BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 7 2 AB 1723 (Lieu) 3 As Amended April 8, 2010 Hearing date: June 29, 2010 Evidence Code MK:mc VOTE ONLY EVIDENCE: ADMISSIBILITY OF STATEMENTS HISTORY Source: California District Attorneys Association Prior Legislation: AB 268 (Calderon) - 2007, amended to be different subject matter while in Senate Judiciary Committee AB 2093 (Karnette) - 2006, failed Assembly Public Safety AB 141 (Cohn) - Chapter 116, Stats. 2004 SB 1876 (Solis) - Chapter 261, Stats. 1996 Support: Los Angeles District County Attorney's Office; California Partnership to End Domestic Violence; California Crime Victims Assistance Association; Los Angeles City Attorney; National Council of Jewish Women; Crime Victims United of California; Riverside Sheriffs' Association; Association for Los Angeles Deputy Sheriffs; Riverside Police Officers' Association; California Probation, Parole and Correctional Association; Chief Probation Officers of California; California State Sheriffs' Association; California Gang Investigators Association; Bay Area Women Against Rape; California Coalition Against Sexual Assault (More) AB 1723 (Lieu) PageB Opposition:California Public Defenders Association; American Civil Liberties Union; California Attorneys for Criminal Justice; Taxpayers for Improving Public Safety Assembly Floor Vote: Ayes 73 - Noes 0 KEY ISSUES SHOULD THE DEFINITION OF "UNAVAILABLE AS A WITNESS" BE EXPANDED TO INCLUDE A PERSON WHO IS PERSISTENT IN REFUSING TO TESTIFY CONCERNING THE SUBJECT MATTER OF THE DECLARANT'S STATEMENT DESPITE AN ORDER FROM THE COURT TO DO SO? SHOULD A NEW HEARSAY EXCEPTION BE CREATED IN CALIFORNIA FOR SITUATIONS WHEN 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? PURPOSE The purpose of this bill is to create a new hearsay exception for forfeiture by wrongdoing and to expand the definition of "unavailable as a witness." Existing law defines "unavailable as a witness," for purposes of the Evidence Code, to include a declarant who is: exempted or precluded on grounds of privilege from testifying concerning the matter to which his or her statement is relevant; disqualified from testifying to the matter; dead or unable to attend or testify because of physical or mental illness or infirmity; physically absent and the court is unable to compel attendance; physically absent even though the proponent has exercised reasonable diligence but has been unable to (More) AB 1723 (Lieu) PageC procure his or her attendance by the court process. (Evidence Code 240 (a).) Existing law 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 240 (b).) This bill provides that a witness is also unavailable if he or she is persistent in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so. Existing law 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).) Existing law 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. Existing law specifies that except as provided by law, hearsay evidence is inadmissible. (Evidence Code 1200.) Existing law 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 1204.) Existing law 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 official records, and other recorded statements or published (More) AB 1723 (Lieu) PageD writings, as specified. (Evidence Code 1220 through 1341.) Existing law 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. Existing law 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 1350.) Existing law 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. Existing law requires the proponent of the statement to provide the adverse party with advance notice in order to provide the adverse party with a fair opportunity to prepare to meet the statement. (Evidence Code 1360.) Existing law 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 1370.) Existing law 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 (More) AB 1723 (Lieu) PageE 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 the infirmities of advanced age or other form of organic brain damage, or other physical, mental, or emotional dysfunction. (Evidence Code 1380.) This bill 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. The party seeking to introduce such a statement must establish at a foundational hearing by a preponderance of the evidence that the elements have been met. This bill provides that hearsay evidence, including the hearsay evidence that is subject of the foundational hearing, is admissible at the foundational hearing. However, a finding that the elements have been met shall not be based solely on the unconfronted hearsay statement of the unavailable declarant and shall be supported by independent corroborative evidence. This bill provides that the foundational hearing shall be conducted outside the presence of the jury. However, if the hearing is conducted after a jury trial has begun, the judge presiding at the hearing may consider evidence already presented to the jury in deciding whether the elements are met. This bill provides that the hearsay exception it creates sunsets on January 1, 2016. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a (More) AB 1723 (Lieu) PageF federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison (More) AB 1723 (Lieu) PageG existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010, ruling pending the state's appeal of the decision to the U.S. Supreme Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal in this case. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: Witnesses to a crime, and crime victims are frequently intimidated or killed in order to prevent them from testifying. Even under the current law, a criminal ----------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 1723 (Lieu) PageH defendant is able to exclude many hearsay statements by making the victim or witness unavailable to testify. This is true even though the defendant is the very person who is responsible for the victim or witness being unavailable to testify in court. AB 1723 seeks to address this situation by adopting a new forfeiture by wrongdoing hearsay exception. Under the hearsay rule an out-of-court statement cannot be admitted as evidence if introduced to prove the truth of the matter asserted. 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. The hearsay exception known as forfeiture by wrongdoing, upheld as constitutionally acceptable by the U.S. Supreme Court, permits 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 twenty-one states. California has a hearsay exception that applies only to cases of murder and kidnap, but this exception has such stringent requirements that it is never used. AB 1723 creates a forfeiture by wrongdoing hearsay exception more consistent with federal rules but not identical to them. This bill would also amend the statutory definition of unavailable as a witness to include a witness who persistently refuses to testify even when ordered to do so by a court, again consistent with federal rules and California case law. While the 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, we believe that amendments taken in the Assembly address and lessen some of their concerns. Specifically, a five-year sunset clause was added to allow the Legislature the opportunity to later evaluate (More) AB 1723 (Lieu) PageI whether the unintended negative consequences predicted by the opponents will actually come to pass. If a witness refuses to testify for fear of their life, it is inexcusable to allow a defendant to benefit from that conduct. AB 1723 will ensure that prosecutors can properly administer justice for victims. 2. The Hearsay Rule 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. 3. Forfeiture by Wrong Doing in Existing Law The California District Attorneys Association (CDAA) points out that under the Federal Rules of Evidence, as well as a number of other states' evidence codes, out of court statements can 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 (More) AB 1723 (Lieu) PageJ 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 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, 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 take that statement to a notary public to be (More) AB 1723 (Lieu) PageK notarized, 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. Even if the requirements could be met, Section 1350 only applies to 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. The key issue before the U.S. Supreme Court in Giles v. California (2008) 128 S. Ct. 2678 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 the witness's unavailability was caused by the wrongdoing of the defendant, whether the defendant had killed 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, 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 that if the prosecution's argument were carried to its logical conclusion, 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. 4. Forfeiture by Wrongdoing Provisions in This Bill This bill would create, as an alternative to the existing (More) AB 1723 (Lieu) PageL Section 1350, a more general forfeiture by wrongdoing hearsay exception. 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 "engaged in or knowingly approved of wrongdoing that was intended to, and did, procure the unavailability of the declarant as a 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 provides: 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; 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 That the foundational hearing must be conducted outside of the presence of the jury, but the judge may consider evidence that was already presented to the jury. This 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, there may no longer be any reason for a party to seek admission under Section 1350, even if it involved killing or kidnapping. 5. 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, there are differences between this bill and Federal Rule 804(b)(6). The Federal Rule, stating that a statement is not excluded by the hearsay rule if it is: (More) AB 1723 (Lieu) PageM 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 discussed in Comment 6, 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 another difference between this bill and the federal rule. The 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, amendments in the Senate Judiciary Committee have replaced "engaged or acquiesced in" with "engaged in, or knowingly approved of " the wrongdoing. The Senate Judiciary Committee analysis states that this amendment was taken at the request of the Chair of that Committee after he had met with the opponents and states that the amendment would require the defendant to take some sort of affirmative action in the wrongdoing which might not be required with the term "acquiesced." a. Supporters. Supporters of this bill argue that the exception created by this bill largely parallels the Federal Rules of Evidence and is similar to hearsay exceptions existing in numerous other (More) AB 1723 (Lieu) PageN states. CDAA states: Witnesses to, or victims of, crimes are being intimidated or killed in order to prevent them from testifying; and under the current law, a criminal defendant is able to exclude many hearsay statements of an unavailable victim or witness even though the defendant is the very person who is responsible for the victim or witness being unavailable to testify in court. This legislation would help prevent this injustice ? Professor Tom Lininger, Elmer Sahlstrom Senior Fellow, University of Oregon School of Law, says in response to some of the opposition arguments raised below: The use of hearsay, including the victim's hearsay statements is absolutely essential to providing the wrongdoers' attempts to procure the victims' unavailability at trial. Stricter foundational requirements would reward the very tactics that AB 1723 strives to counteract. I have carefully examined the statutes in various states that adopted to codify the doctrine of forfeiture by wrongdoing. The vast majority of states adopting this doctrine have not prohibited the use of hearsay in foundational hearings. I am not aware of any abuses that occurred as a result of such statutes. The concern about "bootstrapping" arose sometimes in legislative hearings, but legislatures generally opted to follow the federal approach notwithstanding such concerns, and the concerns never materialized after the adoption of the statutes. The California District Attorneys Association further states: It is critical that a judge be able to consider (More) AB 1723 (Lieu) PageO hearsay, including the statement itself, in deciding whether to admit the statements of a witness who has been killed or deterred from testifying by the actions of the defendant. Without being able to do so, the already extremely difficult burden of proving all the elements of the proposed section 1390 becomes almost impossible to overcome. AB 1723 already is more restrictive than the forfeiture by wrongdoing hearsay exception explicitly approved by the United States Supreme Court and all but one of the comparable exceptions existing in the 21 other states and Guam. With one exception, every other state that has a forfeiture by wrongdoing exception permits the use of hearsay at the foundational hearing. There is no evidence of any abuse or problems arising from this fact. Indeed, the vast majority of states permit the use of hearsay at any foundational hearing on the admissibility of hearsay. Without weighing in on the merits of whether hearsay should be admissible at foundational hearings in general, there is a very good reason for allowing it in when it comes to the forfeiture by wrongdoing hearsay exception. Unlike like other hearsay exceptions, the forfeiture by wrongdoing exception is based on equitable principles designed "to deal with abhorrent behavior which strikes at the heart of the system of justice itself" (Fed.R.Evid. 804(b)(6) advisory committee note) and to "further the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony" (Commonwealth v. Edwards (2005) 830 N.E.2d 158, 167). Prohibiting hearsay at the foundational hearing effectively rewards the very tactics that AB 1723 seeks to prevent. (Emphasis in original) b. Opponents. Opponents argue that the hearsay exception in this bill goes beyond the Giles case. CACJ states: (More) AB 1723 (Lieu) PageP EC 1390 goes beyond the holding in Giles by creating a new hearsay exception based on "forfeiture by wrongdoing." However, Giles is expressly clear that because a showing of "forfeiture by wrongdoing" has been made does not make the hearsay evidence admissible. The forfeiture finding only bars the defendant's confrontation clause objection but it does not bar statutory objections under the Evidence Code. Having overcome the defendant's confrontation clause objection, the prosecution must still cite the court to a hearsay exception that would allow the unavailable declarant's statement to be admissible. The opinion in Giles does not support the new hearsay exception sought to be created by 1390. (Emphasis in original) Opponents further argue that while Giles recognized the language from the federal law, it stated that the requirement of intent means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable. (Giles at 2687.) Opponents also point out that the burden of proof for Evidence Code Section 1350 is clear and convincing, while the burden in this bill is by a preponderance. Whether preponderance of the evidence is the appropriate standard is still arguably unsettled law. Opponents argue that this will create a inconsistency not based on the evidence itself, but on the unavailability of the defendant. Another concern of defendants is that under this bill, for the first time, California will be permitting hearsay to be used as a foundation for determining whether another hearsay statement should be admitted. While supporting the creation of the forfeiture by wrongdoing exception Professor Gerald Uelmen of the University of Santa Clara, School of Law, states that he opposes the provision of the new section that would allow hearsay evidence as a foundation. Specifically, he states: (More) AB 1723 (Lieu) PageQ The single reservation I have is with Section 1390(b)(2) in Section 2 of the bill. This would allow California judges to consider otherwise inadmissible hearsay evidence in determining the preliminary foundation question of whether the defendant engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. This sort of "bootstrapping" is not allowed in any other provision of the California Evidence Code. Although the Federal Rules permit it under Rule 104(a). The drafters of the California Evidence Code explicitly rejected this approach, and I believe their decision was correct. The admissibility of evidence under Section 1390 should be made pursuant to Section 405 of the California Evidence Code, just as all other preliminary question decided by the judge are decided, utilizing evidence that is admissible under the Evidence Code to make the determination. There is not justification to open the door to "boot-strapping" here, when we reject it under every other hearsay exception and every other situation under the California Evidence Code where the admissibility of evidence depends upon the resolution of a preliminary question by the judge. 6. Expanding the Definition of "Unavailable as a Witness" This bill would expand the definition of "unavailable as a witness" in Evidence Code Section 240 by including "persistent refusal" to testify even when ordered to do so by a court. The California District Attorneys Association states that this definitional change is being proposed: In order to effectively implement the new hearsay exception, a corollary amendment to Evidence Code section 240, which defines what it means for a witness to be unavailable, is also being proposed. The proposed amendment essentially codifies existing California case law and expands the statutory definition of unavailable (More) AB 1723 (Lieu) PageR to include a declarant who is present at the hearing but refusing a court order to testify, notwithstanding the imposition of sanctions. This amendment also parallels one of the existing definitions of unavailability under the Federal Rules of Evidence (see F.R.E. 804(a)(2)) and practically every other state's evidence code. Professor Gerald Uelmen of the University of Santa Clara School of Law states in support of this provision of the bill: The expansion of the Evidence Code Section 240 definition of unavailable witness corrects an oversight that has long haunted the California Evidence Code and brings it into conformity with the law of every other state and the Federal Rules of Evidence. California Courts have struggled with an implausible expansion of "mental illness or infirmity" to deal with this oversight which strains logic, and the change brought by AB 1723 will allow a more rational and consistent approach to the problems presented by uncooperative witnesses. Opponents disagree that the new language in Evidence Code Section 240 merely codifies existing state law. They believe that the terms "persistent in refusing" are vague and could receive a wide interpretation by the courts. They also note that the language does not require the imposition of sanctions by the court as CDAA asserts but merely requires the court to order a person to testify. Opposition further asserts that the expansion of the definition of "unavailable as a witness" may lead to potential violations of the 6th Amendment right to confrontation. Specifically, California Attorneys for Criminal Justice states: It is obvious that he purpose behind this proposed amendment to EC 240 is to create an opportunity to introduce more hearsay testimony into trials. Specifically, hearsay in cases where the recognized hearsay exception requires an element of unavailability (More) AB 1723 (Lieu) PageS of the witness before her/his out of court statement may be offered under the appropriate hearsay exception ? .[D]uring the past six years since Crawford v. Washington (2004) 541 U.S. 36, 124 S. Ct. 1354 the United States Supreme Court has repeatedly taken the position that hearsay testimony which denies a criminally accused defendant her/his right to confrontation violates the Sixth Amendment to the United States Constitution and therefore is illegal. Any attempt to increase the number of hearsay statement admitted into evidence in a criminal trial against the accused is highly likely to run afoul of the rule in Crawford and its growing progeny and so it is with AB 1723's amendment to EC 240. (More) Supporters reply that unavailability is just the first step and a hearsay exception still has to be found before a statement is admitted; therefore, the expansion of Evidence Code Section 240 would not violate Crawford. Opponents also argue that the expansion of Evidence Code 240 will aid those who file false police reports to gain advantage in a case, such as custody, or to get back at a neighbor, rival gang member, et cetera, then later refuse to testify in court as to the report at times to protect the actual perpetrator. The California Public Defenders Association believes: AB 1723 would lead to more convictions of factually innocent people who are willing to or more likely are being threatened to take the rap for the actual perpetrator, particularly when charges involve violence or injury to a child. AB 1723 exploits the reality that human nature motivates the trier of fact to hold someone accountable, even if that person is innocent. 7. Prior Legislation and the California Law Revision Commission (CLRC) 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 witness" to include persistent refusal to testify even when ordered 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 (CLRC) to study these issues. 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 (More) AB 1723 (Lieu) PageU 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 despite being held in contempt of court due to fears of violence suffered from a temporary mental "infirmity" and was therefore unavailable under Evidence Code Section 240(a)(3)-(4).) The CLRC recommended that California's provision on unavailability be amended. (CLRC Miscellaneous Hearsay Exceptions: Tentative Recommendation (October 2007; Id. Final Recommendation, 2008.) http://clrc.ca.gov/pub/Printed-Reports/REC-K600-Forfeiture.pdf page 465) 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 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 AB 1723 (Lieu) PageV "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. 8. Sunset This bill has as sunset date of January 1, 2016. Although sunsetting an Evidence Code provision could cause some uncertainty and confusion in the future as to what rules will apply in a trial, it was requested by the Chair of the Judiciary Committee. ***************