BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1723| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 AB 1723 Page 2 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 AB 1723 Page 3 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 AB 1723 Page 4 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 AB 1723 Page 5 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) AB 1723 Page 6 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 AB 1723 Page 7 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 AB 1723 Page 8 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." AB 1723 Page 9 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 **** END ****