BILL NUMBER: AB 1723 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 2, 2010
AMENDED IN ASSEMBLY APRIL 8, 2010
INTRODUCED BY Assembly Members Lieu and Emmerson
FEBRUARY 3, 2010
An act to amend Section 240 of, and to add and repeal Section 1390
of, the Evidence Code, relating to evidence.
LEGISLATIVE COUNSEL'S DIGEST
AB 1723, as amended, Lieu. Evidence: admissibility of statements.
(1) Existing law defines "unavailable as a witness," for purposes
of the Evidence Code, to mean that the declarant is, among other
things, exempted or precluded on the ground of privilege,
disqualified, dead, or absent for a specified reason.
This bill would supplement that definition to add the circumstance
that the declarant is persistent in refusing to testify concerning
the subject matter of the declarant's statement despite an
order of the court to do so having been found in
contempt for refusal to testify .
(2) Existing law, known as the "hearsay rule," provides that, at a
hearing, evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove
the truth of the matter stated is inadmissible. Existing law also
provides exceptions to the hearsay rule to permit the admission of
specified kinds of evidence.
This bill would provide, until January 1, 2016, that evidence of a
statement that is offered against a party who has engaged
in, or knowingly approved of, or aided and abetted in
wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness is not made inadmissible
by the hearsay rule. The bill would require the party seeking to
introduce a statement to establish, by a preponderance of the
evidence, that the elements of this provision have been met at a
foundational hearing, as specified. These provisions would apply
to any civil, criminal, or juvenile case or proceeding initiated or
pending as of January 1, 2011.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 240 of the Evidence Code is amended to read:
240. (a) Except as otherwise provided in subdivision (b),
"unavailable as a witness" means that the declarant is any of the
following:
(1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
relevant.
(2) Disqualified from testifying to the matter.
(3) Dead or unable to attend or to testify at the hearing because
of then-existing physical or mental illness or infirmity.
(4) Absent from the hearing and the court is unable to compel his
or her attendance by its process.
(5) Absent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to
procure his or her attendance by the court's process.
(6) Persistent in refusing to testify concerning the subject
matter of the declarant's statement despite an order of the
court to do so having been found in contempt for
refusal to testify .
(b) A declarant is not unavailable as a witness if the exemption,
preclusion, disqualification, death, inability, or absence of the
declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the
declarant from attending or testifying.
(c) Expert testimony that establishes that physical or mental
trauma resulting from an alleged crime has caused harm to a witness
of sufficient severity that the witness is physically unable to
testify or is unable to testify without suffering substantial trauma
may constitute a sufficient showing of unavailability pursuant to
paragraph (3) of subdivision (a). As used in this section, the term
"expert" means a physician and surgeon, including a psychiatrist, or
any person described by subdivision (b), (c), or (e) of Section 1010.
The introduction of evidence to establish the unavailability of a
witness under this subdivision shall not be deemed procurement of
unavailability, in absence of proof to the contrary.
SEC. 2. Section 1390 is added to the Evidence Code, to read:
1390. (a) Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party that has
engaged in, or knowingly approved of, or
aided and abetted in the wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness.
(b) (1) The party seeking to introduce a statement pursuant to
subdivision (a) shall establish, by a preponderance of the evidence,
that the elements of subdivision (a) have been met at a foundational
hearing.
(2) Hearsay evidence, including the The
hearsay evidence that is the subject of the foundational
hearing , is admissible at the foundational
hearing. However, a finding that the elements of subdivision (a) have
been met shall not be based solely on the unconfronted hearsay
statement of the unavailable declarant, and shall be supported by
independent corroborative evidence.
(3) The foundational hearing shall be conducted outside the
presence of the jury. However, if the hearing is conducted after a
jury trial has begun, the judge presiding at the hearing may consider
evidence already presented to the jury in deciding whether the
elements of subdivision (a) have been met.
(4) In deciding whether or not to admit the statement, the judge
may take into account whether it is trustworthy and reliable.
(c) This section shall apply to any civil, criminal, or juvenile
case or proceeding initiated or pending as of January 1, 2011.
(c)
(d) This section shall remain in effect only until
January 1, 2016, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2016, deletes or
extends that date. If this section is repealed, the fact that it
is repealed should it occur, shall not be deemed to give rise to any
ground for an appeal or a postverdict challenge based on its use in
a criminal or juvenile case or proceeding before January 1, 2016.