Bird Court Standard for Confessions Is Challenged

The California Supreme Court was asked Wednesday to make it easier for prosecutors to refute claims that a defendant’s confession is inadmissible as evidence because it was not made voluntarily to police.

A state attorney said that under Proposition 8, the 1982 anti-crime initiative, the justices should throw out a 1978 ruling issued under then-Chief Justice Rose Elizabeth Bird that required the prosecution to show a confession was voluntary “beyond reasonable doubt.”

In its place, the attorney said, the justices should adopt a less demanding standard approved by the U.S. Supreme Court requiring that voluntariness be shown only by “a preponderance of the evidence.”

“Proposition 8 says that the people want all relevant evidence to be admitted,” said Deputy Atty. Gen. William T. Harter. “This is just the kind of case Proposition 8 was enacted for. The intent of the voters is very clear.”

Arguing for Higher Standard

Attorneys arguing in behalf of an Oxnard robbery defendant replied that the initiative, known as the Victims Bill of Rights, was not intended to overturn the 1978 ruling and that the higher standard it established was needed to assure that confessions were valid and to deter police misconduct.

“This court said (in 1978) that the standard of proof beyond a reasonable doubt was necessary to protect those accused of crime,” said Kenneth J. Sargoy, a Los Angeles lawyer. “The U.S. Supreme Court standard was not adequate for the citizens of California.”

The arguments that the justices heard Wednesday in Los Angeles came in another in a series of tests of the legal breadth of the 1982 initiative. A ruling by the high court, due within 90 days, could further widen the use of disputed confessions in the state. Already, the newly aligned and more conservative court, abandoning a 1976 ruling, held last year that under the initiative, improperly obtained admissions may still be used to challenge a defendant’s testimony at trial.

Wednesday’s case focuses on the standard to be applied by trial judges when weighing claims that a confession was not made voluntarily and thus could not be used against a defendant. Under U.S. Supreme Court mandates, before interrogations defendants must receive a so-called Miranda warning of their rights to silence and to legal counsel. But even when such warnings are issued, defendants still may challenge confessions that they say are coerced.

At issue Wednesday was whether the “truth in evidence” provision of the initiative requires the court to adopt the less restrictive federal standard on voluntariness--or whether the more restrictive 1978 standard should be left intact as a “rule of evidence” that is exempted under the anti-crime measure.

The defendant in the case, Jerome Joseph Markham, was charged with the robbery of an Oxnard drugstore in 1984. According to briefs filed with the court, Markham received a Miranda warning from police but waived his rights and made incriminating statements.

Took Drugs

In subsequent proceedings, Markham claimed that the confession was involuntary because he had taken drugs and police had exploited that condition to induce him to answer their questions. The prosecution replied that while Markham may have taken drugs, he had fully understood his rights and made his statements voluntarily.

A Ventura County trial judge rejected Markham’s plea, finding that the prosecution had met its burden of showing the confession was admissible by a preponderance of the evidence. But the judge added that had the more restrictive state standard applied, the confession would not have been admissible. The ruling was upheld by a state Court of Appeal, which held that the less restrictive federal standard now applied in California under Proposition 8.

During Wednesday’s argument, Harter contended that the high standard established in the 1978 ruling, in its attempt to protect against police mistreatment, had completely ignored the societal costs of excluding relevant evidence from criminal trials. That ruling, he said, “should fall by the wayside.”

George L. Schraer, a lawyer supporting Markham in behalf of the California Attorneys for Criminal Justice, argued that the court should retain the 1978 ruling as protection against involuntary statements. “A drug-induced confession that is exploited by police is coerced in the same way a beating with a rubber hose is coerced,” Schraer said.

The court also heard argument Wednesday in a case in which prosecutors have sought to bring second-degree felony murder charges against a Tustin man charged with furnishing cocaine to a young woman who died from its effects.

Questions Raised

The justices raised a wide range of questions over whether they should declare that furnishing cocaine is “inherently dangerous” and overturn previous rulings that have impeded murder prosecutions in cocaine-related deaths.

Among other things, the justices appeared wary of trying to rule whether cocaine or other drugs are inherently dangerous, when the Legislature might be better equipped to make such determinations based on hearings and expert testimony.

Attorneys backing the defendant in the case, Sandy Patterson, 31, urged the justices to go in the other direction and bar all prosecutions for second-degree felony murder, which the lawyers contend have never been specifically authorized by the Legislature.

“Murder should remain what it has been for years--a killing with malice,” said state Deputy Public Defender Philip M. Brooks. “The prosecutors are saying that a death can be accidental, unintended and completely unforeseeable, yet the perpetrator (who furnished the drug) could still be declared a murderer.”