BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1723
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          Date of Hearing:   April 13, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
               AB 1723 (Lieu and Emmerson) - As Amended: April 8, 2010
           
          SUBJECT  :  Evidence: Admissibility of Statements 

           KEY ISSUE  :  Should California rules of evidence be amended to  
          create a "forfeiture by wrongdoing" hearsay exception MODELED  
          AFTER FEDERAL LAW? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          This bill, sponsored by the California District Attorneys  
          Association (CDAA), seeks to address the situation in which a  
          witness is unavailable to testify as to prior out-of-court  
          statements, and that unavailability is due to some wrongdoing by  
          the party against whom the statement will be used (typically a  
          criminal defendant).  Under the hearsay rule an out-of-court  
          statement cannot be admitted as evidence if introduced to prove  
          the truth of the matter asserted.  The hearsay rule reflects the  
          law's preference for live witnesses, who take oaths, are  
          cross-examined, and can be seen by the jury.  However, existing  
          law recognizes several hearsay exceptions, which generally apply  
          when the declarant is unavailable to testify as a witness but  
          where the circumstances surrounding the statement create a  
          presumption of reliability.  (For example "dying declarations"  
          or spontaneous utterances, etc.)  Under the common law, a  
          hearsay exception known as "forfeiture by wrongdoing" permitted  
          statements to be admitted if the declarant was "unavailable as a  
          witness"  and  the unavailability was due to some wrongdoing on  
          the part of the defendant.  The Federal Rules of Evidence  
          include a forfeiture by wrongdoing hearsay exception, as do  
          about fourteen states.  California has an exception that applies  
          only to cases of murder and kidnap but, according to CDAA, has  
          such stringent requirements that it is never used.  This bill,  
          following extensive collaborative efforts by the CDAA, the chair  
          and committee counsel, creates a "forfeiture by wrongdoing"  
          hearsay exception more consistent with federal rules but not  
          identical to them.  The bill would also amend the statutory  
          definition of "unavailable as a witness" to include a witness  








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          who persistently refuses to testify even when ordered to do so  
          by a court, again consistent with federal rules.  The bill is  
          supported by law enforcement and victim's rights groups.

          Opponents claim that this bill is a dangerous departure from  
          existing California hearsay principles and will deny defendants  
          their constitutional right to confront their accusers.  Recent  
          amendments appear to address some, but by no means all, of the  
          opponents' concerns.  The authors have also added a sunset  
          clause so that the Legislature may later evaluate whether the  
          unintended negative consequences predicted by the opponents will  
          actually come to pass. 

           SUMMARY  :  Creates a new "forfeiture by wrongdoing" hearsay  
          exception modeled after the federal rules and expands the  
          definition of "unavailable as a witness" for purposes of  
          admitting hearsay evidence.  Specifically,  this bill  :  

          1)Expands the statutory definition of "unavailable as a witness"  
            to include a declarant who, when called upon as a witness,  
            persistently refuses to testify on the subject matter of the  
            declarant's out-of-court statement despite an order of the  
            court to do so.

          2)Provides that 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 wrongdoing  
            that was intended to, and did, procure the unavailability of  
            the declarant as a witness.  Requires the party seeking to  
            introduce a statement to establish the essential elements at a  
            foundational hearing, as specified, outside of the presence of  
            the jury. 

          3)Permits the use of hearsay evidence, including the contested  
            statement, at the foundational hearing.  Specifies, however,  
            that a finding that a statement is admissible against a  
            wrongdoer shall not be based  solely  on the unconfronted  
            hearsay statement of the unavailable declarant, but must be  
            supported by independent corroborative evidence.  

          4)Provides that the provision creating the forfeiture by  
            wrongdoing exception shall sunset on January 1, 2016, unless a  
            later enacted statute, that is enacted before January 1, 2016,  
            deletes or extends that date. 









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           EXISTING LAW  : 

          1)Defines "unavailable as a witness," for purposes of the  
            Evidence Code, to include a declarant who is 
             a)   Exempted or precluded on grounds of privilege or is  
               otherwise disqualified from testifying on a matter;
             b)   Dead or unable to attend or testify because of physical  
               or mental infirmity;
             c)   Physically absent and the court is unable to compel  
               attendance;
             d)   Physically absent even though the proponent has  
               exercised reasonable diligence in procuring attendance.   
               (Evidence Code Section 240 (a).)

          2)Specifies that a declarant is not unavailable as a witness if  
            the declarant's unavailability was procured by the wrongdoing  
            of the proponent of the declarant's out-of-court statement for  
            the purpose of preventing the declarant from attending or  
            testifying.  (Evidence Code Section 240 (b).) 

          3)Defines "unavailable as a witness" under federal rules of  
            evidence to include, among other things, a declarant who  
            persists in refusing to testify concerning the subject of the  
            declarant's out-of-court statement despite a court order to do  
            so.  (Federal Rule of Evidence 804(a)(2).) 

          4) Defines "hearsay evidence" as a statement made by a  
            declarant, other than a witness while testifying, that is  
            offered to prove the truth of the matter stated.  Specifies  
            that except as provided by law, hearsay evidence is  
            inadmissible.  (Evidence Code Section 1200.)

          5)Provides that, in a criminal action, a statement that is  
            otherwise admissible as hearsay evidence under the Evidence  
            Code is inadmissible if its admission would violate the  
            constitutions of either California or the United States.   
            (Evidence Code Section 1204.) 

          6)Enumerates several "hearsay exceptions" that permit the  
            admission of hearsay statements where the circumstances  
            surrounding the statement create presumptions in favor of its  
            truthfulness, including dying declarations, "excited  
            utterances," statements against interest, statements of mental  
            or physical states and, under specified circumstances, certain  
            prior recorded statements, former testimony, business and  








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            official records, and other recorded statements or published  
            writings, as specified.  (Evidence Code Sections 1220 through  
            1341.)

          7)Provides that, in a criminal proceeding charging a serious  
            felony, a statement made by a declarant is not made  
            inadmissible by the hearsay rule if the declarant is  
            unavailable and there is clear and convincing evidence that  
            the declarant's unavailability was knowingly caused by, aided  
            by, or solicited by the party against whom the statement is  
            offered and the unavailability is the result of the death by  
            homicide or the kidnapping of the declarant.  Requires further  
            that the declarant's out-of-court statement was memorialized  
            by a tape recording made by law enforcement or a written  
            statement prepared by a law enforcement official and signed by  
            declarant and notarized prior to the death or kidnapping of  
            the declarant.  Specifies the procedure by which the above  
            elements must be proved.  (Evidence Code Section 1350.) 

          8)Provides that, in a criminal prosecution, where the victim is  
            a minor, a statement made by the victim when under the age of  
            12 describing any act of child abuse or neglect, as specified,  
            is not made inadmissible by the hearsay rule if the court  
            finds certain indicia of reliability and the child either  
            testifies at the proceedings or is unavailable as a witness.   
            Requires the proponent of the statement to provide adverse  
            party with advance notice in order to provide adverse party  
            with a fair opportunity to prepare to meet the statement.   
            (Evidence Code Section 1360).

          9)Provides that a statement that purports to narrate or describe  
            the infliction or threat of physical injury is not made  
            inadmissible by the hearsay rule if the declarant is  
            unavailable as a witness AND the statement was made at the  
            time of infliction or threat; was made in writing and recorded  
            by a physician, nurse, paramedic, or law enforcement official;  
            and was made under circumstances that would indicate its  
            trustworthiness.  (Evidence Code Section 1370.)

          10)Provides that, in a criminal prosecution for elder and  
            dependent adult abuse, a statement made by the victim is not  
            made inadmissible by the hearsay rule if the victim is  
            unavailable as a witness, the statement was made under  
            circumstances which indicate its trustworthiness, and the  
            victim, at the time of the proceeding or hearing, suffers from  








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            the infirmities of advanced age or other form of organic brain  
            damage, or other physical, mental, or emotional dysfunction.   
            (Evidence Code Section 1380.) 

           COMMENTS  :  According to the author and sponsor, this bill seeks  
          to address, quite literally, matters of life and death.  The  
          California District Attorneys Association (CDAA), the sponsor of  
          this bill, claims that "witnesses to or victims of crimes are  
          sometimes intimidated or killed in order to prevent them from  
          testifying."  For example, a gang member on trial for murder may  
          command or encourage fellow gang members to kill a likely  
          witness, or at least threaten or intimidate that likely witness  
          so that he or she does not testify.  Persons who commit domestic  
          violence, it is claimed, often threaten victims with retaliation  
          should they testify against the abuser.  Often times these  
          witnesses or victims have made statements in other contexts,  
          including statements to neighbors, police, or even grand juries,  
          which could provide relevant evidence at trial.  However, CDAA  
          claims, if the defendant actually succeeds in making the person  
          unavailable as a witness - either by killing, kidnapping, or  
          intimidating - existing law does not provide a practical way by  
          which those prior out-of-court statements can be introduced.
            
           The World's Shortest Primer on Hearsay  :  Under the hearsay rule,  
          an out-of-court statement cannot be admitted if it is offered to  
          prove the truth of the matter asserted.  This general rule is  
          subject to several hearsay exceptions that have developed over  
          the years, first at common law and then codified into federal  
          and state rules of evidence.  The hearsay rule reflects the  
          law's preference for live testimony, which is given under oath,  
          subject to cross-examination, and seen by the jury.  The several  
          exceptions to the hearsay rule generally come into play when the  
          witness is not available to testify, but the circumstances of  
          their out-of-court statements somehow suggest the reliability or  
          probable truthfulness of those statements.  Some classic  
          examples include the "dying declaration" and "excited  
          utterances," since presumably people do not have the inclination  
          or the time, respectively, to think up a lie under such  
          circumstances.  In theory, the circumstances under which the  
          statement was made creates a measure of reliability that serves  
          as an imperfect but necessary substitute for the things that  
          supposedly make in-court statements more reliable, such as an  
          oath and the opportunity to cross-examine.  Of course, dying  
          declarations can be false and exited utterances can be mistaken.  
           But the same is true of in-court statements made under oath.   








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          Moreover - and this is a critical but often overlooked point -  
          hearsay exceptions speak only to the admissibility of the  
          evidence, not to the weight of the evidence.  It is still up to  
          the jury or trier of fact to decide how much weight to give to  
          the statement once it is admitted into evidence.  

           The Alleged Inadequacies of Existing Law  :  The CDAA points out  
          that under the Federal Rules of Evidence, as well as about a  
          dozen state evidence codes, such out-of-court statements could  
          be admitted under a so-called "forfeiture by wrongdoing" hearsay  
          exception.  Although the particulars of this hearsay exception  
          can vary from state to state, the jurisdictions that have  
          adopted it provide, generally, that an out-of-court statement is  
          not made inadmissible under the hearsay rule if the person who  
          made the statement is no longer available as a witness because  
          of some wrongdoing committed by the party against whom the  
          statement is offered.  In its starkest form: if you kill a  
          potential witness in order to keep that person from testifying,  
          you cannot complain if the victim's out-of-court statements -  
          which would otherwise constitute inadmissible hearsay - are used  
          against you.  However, the exception need not apply just to  
          killing the potential witness; threats and intimidation that are  
          intended to, and do in fact, prevent the witness from testifying  
          can also be forms of wrongdoing that can trigger the exception.   
          Whatever particular form it takes, the forfeiture by wrongdoing  
          exception is based on the equitable principle that a wrongdoer  
          should not derive a legal benefit from his or her wrongdoing.   
          In this sense, it is different from other hearsay exceptions  
          which are based on a "reliability principle" - that is, an  
          assumption that there is something about circumstances under  
          which the statement was made that suggests its reliability.  The  
          forfeiture by wrongdoing exception is defended, instead, as a  
          matter of equity. 

          As the opponents of this measure point out, the California  
          Evidence Code already contains a "forfeiture by wrongdoing"  
          hearsay exception; however, it is one that the proponents of  
          this measure claim is so woefully inadequate that it is almost  
          never used, let alone used successfully.  Specifically, Evidence  
          Code Section 1350 permits hearsay evidence to be admitted, but  
          only where it can be shown by "clear and convincing" evidence  
          that the person against whom it is to be used knowingly caused,  
          aided, or solicited the killing or kidnapping of the potential  
          witness.  In addition, the out-of-court statement must have been  
          memorialized in either a tape recording made by law enforcement,  








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          or in a written statement prepared by law enforcement, signed by  
          the now unavailable declarant, and "notarized in the presence of  
          the law enforcement official, prior to the death or kidnapping  
          of the declarant."  In short, if the witness is killed or  
          kidnapped and the police, believing that the witness might be  
          killed or kidnapped, had the foresight to tape record the  
          statement, or in lieu of that get a signed statement from the  
          declarant and then take that to a notary public to be notarized,  
          then a prosecutor might have grounds to invoke Section 1350.   
          These statements must then be corroborated by other evidence  
          which connects the party against whom the statement is to be  
          used with the underlying offense.  CDAA claims that the  
          requirements are almost impossible to meet as a practical  
          matter.  And even if the requirements could be met, Section 1350  
          only applies to the extreme cases that involve killing or  
          kidnapping.  It does not cover the more common situation where  
          witnesses are subjected to threats, intimidation, or violence  
          short of murder. 

           How this Bill Will Change Existing Law  :  To address what it sees  
          as the inadequacies of existing law, the CDAA seeks a broader  
          forfeiture by wrongdoing exception that would apply to any kind  
          of wrongdoing that is intended to, and does in fact, procure the  
          unavailability of a witness.  Most importantly, this generalized  
          wrongdoing would not be restricted to killing and kidnapping,  
          but would include intimidation as well - a problem that CDAA  
          claims is especially problematic in crimes involving domestic  
          violence and criminal gang activity.  

          In order to achieve this, this bill would make two substantive  
          changes to the existing provisions of the Evidence Code: (1) it  
          extends the definition of "unavailable as a witness;" and (2) it  
          creates a new forfeiture by wrongdoing hearsay exception.

           Expanding the Definition of "Unavailable as a Witness  :"  First,  
          this bill would expand the definition of "unavailable as a  
          witness" in Evidence Code Section 240 to include "persistent  
          refusal" to testify even when ordered to do so by a court.  This  
          definition is adopted in the Federal Rules of Evidence and the  
          vast majority of state evidence codes.  CDAA contends that this  
          definitional change is necessary because many hearsay exceptions  
          have a threshold requirement that the out-of-court declarant  
          must be unavailable as a witness - otherwise the declarant could  
          simply be called to the stand to make the statement under oath  
          and subject to cross-examination.  CDAA claims that expanding  








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          the definition in this way is especially important when a  
          potential witness has been subjected to threats and intimidation  
          and is too frightened to testify.  In this case, if the witness  
          has made out-of-court statements - including statements before a  
          grand jury or in a police report - those statements can be used  
          if the prosecution can prove that the defendant was the source  
          of the threats and intimidation. 

          As noted below, opponents claim that this change in definition  
          will violate the Sixth Amendment confrontation clause.  However,  
          some of the opponents appear to mistake this definitional change  
          with the creation of a new hearsay exception.  Adding the  
          "persistent refusal" category to this definitional section does  
           not  mean that whenever a witness refuses to testify then that  
          witness's out-of-court statements may be admitted.  The mere  
          unavailability of a witness is not a basis for admitting  
          hearsay, but is rather a  threshold element  for many hearsay  
          exceptions.  That is, those hearsay exceptions can only apply if  
          the declarant is unavailable.  The mere unavailability does not  
          permit admission of the hearsay; rather, the declarant must be  
          unavailable and all other elements of the hearsay exception must  
          be met.  (See e.g. Evidence Code Sections 1230, 1290-1292, and  
          1350.)  In short, some opponents seem to have mistaken the  
          proposed change in definition with the creation of an  
          independent hearsay exception.  For example, the California  
          Public Defender's Association claims that this change in  
          definition will encourage the filing of false police reports.   
          CPDA proposes the following scenario: in order to seek revenge  
          or gain some advantage, a person could file a deliberately false  
          police report against another person (e.g. an enemy, rival gang  
          member, ex-spouse, etc.) and then deliberately refuse to testify  
          so that the false report could be admitted.  But this line of  
          reasoning is based on the false assumption that mere refusal to  
          testify is sufficient to admit hearsay.  However that is not the  
          case; the hearsay could only be admitted if the person refused  
          to testify and all the other elements of the hearsay exemption  
          were met. 

          Second, this bill would create, as an alternative to the  
          existing Section 1350, a more general and usable forfeiture by  
          wrongdoing hearsay exception.  Most notably, the new exception  
          would differ from Section 1350 in that it would apply not only  
          to killing and kidnapping, but to any wrongdoing that was  
          intended to, and did, procure the unavailability of the witness.  
           This bill also sets forth how the court shall determine, at a  








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          foundational hearing, whether the person against whom the  
          statement is to be used either engaged in or knowingly approved  
          the wrongdoing.  Specifically, the bill specifies that (1) The  
          party seeking to introduce the statement must prove by a  
          preponderance of evidence the party against whom the statement  
          is offered actually committed the wrongdoing; (2) That hearsay  
          evidence, including that statement in question, may be used at  
          the foundational hearing, but a finding that the party engaged  
          in the wrongdoing cannot be based  solely  the unconfronted  
          hearsay statement and must be supported by independent  
          corroborative evidence; and (3) That the foundational hearing  
          must be conducted outside of the presence of the jury, but that  
          the judge may consider evidence that was already presented to  
          the jury.  (Note that the bill does not delete Section 1350 or  
          replace it with this new proposal.  However, because a party  
          seeking to introduce hearsay evidence is free to choose the most  
          amendable hearsay exception that qualifies, it is presumed that  
          there would no longer be any reason for a party to seek  
          admission under Section 1350, even if it involved killing or  
          kidnapping.)

           The Proposed Hearsay Exception Compared to Federal Rules:    
          Although this bill is based on the Federal Rules of Evidence and  
          the commentaries that accompany those Rules, it is important to  
          acknowledge that there are important differences between this  
          bill and Federal Rule 804(b)(6).  The Federal Rule is remarkably  
          brief, stating that the exception applies to  "A statement  
          offered against a party that has engaged or acquiesced in  
          wrongdoing that was intended to, and did, procure the  
          unavailability of the declarant as a witness.  "   As noted above,  
          the definitional section in the Federal Rules defines  
                                                                        "unavailability" to include, among other things, persistent  
          refusal to testify even when ordered by a court to do so.   
          Although the rule does not expressly address the standard of  
          proof or the means by which the wrongdoing must be established,  
          the commentary to the Rules cite case law showing that  
          wrongdoing must be established at a foundational hearing by a  
          preponderance of evidence and that hearsay, including the  
          contested statement, is permissible at the foundational hearing.  
           (See also Federal Rule 104(a) regarding the use of hearsay to  
          establish the facts justifying the admissibility of hearsay.) 

          In addition to being more specific than the federal rule as to  
          how the wrongdoing shall be established, there is also one  
          critical difference between this bill and the federal rule.  The  








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          federal rule applies to the party against whom the statement is  
          offered who has "engaged or acquiesced in" the wrongdoing or who  
          procured the unavailability of the witness.  As introduced, this  
          bill used similar language; however, the most recent amendments  
          have replaced "engaged  or acquiesced  in" with "engaged in,  or  
          approved of  " the wrongdoing.  The authors offered this amendment  
          in response to concerns raised by opponents which were shared by  
          the chair, committee counsel and scholarly commentary.  Although  
          "acquiesced" is used in the Federal Rules, the California Rules  
          of Evidence generally take a more restrictive view of admitting  
          hearsay evidence.  By using the term "acquiesced," the federal  
          rules would seemingly permit hearsay evidence even though the  
          alleged wrongdoing was committed by others and the defendant's  
          role was completely passive.  Indeed, one federal case has held  
          that a defendant can be deemed to have acquiesced in the  
          wrongdoing for failing to report to authorities any wrongdoing  
          done by others on the defendant's behalf.  (United States v.  
          Mastrangelo, 693 F.2d 269, 273-74 (2nd Cir. 1982).)  While one  
          might argue that a defendant who knows that others may be  
          engaging in wrongful activity on his behalf has a moral  
          obligation to report that to authorities, there is no other area  
          in law, in California at least, as far as committee counsel and  
          scholarly commentary is aware, where one is legally compelled to  
          intervene to stop wrongdoing by others.  This bill as recently  
          amended therefore appears to appropriately require that a  
          defendant take some affirmative action in the wrongdoing, even  
          if it is only "approval," before losing the right to object to  
          hearsay or waiving a constitutional right to confront adverse  
          witnesses.  

           The Implications of Giles II and the Sixth Amendment Issue  :   
          Despite the competing claims of both proponents and opponents to  
          the contrary, it is not clear that the pertinent U.S. Supreme  
          Court ruling addressing issues triggered by this legislation  
          provides definitive guidance one way or the other on the major  
          issues presented in this bill.  The key issue before the U.S.  
          Supreme Court in Giles v. California (Giles II) was whether  
          prosecutors could invoke the common law forfeiture by wrongdoing  
          exception to the Sixth Amendment's confrontation clause when the  
          defendant had indeed killed his girlfriend (he claimed he shot  
          her in self defense) but where there was nothing to indicate  
          that he had killed her with the  intent  of keeping her from  
          testifying as a witness.  The prosecution argued that it was  
          enough that witness's unavailability was caused by the  
          wrongdoing of the defendant, whether the defendant had killed  








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          with that intent or not.  After all, the prosecution reasoned,  
          if the equitable principle is that one should not derive any  
          legal benefit from one's wrongdoing, then why should it matter  
          what motive prompted the wrongdoing?  Writing for the majority  
          in Giles II, Justice Scalia said that it mattered greatly.   
          Scalia and the majority held that the traditional doctrine  
          sought to prevent a defendant from undermining the integrity of  
          the trial by attempting to prevent a witness from presenting  
          relevant and probative evidence to the court.  The Court noted,  
          quite reasonably, that if the prosecution's argument were  
          carried to its logical conclusion, then the out-of-court  
          statements of victims could be used in  every  murder case.  But  
          the Court concluded that the traditional forfeiture by  
          wrongdoing exception was never meant to sweep this broadly; it  
          only applied where the defendant intended to, and succeeded, in  
          making the witness unavailable. 

          The other holdings in Giles II apply mostly to with the question  
          of when the admission of out-of-court statements infringe upon a  
          criminal defendant's Sixth Amendment right to confront adverse  
          witnesses.  To be sure, there is considerable overlap between  
          the Sixth Amendment's confrontation clause and hearsay  
          exceptions, since out-of-court statements necessarily cannot be  
          confronted and cross-examined.  But the two are nonetheless  
          conceptually distinct.  The constitutional right sets a minimum  
          baseline. Any evidence admitted under a hearsay exception must  
          meet the minimum standards of the confrontation clause; but even  
          if the evidence could be admitted without violating the  
          confrontation clause, it could still only be admitted through a  
          recognized hearsay exception.  Thus, the courts have  
          consistently recognized forfeiture by wrongdoing to overcome a  
          confrontation clause exception; but even evidence that would  
          meet that constitutional test, it could still only be admitted  
          as hearsay if there were statutory hearsay exception.  This  
          bill, in short, will create that statutory exception.

          As opponents contend (see below), in recent years the U.S.  
          Supreme Court appears to be heading in the direction of making  
          it more difficult to admit hearsay evidence over a confrontation  
          clause objection, which would seem to imply that hearsay  
          exceptions (which must meet the minimum requirements of the  
          confrontation clause) should also be more stringent and  
          protective of criminal defendants.  For example, in Crawford v.  
          Washington (2004) 541 U.S. 35, the Court held that the  
          confrontation clause bars admission of any "testimonial"  








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          evidence unless (1) the witness is unavailable AND (2) the  
          defendant had prior opportunity to confront the prior  
          testimonial evidence.  (Id. at 68.)  Rarely does a hearsay  
          exception require a prior opportunity to confront the witness.   
          However, the Crawford opinion has been a source of some  
          confusion; for example, it did not really define what it meant  
          by "testimonial" evidence. (See e.g. California Law Revision  
          Commission, Miscellaneous Hearsay Exceptions: Forfeiture by  
          Wrongdoing (2008).)  Moreover, the Crawford court simultaneously  
          recognized an exception to its own rule, adding the defendant  
          can, by his own "wrongdoing" forfeit the confrontation right on  
          "equitable grounds."  (Id. at 62.)  Two years later the Court  
          also recognized a forfeiture by wrongdoing exception in Davis v.  
          Washington (2006) 547 U.S. 813, stating that "one who obtains  
          the absence of a witness by wrongdoing forfeits the  
          constitutional right to confrontation."  (Id. at 833.)  Giles II  
          also recognized a forfeiture by wrongdoing exception, even while  
          it decided in favor of the defendant.  The Court specified,  
          however, that the exception only could apply where the  
          wrongdoing was done with the intent of procuring the  
          unavailability of the witness.  

          In short, both the confrontation clause and the hearsay rule are  
          animated by the same principle: that live testimony is more  
          reliable than hearsay because it is given under oath and it can  
          be subjected to cross examination.  At the same time, however,  
          the courts have long recognized exceptions that have been  
          codified in both state and federal rules of evidence.  But the  
          confrontation clause and the hearsay rule are not one and the  
          same.  Evidence can be admitted in conformity with the  
          confrontation clause, but still be precluded for lack of an  
          appropriate hearsay exception.  On the other hand, evidence can  
          be admitted under a statutory hearsay exception and still be  
          barred by the confrontation clause.  A hearsay exception that  
          does not offer as much protection to the defendant as the  
          confrontation clause would be effectively void.  Yet a state can  
          adopt hearsay rules that offer more protection to the defendant  
          than does the confrontation clause. 

           Prior Legislation and the California Law Revision Commission  :   
          The Legislature last considered the questions presented by this  
          bill in 2007 with AB 268.  Although that bill included other  
          changes to the Evidence Code that are not included in this bill,  
          it did contain to the two major substantive provisions in this  
          bill: (1) changing the definition of "unavailability of a  








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          witness" to include persistent refusal to testify even when  
          order by the court to do so; and (2) adopting a "forfeiture by  
          wrongdoing" hearsay exception modeled roughly on the Federal  
          Rules of Evidence.  AB 268 failed to pass out of the Senate  
          Judiciary Committee, but the Committee Chair, Senator Ellen  
          Corbett, requested the California Law Revision Commission to  
          study these issues.  

           Recommendations of the California Law Revision Commission:   On  
          the question of whether or not to expand the definition of  
          "unavailable as a witness" to include persistent refusal to  
          testify even when ordered to do so, the CLRC responded in the  
          affirmative.  The CLRC noted that a witness who refuses to  
          testify even when ordered to do so is, for all practical  
          purposes, just as "unavailable" as a witness under any of the  
          other existing categories.  For example, under existing law, a  
          witness is considered "unavailable" if the court was unable to  
          compel his or her attendance, or if the witness exercised a  
          right not to testify due to a recognized privilege (e.g. a  
          spousal privilege.)  The CLRC added that, as a matter of case  
          law, California courts have already held that a person who  
          refused to testify out of fear for the safety of his family was  
          "unavailable" as a witness, but the court could only so only by  
          forcing the facts into one of the other definitional categories.  
           (See e.g. People v. Rojas, 15 Cal. 3d 540, holding that a  
          witness who refused orders to testify due to fears of violence  
          suffered from a temporary mental "infirmity" and was therefore  
          unavailable under Evidence Code Section 240(a)(3)-(4).)   
          Professor Miguel Mendez, a principle consultant to the CLRC, has  
          argued that it would be more straightforward to simply recognize  
          that a witness who persistently refuses to testify is  
          "unavailable" for all practical purposes, rather than forcing  
          the courts to force the facts into another definitional  
          category.  The CLRC agreed, which is why it recommended the  
          definitional change that this bill now adopts. (See Miguel  
          Mendez, California Evidence Code - Part I, Hearsay and Its  
          Exceptions," 37 USFL Rev 251 (2005); and CLRC Miscellaneous  
          Hearsay Exceptions: Tentative Recommendation (October 2007; Id.  
          Final Recommendation, 2008).  

          While the CLRC saw the change in definition of "unavailability"  
          as fairly non-controversial, its final report offered no  
          recommendation on the question of whether California should  
          follow the Federal Rules of Evidence and the Evidence Codes of  
          about fourteen other states in adopting forfeiture by wrongdoing  








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          hearsay exception.  Instead, the CLRC presented to the  
          Legislature four possible options:

            Option 1  : Repeal California's existing, rarely used forfeiture  
            by wrongdoing exception (Section 1350, discussed above) and  
            replace it with a statute that tracks the constitutional  
            minimum for meeting the confrontation clause.  (Though this  
            may entail waiting for further judicial guidance.)

            Option 2  : Repeal Section 1350 and replace it with a provision  
            that tracks Federal Rule of Evidence 804(b)(6), which, as  
            noted above, simply permits the admission of a "statement  
            offered against a party that has engaged or acquiesced in  
            wrongdoing that was intended to, and did, procure the  
            unavailability of the declarant as a witness."

            Option 3  : Broaden Section 1350 so that it is not so narrowly  
            restricted, for example, by applying it to any wrongdoing  
            instead of only killing and kidnapping; eliminate the  
            requirement that the statement be memorialized in a police  
            recording or in a signed and notarized written statement.

            Option 4  : Leave existing law as it is. 

           ARGUMENTS IN SUPPORT  :  According to the authors and sponsor,  
          California should follow the lead of the Federal Rules and a  
          growing number of states and adopt a workable and usable  
          forfeiture by wrongdoing hearsay exception, and it should expand  
          the definition of "unavailability" to include a witness who  
          persistently refuses to testify even when ordered to do so by a  
          court.  Supporters contend that criminal defendants sometimes  
          kill, intimidate, or otherwise engage in wrongdoing in order to  
          eliminate potential witnesses against them, or they encourage  
          others to engage in such wrongdoing on their behalf.  While  
          Evidence Code Section 1350 attempts to address these situations,  
          it applies to such a narrow set of circumstances and sets such  
          stringent requirements that prosecutors have given up trying to  
          use it.  In addition, CDAA claims that because Section 1350 only  
          applies where a witness has been killed or kidnapped, it does  
          nothing to address the more common problem of witness  
          intimidation.  The CDAA claims that intimidation can be present  
          in any criminal case, but it is especially prevalent in domestic  
          violence and gang-related activity.  Finally, in order to  
          address the problem of intimidation, this bill also seeks to  
          define "unavailability" to include refusal to testify even when  








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          present and ordered to do so. 

          A number of law enforcement groups support this bill for  
          substantially the same reasons as those offered by CDAA.  For  
          example, the California State Sheriffs' Association claims that  
          under current law "a criminal defendant is able to exclude many  
          hearsay statements of an unavailable victim or witness [who is]  
          unavailable to testify in court.  AB 1723 would address this  
          very serious issue of witnesses [and] victims . . . being  
          intimidated or killed in order to prevent them from testifying."  
           The Riverside Police Officers' Association (RPOA) echoes the  
          concerns of other law enforcement groups when it asserts that  
          criminal gang activity is often accompanied by "attempts to  
          create intimidation in the community."  RPOA also sees witness  
          intimidation in many domestic violence cases, "wherein, again,  
          the victim is often bullied, threatened, and pressured not to  
          testify." 

          The National Council of Jewish Women (NCJW) - which works with  
          domestic violence victims, among its many other community  
          services - supports this bill because it will, it believes,  
          address the situation in which a husband is charged with spousal  
          abuse and "then successfully intimidates the woman so that she  
          is no longer willing to testify."  

           ARGUMENTS IN SUPPORT (WITH ONE RESERVATION)  :  Professor Gerald  
          Uelmen, who has taught evidence law for more than forty years at  
          Santa Clara University School of Law, writes that "with one  
          reservation" he would "enthusiastically endorse" AB 1723.   
          First, Professor Uelmen supports expanding the definition of  
          "unavailability" to include persistent refusal to testify.   
          Consistent with the arguments made by Professor Mendez and the  
          CLRC (see above) this change will allow the courts to deal with  
          the intimidation problem "in a more rational and consistent  
          approach," instead of having to "strain logic" to fit the  
          problem into another definitional category.  In addition,  
          Professor Uelmen argues that this change will bring California  
          "into conformity with the law of every other state and the  
          Federal Rules of Evidence."  (The Committee staff has not been  
          able to verify whether this definition is used in "every other  
          state," though it may be so, but it does appear to be used in at  
          least the vast majority of states.) 

          In addition, Professor Uelman supports the effort to create a  
          forfeiture by wrongdoing hearsay exception this is broader than  








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          the existing Section 1350 and closer to the Federal Rules.   
          However, Professor Uelmen has a serous reservation about the  
          provision that would permit the use of hearsay evidence at the  
          foundational hearing.  [See paragraph (2) on page 3 lines 13-18  
          of the bill in print.]  According to Professor Uelmen, using  
          hearsay to determine whether or not the defendant procured the  
          unavailability of the declarant is a form of "boot-strapping"  
          that "is not allowed in any other provision of the California  
          Evidence Code."  Professor Uelmen acknowledges the use of  
          hearsay is similarly allowed under Federal Rule 104(a), "the  
          drafters of the California Evidence Code explicitly rejected  
          this approach, and I believe their decision was correct."   
          Professor Uelmen suggest that the admissibility of hearsay under  
          the proposed new exception should be made pursuant to Evidence  
          Code Section 405, which provides generally preliminary questions  
          must be decided by the judge using evidence that meets the usual  
          tests of admissibility.  (As noted in the analysis above, the  
          author and sponsor are aware of this objection, and in large  
          measure this is why the agreed the impose a sunset so that the  
          effect of this and other provisions of the bill can be revisited  
          by the Legislature after there is some evidence to show how this  
          approach will work in practice.)

           ARGUMENTS IN OPPOSITION  :  This bill is opposed by the American  
          Civil Liberties Union (ACLU), the California Public Defenders  
          Association (CPDA), and the California Attorneys for Criminal  
          Justice (CACJ).  In general, these groups claim that both  
          provisions of this bill - amending the definition of  
          "unavailability" and creating a new hearsay exception - will  
          unduly expand the use of inherently unreliable hearsay evidence  
          and, more than likely than not, is unconstitutional under the  
          Sixth Amendment's "confrontation clause."  

          ACLU argues that amending the definition of "unavailability" to  
          include persistent refusal to testify will not meet  
          constitutional muster under Giles v. California.  (See  
          discussion of this case above.)  For example, ACLU reads Giles  
          to hold that a person cannot be considered unavailable as  
          witness for refusal to testify unless such an exception was  
          recognized at common law at the time that the Sixth Amendment  
          was adopted. 

          CPDA claims that changing the definition of "unavailability"  
          would "justify the receipt of inadmissible hearsay evidence for  
          any person who 'persistently refused' to testify in a criminal  








                                                                  AB 1723
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          matter despite a court's order to do so."  (As noted above,  
          however, this bill does not provide that refusal to testify  
          justifies the admissibility of hearsay evidence; it only  
          provides that refusal to testify would meet the threshold  
          requirement that the witness is "unavailable."  Other elements  
          of the hearsay exception will still need to be established.) 

          CACJ opposes the redefinition for "unavailability" for similar  
          reasons, but adds that the bill fails to define what  
          "persistent" means and therefore provides the court will no  
          objective criteria.  For example, CACJ argues that it is unclear  
          whether "persistent refusal" would be based on the  number of  
          times  that the witness refused to testify, or upon the  quality   
          of that refusal.  CACJ recognizes that the change in definition  
          of "unavailability" will only address the threshold element for  
          those hearsay exceptions that require the unavailability of the  
          witness, but that "the obvious purpose behind this proposed  
          amendment to EC 240 is to create an opportunity introduce more  
          hearsay testimony into trials." 

          ACLU, CDPA, and CACJ oppose the second provision of this bill -  
          the creation of a new hearsay exception - for many of the same  
          reasons.  ACLU and CACJ, for example, contend that this new  
          hearsay exception will not pass constitutional muster under the  
          more restrictive confrontation clause requirements established  
          by the U.S. Supreme Court in Crawford v. Washington (2004) 541  
          U.S. 36.  In Crawford, CACJ contends, the U.S. Supreme Court  
          took the position that hearsay testimony that denies a criminal  
          defendant of his right to confront and cross-examine witnesses  
          violates the Sixth Amendment.  Indeed, the position of ACLU,  
          CDPA, and CAJC appears to be that any hearsay exception is  
          potentially suspect under the confrontation clause, and that we  
          should be cautious about any changes that expand the opportunity  
          to admit hearsay evidence. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 

           California District Attorneys Association (sponsor)
          California Gang Investigators Association (sponsor)
          California State Sheriffs' Association 
          Chief Probation Officers of California 
          Crime Victims of California 
          Riverside Police Officers' Association








                                                                  AB 1723
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          California Probation, Parole and Correctional Association
          Association of Los Angeles Deputy Sheriffs 
          Riverside Sheriffs' Association
          National Council of Jewish Women California
          National Council of Jewish Women, LA Section
          Professor Gerald Uelman, Santa Clara University School of Law  
          (with reservation)

           Opposition 
           
          American Civil Liberties Union 
          California Attorneys for Criminal Justice 
          California Public Defenders Association  

          Analysis Prepared by  :   Thomas Clark / JUD. / (916) 319-2334