The other day, I was sitting in a courtroom waiting for a case to be called. I was stuck. Having received a call from another attorney, a very good friend who could not make it to the courtroom, I agreed to make a courtesy appearance for her to ask for a continuance.
When I arrived, another case was in progress: an extradition hearing. I’d never observed or been involved in an extradition hearing. The person they were trying to extradite, through his lawyer, was making numerous objections to the evidence being admitted. And, in particular, he was repeatedly objecting that the California Evidence Code — which he believed the court was ignoring — should apply in this extradition hearing.
That’s how it happened that I got myself into a little pickle.
Between witnesses, the court interrupted the extradition proceeding to call the case for which I was waiting and we took the requisite minute or two to polish that off. As the next witness took the stand, having become engrossed in what was happening, I remained in the courtroom.
The objections made by the defense attorney were rightly sliding right off the judge’s back faster than the proverbial water off a duck’s back. They were completely without substance or — as the court pointedly noted during one exchange — citation to legal authority.
Yet, somehow, I felt that the proposition — the claim that California’s Evidence Code had a place in that courtroom, for that hearing — was not entirely clear. (In that regard, it turns out I am backed up by what California defense attorneys refer to as “the Bible”: California Criminal Law Procedure and Practice (Cont.Ed.Bar 2009) “Procedures at Identity Hearing” § 50.11, p. 1690.)
However, as the judge noted in responding to the defense attorney, it appears that the majority rule throughout the United States is that extradition hearings are “creatures of federal law” and thus, if that is true, California’s Evidence Code would not seem to apply. But the reason I’ve inserted so many “wiggle words” there is that a couple of things unique to California are at odds with that idea.
Actually, it’s a little more complicated than that. The “uniqueness” of the California situation impacts extradition hearings in California partly because of the way the federal laws relating to extradition have been written. For starters, there is the Extradition Clause of the United States Constitution:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
The Extradition Clause clearly intends to prevent people from escaping prosecution and punishment for crimes by the simple expedient of fleeing to another state. However, the Clause is not “self-executing” and does not specify procedures by which interstate extradition actually takes place. (California v. Superior Court of California, San Bernardino County (1987) 482 U.S. 400, 406 [107 S.Ct. 2433, 96 L.Ed.2d 332].)
Congress attempted to fix this problem by passing the Extradition Act of 1793. That Act, as it applies to interstate extradition, exists today in 18 U.S.C. § 3182. Unfortunately, nothing in either 18 U.S.C. § 3182, or the Chapter in which it is found, says anything about the application of state procedural rules relating to the admission of evidence at extradition hearings. Nor can I find anywhere any case law that explicitly decides the question.
An easy case can be made for the fact that the provisions of the Extradition Act “were intended to be dominant, and, so far as they operated, controlling and exclusive of state power.” (Innes v. Toobin (1916) 240 U.S. 127, 131 [36 S.Ct. 290, 60 L.Ed. 562].) But the “so far as they operated” language creates a small problem here, because as I noted, nothing in the Extradition Act speaks to the question of the applicability of a state’s evidentary law to the extradition proceedings. And as Innes v. Toobin goes on to note:
[W]hen the situation with which the statute dealt is contemplated, the reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power it must have been intended to leave the subjects unprovided for not beyond the pale of all law, but subject to the power which then controlled them,—state authority until it was deemed essential by further legislation to govern them exclusively by national authority. (Innes v. Toobin, supra, 240 U.S. at 134-135.)
Since there appears to be no federal law that addresses this question, it would appear that it is left to the states — in this case the state of California — to decide the question. And while California has not specifically addressed the question of applying its Evidence Code to extradition proceedings, the California Evidence Code does state:
Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings. (Evid. Code § 300.)
Since there is no statute other than this one that addresses whether “this code applies” to extradition hearings, the Evidence Code must apply to extradition proceedings.
There is a colorable, but insufficient, argument to the contrary.
Another California case notes that “state laws cannot place limitations upon the extradition which is required by federal law….” (Application of Morgan (1966) 244 Cal.App.2d 903, 910 [53 Cal.Rptr. 642].) But requiring that California’s Evidence Code applies to extradition hearings does not, in and of itself, place a limitation upon extradition. The person whom a “demanding state” wishes to have extradited is entitled to defend against extradition. (This is a major point of an extradition hearing, after all.) Some rules of evidence — even if made up by the judge on the fly — are going to apply in an extradition hearing.
But it turns out there’s more to it than that. At least in the case I was observing.
The Extradition Clause of the Constitution indicates that a person will be turned over “on demand of the executive Authority of the State from which he fled….” California has a statute that allows a person to be arrested by officers in California before a demand has been made. (California Penal Code § 1551.1) Then, of course, there are procedures for how a demand gets made. And, of course, it takes a little time for the demand to be made after someone in California notifies someone in the “demanding state” that the alleged fugitive is here and in custody.
Meanwhile, another California statute, as well as state and federal case law relating to extraditions, allows the alleged fugitive to contest the extradition by saying, “I’m not the guy (or gal) they’re looking for!” (Cal. Pen. Code § 1551.2; California v. Superior Court of California, San Bernardino County, supra, 482 U.S. at 408; People v. Superior Court (Ruiz) (1986) 187 Cal.App.3d 686, 692 [234 Cal.Rptr. 214].) But if no demand has been made “by the executive Authority of the State from which he fled” (i.e., the Governor), even if there were federal law as to whether or not California’s Evidence Code applied to extradition hearings under the Extradition Act of 1793, that federal law would not apply in a case brought under the California Penal Code section 1551.1.
At the beginning of this article, I said I got myself into a little pickle. I told you that after the case I was there to handle was done, I remained in the courtroom. Since I got interested in the question, I tugged out my iPhone and began researching the legal question on Westlaw, while I observed the proceedings. While I was still doing this, the proceedings ended. The court, noticing I was still present, asked if I had some other case pending. I said, “No, I stayed to watch because this was interesting.” The judge agreed with me that the case was a very interesting one. I mentioned that I had gotten caught up in researching the issue while I was listening. And the judge essentially invited me to submit an amicus brief, which I said I would do.
Now part of the reason I was interested in submitting an amicus brief was because I believed that the law was going to show that California’s Evidence Code does not apply to extradition proceedings. I even told the prosecutor that this seemed to be the case. And I had a discussion with the defense attorney, who is a friend, because he actually was encouraging me to submit a brief. I said, “What if it goes against you?’ I didn’t think he’d want to have to argue against the prosecutor, the judge and me! My friend said, “If the law goes against me, it goes against me. You’re a good researcher and writer. I trust you to find out what the law says.”
So I was happy. I thought this would allow me to not only do something useful for the court, but — since I already believed the law was on the side of the prosecution — that it would also allow me an opportunity to show that I’m not just some biased, pig-headed defense attorney who always opposes the prosecutor; I thought I’d have an opportunity to build some credibility with people who don’t think like defense attorneys and who seem to automagically assume that we defense attorneys are incapable of seeing the truth of the law when it goes against us.
So for two days — two solid, long, arduous, miserable days — I slugged away at trying to prove that California’s Evidence Code does not apply to extradition proceedings.
That’s right. I spent — I wasted — two days trying to prove that California’s Evidence Code does not apply to extradition hearings. Two days that I really needed to write other briefs that are, in the long run, (at least to me and my clients) more important.
But I couldn’t do it. The law seems to clearly show that California’s Evidence Code does apply to extradition hearings held in California courts of law. And because I believe in the rule of law, the brief I submit is going to say that. The prosecutor may not like it. The judge may roll his eyes and say, “Well, he is, after all, a defense attorney.” Unless they read this article, neither of them is going to understand how hard I worked to try to prove the opposite position.
The best I could do here is to say that if there were an actual demand and the prosecutor had a Governor’s warrant, there is a colorable argument that the court should follow what is the majority rule throughout the United States. Even that argument is weak, for reasons given above.
However, since this case falls under California’s special rule that allows an arrest before a demand has been made by the executive Authority of the state from which the alleged fugitive has fled, it’s clear that this is a case where the majority rules…not.