Confrontation Clause Inapplicable At Preliminary Hearings

Ninth Circuit resolves an open issue holding that “the admission of hearsay statements at a preliminary hearing does not violate the Confrontation Clause”; the challenged statements were admitted at a preliminary hearing under California “Proposition 115”; the Ninth Circuit joins the Fifth and Seventh Circuit in concluding that “there is no right to confront witnesses at a preliminary hearing before being required to stand trial”, in Peterson v. California, 604 F.3d 1166 (9th Cir. May 17, 2010) (No. 09-15633)

The Confrontation Clause applies in criminal cases: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” There are a number of areas in which the Confrontation Clause does not apply, including civil cases or at sentencing. The recently Ninth Circuit confronted an open issue: “whether the admission of hearsay evidence at a preliminary hearing violates the Confrontation Clause.” Peterson v. California, 604 F.3d 1169.

In the case, plaintiff Peterson was originally charged with state health and safety violations based on his ownership and operation of an automobile dismantling site. One officer testified at a preliminary hearing, held under California Proposition 115 (“Prop. 115”), and included hearsay statements of other individuals. Two felony counts were dismissed before trial and the defendant was convicted on misdemeanor counts at trial. He filed a civil rights action alleging that the preliminary hearing violated his constitutional rights, including the admission of hearsay testimony in violation of the Sixth Amendment. The district court dismissed the action after concluding the introduction of the hearsay statements at the preliminary did not violate the Fourth, Sixth, or Fourteenth Amendments.

The Ninth Circuit affirmed for several reasons. First, there was no constitutional right to a preliminary hearing. Second, the confrontation right is deemed a “trial right,” as noted repeatedly by the Supreme Court. See Barber v. Page, 390 U.S.719, 725 (1968) (“The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.”); see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (holding that “the right to confrontation is a trial right” and “[n]ormally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses” (emphasis in original)); California v. Green, 399 U.S. 149, 157 (1970) (“[I]t is th[e] literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause[.]”).

The Ninth Circuit noted that two other circuits had found no Confrontation Clause right during a preliminary hearing, including the Fifth and Seventh Circuit:

  • Fifth Circuit: United States v. Harris, 458 F.2d 670, 677-78 (5th Cir. 1972) (“There is no Sixth Amendment requirement that [defendants] also be allowed to confront [the witness] at a preliminary hearing prior to trial.”))
  • Seventh Circuit: United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985) (“[T]he sixth amendment does not provide a confrontation right at a preliminary hearing.”);

Finally, the circuit rejected the defense argument that Harris, Andrus, and Whitman were inapplicable after Crawford v. Washington, 541 U.S. 36 (2004). As the circuit explained:

“True, the hearsay challenged in Crawford was a tape-recorded statement to police made before trial. [ Crawford, 541 U.S. ] at 38. What was at issue, however, was whether the Confrontation Clause was violated when the record of the statement was introduced at trial. Id. That the hearsay statement was made before trial is necessarily true in every case. See Cal. Evid. Code § 1200(a) (“’Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (emphasis added)). Accordingly, Crawford does not affect the reasoning of Harris, Andrus, and Whitman, or the Supreme Court cases holding that the Confrontation Clause is primarily a trial right.”

Peterson, 604 F.3d at 1170.

The Ninth Circuit clarified that hearsay statements admitted at the preliminary hearing would be inadmissible at trial unless the witness making the statement testified subject to cross-examination:

“To be sure, the admission of preliminary hearing testimony at trial raises Confrontation Clause concerns. For example, Crawford clearly held that ex parte testimony at a preliminary hearing would qualify as ‘testimonial’ and would therefore not be allowed at trial under the Confrontation Clause unless the witness was unavailable and the defendant had prior opportunity to cross-examine the witness. 541 U.S. at 52. The admission of preliminary hearing testimony at trial, however, is not the issue before us.”

Peterson, 604 F.3d at 1170 n.2. On other issues, the Ninth Circuit rejected the remaining constitutional challenge to the preliminary hearing under the Fourth and Fourteenth Amendments.

Federal Rules of Evidence