BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1723
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 1723 (Lieu and Emmerson)
          As Amended April 8, 2010
          Majority vote 

           JUDICIARY           10-0                                        
           
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          |Ayes:|Feuer, Tran, Brownley,    |     |                          |
          |     |Hill, Hagman, Huffman,    |     |                          |
          |     |Knight, Skinner, Monning, |     |                          |
          |     |Nava                      |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           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  








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            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  








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          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
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          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
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          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 


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