BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          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




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          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  




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               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  




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          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  




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          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  




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          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  




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               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).




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              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  




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              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  




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          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  




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          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  




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          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: 





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              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  




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            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  




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                 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:





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                 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:





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                 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  




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              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  




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              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.






























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          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  




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          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  












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               "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.   


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