Testimony by a Police Officer at a Preliminary Probation Revocation Hearing

In People v. Arreola (1994) 7 Cal.4th 1144, the court again considered whether the testimony by a police officer at a preliminary hearing could be introduced against a defendant at his probation revocation hearing. The officer observed the defendant driving erratically and failing to obey a stop sign, and then flee on foot when he was pulled over. (Id. at p. 1149.) When the defendant was apprehended, the officer detected signs of alcohol intoxication. (Ibid.) The Attorney General argued that under Maki, a finding of the declarant's unavailability or other good cause was not required so long as the former testimony bore a sufficient indicia of reliability. (Arreola, supra, at p. 1156.) In rejecting this argument, the court drew a distinction between evidence that is offered "as a substitute for the live testimony of an adverse witness" and documentary evidence "that does not have, as its source, live testimony." (Id. at pp. 1156-1157; see People v. Abrams (2007) 158 Cal.App.4th 396, 403; In re Miller (2006) 145 Cal.App.4th 1228, 1239.) In People v. Maki (1985) 39 Cal.3d 707, the court explained, clarified "the standard for the admission of documentary evidence at a revocation hearing . . . ." (Arreola, supra, at pp. 1156-1157.) Because the preliminary hearing testimony at issue in Arreola was a substitute for live testimony, it could not be admitted at the probation revocation hearing without a showing of "good cause." (Arreola, supra, 7 Cal.4th at p. 1159.) The court then defined good cause in terms of excuses for the declarant's absence at the hearing: "The broad standard of 'good cause' is met (1) when the declarant is 'unavailable' under the traditional hearsay standard (see Evid. Code, 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant." (Id. at pp. 1159-1160.) The court further explained that the showing of good cause "must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Id. at p. 1160.) The Arreola court explained the distinction between the standards for testimonial and documentary evidence by stating that "the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor. " (Arreola, supra, 7 Cal.4th at p. 1157.) By contrast, "the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action." (Ibid.) This rationale suggests that the distinction between "testimonial" and "documentary" should not be applied mechanically according to whether the hearsay statement was originally asserted during "live" testimony versus written in a document; the underlying consideration is whether "the need for confrontation is particularly important." (Arreola, supra, 7 Cal.4th at p. 1157.)