In In re Harris, the Supreme Court today holds that a superior court may consider evidence that wouldn’t be admissible at a criminal trial when deciding whether to detain an arrestee without bail. The California constitution guarantees a right to release on bail for anyone charged with a non-capital crime with certain exceptions, including “when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.”
The court’s unanimous opinion by Chief Justice Patricia Guerrero concludes that, although a superior court “may properly consider hearsay and documents tendered without the full evidentiary foundation that would be required at trial,” it still “must be guided by a duty to ensure that the evidence it considers is reliable given an arrestee’s fundamental right to pretrial liberty.” As long as the evidence is “sufficiently reliable in order to protect an arrestee’s liberty interests,” there is no federal or state constitutional due process problem, the court finds. “[G]eneral assertions by the prosecution regarding what the evidence is likely to show” are not enough.
The court also walks back language in its landmark ruling in In re Humphrey (2021) 11 Cal.5th 135 (see here) that a superior court “must assume the truth of the criminal charges” (id. at p. 153). “To hold that a court must assume the truth of the criminal charges in making . . . a [no-bail] determination would improperly relieve the People of the burden that the [California] constitutional text . . . assigns to them,” the Supreme Court now says.
The court reverses the First District, Division Three, Court of Appeal’s published opinion “insofar as that court held the record contained substantial evidence that the elements of article I, section 12(b) were met.” Also, besides contradicting language in its Humphrey decision, the court disapproves the Fourth District, Division Two, opinion in Naidu v. Superior Court (2018) 20 Cal.App.5th 300 to the extent it “may be read to suggest that due process necessarily requires admissible evidence at a bail hearing.” There was no petition for review in Naidu.
