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300.1 Due Process: Miscellaneous Claims

    CAVEAT
    300.1.1 Due Process Applicable To Deeply Rooted Common Law Right
    300.1.2 Due Process: Proof Of Every Essential Fact Beyond A Reasonable Doubt
    300.1.3 Due Process: Instruction On Defense Theory
    300.1.4 Due Process: Instruction On Lesser Included Offense
    300.1.5 "Super Due Process"-- Domestic Rules Of Evidence Does Not Preclude Defendant From Establishing A Denial Of A Fair Trial
    300.1.6 Due Process: Presence Of Defendant At Trial
    300.1.7 Due Process: Juror Unanimity
    300.1.8 Due Process: Juror Consideration Of Irrelevant, Prejudicial Evidence
    300.1.9 Due Process: Presence Of Judge
                 300.1.9.1 Judge’s Absence While Jury Views Videotapes: Harmless vs. Structural Error
    300.1.10 Due Process: Right To Balanced Instruction
    300.1.11 Substantive Due Process
    300.1.12 Due Process: Exercise Of One Constitutional Right Must Not Be Conditioned On Waiver Of Another
    300.1.13 Summation/Closing Argument: Guaranteed By Constitutional Rights To Counsel, Due Process, Trial By Jury
    300.1.14 Due Process on Appeal: Applicability Of Federal Due Process To Appeal
    300.1.15 Cumulative Effect Of State Errors As Violation Of Federal Due Process
    300.1.16 Reliability Of Conviction And Sentence Guaranteed By Due Process
    300.1.17 Due Process: Fair Opportunity To Defend
    300.1.18 Due Process Fair Opportunity To Litigate Trial Motions

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CAVEAT: The following is a list of examples of possible federal constitutional claims that could affect jury instruction issues. The list is not intended to include every constitutional claim, and does not include claims which have no obvious relationship to common jury instruction issues. Counsel should conduct their own independent research to assure that all constitutional claims applicable in a given case are identified.

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PRACTICE NOTE: As recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (1996) 518 US 37 [116 SCt 2013; 135 LEd2d 361] [plurality opinion]; see also Schad v. Arizona (1991) 501 US 624 [111 SCt 2491; 115 LEd2d 555].) Under the same reasoning, the defendant has a due process right to instruction upon the elements of aiding and abetting as established by the common law.

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    See NCJIC 270.4 [Reasonable Doubt Standard: General Principles].

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    See NCJIC 250.1 [Grounds For Instruction On Defense Theory].

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    See NCJIC 300.7 [Failure To Instruct On Lesser Included Offenses In Noncapital Case].

    See also NCJIC 300.8 [Failure To Instruct On Lesser Included Offense In Capital Case].

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PRACTICE NOTE: Due Process Balancing. The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14 [87 SCt 1920; 18 LEd2d 1019].)

    The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486; Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967, 970; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; see also Newman v. Hopkins (8th Cir. 2001) 247 F3d 848 [refusal to permit defendant to present voice exemplar evidence to establish that he does not speak with an Hispanic accent violated right to present a defense; domestic rule excluding voice exemplar evidence was an unreasonable application of clearly established federal law providing that a defendant has the constitutional right to present favorable evidence to the jury]; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447, 1449; see also People v. Babbitt (CA 1988) 45 C3d 660, 684 [248 CR 69]; People v. Corona (CA 1989) 211 CA3d 529, 544 [259 CR 524] ["[A] rule of evidence may not be enforced if it would infringe the right to a fair trial"].)

    This balancing principle has also been recognized in California. (See People v. Babbitt (CA 1988) 45 C3d 660, 684 [248 CR 69]; People v. Reeder (CA 1978) 82 CA3d 543, 553 [147 CR 275].)

    Exclusion of evidence has been found to be arbitrary or disproportionate "where it has infringed upon a weighty interest of the accused." (U.S. v. Scheffer (1998) 523 US 303, 308 [118 SCt 1261; 140 LEd2d 413]; see also Franklin v. Duncan (9th Cir. 1995) 70 F3d 75, 83 [exclusion of evidence violated defendant’s constitutional right to present a defense].) A domestic rule of evidence may not be used to exclude evidence if it "significantly undermined fundamental elements of the accused's defense." (Scheffer, 523 US at 308.) However, rules excluding evidence from criminal trials "do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" (Id. at 308.)

    Right To Proof Beyond A Reasonable Doubt And Trial By Jury. It has been suggested that the exclusion of relevant defense evidence on the basis of such reliability concerns as the rationale for the hearsay rule, violates two other constitutional guarantees besides the defendant's right to present a defense: the requirement for proof beyond a reasonable doubt and trial by jury. (See Katherine Goldwasser, Vindicating the Right to Trial By Jury and the Requirement of Proof Beyond a Reasonable Doubt: A Critique of the Conventional Wisdom About Excluding Defense Evidence (1998) 82 Geo.L.J. 621; see also Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 6-4, 1998 cum.supp.) In the above article Professor Goldwasser contends that, "when viewed through the lens of the reasonable doubt rule, to exclude defense evidence (and thereby increase the risk of an erroneous conviction) solely out of concern about the risk of an erroneous acquittal is flatly unacceptable." (Goldwasser, 82 Geo.L.J. at 635-36.) As to the right to trial by jury, Professor Goldwasser concludes that, "unreliability-based rules sacrifice precisely the thing we purport to care about in guaranteeing the right to trial by jury -- namely, providing for the kind of decision maker who is most likely to listen to, actually hear, and be open to full and separate consideration of, each and every item of evidence an accused may offer in support of his or her case." (Id. at 639.)

    Applicability of Montana v. Egelhoff (1996) 518 US 37 [116 SCt 2013; 135 LEd2d 361]. In light of the concurrence of Justice Kennedy, signed by three other members of the court, which declined to adopt a per se exclusion rule, and the dissent of Justice Stevens, the as-applied balancing test should still be utilized on a case-by-case basis. (See Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 2-3(a) fn 183 and § 2-4(c) fn 197.)

    Additionally, the failure of U.S. v. Scheffer (1998) 523 US 303 [118 SCt 1261; 140 LEd2d 413] to cite Eglehoff "is confirmation that Eglehoff governs only when the legislature redefines the substantive mens rea element of a crime. Scheffer implicitly assumes that the Washington-Chambers evidence line of authority survived Eglehoff." (Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 2-5, fn 312.1 (1998 cum.supp.).)

    One commentator has observed that the typical evidentiary limitation -- which, for example, only allow intoxication to negate specific intent -- "work only on an evidentiary level. They do not alter the offense definition by abandoning any culpable state of mind requirements. They simply prevent the admission of evidence of mental disease or defect in determining the presence or absence of the required state of mind. It is this apparent inconsistency -- acknowledging that a given state of mind is required for an offense, yet excluding evidence relevant to that state of mind -- that has invited the most severe criticisms of and has prompted legal, including constitutional, challenges to such limiting provisions. [Citations.]" (Robinson, Criminal Law Defenses (West, 1984) § 64(a) p. 277.)

See Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996).

See also Manual On Recurring Problems In Criminal Trials [9d. Right Of Confrontation: Admissibility Of Out-Of-Court Statements Within Exceptions To Hearsay Rule].

See also Manual On Recurring Problems In Criminal Trials [9f. Right Of Confrontation: Defendant's Right Of Confrontation Includes Right To Be Present At All Stages Of Trial].

See also Capital Punishment Handbook [4.8.2.9 a. Reliable Hearsay Evidence: Authorities].

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    See NCJIC 300.15 [Presence Of Defendant At Trial].

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    See NCJIC Chapter 273 [Jury Unanimity As To The Act Or Offense Committed (Duplicity)].

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    See NCJIC 300.11.1 [Instruction Allowing Jury To Consider Irrelevant Evidence Violates the Federal Constitution].

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    See NCJIC 300.24 [Right To Presence Of Trial Judge].

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    300.1.9.1    Judge’s Absence While Jury Views Videotapes: Harmless vs. Structural Error

PRACTICE NOTE: Trial errors are those that may be quantitatively assessed in the context of other evidence presented and are therefore subject to harmless and plain error analyses. Structural errors are the consequences of a defect in the trial that is necessarily unquantifiable and indeterminate, rendering the entire trial fundamentally unfair and warranting automatic reversal. (People v. Geisendorfer (CO 1999) 991 P2d 308, 310.) Courts around the country have split over whether a judge’s absence from the courtroom during a critical stage of a criminal case qualifies as structural error. In those cases where structural error has not been found, "there has been either a finding of express or implied waiver of the right to the judge’s presence, or a determination that the judge, while technically absent, remained in ‘effective control’ of the proceedings." (Riley v. Deeds (9th Cir. 1995) 56 F3d 1117, 1121.)

    Indeed, in United States v. Mortimer (3d Cir. 1998) 161 F3d 240, 241, the court explicitly recognized that "the structure [of a trial] normally stands if the parties consent to excuse the presence of a judge." (See also Griego v. People (CO 2001) 19 P3d 1, 7; cf. Commonwealth v. Burnett (MA 1998) 702 NE2d 803, 807 ["even structural error is subject to the doctrine of waiver"].)

    See also NCJIC 300.24 [Right To Presence Of Trial Judge].

ARTICLE: Legal Reports: Judicial Misconduct Warrants Jury Verdict Reversal: Exiting Courtroom During Closing Arguments Constitutes Structural Error, 2 Lawyers J. 2 (2000).

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    See NCJIC 300.12 [Instructions Must Be Balanced].

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PRACTICE NOTE: The term "substantive due process" refers to a line of disparate cases which generally conclude that the guarantee of due process in the 5th and 14th amendments includes a "substantive" component that restricts infringement upon certain fundamental "liberty interests." (See e.g., Reno v. Flores (1993) 507 US 292, 302 [113 SCt 1439; 123 LEd2d 1] [substantive due process analysis must begin with a "careful description of the assertive right," for the doctrine of judicial restraint requires care in breaking new ground]; see also Gray v. Whitmore (CA 1971) 17 CA3d 1, 20 [94 CR 904]; U.S. ex rel. Reed v. Lane (7th Cir. 1985) 759 F2d 618, 622-23; People v. Beachem (CA 1963) 223 CA2d 383, 387 [35 CR 673].) Hence, the substantive due process doctrine acts as a limitation on unreasonable and arbitrary legislation. (People v. Kilborn (CA 1996) 41 CA4th 1325, 1328 [49 CR2d 152] ["'deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantive relation to the object sought to be attained'"].) "The rather nebulous and elastic 'notions of fairness' which form the concept of substantive due process provide fertile opportunity for argumentation...." (People v. Rodriguez (CA 1998) 66 CA4th 157, 180 [77 CR2d 676]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 2.12.)

    The "established method of substantive-due-process analysis has two primary features." One is that the due process clause especially protects those fundamental rights and liberties which are "deeply rooted in this nation’s history and tradition" and the other is a requirement of a "careful description" of the asserted fundamental liberty interest. (Washington v. Glucksberg (1997) 521 US 702, 721-24 [117 SCt 2258, 138 LEd2d 772]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 2.14 [quoting Glucksberg].)

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    See NCJIC 300.12.4 [Exercise Of One Constitutional Right Should Not Be Conditioned Upon The Waiver Of Another].

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    See NCJIC 272.1.1 [Right To Summation/Closing Argument Founded On Fundamental Federal Constitutional Rights].

See Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

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PRACTICE NOTE: A convicted state defendant has no federal constitutional right to appeal. However, "it is undisputed that once appellate review is provided, due process requires that it remain unfettered." (Castle v. U.S. (5th Cir. 1968) 399 F2d 642, 650; see also Douglas v. California (1963) 372 US 353, 355-56 [83 SCt 814; 9 LEd2d 811]; Griffin v. Illinois (1956) 351 US 12, 16-19 [76 SCt 585; 100 LEd 891].) "[T]he proceedings in the appellate tribunal are to be regarded as part of the process of law under which [the defendant] is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the 14th Amendment." (Frank v. Magnum (1915) 237 US 309, 327 [35 SCt 582; 59 LEd 969]; see also Cole v. Arkansas (1948) 333 US 196, 201-202 [68 SCt 514; 92 LEd 644].)

    Delay Of Appeal As Denial Of Due Process. In re Christopher S. (CA 1992) 10 CA4th 1337 [13 CR2d 215] recognized that the defendant does have a due process right to a speedy determination of his appeal (Id. at 1340.)

    Several federal cases have also recognized that excessive delay in the appellate process may violate due process rights. "[W]hen a state provides a right to appeal, it must meet the requirements of due process and equal protection . . . [D]ue process can be denied by any substantial retardation of the appellate process . . . ." (Rheuark v. Shaw (5th Cir. 1980) 628 F2d 297, 302.) On the other hand, "not every delay in the appeal of a case, even an inordinate one, violates due process." (Id. at 303.) Such claims are tested in the federal courts by applying four factors set forth in Barker v. Wingo (1972) 407 US 514, 530-532 [92 SCt 2182; 33 LEd2d 101], for evaluating the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the degree to which the defendant asserted his or her right; and (4) the degree of prejudice to the defendant. All four factors are to be considered together in light of the circumstances of the case, as part of a "difficult and sensitive balancing process." (Id. at 533; see also Coe v. Thurman (9th Cir. 1990) 922 F2d 528, 532.)

    Inadequate Record As Denial Of Due Process On Appeal. Failure to instruct orally on the elements of the offense violates the defendant's due process right to a record sufficient for appeal because it makes it impossible for the reviewing court to determine whether each juror read the written instructions and was aware of the elements thereof. (People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314; see also NCJIC 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error]; see also NCJIC 2.5.12 [Insufficiency Of Transcript On Appeal As Reversible Error].)

    Ineffective Counsel On Appeal. (See NCJIC 295.1.2 [Right To Effective Representation Of Counsel On Appeal].)

    Strategy Note. "Counsel in state court must make a full record of all impediments to meaningful appellate review, including denial of adequate briefing time and unfair page limitations. This will provide federal counsel with an argument that any procedural bars are not adequate to preclude federal review of the claims, and that the standard of review contained in section 2254(d) should not apply." ("RECAP" 130 (July 1998) p. 24, published by the California Appellate Project, San Francisco.)

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    300.1.15    Cumulative Effect Of State Errors As Violation Of Federal Due Process

PRACTICE NOTE: State law errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair. (Rose v. Lundy (1982) 455 US 509, 531 fn 8 [102 SCt 1198; 71 LEd2d 379] concurring opinion; Greer v. Miller (1987) 483 US 756, 764 [107 SCt 3102; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Donnelly v. DeChristoforo (1974) 416 US 637, 642-43 [94 SCt 1868; 40 LEd2d 431]; Menzies v. Procunier (5th Cir. 1984) 743 F2d 281, 288-89; Cooper v. Sowders (6th Cir. 1988) 837 F2d 284, 286-88; Walker v. Engle (6th Cir. 1983) 703 F2d 959, 963; Lincoln v. Sunn (9th Cir. 1987) 807 F2d 805, 814, fn 6; see also NCJIC 300.1.14 [Due Process On Appeal: Applicability Of Federal Due Process To Appeal]; see also NCJIC 297.2.3 [Prejudice On Appeal: Cumulative Prejudice].)

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    The link between reliability and due process has been recognized in a number of contexts such as: eyewitness identification (see Foster v. California (1969) 394 US 440, 442-43 [89 SCt 1127; 22 LEd2d 402]; Manson v. Brathwaite (1977) 432 US 98, 105-06 [97 SCt 2243; 53 LEd2d 140]); voluntariness of confessions (see Lego v. Twomey (1972) 404 US 477 [92 SCt 619; 30 LEd2d 618]); prosecutorial misconduct (see Donnelly v. DeChristoforo (1974) 416 US 637, 646-67 [94 SCt 1868; 40 LEd2d 431]); admissibility of hearsay (see California v. Green (1970) 399 US 149, 184 [90 SCt 1930; 26 LEd2d 489] [concurring opinion]); personal presence at trial (see Thomas v. Goldsmith (9th Cir. 1992) 979 F2d 746, 748 [defendant has the constitutional right to be present "at any criminal proceeding in which his presence would contribute to the proceeding's fairness or reliability"]); inconsistent verdicts (see People v. Klingenberg (IL 1996) 665 NE2d 1370, 1374-76) and sentencing (U.S. v. Galbraith (7th Cir. 2000) 200 F3d 1006, 1112; U.S. v. Branch (7th Cir. 1999) 195 F3d 928, 933.)

    Additionally, even though the due process predicate for lesser offenses is subject to differing views (see NCJIC 300.7.1 [Failure To Sua Sponte Instruct On Lesser Included Offenses: Whether Due Process Is Implicated]), the need for reliability is the basis for rulings regarding instruction on lesser included offenses. (See e.g., Beck v. Alabama (1980) 447 US 625 [100 SCt 2382; 65 LEd2d 392]; People v. Barton (CA 1995) 12 C4th 186 [47 CR2d 569] [gambling].) This is so because the failure to permit consideration of lesser charges creates a "risk ... that jurors harboring a doubt as to defendant's guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offense at all." (United States v. Jackson (9th Cir. 1984) 726 F2d 1466, 1470; State v. Robbins (MT 1998) 971 P2d 359, 366-67 [discussing Montana statute drafted to comport with Jackson]; People v. Kurtzman (CA 1988) 46 C3d 322, 329-31 [250 CR 244].)

    As observed by the California Supreme Court, "[o]ur courts are not gambling halls but forums for the discovery of truth. [Citation.] Truth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between those two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an "all or nothing" choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence. [Footnote omitted]." (People v. Barton, 12 C4th at 196.)

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PRACTICE NOTE: The fundamental fairness guarantee of the Due Process Clause (5th and 14th Amendments) requires that the defendant be afforded a full and fair trial in which there is a fair opportunity to defend. (See e.g., Michelson v. United States (1948) 335 US 469, 476 [69 SCt 213; 93 LEd2d 168] [character evidence denied defendant a "fair opportunity to defend"]; see also Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674] [ineffective counsel inquiry turns on "the fundamental fairness of the proceeding whose result is being challenged]; Cooper v. Oklahoma (1996) 517 US 348, 369 [116 SCt 1373; 134 LEd2d 498] ["fundamental fairness"]; State v. Thomas (NJ 1991) 586 A2d 250, 253 [fundamental fairness demanded DNA testing].)

    The Supreme Court has long emphasized the federal Constitution's "overriding concern with the justice of the finding of guilt." (United States v. Agurs (1976) 427 US 97, 112 [96 SCt 2392; 49 LEd2d 342].) In particular, the Due Process Clause guarantees for every defendant the right to a trial that comports with basic tenets of fundamental fairness. (Lassiter v. Department of Soc. Servs. (1981) 452 US 18, 24-25 [101 SCt 2153; 68 LEd2d 640]; see also Turner v. Louisiana (1965) 379 US 466, 471-72 [85 SCt 546; 13 LEd2d 424]; In re Murchison (1955) 349 US 133, 136 [75 SCt 623; 99 LEd2d 942].)

    See also NCJIC 295.1.1 [Right To Meaningful Appellate Review: Due Process].

See Capital Punishment Handbook [4.1 a. General Due Process Concerns: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.7 a. Sentencer Reliance On Undisclosed Information: General Principles And Authorities].

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PRACTICE NOTE: In Reece v. Georgia (1955) 350 US 85, 89 [100 LEd 77; 76 SCt 167] the United States Supreme Court held that "the right to object to a grand jury presupposed an opportunity to exercise that right." In Holt v. Virginia (1965) 381 US 131, 136 [14 LEd2d 290; 85 SCt 1375], the United States Supreme Court concluded that "[t]he right to be heard must necessarily embody a right to file motions and pleadings essential to present claims and raise relevant issues." Implicit within these decisions is the right to an evidentiary hearing to resolve disputed material issues of fact. The right to object and the right to file motions would be useless if the accused is arbitrarily precluded from introducing evidence in support of those motions.

    Due process guarantees the accused the right to access to the courts and the right to a meaningful opportunity to be heard. (See e.g., In re William F. (CA 1974) 11 C3d 249, 255 [113 CR 170] [due process requires fundamental fairness in the fact finding process]; Payne v. Superior Court (CA 1976) 17 C3d 908, 914 [132 CR 405]; see also People v. Braxton (CA 2002) 103 CA4th 471 [126 CR2d 699] ["justice" requires remand where defendant improperly denied an opportunity to make motion for new trial]; see also People v. Armstead (CA 2002) 102 CA4th 784, 793-94 [125 CR2d 651] [due process is violated if the trial court expands the scope of the evidence in response to a jury inquiry during deliberations].)

    Moreover, the federal constitution (6th and 14th Amendments) gives the defense the right to compel the attendance of witnesses and confront the prosecution witnesses. (See Chambers v. Mississippi (1973) 410 US 284, 294 [35 LEd2d 297; 93 SCt 1038]; Webb v. Texas (1972) 409 US 95 [34 LEd2d 330; 93 SCt 351]; Washington v. Texas (1967) 388 US 14, 17-19 [18 LEd2d 1019; 87 SCt 1920].) The right to call witnesses is expressly guaranteed under the California Constitution. (See People v. Chavez (CA 1980) 26 C3d 334, 353 [161 CR 762].) These fundamental constitutional rights to be heard and to call witnesses apply to motion hearings as well as to the jury trial itself. (See Holt v. Virginia, supra, 381 US 131, 136; Bell v. Burson (1971) 402 US 535, 541-42 [29 LEd2d 90; 91 SCt 1586].)

    In short, both the California Constitution and federal Constitution guarantee the defendant a right to his day in court (In re Oliver (1948) 333 US 257, 273 [92 LEd2d 682; 68 SCt 499]), free from arbitrary adjudicative procedures. (Truax v. Corrigan (1921) 257 US 312, 332 [66 LEd2d 254; 42 SCt 124] [due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry]; Powell v. Alabama (1932) 287 US 45 [77 LEd 158; 53 SCt 55] [the opportunity to be heard is one of the immutable principles of justice which inhere in the very idea of free government and is a central component of procedural due process, see also People v. Ramirez (CA 1979) 25 C3d 260, 268 [158 CR 316] [California Due Process Clause protects against arbitrary adjudications].)