BILL ANALYSIS AB 1723 Page 1 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 AB 1723 Page 2 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. AB 1723 Page 3 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 AB 1723 Page 4 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 AB 1723 Page 5 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. AB 1723 Page 6 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, AB 1723 Page 7 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 AB 1723 Page 8 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 AB 1723 Page 9 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 AB 1723 Page 10 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 AB 1723 Page 11 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" AB 1723 Page 12 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 AB 1723 Page 13 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 AB 1723 Page 14 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 AB 1723 Page 15 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 AB 1723 Page 16 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 Page 17 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 Page 18 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