BILL ANALYSIS AB 1723 Page 1 ASSEMBLY THIRD READING AB 1723 (Lieu and Emmerson) As Amended April 8, 2010 Majority vote JUDICIARY 10-0 ----------------------------------------------------------------- |Ayes:|Feuer, Tran, Brownley, | | | | |Hill, Hagman, Huffman, | | | | |Knight, Skinner, Monning, | | | | |Nava | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 AB 1723 Page 2 later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. FISCAL EFFECT : None COMMENTS : According to the sponsor, the California District Attorneys Association (CDAA), "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. 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 include intimidation of a witness - 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. 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 AB 1723 Page 3 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 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. Second, this bill would create, as an alternative to the existing Evidence Code Section 1350, which only applies if the witness is killed or kidnapped, requires that the hearsay statement is one that has been memorialized in a tape recording or a notarized written statement, and requires other pre-conditions that, according to the sponsor, makes using Section 1350 all but impossible. The hearsay exception proposed by this bill, on the other hand, is more general and permissive. 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 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 on 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. 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. AB 1723 Page 4 Although modeled on the forfeiture by wrongdoing hearsay exception in the Federal Rules of Evidence, the exception created by this bill differs in one important respect. The federal rules permit the hearsay exception to be used against a party who "engaged or acquiesced in" the wrongdoing that procured the unavailability of the witness, while the exception created in this bill would only apply to a party who "engaged in, or knowingly approved of" the wrongdoing. Thus, unlike the federal rules, this bill requires that the party against whom the exception will be used has taken some affirmative steps in support of the wrongdoing, whereas the federal rules permit its use against a party who simply reacts passively while others commit the wrongdoing on his or her behalf. The hearsay exception in this bill is also more specific than the federal rule as to the procedure to be followed in establishing the wrongdoing, but this more specific language mirrors language in the commentary to the Federal Rules of Evidence and federal case law interpreting the exception. Finally, recognizing that this bill creates an unusual and somewhat unprecedented expansion of hearsay exceptions in the California Evidence Code, the author has agreed to have the legislation sunset as of January 1, 2016, so that the Legislature can revisit the issue at that time and evaluate the equities of this quite substantial change to California evidence law. According to supporters, 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 AB 1723 Page 5 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 present and ordered to do so. Opponents contend 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." Opponents also express concern about the provision in the bill that permits the use of hearsay, included the contested statement, at the foundational hearing. The author and sponsor respond that hearsay is permitted at the foundational hearing under the federal rules and that they have added a sunset in order to permit evaluation of this aspect, among others, of the legislation. Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334 FN: 0003900