by Justice Stanley Mosk, chose in 1976 not to follow the less-restrictive high court standard, holding instead that under the state Constitution, any courtroom use of such statements should be flatly prohibited.

That state precedent was upheld in a 5-2 decision in January in another Mosk opinion in the case of Michael Dennis May. In that decision the court prohibited use of incriminating statements May made after police ignored his request for a lawyer.

Agreement to Reconsider

While the initiative generally requires state courts to follow federal precedents regarding the admission of evidence, its provisions also include a clause saying it does not affect existing state rules of evidence relating to “privileges” such as the right against self-incrimination, Mosk said.

But then in March, the recast court, with three new justices sitting, agreed to reconsider the Michael Dennis May case at the urging of state Atty. Gen. John K. Van de Kamp.

From the questions directed at attorneys Wednesday in spirited discussion, the new court seemed sharply divided over whether to leave the 1976 prohibition intact.

Chief Justice Malcolm M. Lucas questioned Schraer closely about the possibility of a defendant lying on the stand, knowing that previous conflicting statements could not be used against him.

Lucas pointed out also that 35 other states have chosen to follow the high court’s 1971 decision.

Other States Follow

Mosk interjected to note that some states had followed the California precedent, including “that bastion of liberalism, Texas.”

Both Mosk and Justice Allen E. Broussard repeatedly challenged Honnaka’s contention that statements not directly admissible at trial could still be used for impeachment, provided they had been made voluntarily.

“I just don’t follow you,” Mosk said, shaking his head.

But Gov. George Deukmejian’s three recent appointees to the court--Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--appeared somewhat more receptive to overturning the 1976 ruling.

Justice Edward A. Panelli, who after Lucas was Deukmejian’s second appointee to the court, noted at one point that statements involuntarily made by a criminal defendant would remain excluded at trial if the federal standard were followed.

“Yes,” agreed Honnaka, “that way there is a double-check” against police misconduct.

Santa Barbara Case

May had been questioned by police as a suspect in rape, robbery and other crimes in Santa Barbara in 1983. He was advised under the Miranda rule of his right to silence and to counsel. He told officers he “would want an attorney present here” before he answered questions.

Nonetheless, police continued to interrogate May and he gave what they considered conflicting and potentially incriminating statements. He later was charged and challenged any use of the statements against him at trial.

The judge agreed the statements were improperly obtained and could not be used directly against May, but held that under Proposition 8, he was required to follow federal precedent and permit their admission for impeachment purposes if May decided to testify in his own behalf.