BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1723|
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                                 THIRD READING


          Bill No:  AB 1723
          Author:   Lieu (D) and Emmerson (R)
          Amended:  7/15/10 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  6-1, 6/29/10
          AYES:  Leno, Cogdill, Hancock, Huff, Steinberg, Wright
          NOES:  Cedillo

           ASSEMBLY FLOOR  :  73-0, 4/22/10 - See last page for vote


           SUBJECT  :    Evidence:  admissibility of statements

           SOURCE  :     California District Attorneys Association


           DIGEST  :    This bill creates a new hearsay exception for  
          forfeiture by wrongdoing and to expand the definition of  
          unavailable as a witness.

           ANALYSIS  :    Existing law defines unavailable as a witness,  
          for purposes of the Evidence Code, to include a declarant  
          who is:

          1. Exempted or precluded on grounds of privilege from  
             testifying concerning the matter to which his or her  
             statement is relevant;

          2. Disqualified from testifying to the matter;

          3. Dead or unable to attend or testify because of physical  
                                                           CONTINUED





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             or mental illness or infirmity;

          4. Physically absent and the court is unable to compel  
             attendance;

          5. Physically absent even though the proponent has  
             exercised reasonable diligence but has been unable to  
             procure his or her attendance by the court process.   
             (Evidence Code Section 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  
          Section 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 having  
          been found in contempt for refusal to testify.
           
          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  
          Section 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 Section  
          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 Section 1204.)
           
          Existing law enumerates several "hearsay exceptions" that  
          permit the admission of hearsay statements where the  







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          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 writings, as specified.   
          (Evidence Code Sections 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 Section  
          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 Section 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  







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          law enforcement official; and was made under circumstances  
          that would indicate its trustworthiness.  (Evidence Code  
          Section 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 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 Section 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 or aided or a  
          betted in the 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 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 in deciding whether or not to admit  
          the statement, the judge may take into account whether it  
          is trustworthy and reliable.  This bill provides that this  
          section shall apply to any civil, criminal, or juvenile  
          case or proceeding initiated or pending as of January 1,  
          2011.

          This bill provides that if this section is repealed, the  







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          fact that it is repealed should it occur, shall not be  
          deemed to give rise to any ground for an appeal or a post  
          verdict challenge based on its use in a criminal or  
          juvenile case or proceeding before January 1, 2016.

          This bill provides that the hearsay exception it creates  
          sunsets on January 1, 2016.

           Background
           
          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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  8/3/10)

          California District Attorneys Association (source)







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          Association for Los Angeles Deputy Sheriffs
          Bay Area Women Against Rape
          California Coalition Against Sexual Assault
          California Crime Victims Assistance Association
          California Gang Investigators Association
          California Partnership to End Domestic Violence
          California Probation, Parole and Correctional Association
          California State Sheriffs' Association
          Chief Probation Officers of California
          Crime Victims United of California
          Los Angeles City Attorney
          Los Angeles District County Attorney's Office
          National Council of Jewish Women
          Riverside Police Officers' Association
          Riverside Sheriffs' Association

           OPPOSITION  :    (Verified  8/3/10)

          American Civil Liberties Union
          California Attorneys for Criminal Justice
          California Public Defenders Association
          Taxpayers for Improving Public Safety

           ARGUMENTS IN SUPPORT  :    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 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."

          The California District Attorneys Association further  
          states, "It is critical that a judge be able to consider  
          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  







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          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)."

           ARGUMENTS IN OPPOSITION  :    Opponents argue that the  
          hearsay exception in this bill goes beyond the  Giles  case.   
          CACJ states, "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  







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          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, "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."








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           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Tom Berryhill, Blakeslee, Block,  
            Bradford, Brownley, Buchanan, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,  
            Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,  
            Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,  
            Jeffries, Jones, Knight, Lieu, Bonnie Lowenthal, Ma,  
            Mendoza, Miller, Nava, Nestande, Niello, Nielsen, Norby,  
            V. Manuel Perez, Portantino, Ruskin, Salas, Saldana,  
            Silva, Skinner, Smyth, Solorio, Audra Strickland,  
            Swanson, Torlakson, Torres, Torrico, Tran, Villines,  
            Yamada, John A. Perez
          NO VOTE RECORDED:  Blumenfield, Caballero, Huber, Huffman,  
            Logue, Monning, Vacancy


          RJG:do  8/2/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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