Twenty years ago in California, we had to put an initiative on the ballot and amend the state constitution just to establish that the strict rules of evidence, including the hearsay rule, do not apply at preliminary hearings, something accepted as a matter of course elsewhere. Today we have an odd little opinion from the Ninth Circuit confirming that this doesn't violate the Confrontation Clause of the United States Constitution. The clause applies to trials. A state defendant has no federal right to a preliminary hearing at all, so it certainly stands to reason he has no federal right to confront witnesses at a purely optional procedure.

What is odd is the route the case took to the Ninth. Defendant Peterson was charged with two felonies and several misdemeanors. The felony charges required either a grand jury indictment or a preliminary hearing. (Misdemeanors require neither.) The state introduced hearsay evidence at the prelim. The magistrate found probable cause, and Peterson was held for trial. But then the felony counts were dismissed on other grounds.  Peterson was convicted of some misdemeanor counts, but any gripes about the prelim. are moot on those counts, as no prelim. was required.

So Peterson sues the state, the county, and the AG in a federal civil action. The trial court dismissed the state and AG and granted judgment on the pleadings to the county. The Ninth does not discuss issues of res judicata, federalism, or the Heck v. Humphrey rule in Peterson v. California, No. 09-15633. It goes straight to the merits and upholds the initiative. The decision is correct on the merits. The implicit conclusion that they could properly reach the merits may be correct, but I would have expected some discussion of these knotty issues.