Gang Injunction Trial Continues, Defense Team Shows the Pitfalls of Reliance on Hearsay Evidence

She argued that she would continue to allow the plaintiffs leeway to “connect the dots” and show the relevance of the testimony in establishing that an individual was in fact a member of the Broderick Boys Criminal Street gang.

According to California Evidence Code Section 1230, a “declaration against interest” is defined as, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”

However, as Defense Attorneys pointed out, some of the admissions were made in court and elsewhere for strategic purposes.  In some cases, they got reduced prison time for admitting to a gang enhancement.  In the case of Angel Sanchez, he admitted to being in a Broderick Boy on the stand as part of his defense and was able to beat the Gang Enhancement charge.  These are not necessarily statements against their interests.

Judge White ruled that she would allow the evidence in, but would hold off on declaring it admissible until she saw the totality of evidence and could decide at that point where it was sufficient.  The plaintiffs are well aware that they have to connect all the dots to show that these individuals are truly gang members and members of the Broderick Boys.  This is not a jury trial and therefore the concern about unringing bells is reduced. 

She is granting the plaintiffs the leeway to prove the case, they have to show that it is a statement against interest, that the individual is a Broderick Boy (which makes them a de facto defendant), and that they are unavailable.

However reasonable the ruling sounds, the defense through their cross-examination perhaps exploded the utility of such hearsay evidence.  The problem as we will see is twofold.  First, there is a memory issue that the officers are being asked to recall interviews and conversations that are several years old.  Second, the problem is that in many cases the officers are testifying about their impressions, conclusions, and opinions about what was said, rather than what was said.

Officer Duggins who testified in the previous trial week re-took the stand for cross-examination.  This time, Mark Merin, one of the defense attorneys, was armed with a recording and transcript of the interview between Officer Duggins and defendant Hilario Estrella.

Previously Officer Duggins had testified that Mr. Estrella had admitted he was a Broderick Boy, talked about a code of conduct, said that he had “put in work” for the Broderick Boys, and talked about intimidating witnesses.  Under cross examination and through skillful use of the transcript, he admitted that in many cases these were not Mr. Estrella’s exact words, and that he never overtly used the terms “code of conduct” or “putting in work.” 

Officer Duggins admitted during cross-examination that he had not correctly attributed quotes to Hilario Estrella.  For example, when he talked about Mr. Estrella saying that he “put in work,” which is supposedly a gang term, Officer Duggins admitted he was testifying about his opinion about what Mr. Estrella said. 

Officer Duggins admitted that his previous testimony was his impression of what Mr. Estrella said rather than what he actually said.  He admitted under cross-examination that what Mr. Estrella actually said is more accurate than his own testimony.  He acknowledged that he testified to his impression rather than what was actually said.

This is indeed the entire problem with allowing hearsay testimony.  The accuracy of the Officer’s recollections becomes paramount.  Is he forming accurate views of what was said?  And if he is not, what is the value of that testimony?

The same thing happened later in the day, when Mark Merin this time cross-examined Officer Wilson.  He spoke of an incident involving another alleged Broderick Boy, Diaz, in an incident on January 10, 2009.  Mr. Diaz actually told the police that there was no Broderick Boy gang, that there had not been a gang since 1998.  He said that Broderick was dead and had been since 1998.  Everyone was either in prison or had died off.

He also told the officer that he got labeled a Norteno in San Quentin.  That he got off the bus, was asked where he was from, and when he said Northern California, he was told he was a Norteno.  They slap on the label at San Quentin.  All Norteno actually means is Northern Mexican and you have to associate with them to survive in prison.

He further said that Broderick Boys was not a gang, but a group of people who grew up together.  He said that the younger generation is riding off the reputation established by he and his friend’s generation.  If there is a gang, there are only a handful of them and they are having fun doing “stupid shit.”  In the old days, they fought for their neighborhood against a bunch of outside gangs, now those days are gone.

Once again, the tape, this time not transcribed but rather excerpted, showed a clear difference between what was said and what the officer testified to previously.

While the defense did not make the case, at least overtly to this point, this cross-examination in my mind explodes the idea of usefulness of hearsay evidence.  Judge White would probably argue that that is why we have cross-examination.  The defense would argue, that they need adequate discovery such as tapes of interviews in order to discredit the recollections of these witnesses which places a higher burden.

There is a further question, one that we keep asking ourselves, which is why are the plaintiffs not putting on direct evidence.  If they have these interviews on tape, why not admit the interviews which would at least be direct evidence, rather than the recollections of the officers involved in the interviews.

This is going to be a long trial, they have only put on a couple of witnesses thus far and this is the fourth full day of trial.  The plaintiffs are hoping to find a way to speed things up without sacrificing the case that they need to lay out.

—David M. Greenwald reporting