IN THE SUPREME COURT OF 

CALIFORNIA

In re JOHN HARRIS, JR.,

on Habeas Corpus.

S272632

First Appellate District, Division Three

A162891

San Mateo County Superior Court

21-NF-002568-A

June 27, 2024

Chief Justice Guerrero authored the opinion of the Court, in 

which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and 

Evans concurred.
1

In re HARRIS

S272632

Opinion of the Court by Guerrero, C. J.

The California Constitution guarantees a person charged 

with a noncapital offense the right to pretrial release on bail, 

subject to narrow exceptions. (Cal. Const., art. I, § 12.) One 

exception appears in article I, section 12, subdivision (b) of the 

California Constitution (article I, section 12(b)), which 

authorizes a trial court to detain an individual without bail for 

“[f]elony offenses involving acts of violence on another person, 

or felony sexual assault offenses on another person, when the 

facts are evident or the presumption great and the court finds 

based upon clear and convincing evidence that there is a 

substantial likelihood the person’s release would result in great 

bodily harm to others.” We granted review to decide whether an 

order denying bail pursuant to article I, section 12(b) requires 

evidence that would be admissible at a criminal trial, and if not,

whether the prosecution may meet its burden under this 

provision through a proffer describing the evidence supporting 

pretrial detention.

Here, petitioner John Harris, Jr., filed a petition for writ 

of habeas corpus challenging the trial court’s pretrial order 

detaining him without bail pursuant to article I, section 12(b). 

The Court of Appeal rejected petitioner’s arguments that under 

the state Constitution and federal and state due process 

principles, only evidence that would be admissible at a criminal 

trial could support pretrial detention without bail. However, 

because the trial court failed to also make findings on the record 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

2

that there were no less restrictive alternatives to detention that 

could reasonably protect the government’s interests in pretrial 

detention (see In re Humphrey (2021) 11 Cal.5th 135, 156 

(Humphrey)), the Court of Appeal conditionally vacated the 

order denying bail and remanded the matter to the trial court 

for further findings. 

We conclude that when a trial court makes a pretrial 

detention determination under article I, section 12(b), the court 

must be guided by a duty to ensure that the evidence it considers 

is reliable given an arrestee’s fundamental right to pretrial 

liberty. In protecting these interests and in determining 

whether “the facts are evident or the presumption great” that 

the defendant committed the underlying offense, and whether 

there is “clear and convincing evidence” of “a substantial 

likelihood the person’s release would result in great bodily harm 

to others,” the court is not limited to considering only evidence 

that would be admissible at a criminal trial. The text of article I, 

section 12(b) does not contain such a limitation, which would 

deviate from standard practices at bail hearings, and significant 

policy considerations counsel against the categorical rule that 

petitioner proposes. When deciding whether to detain a 

defendant without bail under article I, section 12(b), the trial 

court may properly consider hearsay and documents tendered 

without the full evidentiary foundation that would be required 

at trial. In evaluating such evidence, the trial court should 

reject or discount material it regards as unreliable and retains 

discretion to demand the production of additional, admissible 

evidence, including live testimony, in appropriate 

circumstances. We further hold that the trial court’s 

consideration of reliable proffers and hearsay evidence at a 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

3

pretrial detention hearing does not offend federal or state due 

process principles. 

In this case, the trial court identified evidence supporting 

its no-bail determination, but the record does not establish that

the court conducted a proper evaluation of the sufficiency of the 

evidence of petitioner’s guilt, rather than simply presuming the 

truth of the charges. We conclude the best course is to remand 

the case so the trial court can apply the standards discussed in 

this opinion in addition to considering less restrictive 

alternatives to detention in accordance with the Court of 

Appeal’s instruction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was arrested on February 24, 2021, after DNA 

obtained from the victim of a violent rape committed more than 

30 years prior was found to match petitioner’s DNA. The People 

charged petitioner with attempted first degree murder and 

aggravated mayhem in connection with that incident. (Pen. 

Code, §§ 664, subd. (a), 187, subd. (a), 189, 205.) The People 

alleged that petitioner used a deadly and dangerous weapon in 

the commission of both offenses (id., § 12022, subd. (d)), and 

inflicted great bodily injury in the commission of attempted 

murder (id., §§ 1203.075, 12022.7, subd. (a)). 

Prior to petitioner’s arraignment, the San Mateo County 

Probation Department submitted a pretrial services report 

indicating that petitioner was an appropriate candidate for 

release on his own recognizance with enhanced monitoring. On 

February 26, 2021, the trial court appointed counsel for 

petitioner and set bail at $5 million dollars. Defense counsel 

requested a continuance of the arraignment to review discovery. 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

4

On March 25, petitioner entered a plea of not guilty to all 

charges. 

On April 16, 2021, several weeks after this court decided 

Humphrey, supra, 11 Cal.5th 135, petitioner filed a motion 

requesting release on his own recognizance. The motion 

acknowledged that petitioner had two prior misdemeanor 

convictions (a 1991 conviction for theft and a 1998 conviction for 

driving without a license), but emphasized that petitioner 

successfully completed probation in both cases and had no 

known bench warrant history. The motion also alleged that 

petitioner did not present a flight risk, he had significant 

community ties, and there was no identifiable threat that 

petitioner would pose a risk of harm to the alleged victim or the 

public if released. Petitioner attached supporting statements 

from family and friends. He also attached a declaration from 

defense counsel, attesting to petitioner’s indigency. 

The People opposed petitioner’s motion. They requested 

that bail remain set at $5 million dollars, or, alternatively, that 

the trial court deny bail altogether under article I, section 12(b). 

The People alleged that petitioner would be a significant danger 

if released to the community and there were no viable conditions 

of release that would ensure public safety. 

The People’s opposition also described the severity of the 

charged offenses, petitioner’s criminal history, and petitioner’s 

subsequent conduct with his former wives and girlfriends that 

bore similarities to the underlying incident. Regarding the 

charged offenses, the People detailed the responding police 

officer’s observations of the alleged victim’s injuries, a summary 

of the victim’s interview with police officers, and a statement 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

5

from the victim’s treating physician, with the responding officer 

and treating physician both being identified by name. 

As described in the opposition, on March 4, 1989, the 

victim woke up in her bed with scarves tied around her ankles. 

She saw a man kneeling at the foot of her bed with one scarf on 

his forehead and another covering his mouth. The perpetrator 

tied bandanas tightly around the victim’s eyes and neck, held a 

serrated knife to her throat, and ordered her to spread her legs. 

The perpetrator then raped the victim, tried to strangle her with 

a scarf, and sawed at the back of her neck with the knife. As the 

perpetrator struggled with the victim, he slashed her neck with 

the knife and threatened to cut her eye out. The victim pleaded 

for her life and begged the perpetrator to leave, but he expressed 

concern that she would call the police. The victim then told him 

to unplug her phone, which she said would slow her down, and 

the perpetrator eventually left. According to the opposition 

brief, one of the responding officers found the victim slumped on 

the floor in her apartment with a scarf on her neck saturated in 

blood. The officer described the victim’s injury as one of the 

worst neck wounds he had ever seen. The People represented 

that the victim’s treating physician similarly described the 

victim’s neck injury as “pretty horrific.” He reported that if the 

laceration to the victim’s throat had been “a hair more,” the cut 

would have severed the external jugular and likely resulted in 

her death. The opposition also explained that DNA analysis 

comparing semen located on a floral scarf found at the scene and 

the victim’s vaginal swab matched petitioner’s DNA. 

Photographs of the victim’s injuries and of the serrated knife 

and bloody scarves found at the scene were attached as exhibits 

to the opposition. 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

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The People’s opposition also described the circumstances 

surrounding petitioner’s 1991 conviction for petty theft, albeit 

without connecting these facts to any witnesses or other sources. 

As specified in the opposition, on December 14, 1990, petitioner 

walked up behind a female victim, who was wearing a scarf tied 

around her neck. Petitioner reached over the victim’s shoulder, 

pulled her scarf over her head, and ran away. He told police 

officers that he was having emotional and personal problems 

and that he had grabbed the scarf to satisfy his anger and 

frustration. 

Additionally, the People’s opposition summarized recent 

interviews with several of petitioner’s ex-wives and former 

girlfriends. Each interview was conducted by an inspector in 

the district attorney’s office, also identified by name within the 

opposition. The opposition did not attach the interview 

transcripts, which included multiple levels of hearsay and 

unsworn statements. One of petitioner’s ex-wives, who was 

married to petitioner from 1997 to 2005, reported that petitioner 

kept a collection of scarves in the garage even though she had 

asked him to throw the scarves away and that petitioner told 

her he used the scarves to tie arms and legs onto posts. An exgirlfriend who had dated petitioner from 2005 to 2015 stated 

that petitioner liked to tie her up with scarves and blindfolds 

during sex, that he liked to role-play, and that he frequently 

pretended to be a rapist who broke into her home and 

threatened to kill her if she said anything. Another ex-girlfriend 

reported that in 2019, petitioner disclosed he had a sexual fetish 

associated with scarves. Petitioner had asked her to buy scarves 

with a floral pattern and border around the edges, but when she 

purchased a scarf, petitioner said it was the wrong type and 

asked her to buy the correct one. Petitioner liked to tie her to 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

7

the bed and gag her with scarves and requested photographs of

herself bound to the bed with scarves. 

According to the People’s opposition, petitioner’s fourth exwife, who married petitioner in 2020, told law enforcement that 

petitioner was “into scarves” and had placed a scarf over her 

mouth and eyes on a few occasions and told her not to touch him. 

Once when petitioner was drunk, he told his ex-wife, “This girl 

crawled into my bed naked and you’re not going to lay in my bed 

and not give me any. So she tried to say I raped her.” The 

following day, petitioner denied making this statement. The 

People’s opposition represented that another woman who had 

met petitioner in late 2020 told the investigator that petitioner 

told her that he had enjoyed being tied up during a previous 

sexual encounter and wanted to experience that again. She 

found petitioner strange and was not interested in a sexual 

relationship with him. Petitioner mailed her four silk scarves, 

including a floral scarf with a border. 

The trial court held a hearing on petitioner’s bail motion 

on April 20, 2021. Defense counsel emphasized that the charged 

offenses occurred 30 years prior and that petitioner had only a 

limited criminal record. Defense counsel also asserted there 

was no evidence that petitioner still posed a risk to the victim or 

to the public. The prosecutor focused on the violent and serious 

nature of the charged offenses, and the former wives’ and 

girlfriends’ statements describing aggressive behavior involving 

scarves and rape fantasies. One of the inspectors who had 

interviewed these women was present in court but did not 

testify. The victim of the 1989 attack also addressed the court. 

She stated, “[Thirty] years ago I suffered and survived this 

person trying to kill me,” referring to petitioner, then described 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

8

her fear of petitioner being released on bail.1 Defense counsel 

responded that there was no evidence petitioner had attempted 

to contact the victim, the victim had actually identified two 

other people as the perpetrators near the time of the incident, 

defense counsel had not received any DNA evidence, another 

person had left a note on the victim’s car that stated “gotcha,” 

and according to the police report, petitioner was not the only 

suspect with similar DNA.

Following argument on the bail motion, the trial court 

asked defense counsel whether she agreed that Humphrey does 

not require live testimony at a bail hearing and that the 

evidence may be presented through an offer of proof by 

“providing the facts of the case as each side knows them based 

upon the evidence that has been collected.” Defense counsel 

replied, “I do not, your honor. I actually think that Humphrey

elevated the [bar] with regards to clear and convincing

[evidence]. So a proffer, I don’t believe, is sufficient. I know the 

court has been — we have been making these proffers, but since 

I don’t have the burden, I don’t have to present any evidence to 

the court, the People do.” Defense counsel added that she had 

only been provided discovery relating to two of the witnesses 

who had given statements to investigators, had not previously 

seen the photographs attached to the People’s motion, and did 

not receive evidence linking petitioner’s DNA to the crime scene. 

The prosecutor responded that she was unaware of any 

authority holding that a bail hearing must be conducted as “a 

whole blown mini trial.” She maintained that proffers were 

sufficient and that was “typically how it is done” at bail 

1 The victim was not placed under oath or subject to crossexamination.
In re HARRIS

Opinion of the Court by Guerrero, C. J.

9

hearings. The prosecutor also argued that this court’s decision 

in Humphrey established that, at a bail hearing, the court “must 

accept that the charges are true and that the defendant is the 

person responsible for those charges.” 

At the conclusion of the hearing, the trial court denied bail 

pursuant to article I, section 12(b). The court ruled that “the 

prosecutor may show evidence of dangerousness or danger to 

return to court or concern for public safety via proffer and 

through evidence such as what has been presented to the court 

in the People’s opposition to the bail motion presented today.” 

Turning to this showing, the court cited (1) the People’s “very 

detailed account of what the People believe [the] evidence is” 

linking petitioner to the charged offenses, (2) the “statements 

from various women involved with [petitioner] significantly 

after the time of this alleged offense . . . that does in some way 

mirror the details involving the scarves, involving the angry 

aggressive behavior of [petitioner] and also causing the court to 

continue to be concerned that despite [petitioner’s] de minimis 

record . . . there is still a substantial likelihood that his [release] 

could cause great harm to other individuals,” and (3) petitioner’s 

1991 misdemeanor theft conviction, which the court found 

involved conduct “that is very similar to what the People 

described as happening to the alleged complaining witness with 

the charge[d] offense[s].” The court also found “the fact that 

[petitioner] has been evading arrest according to the People for 

at least the last 32 years is a significant factor to consider in risk 

of flight.” 

Petitioner filed a petition for writ of habeas corpus with 

the Court of Appeal. He asserted that (1) the trial court erred 

in relying on the People’s proffer rather than requiring live 

testimony before ordering petitioner detained without bail 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

10

before trial under article I, section 12(b); and (2) the court 

abused its discretion when it entered a no-bail pretrial detention 

order without making findings required under Humphrey, 

supra, 11 Cal.5th 135, that no nonfinancial, less restrictive 

alternatives to detention would protect the state’s interest in 

public safety. The Court of Appeal rejected the first argument 

but agreed with the second contention. 

Regarding the presentation of evidence, the Court of

Appeal held that a trial court may base its pretrial detention 

order under article I, section 12(b) on a proffer by the 

prosecution. (In re Harris (2021) 71 Cal.App.5th 1085, 1097 

(Harris).) It rejected petitioner’s argument that the language of 

article I, section 12(b), read in connection with various 

provisions of the Evidence Code, means that “only evidence that 

would be admissible at a formal trial can support pretrial 

detention.” (Harris, at p. 1096; see also id. at pp. 1097, 1100–

1101.) 

The court also found unpersuasive petitioner’s argument 

that due process limits pretrial detention without bail to 

circumstances in which the People establish a defendant’s 

unsuitability through admissible evidence. On this point, the 

court emphasized that an analogous federal bail reform statute, 

which contains a clear and convincing evidence standard and 

allows the presentation of evidence by proffer in support of 

pretrial detention, has withstood similar scrutiny. (Harris, 

supra, 71 Cal.App.5th at pp. 1097–1098.) The Court of Appeal 

stressed, however, that “it remains within the discretion of the 

trial court to decide whether particular instances of proffered 

evidence may be insufficient, and whether to insist on the 

production of live testimony or other evidence in compliance 

with more stringent procedural requirements.” (Id. at p. 1101.)
In re HARRIS

Opinion of the Court by Guerrero, C. J.

11

Turning to the trial court’s decision to deny bail under 

article I, section 12(b), the Court of Appeal determined that the 

record contained substantial evidence of a qualifying offense 

under article I, section 12(b), and that any reasonable fact finder 

could have found, by clear and convincing evidence, a 

substantial likelihood that the petitioner’s release would result 

in great bodily harm to others. (Harris, supra, 71 Cal.App.5th 

at pp. 1101–1103; see In re White (2020) 9 Cal.5th 455, 471 

(White).) Nevertheless, it determined that a limited remand was 

required because the trial court failed to make the express 

findings required under Humphrey, supra, 11 Cal.5th 135, that 

no less restrictive condition than detention could reasonably 

protect the interests in public or victim safety. (Harris, at 

pp. 1104–1106; see Humphrey, at pp. 139–140, 151–152.) The 

Court of Appeal explained that “while overlapping reasons may 

exist for making the applicable findings under [article I,] section 

12(b) and Humphrey, the [trial] court’s failure to articulate its 

evaluative process requires that [the Court of Appeal] speculate 

as to why the court believed that no nonfinancial conditions 

could reasonably protect the interests in public or victim safety,” 

thus necessitating remand. (Harris, at p. 1105.) 

We granted review to address petitioner’s contention that 

only evidence that would be admissible at a criminal trial can 

support a pretrial detention order under article I, section 12(b).

II. DISCUSSION 

Petitioner renews his argument that only admissible 

evidence can satisfy article I, section 12(b)’s standards of proof. 

He contends that unsworn, untested statements can never meet

either of the standards necessary to support a pretrial detention 

order made pursuant to this constitutional provision. We reject 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

12

petitioner’s invitation to adopt this categorical approach. We 

conclude instead that a trial court may rely on an evidentiary 

proffer provided that the court’s decision is based on reliable 

evidence so that an arrestee’s fundamental right to pretrial 

liberty is protected. 

A. Article I, Section 12(b) and Relevant Statutory 

Law Allow for Evidentiary Proffers 

1. Constitutional Text

Article I, section 12, of the California Constitution 

provides in full as follows: “A person shall be released on bail 

by sufficient sureties, except for: [¶] (a) Capital crimes when 

the facts are evident or the presumption great; [¶] (b) Felony 

offenses involving acts of violence on another person, or felony 

sexual assault offenses on another person, when the facts are 

evident or the presumption great and the court finds based upon 

clear and convincing evidence that there is a substantial 

likelihood the person’s release would result in great bodily harm 

to others; or [¶] (c) Felony offenses when the facts are evident 

or the presumption great and the court finds based on clear and 

convincing evidence that the person has threatened another 

with great bodily harm and that there is a substantial likelihood 

that the person would carry out the threat if released. [¶] 

Excessive bail may not be required. In fixing the amount of bail, 

the court shall take into consideration the seriousness of the 

offense charged, the previous criminal record of the defendant, 

and the probability of his or her appearing at the trial or hearing 

of the case. [¶] A person may be released on his or her own 

recognizance in the court’s discretion.”

This section has evolved over time. As ratified by voters 

in 1849, the California Constitution provided that “[a]ll persons 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

13

shall be bailable, by sufficient sureties, unless for capital 

offences, when the proof is evident or the presumption great.” 

(Cal. Const. of 1849, art. I, § 7; see Browne, Rep. of Debates in 

Convention of Cal. on Formation of State Const. (1850) p. 293.) 

This provision was later shifted to article I, section 6 within the 

California Constitution of 1879, yet its language remained 

unchanged until 1974. At that time, as part of a more extensive

constitutional revision, article I, section 6 was moved to section 

12 within the same article and certain changes were made to the 

provision’s text, including the replacement of “proof is evident”

with “facts are evident.” Finally, in 1982, Proposition 4 

broadened the circumstances in which courts may deny bail by 

adding subdivisions (b) and (c) to article I, section 12.2 

2 Voters also approved the Victims’ Bill of Rights at the 

same election. This measure also addressed bail, providing in 

part, “A person may be released on bail by sufficient sureties, 

except for capital crimes when the facts are evident or the 

presumption great. Excessive bail may not be required. In 

setting, reducing, or denying bail, the judge or magistrate shall 

take into consideration the protection of the public, the 

seriousness of the offense charged, the previous criminal record 

of the defendant, and the probability of his or her appearing at 

the trial or hearing of the case. Public safety shall be the 

primary consideration.” (Cal. Const., former art. I, § 28, subd. 

(e).) Similar language, as subsequently amended by initiative 

(see Voter Information Guide, Gen. Elec. (Nov. 4, 2008) text of 

Prop. 9, p. 129), now appears at article I, section 28, subdivision 

(f)(3) of the California Constitution. We need not decide in this 

case how the two constitutional provisions addressing the denial 

of bail can or should be reconciled. (See Humphrey, supra, 

11 Cal.5th at p. 155, fn. 7; People v. Standish (2006) 38 Cal.4th 

858, 875, 877–878 (Standish).)
In re HARRIS

Opinion of the Court by Guerrero, C. J.

14

2. Prior Case Law

The case law construing article I, section 12 and its 

predecessor provisions sheds little light on the question before 

us. We have never been asked to decide whether an order 

detaining a defendant without bail prior to trial must rest upon 

evidence that would be admissible at a criminal trial. Our prior 

treatment of related issues provides only limited and mixed 

guidance on this subject. 

In People v. Tinder (1862) 19 Cal. 539 (Tinder), 

disapproved in Greenberg v. Superior Court (1942) 19 Cal.2d 

319, we held that under existing law, an indictment for a capital 

offense was sufficient to “furnish a presumption of the guilt of 

the defendant too great to entitle him to bail as a matter of right 

under the Constitution, or as a matter of discretion under the 

legislation of the State.” (Tinder, at p. 543.)3 An indictment is 

not evidence that would normally be admissible at a criminal 

trial. Yet we also based our conclusion in Tinder partly on the 

fact that, as the law stood at the time, a grand jury was to 

“ ‘receive none but legal evidence, and the best evidence in 

degree, to the exclusion of hearsay or secondary evidence,’ ” and 

when the jurors had “ ‘reason to believe that other evidence

within their reach will explain away the charge, they should 

order such evidence to be produced.’ ” (Tinder, at pp. 542–543.) 

In any event, Tinder merely identified a sufficient, rather than 

3 After we decided Tinder, the Legislature enacted Penal 

Code section 1270, which provided that the finding of an 

indictment in a capital offense does not add to the strength of 

the proof or the presumptions to be drawn therefrom at a bail 

hearing for an individual charged with a capital offense. (1872 

Pen. Code, § 1270, amended by Stats. 1986, ch. 248, § 165, 

p. 1267 and renumbered as § 1270.5.)
In re HARRIS

Opinion of the Court by Guerrero, C. J.

15

a necessary, basis for a pretrial detention order. That decision 

therefore provides little guidance here.4

In the more than 150 years that have elapsed since the 

Tinder decision, some of the cases in which we have reviewed 

the sufficiency of the evidence behind a no-bail determination 

involved the presentation of some kind of live testimony (e.g., In 

re Troia (1883) 64 Cal. 152, 152–153), but the nature of the 

evidence presented in other cases is less apparent (e.g., Ex parte 

Curtis (1891) 92 Cal. 188, 191; Ex Parte Wolff (1880) 57 Cal. 94). 

In any event, none of these cases involved significant disputes 

over the admissibility of the evidence that was presented at the 

bail hearing.

Most recently, in White, supra, 9 Cal.5th 455, we upheld a 

no-bail order under article I, section 12(b) based on live

testimony and the defendant’s recorded interviews with law 

enforcement introduced at a preliminary hearing. (White, at 

pp. 459, 471.) White also did not involve any evidentiary 

dispute, but its analysis is relevant insofar as it considered the 

standards of proof under article I, section 12(b). We first 

addressed the clause within this provision that “allows courts to 

4 Our decision in Tinder also expressed concerns relating to 

the administrability of bail proceedings. We rejected the notion 

that affidavits or oral testimony as to the guilt or innocence of 

the defendant could rebut the presumption of guilt arising from 

the indictment, reasoning that this would transform “ ‘a motion 

to bail into an examination into the guilt or innocence of the 

prisoner,’ ” which “ ‘would be attended with most serious 

inconvenience.’ ” (Tinder, supra, 19 Cal. at pp. 545–546; see id. 

at p. 546 [noting that most state and federal courts imposed the 

same rule precluding additional evidence upon an application 

for bail after indictment for a capital offense, unless special and 

extraordinary circumstances existed].)
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Opinion of the Court by Guerrero, C. J.

16

deny bail when the facts underlying the qualifying charge are 

‘evident’ or the ‘presumption great.’ ” (White, at p. 463.) Our 

decision in White reaffirmed that “[o]ur court, in step with the 

broad consensus that has since emerged in other states, has 

interpreted this odd terminology to require evidence that would 

be sufficient to sustain a hypothetical verdict of guilt on appeal.” 

(Ibid.) We noted that this standard “is more stringent than 

mere ‘sufficient cause,’ which is the showing required to hold a 

defendant to answer for an offense.” (Id. at p. 463, fn. 3.) At the 

same time, however, we did not take a position on whether the 

prosecution could only meet this standard through evidence that 

would be admissible at an eventual trial as that issue was not 

before us. 

Turning to the second clause of article I, section 12(b), we 

further held in White that the question of whether an arrestee 

poses a substantial likelihood of great bodily harm to others is a 

question of fact that must be established by “clear and 

convincing evidence.” (White, supra, 9 Cal.5th at p. 467.) This 

standard of proof, we explained, “requires a specific type of 

showing — one demonstrating a ‘ “high probability” ’ that the 

fact or charge is true.” (Ibid.) We also emphasized that the 

finding of a substantial likelihood of great bodily harm, like 

other future-harm determinations under various civil 

commitment schemes, was subject to review for substantial 

evidence. (Id. at p. 466.) 

Although White elaborated on the standards of proof that 

must be met before a trial court may order an individual 

detained without bail under article I, section 12(b), we did not 

address whether the prosecution could meet this standard only 

through evidence that would be admissible at an eventual trial. 

It is well settled that the admissibility of evidence is a wholly 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

17

separate concept from the standard of proof. (See, e.g., People v. 

Falsetta (1999) 21 Cal.4th 903, 920 [“ ‘While the admission of 

evidence of the uncharged sex offense may have added to the 

evidence the jury could consider as to defendant’s guilt, it did not 

lessen the prosecution’s burden to prove his guilt beyond a 

reasonable doubt’ ” (italics added)].) Accordingly, our 

jurisprudence in this area sheds little light on the presentation 

of evidence required to support a no-bail determination under 

article I, section 12(b).

3. Analysis

This dearth of case law means that we must evaluate 

article I, section 12(b) without significant guidance from our 

prior decisions. 

Beginning with the text of this provision, as observed by 

the Court of Appeal below (Harris, supra, 71 Cal.App.5th at 

p. 1097), nowhere on its face does article I, section 12(b) indicate 

that a court may consider only evidence that would be 

admissible at a criminal trial in determining whether “the facts 

are evident or the presumption great,” or whether the People 

have shown by “clear and convincing evidence that there is a 

substantial likelihood the person’s release would result in great 

bodily harm to others.” The first clause of the provision refers 

to the presentation of “facts,” but does not prescribe how these 

facts are to be shown. The second clause likewise does not limit 

how the People are to make the required showing of proof by 

clear and convincing evidence. Although the latter clause uses 

the word “evidence,” as noted this describes the standard of 

proof involved; it is not a limitation regarding the form in which 

evidence must be presented. 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

18

Nor do we perceive any underlying intent, not captured on 

the face of article I, section 12(b), to limit this provision through 

the categorical rule that petitioner proposes. No clear 

indications of such an intent appear in the debates regarding 

the 1849 Constitution, the legislative materials accompanying 

the 1974 constitutional revisions, or in the ballot materials 

associated with Proposition 4 in 1982.

5

 Indeed, despite the 1974 

constitutional revision’s change in wording from “proof is 

evident” to “facts are evident” (Cal. Const. Revision Com., 

Proposed Revision (1971) p. 19), a revision that on its face seems 

potentially significant, the “comments accompanying the 

constitutional revision indicate that the measure generally 

intended no substantive changes by such minor changes in 

language.” (In re Podesto (1976) 15 Cal.3d 921, 929, fn. 6.) 

The absence of any such indicia regarding Proposition 4 is 

of particular note. Had this measure included a deviation from 

conventional practices at bail hearings, which commonly involve 

informal proffers by the prosecution and defense alike, one 

might expect to see some mention of that in the ballot 

materials.6 But none appears. Indeed, a legislative report on 

5 The Constitution Revision Commission’s background 

study from 1969 merely observed that, under the then-existing 

constitutional provision exempting capital defendants from bail 

when the “ ‘proof is evident or the presumption great,’ ” trial 

courts “have a great deal of discretion in determining whether 

bail must be denied pursuant to this exception.” (Cal. Const.

Revision Com., Article I Declaration of Rights Background 

Study 4 (Dec. 1969).) 

6

In the period leading up to Proposition 4, the Legislature 

passed laws allowing courts making bail determinations to 

consider a variety of sources, including arrest reports and other 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

19

an earlier version of the draft amendment queried whether 

there should be “testimonial evidence as opposed to hearsay 

statements or oral allegations,” suggesting the Legislature did 

not view the existing “facts are evident” standard as assuring 

the production of admissible evidence. (Assem. Com. on 

Criminal Justice, Analysis of Assem. Const. Amend. No. 14

(1981–1982 Reg. Sess.), as amended May 6, 1981, p. 3.)

It also seems doubtful that article I, section 12(b) was 

intended to constitutionalize an extension of the rules regarding 

the admission of evidence at a criminal trial when the timeline 

for setting or denying bail may make it difficult or impossible for 

the parties to present evidence in the manner required at trial. 

Initial bail hearings occur at the earliest stages of a criminal 

proceeding, often at the time of a defendant’s arraignment (Pen. 

Code, §§ 825, 1269b, subd. (b)) when the parties’ ability to secure 

witnesses through subpoena is limited. (Id., § 1328 [police 

officer may refuse to accept service of subpoena if tendered less 

than five working days prior to date of hearing]; Code Civ. Proc., 

§ 1987, subd. (a) [witnesses must be allowed a “reasonable time” 

for preparation and travel]; cf. United States v. MontalvoMurillo (1990) 495 U.S. 711, 720 [“Detention proceedings take 

place during the disordered period following arrest”]; U.S. v. 

LaFontaine (2d Cir. 2000) 210 F.3d 125, 131 [“informality of bail 

hearings serves the demands of speed”].) 

records, sworn statements and affidavits. (Stats. 1968, ch. 1362, 

§ 1, p. 2599; Pen. Code, former § 1204.5; Stats. 1973, ch. 810, § 3, 

p. 1445; Pen. Code, former § 1269c; O’Neal v. Superior Court 

(1986) 185 Cal.App.3d 1086, 1092 [describing legislative history 

of former Pen. Code, § 1204.5’s provision allowing consideration 

of accused’s prior criminal record at bail hearing].) 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

20

Moreover, as the Attorney General observes, “a victim of a 

recent violent crime may be physically unable to appear so soon 

after the crime occurs,” whether because of their injuries or 

because “[v]ictims or witnesses suffering trauma from a serious 

crime may be emotionally or mentally unable to appear and face 

the defendant immediately after the defendant’s arrest or the 

filing of charges.” And “[o]ther witnesses may be unable to make 

an immediate appearance because of previously scheduled work 

or childcare needs or an inability to travel.” Petitioner’s 

approach also implicates the possibility of mini trials ahead of a 

bail hearing at which the admissibility of certain evidence, such 

as a defendant’s confession, would be disputed. Neither the 

constitution nor the statutory scheme contemplates these kinds 

of additional procedures. These practical issues suggest that 

petitioner’s categorical rule would disserve the intent behind 

article I, section 12(b).

Petitioner’s proposed rule also finds little support in

contemporary standards regarding bail hearings and the 

descriptions of these hearings found in leading treatises, which 

emphasize the informal nature of these proceedings. (See, e.g., 

Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2d ed.

2021) § 5.29 [“[T]he bail hearing is informal and devised to 

discover salient information relating to permissible guidelines 

for setting bail. Either side may produce evidence through 

testimony, declarations, or representations”]; 4 LaFave et al., 

Criminal Procedure (4th ed. 2022) § 12.1(d), p. 19 [“The receipt 

of information at a bail hearing is much more informal than the 

taking of evidence at a criminal trial”]; LaFave, Search and 

Seizure: A Treatise on the Fourth Amendment (6th ed. 2022) 

§ 1.6(e) [“Generally, it may be said that information offered at a 

pretrial hearing concerning the terms and conditions of 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

21

defendant’s release need not conform to the rules of evidence”]; 

ABA Stds. for Crim. Justice (3d. ed. 2007) stds. 10-5.10(a)(iv), 

p. 133 [at any pretrial detention hearing defendant should have 

the right to present information by proffer or otherwise]; 10-

5.10(d), p. 133 [“At any pretrial detention hearing, the rules 

governing admissibility of evidence in criminal trials should not 

apply. The court should receive all relevant evidence”]; id., com. 

to std. 10-5.10(a), p. 136 [“Proceeding by proffer is consistent 

with current practice which allows for less formal evidentiary 

rules at this early stage of proceedings”].) Indeed, “it has been 

noted that ‘Bail hearings are “typically informal affairs, not 

substitutes for trial or even for discovery. Often the opposing 

parties simply describe to the judicial officer the nature of their 

evidence; they do not actually produce it.” ’ ” (ABA Stds. for 

Crim. Justice, supra, com. to std. 10–5.10(a), p. 136.)

Finally, there is no reason to believe that the standards of 

proof specified in article I, section 12(b) can, as a practical 

matter, be met only through admissible evidence. Admissible 

evidence is not required to ascertain whether facts exist that

“would be sufficient to sustain a hypothetical verdict of guilt” of 

one or more qualifying crimes. (White, supra, 9 Cal.5th at 

p. 463.) And it is well established that in federal bail 

proceedings, an unsworn proffer may establish a high 

probability of the truth of a fact justifying pretrial detention. 

(See, e.g., U.S. v. Smith (D.C. Cir. 1996) 79 F.3d 1208, 1210 

(Smith) [“Every circuit to have considered the matter . . . has . . . 

permitted the Government to proceed by way of proffer”]; U.S. 

v. Gaviria (11th Cir. 1987) 828 F.2d 667, 669; U.S. v. Winsor (9th 

Cir. 1986) 785 F.2d 755, 756; U.S. v. Delker (3d Cir. 1985) 

757 F.2d 1390, 1397–1398; U.S. v. Acevedo-Ramos (1st Cir. 

1985) 755 F.2d 203, 206 (Acevedo-Ramos).) In sum, we reject 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

22

petitioner’s argument that the evidence offered by the 

prosecution in support of a request to deny bail under article I, 

section 12(b) must always be presented in a manner that would 

render it admissible at a criminal trial. As discussed below, 

however, trial courts must ensure that the evidence they 

consider is sufficiently reliable in order to protect an arrestee’s 

liberty interests. 

4. Counterarguments

Petitioner relies on case law from courts in other states to 

support his argument that only evidence that would be 

admissible at trial may be utilized to satisfy article I, section 

12(b)’s standards. Meanwhile, amici curiae Civil Rights Corps, 

the ACLU of Northern California, the California Public 

Defenders Association, Ventura County Public Defender 

Claudia Y. Bautista, and Human Rights Watch (collectively, 

amici curiae) cite such decisions in support of their alternative 

proposed holding that (1) article I, section 12(b) precludes the 

use of inadmissible hearsay, over a defendant’s objection, to 

establish a disputed fact material to a pretrial detention 

determination, unless the trial court finds “good cause” to 

permit the hearsay; and (2) even when good cause exists to allow 

the introduction of hearsay evidence, a court may not make any 

factual finding supporting pretrial detention based solely on 

such hearsay. Amici curiae characterize their position as 

supported by “a wide judicial consensus in other jurisdictions.” 

We are unconvinced.

On this subject, approximately 40 state constitutions 

contain provisions limiting the right to bail in capital cases 

“ ‘when the proof is evident or the presumption great,’ ” or 

substantially similar language. (See Fry v. State (Ind. 2013) 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

23

990 N.E.2d 429, 438–439, fn. 10 (Fry).) Yet these states have 

adopted somewhat different standards to determine the reach of 

such provisions. (The Administration of Bail (1931) 41 Yale L.J. 

293, 294 [“in interpreting and applying the clause excepting 

from the guaranty capital cases where the proof is evident or the 

presumption great, courts have arrived at strikingly different 

results”]; 4 LaFave et al., Criminal Procedure, supra, § 12.4(a) 

[there is considerable variation among the states regarding the 

extent of the burden of proof]; see also Fountaine v. Mullen (R.I. 

1976) 366 A.2d 1138, 1140 (Fountaine) [courts in approximately 

40 states with similar constitutional provisions “that have 

addressed the question of quantum of proof have split five 

different ways”].) 

These differences notwithstanding, there is a broader if 

not absolute consensus among these jurisdictions that extending 

the full array of evidentiary rules attendant to a criminal trial 

to bail hearings would be unworkable and unwise. Many states 

have implemented this view through statutes or court rules that 

make it clear that bail hearings are not covered by the same 

principles that govern the admissibility of evidence in criminal 

proceedings.

7

 Where such statutes and rules exist, they have 

7 See, e.g., Ala. Code § 15-13-3, subd. (b)(6); Alaska Stat. 

§ 12.30.006, subd. (g); Ark. Rules Evid., rule 1101(b); Colo. Rules 

Evid., rule 1101(d); Del. Rules Evid., rule 1101; Fla. Rules Crim. 

Proc, rule 3.132(b); Idaho Rules Evid., rule 101; Ill. Rules Evid., 

rule 1101(b); Ind. Rules Evid., rule 101(d); Iowa Rules Evid., 

rule 5.1101(c); Kan. Stat. § 22-2802(12); La. Code Evid., art. 

1101(C)(2); Me. Rules Evid., rule 101(b)(8); Mich. Court Rules, 

rule 6.106(G)(2)(b); Minn. Rules Evid., rule 1101(b)(3); Miss. 

Rules Evid., rule 1101(b)(4); Mont. Rules Evid., rule 101(c)(3); 

Neb. Rev. Stat. § 27-1101(4)(b); Nev. Stat. § 47.020; N.D. Rules 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

24

been relied upon as grounds for allowing the prosecution to 

proceed by proffer in arguing that a defendant should be held 

pending trial without bail. (See, e.g., People v. Simmons (Ill.

App.Ct. 2019) 143 N.E.3d 833, 838–839; State ex rel. Torrez v. 

Whitaker (N.M. 2018) 410 P.3d 201, 216–217 (Whitaker).)

In states where the issue has not been resolved by a 

statute or rule, courts have taken different approaches to the 

admissibility of evidence at a pretrial detention hearing under a 

provision requiring that the proof be evident or presumption 

great to justify a no-bail order. Some courts require that the 

prosecution show bail ineligibility through evidence that would 

be admissible at trial. (E.g., Fry, supra, 990 N.E.2d at p. 449; 

Young ex rel. Boone v. Russell (Ky. 1960) 332 S.W.2d 629, 633; 

see State v. Passino (Vt. 1990) 577 A.2d 281, 284 [constitutional 

provision allowing court to deny bail in capital case “where the 

evidence of guilt is great” cannot be met by inadmissible 

evidence].) One decision in this camp, recognizing the practical 

difficulties of conducting such a hearing on short notice, has 

allowed that “the court can hold a defendant charged with an 

offense punishable by life imprisonment without bail for such 

time as is necessary to enable the parties to prepare for a full 

bail hearing and to make appropriate motions,” while also 

emphasizing that the hearing “must be scheduled as soon as 

reasonably possible.” (Passino, at p. 285.) Another approach 

requires admissible evidence, but allows the prosecution to rely 

Evid., rule 1101(d)(3)(F); N.M. Rules Crim. Proc., rule 5-401P; 

Okla. Stat. tit. 12, § 2103(B); R.I. Rules Evid., rule 101(b)(3); 

S.C. Code, § 17-15-60; S.D. Codified Laws § 23A-43-12; Tex. 

Rules Evid., rule 101(e)(3); Utah Rules Evid., rule 1101(c)(4); 

Wn. Rules Evid., rule 1101(c)(3); Wis. Stat. § 911.01(4)(c); Wyo. 

Rules Evid., rule 1101 (b)(3).
In re HARRIS

Opinion of the Court by Guerrero, C. J.

25

to some degree, when necessary, upon evidence that otherwise 

might be inadmissible. (Commonwealth v. Talley (Pa. 2021)

265 A.3d 485, 524, fn. 35.) This is the line of authority that 

amici curiae regard as most persuasive. A third view allows the 

prosecution to rely upon hearsay, provided that this hearsay is 

either sufficiently reliable or otherwise provides a basis for the 

court to make an independent assessment of whether there is 

sufficient proof of the defendant’s guilt. (Rico-Villalobos v. 

Guisto (Or. 2005) 118 P.3d 246, 255 (Rico-Villalobos); State v. 

Arthur (Fla. 1980) 390 So.2d 717, 720; Bates v. Ogata (Hawaii 

1971) 482 P.2d 153, 155.)

Given the variety of interpretations advanced in these 

cases, influenced in some instances by matters such as the 

standard of proof applicable to a no-bail order (e.g., Fountaine, 

supra, 366 A.2d at p. 1140), we conclude these decisions are of 

limited consequence to the issue before us. We do note, however, 

that most jurisdictions that have considered the question allow 

a no-bail order to be premised at least to some extent on hearsay 

evidence that would not necessarily be admissible at a criminal 

trial. Also, the most persuasive of the decisions addressing the 

use at a pretrial detention hearing of evidence that would be 

inadmissible at a criminal trial properly focus upon the ultimate 

question of the burden or burdens that the prosecution must 

satisfy, and have declined to either forbid hearsay altogether or 

broadly require “good cause” for its admission. 

In Rico-Villalobos, supra, 118 P.3d 246, for example, the 

Supreme Court of Oregon examined a provision in the Oregon 

state constitution that provides all offenses shall be bailable by 

sufficient sureties, except for murder or treason, “ ‘when the 

proof is evident, or the presumption strong.’ ” (Id. at p. 248, 

citing Or. Const., art. I, § 14.) The court determined that 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

26

“[w]hile the text of [the constitutional provision] shows that the 

framers of the provision wanted to establish a high threshold of 

proof before a person could be held without bail, even when 

charged with murder, the words themselves do not suggest any 

limit on the kind of evidence that would be admissible in a 

proceeding to determine whether to allow bail.” (RicoVillalobos, at p. 252.) The court noted that early cases in other 

jurisdictions with similar bail provisions, while split over 

whether an indictment was sufficient proof to deny bail, 

“suggest[] that those provisions imposed no particular 

limitations on the kind of proof that a court could consider in 

determining whether or not a defendant in a murder case was 

bailable.” (Id. at p. 253.) The court concluded that “the burden 

[is] on the state at the pretrial release hearing to present 

evidence, direct or circumstantial, from which the trial court can 

make an independent determination that evidence that likely 

will be admissible at trial shows that the proof of defendant’s 

guilt is ‘evident’ or the ‘presumption strong’; however, that 

provision does not preclude the state from making that showing 

by means of hearsay evidence.” (Id. at p. 255.) 

Neither Rico-Villalobos nor any other decision from 

another jurisdiction is on all fours with this matter. Among 

these differences, article I, section 12(b)’s concern with public 

safety suggests it would be misguided to limit a proffer under 

this provision to describing facts likely to be admitted at a 

defendant’s trial when some such facts, though relevant to 

future dangerousness, might not be sufficiently relevant to the 

charged offenses as to warrant admission at trial. Yet RicoVillalobos and other decisions that allow for the introduction of 

hearsay without first ascertaining good cause, or requiring 

additional evidence that would be admissible at trial, contradict 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

27

amici curiae’s assertion that a broad judicial consensus supports 

their position. We also agree with Rico-Villalobos insofar as it 

declined to regard all evidentiary rules that apply at trial as

extending to bail hearings pursuant to a state constitutional 

provision that does not on its face or by implication impart such 

a limitation. Amici curiae’s argument fails for a similar reason; 

it seeks to import into the state Constitution’s language — that 

“facts are evident or the presumption great” (art. I, § 12(b)) —

restrictions that are not reasonably read into its text. 

Amici curiae’s reliance upon decisions from other 

jurisdictions is even less tenable with regard to article I, section 

12(b)’s “clear and convincing evidence” standard. As previously 

noted, federal appellate courts have uniformly rejected the 

argument that a court may not base its pretrial detention 

determination on hearsay evidence when it makes a finding by 

clear and convincing evidence of future dangerousness. (Smith, 

supra, 79 F.3d at p. 1210; U.S. v. Gaviria, supra, 828 F.2d at 

p. 669; U.S. v. Winsor, supra, 785 F.2d at p. 756; U.S. v. Delker, 

supra, 757 F.2d at pp. 1397–1398; Acevedo-Ramos, supra,

755 F.2d at p. 206; U.S. v. Vondette (2d. Cir. 2001) 5 Fed.Appx. 

73, 76.) Our sister state courts are largely in accord. (See State 

v. Pinkston (N.J. 2018) 187 A.3d 113, 117; Abbott A. v. 

Commonwealth (Mass. 2010) 933 N.E.2d 936, 946–947; Wheeler 

v. State (Md. 2005) 864 A.2d 1058, 1065–1066; Lynch v. U.S.

(D.C. 1989) 557 A.2d 580, 582.) In Whitaker, supra, 410 P.3d 

201, the Supreme Court of New Mexico held: “We agree with 

courts in all other federal and state bail reform jurisdictions that 

have considered the same issues, and we hold that the showing 

of dangerousness required by the new constitutional authority 

is not bound by formal rules of evidence but instead focuses on 

judicial assessment of all reliable information presented to the 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

28

court in any format worthy of reasoned consideration. . . . [¶] In 

most cases, credible proffers and other summaries of evidence, 

law enforcement and court records, or other nontestimonial 

information should be sufficient support for an informed 

decision that the state either has or has not met its 

constitutional burden.” (Id. at p. 203.)

In sum, we do not find the alternative approaches 

advanced by amici curiae or utilized in other jurisdictions to be 

workable or persuasive under California law. A rule that 

permits holding defendants in custody for extended periods 

while the parties arrange for the appearance of witnesses is not 

a particularly attractive alternative to a rule that permits 

making bail determinations based on a wider scope of evidence, 

but also allows for reconsideration of bail determinations based 

on developing facts. Moreover, the alternative approaches 

suffer from the same fundamental flaws, namely, neither is 

grounded in the constitutional text nor consistent with the 

prevailing practices at bail hearings.

5. Proffers Must Be Reliable

While a trial court has considerable discretion in 

evaluating the evidence presented in connection with a no-bail 

determination under article I, section 12(b), “this should not be 

taken to mean that information must be accepted by the court 

without regard to its reliability.” (4 LaFave et al., Criminal 

Procedure, supra, § 12.1(d), p. 19.) As a threshold matter, even 

though strict compliance with the rules of evidence applicable at 

a criminal trial is not required, a trial court must ensure that 

an arrestee’s liberty interests are protected and base its decision 

on reliable facts, not merely general assertions by the 

prosecution regarding what the evidence is likely to show. (See, 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

29

e.g., State v. Pan (Conn. 2022) 291 A.3d 82, 104 [distinguishing 

between “simple representations of counsel,” deemed 

inadequate to satisfy a party’s burden at a bail hearing, and a 

“proffer, supported by reliable hearsay evidence, relevant 

documents, and other documentary or testimonial evidence,” 

which could meet this burden]; In re Application of Haynes (Or. 

1980) 619 P.2d 632, 642 [“A prosecutor’s assertions about 

evidence that he ‘feels’ he ‘may be able to introduce’ are not 

‘proof’ ”].) 

The court’s exercise of discretion to order a defendant 

detained under article I, section 12(b) should also “reflect an 

awareness of the high stakes involved.” (U.S. v. Martir (2d Cir. 

1986) 782 F.2d 1141, 1145; see also Humphrey, supra, 

11 Cal.5th at p. 147 [noting that pretrial detention can result in

“immense and profound” consequences, such as the loss of a job,

home, or custody of a child]; Van Atta v. Scott (1980) 27 Cal.3d 

424, 435–437 (Van Atta) [detailing the “ ‘grievous loss’ ” pretrial 

detention “inflicts” upon the detainee].) “ ‘[A] pretrial detention 

hearing may restrict for a significant time the liberty of a 

presumably innocent person.’ [Citation.] The judge . . .

accordingly retains the responsibility for assessing the 

reliability and accuracy of the government’s information, 

whether presented by proffer or by direct proof.” (Martir, at 

p. 1145.) 

A trial court thus must ensure its decision to detain an 

individual without bail under article I, section 12(b) is supported 

by reliable information. If the court is not satisfied with the 

reliability of the prosecution’s proffer, it should demand 

additional facts or find the relevant standards unmet. 

(Whitaker, supra, 410 P.3d at pp. 203–204 [“a court necessarily 

retains the judicial discretion to find proffered or documentary 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

30

information insufficient to meet the constitutional clear and 

convincing evidence requirement in the context of particular 

cases”]; State v. Ingram (N.J. 2017) 165 A.3d 797, 799 [“Trial 

judges . . . retain discretion to require direct testimony when 

they are dissatisfied with the State’s proffer” in support of 

pretrial detention]; Acevedo-Ramos, supra, 755 F.2d at p. 207 

[the trial court “possesses adequate power to reconcile the 

competing demands of speed and of reliability, by selectively 

insisting upon the production of the underlying evidence or 

evidentiary sources where their accuracy is in question”].) 

The Attorney General has offered several nonexclusive 

factors relevant to determining whether a proffer is sufficiently 

reliable to support the findings that article I, section 12(b) 

requires, including: (1) the specificity and comprehensiveness 

with which the proffer describes the evidence; (2) the extent to 

which the proffer is supported by other evidence, such as 

photographs, videos, documents, or testimony; (3) whether the 

proffer attributes its information to identified witnesses with 

firsthand knowledge; (4) whether the government has failed to 

provide more precise evidence that it could readily have 

submitted, such as transcripts, recordings, or photographs that 

the proffer describes; and (5) whether the defense has, by proffer 

or otherwise, provided a specific basis for doubting the proffer’s 

reliability. We agree these factors are useful in a trial court’s 

evaluation of whether a proffer is reliable and satisfies article I, 

section 12(b)’s required findings. We note that a court may also 

consider (6) whether the government has failed to produce 

readily available witnesses and (7) whether information was 

sworn or made under oath.

In Humphrey, we affirmed “[a] court’s procedures for 

entering an order resulting in pretrial detention must also 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

31

comport with other traditional notions of due process to ensure 

that when necessary, the arrestee is detained ‘in a fair 

manner,’ ” which include “the court’s obligation to set forth the 

reasons for its decision on the record and to include them in the 

court’s minutes.” (Humphrey, supra, 11 Cal.5th at p. 155.) In 

connection with our ruling today, we add that when the 

defendant has made a competing proffer, or objected to the 

prosecution’s proffer as inadequately supported or otherwise 

unreliable, the trial court should endeavor to make a record of 

the basis on which it found the prosecution’s proffer reliable. 

Doing so furthers the goals of fairness and reasoned 

decisionmaking. As augmented, these procedures will facilitate 

meaningful review of a trial court’s ultimate decision to deny 

bail pursuant to article I, section 12(b). While such a decision is 

reviewed for abuse of discretion, the trial court’s factual findings 

are reviewed for substantial evidence, and the reviewing court 

is not permitted to reweigh the evidence. (See White, supra, 

9 Cal.5th at pp. 469–470.) 

Finally, we emphasize that an initial no-bail 

determination is not necessarily permanent. A defendant may 

renew a request for release on bail in light of new facts and 

evidence. A defendant is entitled to a preliminary hearing 

within 10 court days of arraignment, at which time the 

defendant may cross-examine testifying witnesses. (Pen. Code, 

§ 859b.) If evidence admitted at the preliminary hearing casts 

doubt on prior findings made under article I, section 12(b), the 

defendant may ask the court to revisit an earlier no-bail 

determination. (Standish, supra, 38 Cal.4th at p. 883, fn. 8;

Pen. Code, § 1273; see id., § 1289.) As this court recognized over 

a century ago, “There may be cases in which new facts have been 

developed, or new evidence discovered, after the conclusion of 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

32

the preliminary examination, in which it would be proper to 

hear additional testimony on the application for bail.” (Ex Parte 

Curtis, supra, 92 Cal. at p. 190.)

6. Applicability of Humphrey’s Instruction

The parties also ask us to address whether Humphrey’s 

instruction that the trial court “must assume the truth of the 

criminal charges” (Humphrey, supra, 11 Cal.5th at p. 153) 

applies to the findings required under article I, section 12(b). 

We agree with the parties that it does not. 

The instruction in Humphrey that trial courts must 

assume the truth of the criminal charges appeared within that 

decision’s discussion of the general framework governing the 

setting of bail. (Humphrey, supra, 11 Cal.5th at p. 152.) We 

explained that where the record reflects a risk of flight or a risk 

to public or victim safety and the trial court has concluded 

money bail is reasonably necessary, “then the court must 

consider the individual arrestee’s ability to pay, along with the 

seriousness of the charged offense and the arrestee’s criminal 

record.” (Id. at p. 154, italics added.) It was within the context 

of considering the seriousness of the charged offense in relation 

to victim and public safety that we held the trial court must 

assume the truth of those charged offenses. (Id. at p. 153.) At 

the same time, we made clear that Humphrey did not involve an 

order denying bail. (Id. at p. 155, fn. 7. ) 

As noted, article I, section 12(b) permits a trial court to 

deny bail under narrow circumstances and places the burden on 

the People to present facts to support their position. The 

constitutional provision specifies that a person shall be released 

on bail except for certain qualifying offenses “when the facts are 

evident or the presumption great,” a standard of proof we have 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

33

construed to mean “enough evidence of reasonable, credible, and 

solid value to sustain a guilty verdict on one or more of the 

qualifying crimes.” (White, supra, 9 Cal.5th at p. 463.) To hold 

that a court must assume the truth of the criminal charges in 

making such a determination would improperly relieve the 

People of the burden that the constitutional text, so construed, 

assigns to them. Accordingly, we clarify here that a court does

not assume the truth of the criminal charges when evaluating 

whether to order a defendant held without bail under article I, 

section 12(b).

B. Evidence Code Section 300 Does Not Limit the 

Types of Evidence a Trial Court May Consider 

at a Bail Hearing

Petitioner also asserts that various provisions of our 

Evidence Code support his position that only evidence that 

would be admissible at a criminal trial may be admitted at a bail 

hearing. He places particular emphasis upon Evidence Code 

section 300, which provides: “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.” We are unpersuaded by this argument. 

As noted, section 300 of the Evidence Code specifies that 

the code’s provisions apply “[e]xcept as otherwise provided by 

statute.” Other statutes establish to our satisfaction that bail 

hearings are exempted from the standard evidentiary 

procedures in the Evidence Code that are at issue here. 

Numerous statutes allow trial judges making bail 

determinations to consider material that would not be similarly 

admissible at a criminal trial. 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

34

Penal Code section 1204.5, for example, specifically 

excepts bail hearings from the general rule forbidding trial 

courts from considering arrest reports and prior criminal 

histories. (Pen. Code, § 1204.5, subd. (a) [“In any criminal 

action, . . . no judge, shall read or consider any written report of 

any law enforcement officer or witness to any offense, any 

information reflecting the arrest or conviction record of a 

defendant, or any affidavit or representation of any kind, verbal 

or written, without the defendant’s consent given in open court, 

except . . . in any application for an order fixing or changing 

bail”].) Penal Code section 1269c, meanwhile, likewise permits 

a peace officer who has reasonable cause to believe the amount 

of bail set forth in the bail schedule for a felony offense is 

insufficient to ensure the defendant’s appearance or to protect a 

victim or the victim’s family member to “prepare a declaration 

under penalty of perjury setting forth the facts and 

circumstances in support of his or her belief and file it with a 

magistrate.” And Penal Code section 1319 specifies that before 

an individual arrested for a violent felony may be released on 

his or her own recognizance, the trial court must hold a bail 

hearing and consider, among other factors, “[a]ny other 

information presented in [an investigative report regarding 

bail]” and “[a]ny other information presented by the prosecuting 

attorney.” (Id., § 1319, subd. (b)(2)–(3).) Likewise, Penal Code 

section 1275, subdivision (a)(1) provides that “[i]n setting, 

reducing, or denying bail, a judge or magistrate shall take into 

consideration the protection of the public, the seriousness of the 

offense charged, the previous criminal record of the defendant, 

and the probability of his or her appearing at trial or at a 

hearing of the case.” In setting bail, Penal Code section 1275, 

subdivision (a) permits a judge or magistrate to “consider factors 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

35

such as the information included in a report prepared in 

accordance with Section 1318.1,” with this information 

including the defendant’s outstanding warrants, prior failures 

to appear in court, and verification of the defendant’s criminal 

record and place of residence (id., § 1318.1, subd. (b)). 

The statutes concerning bail hearings thus contemplate 

that these proceedings will involve the court’s consideration of 

at least some hearsay that would not normally be admissible at 

a criminal trial. Accordingly, we reject petitioner’s argument 

that Evidence Code section 300 functions to limit the evidence 

that may be introduced at a bail hearing.

C. Due Process Principles Do Not Preclude Trial 

Courts from Making No-bail Decisions Based on 

Evidentiary Proffers

Petitioner also contends that the prosecution’s use of a 

proffer violated his due process rights under the federal and 

state Constitutions. We find no constitutional error.

1. Legal Principles

The federal and state Constitutions forbid the government 

from depriving an individual of life, liberty, or property without 

due process of law. (U.S. Const., 14th Amend. [“nor shall any 

State deprive any person of life, liberty, or property, without due 

process of law”]; Cal. Const., art. I, § 7, subd. (a) [“A person may 

not be deprived of life, liberty, or property without due process 

of law”].) “In light of the virtually identical language of the 

federal and state guarantees, we have looked to the United 

States Supreme Court’s precedents for guidance in interpreting 

the contours of our own due process clause and have treated the 

state clause’s prescriptions as substantially overlapping those of 

the federal Constitution.” (Today’s Fresh Start, Inc. v. Los 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

36

Angeles County Office of Education (2013) 57 Cal.4th 197, 212

(Today’s Fresh Start).)

“ ‘The essence of due process is the requirement that “a 

person in jeopardy of serious loss [be given] notice of the case 

against him and opportunity to meet it.” ’ [Citations.] The 

opportunity to be heard must be afforded ‘at a meaningful time 

and in a meaningful manner.’ [Citations.] To ensure that the 

opportunity is meaningful, the United States Supreme Court 

and this court have identified some aspects of due process as 

irreducible minimums. For example, whenever ‘due process 

requires a hearing, the adjudicator must be impartial.’ ” 

(Today’s Fresh Start, supra, 57 Cal.4th at p. 212.)

“Beyond these broad outlines, however, the precise 

dictates of due process are flexible and vary according to 

context.” (Today’s Fresh Start, supra, 57 Cal.4th at p. 212; 

Morrissey v. Brewer (1972) 408 U.S. 471, 481 [“It has been said 

so often by this Court and others as not to require citation of 

authority that due process is flexible and calls for such 

procedural protections as the particular situation demands”].) 

“Accordingly, the United States Supreme Court has rejected 

absolute rules in favor of balancing three considerations: ‘First, 

the private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest 

through the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards; and finally, the 

Government’s interest, including the function involved and the 

fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.’ ” (Today’s 

Fresh Start, at p. 213.) 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

37

“With a minor modification, we have adopted the [high 

court’s] balancing test as the default framework for analyzing 

challenges to the sufficiency of proceedings under our own due 

process clause. The first three factors — the private interest 

affected, the risk of erroneous deprivation, and the government’s 

interest — are the same. [Citations.] In addition, we may also 

consider a fourth factor, ‘ “the dignitary interest in informing 

individuals of the nature, grounds, and consequences of the 

action and in enabling them to present their side of the story 

before a responsible government official.” ’ ” (Today’s Fresh 

Start, supra, 57 Cal.4th at p. 213; Cal. Const., art. I, § 7, subd. 

(a).) 

It is well settled that the accused retains a fundamental 

constitutional right to liberty before trial. (See, e.g., Humphrey, 

supra, 11 Cal.5th at p. 150; Van Atta, supra, 27 Cal.3d at 

pp. 435–436.) We have not had occasion to address what 

procedural protections are required when the People seek to 

detain a defendant prior to trial under article I, section 12(b). 

However, other courts, including the United States Supreme 

Court in United States v. Salerno (1987) 481 U.S. 739 (Salerno),

have considered similar due process issues implicated by other 

bail statutes. We now turn to those decisions for guidance. 

“Prior to 1970, in the vast majority of jurisdictions 

defendants had a constitutional or statutory right, at least on 

paper if not always in practice, to be released on bail prior to 

trial for virtually all crimes not punishable by death.” 

(Whitaker, supra, 410 P.3d at p. 208, citing Bail: An Ancient 

Practice Reexamined (1961) 70 Yale L.J. 966, 967.) “In a 

significant change from that history, Congress gave new riskfocused pretrial detention authority to District of Columbia 

judges as part of the District of Columbia Court Reform and 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

38

Criminal Procedure Act of 1970.” (Whitaker, at p. 208; D.C.

Code § 23-1322, hereinafter the D.C. Bail Act.) As originally 

enacted, the D.C. Bail Act allowed a judicial officer to order a 

suspect arrested for certain enumerated offenses detained if the 

judicial officer found “(1) that there is clear and convincing 

evidence that the accused falls into one of the categories of 

persons eligible for detention . . . (2) that . . . there is ‘no 

condition or combination of conditions of release which will

reasonably assure the safety of any other person or the 

community,’ [citation] and (3) that there is ‘a substantial 

probability that the person committed . . . the offense for which 

he is present before the judicial officer.’ ” (U.S. v. Edwards (D.C. 

1981) 430 A.2d 1321, 1334 (Edwards).) The D.C. Bail Act also 

provided that the defendant is entitled to representation by 

counsel and “ ‘to present information by proffer or otherwise, to 

testify, and to present witnesses in his own behalf.’ ” (Edwards, 

at p. 1334.)

The District of Columbia Court of Appeals addressed the 

constitutionality of the D.C. Bail Act in Edwards, supra, 

430 A.2d 1321. In that case, the trial court had ruled that the 

Fifth and Eighth Amendments to the United States 

Constitution require that criminal defendants be afforded an 

opportunity to confront and cross-examine witnesses at pretrial 

detention hearings, and that to the extent the detention statute 

permitted the use of proffers or hearsay, it was unconstitutional. 

(Edwards, at p. 1324.) The appellate court disagreed. (Id. at 

pp. 1333–1334.) It held that the D.C. Bail Act provided

sufficient procedural safeguards — a hearing before a judicial 

officer, the right to counsel, and the right “ ‘to present 

information by proffer or otherwise, to testify, and to present 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

39

witnesses in his own behalf’ ” — to comply with due process.

8

 

(Edwards, at p. 1334.) 

The Edwards court was also guided by the United States 

Supreme Court’s decision in Gerstein v. Pugh (1975) 420 U.S. 

103 (Gerstein), in determining what process is constitutionally 

required in a pretrial detention hearing. (Edwards, supra, 

430 A.2d at p. 1335.) In Gerstein, the high court considered 

“whether a person arrested and held for trial under a 

prosecutor’s information is constitutionally entitled to a judicial 

determination of probable cause for pretrial restraint of liberty.” 

(Gerstein, at p. 105.) The Gerstein court held that “the Fourth 

Amendment requires a judicial determination of probable cause 

as a prerequisite to extended restraint of liberty following 

arrest” (id. at p. 114), but it rejected the notion that the 

8 The Edwards court also perceived its holding as consistent 

with legislative intent and prevailing practices. It explained, 

“The legislative history of the statute confirms Congress’ intent 

that the information upon which the judicial officer makes his 

finding need not be sworn testimony, and that the hearing is not 

designed to afford defendants a discovery device.” (Edwards, 

supra, 430 A.2d at p. 1334.) It cited a House Report discussing 

the use of proffers in detention hearings, which stated: “ ‘[A]s is 

the present practice under the [D.C. Bail Act], . . . the use of 

sworn testimony will be the exception and not the rule . . . . Bail 

hearings under the [D.C. Bail Act], which frequently result in 

detention of the accused, proceed primarily by way of proffers. 

They are not formal trials requiring strict adherence to technical 

rules of evidence. If the court is dissatisfied with the nature of 

the proffer, it can always, within its discretion, insist on direct 

testimony. But the discretion should be left to the court without 

imposing on it the burden of limiting admissibility to that it 

would permit a jury to hear.’ ” (Edwards, at p. 1334, italics 

omitted.) “Accordingly,” the court concluded, “hearsay evidence 

may be presented, although the court may require direct 

testimony if dissatisfied with a proffer.” (Ibid.)
In re HARRIS

Opinion of the Court by Guerrero, C. J.

40

determination of probable cause must be accompanied by “the

full panoply of adversary safeguards” (id. at p. 119). The 

Gerstein court explained that the issue of whether there is 

probable cause for detaining the arrested person pending 

further proceedings, like the question of whether there is 

probable cause to believe the suspect has committed a crime, 

“can be determined reliably without an adversary hearing,” and 

“traditionally has been decided by a magistrate in a 

nonadversary proceeding on hearsay and written testimony, 

and the Court has approved these informal modes of proof.” (Id.

at p. 120.) It also emphasized: “Criminal justice is already 

overburdened by the volume of cases and the complexities of our 

system. The proceeding of misdemeanors, in particular, and the 

early stages of prosecution generally are marked by delays that 

can seriously affect the quality of justice. A constitutional 

doctrine requiring adversary hearings for all persons detained 

pending trial could exacerbate the problem of pretrial delay.” 

(Id. at p. 122, fn. 23.)

Citing Gerstein, the Edwards court reasoned that identical 

interests were at stake in a preliminary hearing for probable 

cause (as in Gerstein) and a pretrial detention hearing. “The 

effect of the findings in a detention hearing and a preliminary 

(Gerstein) hearing is the same: each hearing determines 

whether the accused may be detained pending trial. The 

individual’s liberty interest affected by each proceeding is 

accordingly the same.” (Edwards, supra, 430 A.2d at p. 1336.) 

The appellate court also concluded that the nature of the 

government’s interest was similar in both proceedings (id. at 

p. 1337), explaining that “the government has an obvious 

interest in not conducting a full-blown criminal proceeding 

twice, once for pretrial detention and a second time for the trial 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

41

on the charges. Indeed, the individual’s and the government’s 

mutual interest in holding the hearing soon after the time of the 

arrest necessarily precludes the full-scale preparation and 

investigation that is commensurate with a criminal trial. 

Conversely, the limited function of a pretrial detention hearing, 

i.e., to determine the appropriateness of detention for a 

maximum of 60 days pending a trial on the charges with the full 

panoply of criminal trial rights, weighs in favor of a simplified 

hearing.” (Id. at p. 1337, fn. omitted; see id. at p. 1336 

[“Consideration of the individual’s liberty interest and the 

government’s interests in a simplified yet fair pretrial detention 

hearing leads us to the conclusion that the interests involved are 

closer to those in a Gerstein preliminary hearing than those 

involved in a [parole revocation] hearing, and that the statutory 

procedures challenged here are constitutionally adequate”].) As 

in Gerstein, the Edwards court concluded that “the government 

may proceed by the use of proffer and hearsay, subject to the 

discretion of the judge as to the nature of the proffer and the 

need for admissible evidence.” (Edwards, at p. 1337.)

In 1984, Congress passed the federal Bail Reform Act of 

1984 (18 U.S.C. § 3141 et seq., hereinafter the federal Bail 

Reform Act), which gave federal courts pretrial detention 

authority similar to that provided by the D.C. Bail Act. In 

Salerno, supra, 481 U.S. at pp. 746–747, the United States 

Supreme Court held that the federal Bail Reform Act did not 

violate the due process clause of the United States Constitution. 

The statute, similar to article I, section 12(b), authorizes pretrial 

detention of arrestees charged with certain serious felonies if 

the court finds clear and convincing evidence that no release 

conditions will reasonably assure the safety of any other person 

and the community. (Salerno, at p. 742, citing 18 U.S.C. § 3142, 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

42

subd. (f).) It also provides arrestees with several procedural 

safeguards at the detention hearing, including the right to 

request counsel, to testify and present witnesses, to put forward 

evidence, and to cross-examine other witnesses appearing at the 

hearing. (Salerno, at p. 742, citing 18 U.S.C. § 3142, subd. (f).) 

In addition, the federal Bail Reform Act specifies the 

considerations relevant to making a pretrial detention 

determination, including the nature and seriousness of the 

charges, the weight of the government’s evidence, the arrestee’s 

background and characteristics, and the nature and seriousness 

of the danger posed by his release. (Salerno, at pp. 742–743, 

citing 18 U.S.C. § 3142, subd. (g).) 

In Salerno, the defendants were charged with various 

offenses related to racketeering activity, mail and wire fraud, 

extortion, and criminal gambling violations. (Salerno, supra, 

481 U.S. at p. 743.) The government sought to have the 

defendants held in custody under the federal Bail Reform Act. 

(Salerno, at p. 743.) At the pretrial detention hearing, the 

government “made a detailed proffer of evidence” based 

primarily on conversations intercepted by a court-ordered 

wiretap. (Ibid.) The district court granted the government’s 

detention motion, concluding it had established by clear and 

convincing evidence that no condition or combination of 

conditions of release would ensure the safety of the community 

or any person. (Id. at pp. 743–744.) 

The defendants in Salerno raised facial challenges to the 

federal Bail Reform Act on substantive and procedural due 

process grounds. The high court rejected these attacks. 

(Salerno, supra, 481 U.S. at pp. 745–752.) Regarding the 

substantive due process claim, the court explained that pretrial 

detention under the statute serves a legitimate regulatory goal 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

43

of preventing danger to the community (id. at p. 747), the 

federal Bail Reform Act “carefully limits the circumstances 

under which detention may be sought to the most serious of 

crimes” (Salerno, at p. 747), and “the [g]overnment’s regulatory 

interest in community safety can, in appropriate circumstances, 

outweigh an individual’s liberty interest” (id. at p. 748). (See 

ibid. [“Even outside the exigencies of war, we have found that 

sufficiently compelling governmental interests can justify 

detention of dangerous persons”]; id. at p. 749 [“an arrestee may 

be incarcerated until trial if he presents a risk of flight, 

[citation], or a danger to witnesses”].) The court concluded that 

the government’s “legitimate and compelling” interest in 

preventing crime by arrestees, which is at its greatest when the 

evidence shows that the arrestee presents a demonstrable 

danger to society, outweighs the individual’s “strong interest in 

liberty.” (Id. at pp. 749–750.) 

The Salerno court also rejected the defendants’ procedural 

due process challenges to the federal Bail Reform Act. (Salerno, 

supra, 481 U.S. at pp. 751–752.) It explained: “Detainees have 

a right to counsel at the detention hearing. [Citation.] They 

may testify in their own behalf, present information by proffer 

or otherwise, and cross-examine witnesses who appear at the 

hearing. [Citation.] The judicial officer charged with the 

responsibility of determining the appropriateness of detention 

is guided by statutorily enumerated factors, which include the 

nature and the circumstances of the charges, the weight of the 

evidence, the history and characteristics of the putative 

offender, and the danger to the community. [Citation.] The 

Government must prove its case by clear and convincing 

evidence. [Citation.] Finally, the judicial officer must include 

written findings of fact and a written statement of reasons for a 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

44

decision to detain. [Citation.] The Act’s review provisions

[citation], provide for immediate appellate review of the 

detention decision. [¶] We think these extensive safeguards 

suffice to repel a facial challenge.”

9

 (Salerno, at pp. 751–752.)

Although Humphrey did not involve an order denying bail 

(Humphrey, supra, 11 Cal.5th at p. 155, fn. 7), it nonetheless 

recognized and drew upon Salerno’s analysis of due process at 

bail hearings. We agreed that “[w]hile due process does not 

categorically prohibit the government from ordering pretrial 

detention, it remains true that ‘[i]n our society liberty is the 

norm, and detention prior to trial or without trial is the carefully 

limited exception.’ ” (Id. at p. 155, quoting Salerno, supra, 

481 U.S. at p. 755.) We added: “Marking the boundary between 

the general rule and the limited exception requires a careful 

balancing of the government’s interest in preventing crime 

against the individual’s fundamental right to pretrial liberty. 

[Citation.] This territory has not yet been fully mapped, but we 

can nonetheless discern that an order of detention requires an 

interest that ‘is sufficiently weighty’ in the given case — and 

courts should likewise bear in mind that Salerno upheld a 

scheme whose scope was ‘narrowly focuse[d] on a particularly 

acute problem.’ [Citation.] Indeed, the law under review there 

authorized pretrial detention ‘only on individuals who have been 

arrested for a specific category of extremely serious offenses.’ ” 

(Humphrey, at p. 155, citing Salerno, at pp. 749–750.)

9 The defendants in Salerno challenged the use of proffers 

along with other procedural aspects of the federal Bail Reform 

Act. In finding no due process violation, the high court 

concluded the Bail Reform Act’s procedures met, and possibly 

“far exceed[ed],” the requirements of due process. (Salerno, 

supra, 481 U.S. at p. 752.)
In re HARRIS

Opinion of the Court by Guerrero, C. J.

45

2. Analysis

The Court of Appeal below determined that Salerno

“would seem to foreclose a federal constitutional due process 

challenge to the sufficiency of proffers in bail hearings, at least 

where, as here, procedural safeguards are provided similar to 

those provided in the federal context.” (Harris, supra, 

71 Cal.App.5th at p. 1098.) We agree petitioner’s due process 

challenge here fails. 

As we recognized in Humphrey, Salerno instructs that 

when a defendant is adequately shown to present an identified 

and articulable threat of great physical harm to an individual or 

the community, a court may, without violating due process 

principles, utilize pretrial detention to disable the defendant 

from executing that threat. (Humphrey, supra, 11 Cal.5th at 

p. 153, citing Salerno, supra, 481 U.S. at p. 751.) Such a scheme 

is “ ‘narrowly focuse[d] on a particularly acute problem.’ ” 

(Humphrey, at p. 155.) Yet “[a] court’s procedures for entering 

an order resulting in pretrial detention must also comport with 

other traditional notions of due process to ensure that when 

necessary, the arrestee is detained ‘in a fair manner.’ ” (Ibid.,

quoting Salerno, at p. 746.) Significantly, as explained above 

the high court in Salerno held that the federal Bail Reform Act’s 

procedures, which have been interpreted to allow the 

government to proceed by proffer to demonstrate clear and 

convincing evidence that no release conditions will reasonably 

assure the safety of any other person and the community, 

comported with these “traditional notions of due process.” 

(Humphrey, at p. 155; see Salerno, at p. 742; Smith, supra,

79 F.3d at pp. 1209–1210.) Thus, unless petitioner can establish 

that the presentation of evidence permitted under article I, 

section 12(b) is materially different from that permitted under 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

46

the federal Bail Reform Act, his due process challenge must be 

rejected. He has not done so.

Petitioner attempts to distinguish this case from Salerno, 

asserting that the procedures used in his hearing, “including the 

reliance on statements by the prosecution, lack of discovery, lack 

of notice, and lack of opportunity for petitioner to test the 

evidence or cross-examine the complaining witness, violated 

petitioner’s rights to due process under both the state and 

federal standards.” He claims that “[i]n order for this Court to 

determine if the use of ‘proffer’ violated due process, the Court 

must consider the detention hearing’s procedures as a whole.” 

Although petitioner acknowledges that he was “provided certain 

safeguards, such as the right to counsel, the right to present 

evidence, and the right to testify,” he maintains that his due 

process rights were violated because he was “denied discovery, 

notice, the ability to cross-examine, and an expedited appellate 

review.” 

We do not find a violation of federal due process on the 

record before us. Here, as in Salerno, petitioner had counsel 

present at his bail hearing. He was permitted to testify on his 

own behalf and to also present information by proffer or 

otherwise. The record also indicates petitioner indeed received 

notice of the People’s intent to request no bail under article I, 

section 12(b) via their opposition to petitioner’s request to 

reduce bail, and that he also received at least some discovery. 

Regarding petitioner’s cross-examination claim, he failed to 

adequately brief it in his petition for writ of habeas corpus before 

the Court of Appeal. (Harris, supra, 71 Cal.App.5th at p. 1098, 

fn. 5.) The trial court was guided by the factors set forth in 

article I, section 12(b), which include the nature and the 

circumstances of the offenses and whether there was a 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

47

substantial likelihood that petitioner’s release would result in 

great bodily harm to others and retained discretion to reject any 

unreliable evidence. The trial court was also required to provide 

a written statement of reasons for its detention decision 

(Humphrey, supra, 11 Cal.5th at pp. 155–156), which was 

subject to immediate review (Pen. Code, § 1490; Gray v. 

Superior Court (2005) 125 Cal.App.4th 629, 636, fn. 3). 

We likewise conclude that the prosecution’s use of proffers 

at the bail hearing did not violate “ ‘ “the dignitary interest in 

informing [petitioner] of the nature, grounds, and consequences 

of the action and in enabling [him] to present [his] side of the 

story before a responsible government official.” ’ ” (Today’s 

Fresh Start, supra, 57 Cal.4th at p. 213.) Indeed, petitioner fails 

to explain how the prosecution’s reliance on a proffer deprived 

him of his right to notice or a timely hearing. Petitioner retained 

the opportunity to present his own proffer and other evidence as 

well as the right to a timely hearing.

Petitioner contends that the Court of Appeal’s decision in 

Naidu v. Superior Court (2018) 20 Cal.App.5th 300 (Naidu) 

counsels in favor of a different result. In Naidu, the defendants

challenged a court order suspending their professional licenses 

as a condition of bail. (Id. at p. 305.) The appellate court held 

that the trial court violated the defendants’ due process rights 

when it suspended their licenses in the absence of any evidence 

that this condition was necessary to protect the public. (Id. at 

p. 313.) The court characterized the state licensing board’s 

written request for suspension and counsel’s supporting 

declaration as containing mere assertions, but not “actual 

evidence,” that the defendants’ conduct made their business 

license subject to suspension. (Id. at pp. 313–314.) It viewed 

the board’s request to be akin to the filing of a criminal 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

48

complaint, which it held would not sufficiently support the 

suspension of a business license as a condition of release on bail. 

(Ibid.)

Naidu does not provide a persuasive basis to reconsider 

our conclusion here. It is unclear whether that court actually 

demanded the presentation of evidence that would be 

admissible at a criminal trial. (Naidu, supra, 20 Cal.App.5th at 

p. 313 [characterizing statements contained in counsel’s written 

declaration, a form of hearsay evidence, as “admissible 

evidence”].) Indeed, the court in Naidu acknowledged that “a 

license suspension could, in at least some cases, be supported by 

no more than the return of an indictment or the filing of an 

information.” (Id. at p. 314.) The court’s principal concern 

involved the conclusory nature of the proffer submitted in 

support of the license suspension, which simply related counsel’s 

assertion that, based on the charges against them, the 

defendants could not safely continue their work as contractors. 

(Id. at p. 313.) By itself, a similar representation by counsel 

would be inadequate in the context of a no-bail determination, 

as well. However, to the extent Naidu v. Superior Court, supra,

20 Cal.App.5th 300 may be read to suggest that due process 

necessarily requires admissible evidence at a bail hearing, it is 

disapproved. 

To summarize, neither the language of article I, section 

12(b), nor the mandates of due process, categorically preclude 

the use of hearsay evidence or reliable offers of proof at a pretrial 

detention hearing, although the trial court always retains 

discretion to require additional evidence. 
In re HARRIS

Opinion of the Court by Guerrero, C. J.

49

D. Remand is Required to Determine Whether the 

Prosecution’s Proffered Evidence Satisfied the 

Elements of Article I, Section 12(b) 

Having concluded that a trial court may consider reliable 

proffered evidence in making factual findings under article I, 

section 12(b) without offending federal or state due process 

principles, we turn to the question of whether the prosecution’s 

presentation of evidence satisfied the elements of the 

constitutional provision in this case. “In reviewing a denial of 

bail, an appellate court must determine . . . whether the record 

contains substantial evidence of a qualifying offense — and, if 

so, whether any reasonable fact finder could have found, by clear 

and convincing evidence, a substantial likelihood that the 

defendant’s release would result in great bodily harm to one or 

more members of the public.” (White, supra, 9 Cal.5th at p. 471.) 

Applying these standards, the Court of Appeal held that the 

evidence presented below satisfied both elements.10 (Harris, 

supra, 71 Cal.App.5th at p. 1103.) 

As noted, in its opposition to defendant’s motion to reduce 

bail and at the bail hearing, the prosecution presented a detailed 

proffer summarizing the evidence it had collected of petitioner’s 

alleged guilt of the charged offenses and the alleged threat he 

posed to public safety. The prosecution submitted photographs 

relating to the charged offenses, but did not provide the court 

10 As noted, the Court of Appeal determined remand was 

nevertheless required because the record did not permit 

meaningful review of whether sufficient evidence supported a

conclusion that “less restrictive alternatives to detention could

not reasonably protect the interests in public or victim safety.” 

(Harris, supra, 71 Cal.App.5th at p. 1106.) No party has 

challenged this aspect of the Court of Appeal’s decision.
In re HARRIS

Opinion of the Court by Guerrero, C. J.

50

with the police reports, written statements, or interview 

transcripts on which it based its account. The prosecution also

took the position that under Humphrey, a court must assume 

that the criminal charges are true. Defense counsel, meanwhile,

disputed whether the evidence established that petitioner posed 

such a risk, noted petitioner had not received complete 

discovery, called into question the DNA evidence, and 

emphasized the victim had identified two other people as the 

perpetrator near the time of the offenses. Yet the defense, too, 

conceded that Humphrey directed the court to assume the truth 

of the charges. In its ruling denying bail, the trial court cited 

the prosecution’s detailed account of the evidence linking 

petitioner to the charged offenses as well as the statements from 

other women regarding petitioner’s scarf fetish and angry 

aggressive behavior. 

Based on the record before us, we cannot foreclose the 

possibility that the trial court erred by presuming the truth of 

the criminal charges against petitioner when determining 

whether the “facts are evident or the presumption great” that 

petitioner committed the charged offenses. (Cal. Const., art. I, 

§ 12, subd. (b).) The court also did not have the benefit of the 

standards and reliability guidelines we announce today. Under 

these circumstances, a remand is warranted so that the trial 

court may apply the standards set forth in article I, section 

12(b), as we have clarified them today.
In re HARRIS

Opinion of the Court by Guerrero, C. J.

51

III. DISPOSITION

We reverse the judgment of the Court of Appeal insofar as 

that court held the record contained substantial evidence that 

the elements of article I, section 12(b) were met. We remand the 

matter to the Court of Appeal with directions to remand the case 

to the trial court for further proceedings consistent with this 

opinion. We leave undisturbed the Court of Appeal’s 

determination that the matter must be remanded to the trial

court to make additional findings pursuant to Humphrey, supra,

11 Cal.5th 135, regarding the feasibility of less restrictive 

alternatives to detention. 

GUERRERO, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion In re Harris

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 71 Cal.App.5th 1085

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S272632

Date Filed: June 27, 2024

__________________________________________________________

Court: Superior

County: San Mateo

Judge: Amarra A. Lee

__________________________________________________________

Counsel:

Marsanne Weese and Rose Mishaan, under appointments by the 

Supreme Court, for Petitioner John Harris, Jr.

Michael C. McMahon; Salil Dudani, Katherine Hubbard, Carson 

White; Wilmer Cutler Pickering Hale and Dorr, Daniel S. Volchok and 

Allison M. Schultz for The California Public Defenders Association, the 

Ventura County Public Defender, Civil Rights Corps and The ACLU of 

Northern California as Amici Curiae on behalf of Petitioner John 

Harris, Jr.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Michael J. Mongan, State Solicitor General, Jeffrey 

M. Laurence, Assistant Attorney General, Aimee Feinberg and Joshua 

A. Klein, Deputy State Solicitors General, Katie L. Stowe, Deputy 

Attorney General; Stephen M. Wagstaffe, District Attorney, Alpana 

Samant and Nicole A. Sato, Deputy District Attorneys, for Respondent 

the People.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Marsanne Weese 

Rose Mishaan 

Law Offices of Marsanne Weese

255 Kansas Street, Suite 340

San Francisco, CA 94103

(415) 565-9600

Joshua A. Klein

Deputy State Solicitor General

1515 Clay Street, Suite 2000

Oakland, CA 94612

(510) 879-0756