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People v. Epps6/27/1986
lly compelled." (In re Lance W., supra, 37 Cal. 3d at pp. 886-887.) It might therefore be argued that Proposition 8 only applies to search and seizure, or Fourth Amendment violations. It should be noted that In re Lance W. was a Fourth Amendment situation. Hitch, whether resting on state or federal grounds, involves due process and is not otherwise covered by a privilege or statute and thus seems exempt from Proposition 8. The question is how can Hitch be overruled by Proposition 8 as stated in Tierce. The answer can be found by careful consideration of the language of Proposition 8, the language in In re Lance W., and the language in other recent decisions. The net effect of this analysis leads this court to conclude that the applicability of Proposition 8 can be stated as follows:
Whenever the remedy for the violation of a federal constitutional right, regardless of whether it is search and seizure, due process, right to confrontation, etc., is not covered by a California statutory scheme such as privilege, and involves the exclusion of evidence, Proposition 8 requires the court to apply federal judicial standards.
This conclusion is drawn from the express language of Proposition 8, which states: "Except as provided by statute hereafter enacted . . . relevant evidence shall not be excluded in any criminal proceeding . . . ." (Cal.Const., art. I, § 28, subd. (d).)
Also, despite the fact that In re Lance W. states the applicability of Proposition 8 to "search and seizure" violations, the California Supreme Court has indicated in subsequent opinions that Proposition 8 also applies to cases involving other than search and seizure violations.
A footnote in In re Lance W. itself states " question of whether section 28(d) mandates admission of evidence obtained in violation of other constitutional guarantees is not presented by this appeal and we do not, therefore, address amicus' further assertion that evidence obtained in violation of a defendant's Sixth Amendment right to counsel must be admitted under the mandate of section 28(d)." (In re Lance W., supra, 37 Cal. 3d at p. 885, fn. 4.)
People v. Weaver (1985) 39 Cal. 3d 654, 659 [217 Cal. Rptr. 245, 703 P.2d 1139] concluded the exclusionary remedy adopted in People v. Coleman (1975) 13 Cal. 3d 867 [120 Cal. Rptr. 384, 533 P.2d 1024], which establishes use immunity in a subsequent trial on criminal charges for the testimony of a probationer given at a probation revocation hearing, "survived Proposition 8 because that remedy falls within the exception to section 28, subdivision (d), which preserves preexisting statutory privileges." (39 Cal. 3d at pp. 656-657.) Thus the court in Weaver implicitly found that Proposition 8 was applicable to a state exclusionary remedy for violation of a constitutional provision other than search and seizure, but concluded that an express exception stated in the initiative saved the exclusionary rule in this case.
Therefore, Tierce is correct in its conclusion that Proposition 8 compels an application of federal rules, and in cases involving this "constitutional guarantee of access to evidence" resolves that Trombetta is the relevant standard. Resolution of the question of whether Hitch is founded in state or federal law may not be necessary since Proposition 8 seems to compel application of federal principles in either event. Since some confusion remains in the area, we will deal briefly with this aspect of the case. Hitch was decided in 1973 by a nearly unanimous California
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