In the Wake of Humphrey
On November 30, 1983, the small community of Point Dume (Malibu) was devastated by the murder of 21-year-old Marsalee (Marsy) Nicholas. Marsy was a student at UC Santa Barbara who planned to become a teacher. The murderer was her 28-year-old ex-boyfriend, Kerry Conley.
One week after her murder, her mother entered a grocery store and was confronted by Conley. Unbeknownst to her, Conley had been released on bail. Also unknown to her, law enforcement had no duty to inform victims, or their families, of criminal offenders’ release from custody.
On April 15, 1985, Conley, was convicted of 2nd degree murder. He was sentenced to 17 years-to-life in prison, where he died in December 2007.
On November 4, 2008, California voters enacted the California Victims’ Bill of Rights, also known as Marsy’s Law” found in the California Constitution Article 1, Section 28. The act amended the California Constitution by creating 17 legal rights for victims and their families in the court system. These rights include the express right to “have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” The rights of Article 1 Section 28 are enforceable under subsection (c) by the victim, their representative, their attorney, or the prosecuting attorney.
On May 23, 2017, Kenneth Humphrey forced entry into his 79-year old neighbor’s apartment, threatened him, and robbed him. Humphrey was charged with first-degree robbery, first-degree residential burglary, and elder abuse. Additionally, Humphrey was charged with having three prior strikes.
Bail was set at $600,000 per schedule. Following a hearing, bail was reduced to $350,000. Humphrey then filed a petition for habeas corpus relief contending that he was detained because of his inability to post bail.
The First District Court of Appeal agreed and found that setting monetary bail, without addressing Humphrey’s ability to pay, or addressing alternatives to bail, created a guaranteed pretrial detention, in violation of the due process and equal protection clauses. 
Humphrey was entitled to a new bail hearing where the court was required to consider his financial ability to pay, as well as alternatives to money bail. Additionally, the Court held that if the superior court determines that a defendant is unable to afford the bail amount then the court may only set bail in that amount upon a determination by clear and convincing evidence that no less restrictive alternatives guarantee a defendant’s appearance.
The only exception, in non-capital cases, is if defendant is ineligible for bail under Article 1 Section 12(b) of the California Constitution, or if the prosecution establishes by clear and convincing evidence that defendant poses a danger to the public, or the victims of the case. Humphrey allows for preventative detention when “no less restrictive nonfinancial conditions would be sufficient to protect the victim and community.”
The First Appellate District Court acknowledged that their ruling was ripe with conflict:
“We are not blind to the practical problems our ruling may present. The timeliness within which bail determinations must be made are short, and judicial officers and pretrial service agencies are already burdened by limited resources”.
The First District Court of Appeal, provided no guidance on how to address these practical problems. Further the Court declined to resolve any possible tension between section 28 [Marsy’s Law] and Article 1 section 12.
Clear and Convincing Evidence of a Danger
The Humphrey Court relied heavily on federal authority and the only guidance offered by the Court in this area was discussion of the U.S. Supreme Court case of States v. Salerno (1987) 481 U.S. 739 (Salerno), which addressed the federal Bail Reform Act of 1984. While Humphrey discussed Salerno, the Humphrey Court did not hold that an evidentiary hearing was required to establish by clear and convincing evidence that the defendant presented a danger.
As a result, the response of superior courts has been inconsistent. Some courts continued to allow the proffering of information, so long as both sides were permitted to do so. Other courts allowed introduction of police reports, probation reports, and rap sheets.
However, some courts sustained hearsay objections and effectively required victims to appear in court in order to be heard under Marsy’s Law. The victim would then take the stand, be sworn as a witness and subject to cross-examination – within days of arraignment and prior to preliminary hearing. Such victims would then return to court days later for preliminary hearing in order to present the same testimony. Contra Costa saw this occur in felony cases involving vehicle theft, residential burglary, domestic violence and stalking.
This occurred, despite more than one hundred years of legal precedent holding that courts conducting bail/detention hearings are required to assume that the charges are true and that the presumption of innocence “has no application to a determination of the rights of a pretrial detainee” prior to trial. This inconsistent response has persisted for months after Humphrey.
Evidentiary Hearings are Not Required
While the Humphrey Court relied heavily on federal authority for its decision, federal authority supports the position that victims and or witnesses need not testify at a bail hearing. The proffering of information by attorneys as officers of the court remains appropriate.
This is because “detention hearings are an informal proceeding, and the evidence presented is not governed by the Federal Rules of Evidence.” The government may proceed in a detention hearing by way of proffer. It is rational to conduct detention hearings by proffer because they are “neither a discovery device for the defense nor a trial on the merits.” The process due to an accused should only be that which is proportionate to the purpose of the proceedings. “That purpose includes neither a reprise of all the evidence presented before the grand jury, nor the right to confront non-testifying government witnesses.”  And “a right to require the government to produce its witnesses against an accused would complicate the hearing to a degree out of proportion to the liberty interest at stake – viz. the interest in remaining free until trial, for what is by statute a period of limited duration.”
On April 17, 2018, Contra Costa County addressed this concern in the Habeas Corpus Petition of In re Edgar Daniel Tapia-Rojas (Docket #5-180598-5). In Tapia-Rojas, a bail hearing was held after arraignment. Over defense counsels objection both sides were permitted to proceed by proffer. On Habeas review, the Court found that review of police reports is specifically permitted pursuant to Penal Code section 1204.5(a), and citing to US v. Aubuhamra.
In the Future
Now that the California Supreme Court has elected to review the Humphrey decision on its own and will expressly resolve the tension identified between article I, section 12, subdivisions (b) and (c) and article I, section 28, subdivision (f)(3) of the California Constitution, Humphrey is not binding pending review; but exists as persuasive authority. By its failure to provide a clear and workable rule as to pre-trial bail hearings, Humphrey results in obvious practical problems to the detriment of the rights of crime victims.
Any opinion made in this article is that of the author and not attributable to the Contra Costa County District Attorney’s office.
 All references are to In re Humphrey (2018) 19 Cal.App.5th 1006.
 Humphrey was binding on trial courts in California. It is now under review and by default depublished.
 If the Court were to make such a finding then the appropriate bail would be “no bail” as their ability to pay is no longer relevant.
In Re Humphrey (2018) 19 Cal. App 5th 1006 at 1048.
 (Ex parte Duncan (1879) 53 Cal. 410, 411; Ex parte Horiuchi (1930) 105 Cal.App. 714, 715; Ex parte Ruef (1908) 7 Cal.App. 750, 752.)
 (In re York (1995) 9 Cal.4th 1133, 1148; quoting Bell v. Wolfish (1979) 441 U.S. 520, 533.)
 (United States v. Duncan (1988) 897 F.Supp. 688, 690.)
 (United States v. Smith (1996 D.C. Cir.) 79 F.3d 1209-
 Smith, supra, at p. 1210.
 United States v. Suppa, 799 F.2d 115, 119 (3d Cir. 1986)
 United States v. Accetturo, 783 F.2d 382, 388-89 (3d Cir. 1986)
 Smith, supra, at p. 1210.
 (2d Cir. 2004) 389 F.3d 309
 See Cal. Rule of Court 8.1115.