BILL ANALYSIS
AB 1160
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Date of Hearing: January 10, 2006
Counsel: Steven Meinrath
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1160 (Lieber) - As Amended: January 4, 2006
As Proposed to be Amended in Committee
SUMMARY : Makes legislative findings and expresses legislative
intent that use of "panic strategies" by criminal defendants to
appeal to the bias of jurors is against public policy, that an
evidentiary hearing should be held when such evidence is
introduced, and that a jury instruction should be modified to
define "bias". Specifically, this bill :
1)Makes several legislative findings and declarations to wit:
a) "It is against public policy for a jury to render a
decision tainted by bias based upon the victim's actual or
perceived disability, gender, nationality, race or
ethnicity, religion or sexual orientation, or his or her
association with a person or group with one or more of
these characteristics."
b) "Panic strategies" are those strategies that try to
explain a defendant's actions or emotional reactions based
upon the knowledge or discovery of the fact that the victim
possesses one or more of the characteristics listed above
or associates with a person or group with one or more of
these characteristics.
c) The Legislature is concerned about the use of societal
bias in criminal proceedings and the susceptibility of
juries to such bias. The use of "panic strategies" by
defendants in criminal trials invites bias against victims
based on one or more of the characteristics listed above or
an association with a person or group with one or more of
those characteristics.
d) It is against public policy for a defendant to be
acquitted of a charged offense based upon an appeal to the
societal bias that may be possessed by members of a jury.
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2)States that when a defendant seeks to introduce evidence
consistent with a "panic strategy," the court will make a
determination whether the evidence should be excluded pursuant
to Evidence Code Section 352, taking into consideration "bias"
as defined in this act and the defendant's constitutional
right to present a defense.
3)Requests that the Judicial Council of California Criminal Jury
Instruction 2.00 define "bias" so as to reflect the
legislative policy stated in this act.
EXISTING LAW :
1)Provides that it is unlawful to, by force or threat of force,
willfully injure, intimidate, interfere with, oppress, or
threaten any other person in the free exercise or enjoyment of
any right or privilege secured to him or her by the
Constitution or laws of the United States in whole or in part
because of actual or perceived characteristics of the victim
relating to disability, gender, nationality, race or
ethnicity, religion, sexual orientation or association with a
person or group with one or more of these actual or perceived
characteristics. [Penal Code Sections 422.6(a) and
422.55(a)(1) to (7).]
2)Defines "gender," for purposes of hate crimes as "sex, and
includes a person's gender identity and gender related
appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth." [Penal
Code Section 422.56(c).]
3)Provides that jurors in every criminal case (except in the
penalty phase of a death penalty trial) may be instructed by
the court: "Do not let bias, sympathy, prejudice, or public
opinion influence your decision." [CALJIC 2.00.]
4)Provides that murder is the unlawful killing of a human being,
or a fetus, with malice aforethought. [Penal Code Section
187.]
5)Provides that murder is divided into two degrees and that a
murder committed with premeditation and deliberation is
first-degree murder. [Penal Code Section 189.]
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6)Provides that manslaughter is divided into three kinds,
voluntary, involuntary and vehicular, and that voluntary
manslaughter is the unlawful killing of a human being without
malice, upon a sudden quarrel or heat of passion. [Penal Code
Section 192.]
7)States a killing occurs upon a sudden quarrel or heat of
passion if, as a result of provocation that would have caused
a person of average disposition to act rashly and without due
deliberation (that is, from passion rather than from
judgment), the defendant acted rashly and under the influence
of intense emotion that obscured his or her reasoning or
judgment. [CALJIC No. 8.42.]
8)Provides that the court in its discretion may exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will: (a) necessitate undue
consumption of time; or, (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the
jury. [Evidence Code Section 352.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The murder of
Gwen Araujo in Newark, California, has focused national
attention on the increasing use of the 'panic strategy' by
defendants in murder trials. In 2004, the criminal trial of
the three men accused of attacking Ms. Araujo ended in a
mistrial, following several weeks of defense attorneys
asserting that the defendants "panicked" upon learning that
Ms. Araujo was a transgender individual. Their arguments,
largely based on stereotypes about transgender women, were
framed to play on societal bias against transgender people.
If successful, this panic strategy could have resulted in a
conviction for the lesser charge of voluntary manslaughter,
rather than first- or second-degree murder as sought by the
prosecution.
"Experts estimate that nationally, similar panic strategies have
been used in over 45 cases, often with success. In February, a
Kentucky man successfully won a lighter sentence after arguing
that his murderous rage was justified because the male victim
allegedly made a sexual advance on him. A similar case in
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Georgia, spurred the Fulton County district attorney (Atlanta)
to convene a three-day conference in February 2005 on the
subject to help train prosecutors on defeating the strategy.
Earlier this year, a Fresno man who stabbed a transgender
person a reported 20 times was sentenced to only four years in
prison after agreeing to plead guilty to the crime. Newspaper
reports quoted a Fresno district attorney as saying that the
difficulty of facing panic strategies was one reason for
offering the plea.
"This bill will help ensure that defendants do not play upon
bias in attempting to win acquittal or to seek a lesser
charge. This bill will improve the existing California jury
instruction to clarify that bias on the basis of a person's
gender, sexual orientation or other protected characteristics
has no place in the jury's decision making."
2)The Issue of "Gay or Transgender Panic" in Criminal Cases :
Evidence that a defendant in a criminal case killed the victim
in response to discovery of the victim's gender or sexual
orientation has been introduced in some cases to establish the
defendant's state of mind at the time of the offense. This
bill addresses the concern that this type of evidence may be
used by criminal defendants to appeal to bias on the part of
members of the jury against gay and transgender people. The
issue this bill raises is how that concern may be addressed
consistent with the right of an accused person to present all
relevant evidence in his or her defense.
a) "Panic" evidence to show heat of passion . Such evidence
has been introduced in some cases in an attempt to
establish that the defendant's discovery of the victim's
gender or sexual orientation was a provocation which
resulted in the defendant killing the victim in the heat of
passion. If the jury were to find that this discovery
constituted legally adequate provocation, this would reduce
defendant's liability from murder to manslaughter. The
test for what constitutes legally adequate provocation is
an objective one - that is, the jury would have to find
that the discovery of these facts would have led an
ordinary, reasonable person to act without due deliberation
and reflection. On this issue jurors are instructed, "It
is not enough that the defendant simply was provoked. The
defendant is not allowed to set up his or her own standard
of conduct. You must decide whether the defendant was
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provoked and whether the provocation was sufficient. In
deciding whether the provocation was sufficient, consider
whether a person of average disposition would have been
provoked and how such a person would react in the same
situation knowing the same facts." [CALCRIM No. 570.] A
review of case law indicates that no jury in California has
ever found that this sort of "panic" evidence constituted
sufficient provocation to find that the crime was committed
in the heat of passion. The most recent case in which the
jury found this evidence failed to constitute legally
adequate provocation was the case of Gwen Araujo, cited by
the author.
b) "Panic" evidence to show lack of premeditation . Aside
from the introduction of this type of evidence to establish
that a killing took place in the heat of passion, where the
defendant is charged with first-degree murder, this
evidence could also be introduced to show that the killing
was not premeditated. If the killing was not premeditated,
the defendant's liability is reduced from first- to
second-degree murder. Therefore, regardless of whether the
jury is sympathetic to, or repulsed by, the defendant's
attitude toward the victim, the evidence could be relevant
to the defendant's state of mind at the time of the
killing. Because evidence of the defendant's state of mind
with respect to premeditation and deliberation is highly
relevant to issues before a jury, in a case where the
defendant is charged with first-degree murder the defendant
would have a constitutional right to present this type of
evidence to the jury. ["The right of an accused to testify
in his own defense is well established, and is a
'constitutional right of fundamental dimension'." United
States v. Pino-Noriega (1999) 189 F.3d 1089, 1094, citing
United States v. Joelson , 7 F.3d 174, 177 (9th Cir. 1993);
Rock v. Arkansas , 483 U.S. 44, 51, 97 L. Ed. 2d 37, 107 S.
Ct. 2704 (1987); and the United States Constitution,
Amendment VI.]
3)Evidence Code Section 352 . Evidence Code Section 352 permits
a court to exclude relevant evidence on the ground that it
could have a prejudicial effect on the jury and that the
potential for such an effect outweighs any probative value the
evidence may have. [Evidence Code Section 352.] This bill
states that it is the Legislature's intent that whenever a
defendant seeks to introduce evidence consistent with or
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supporting a "panic strategy," the court will hold an
evidentiary hearing to determine whether the evidence should
be excluded pursuant to Evidence Code Section 352. As stated
above, the defendant has a constitutional right to testify as
to his or her state of mind. Evidence of a defendant's
actions, i.e., killing the victim, based on the defendant's
discovery of some characteristic of the victim, is evidence of
the defendant's state of mind at the time of the killing.
Although this bill states that the determination of
admissibility should be consistent with the defendant's
constitutional right to present a defense, it is doubtful that
this type of evidence could ever be excluded pursuant to
Evidence Code Section 352 without violating the defendant's
constitutional right to present his or her defense.
Additionally, as a practical matter, to encourage a court to
hold a hearing on the admissibility of this evidence whenever
introduced could actually prejudice the prosecution's case.
Because a defendant may not be compelled to reveal the
contents of his or her testimony before taking the stand, this
evidentiary issue would often arise only after the defendant
testified and the jury had heard the "panic" evidence. Even
if the court were to find the evidence inadmissible at that
point, the court's admonition to the jury to disregard that
testimony would probably serve only to highlight that
testimony in the jurors' minds.
4)Argument in Opposition : California Attorneys for Criminal
Justice states, "The right to testify in one's defense is
constitutionally protected and is a cornerstone of a balanced
administration of justice. As part of their testimony,
criminal defendants regularly explain their mental state
during the commission of offenses. This testimony is
invaluable to juries who must decide whether the requisite
elements of criminal intent existed at the time of an offense.
Unfortunately, this bill impedes the introduction of this
evidence by requiring a separate evidentiary hearing and
expanding the authority of judges to exclude this testimony."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
AB 1160
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Opposition
California Attorneys for Criminal Justice
Capitol Resource Institute
Analysis Prepared by : Steven Meinrath / PUB. S. / (916)
319-3744