BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 197|
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THIRD READING
Bill No: SB 197
Author: Pavley (D)
Amended: 4/23/09
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/14/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
SUBJECT : Conditional examination of witnesses: domestic
violence
SOURCE : Los Angeles District Attorneys Office
DIGEST : This bill authorizes conditional examination of
witnesses or victims in misdemeanor and felony domestic
violence prosecution where (1) the life of the witness is
in jeopardy; (2) there is evidence that criminal charges
arising out of the same acts have been previously dismissed
and refilled; or (3) there is evidence that a victim or
material witness has been or is being dissuaded by any
means from cooperating with the prosecution or testifying
at trial, as specified. The bill makes additional
conforming changes.
ANALYSIS : Current law provides that the a "defendant in
a criminal cause has the right to a speedy public trial, to
compel attendance of witnesses in the defendant's behalf,
to have the assistance of counsel for the defendant's
defense, to be personally present with counsel, and to be
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confronted with the witnesses against the defendant. The
Legislature may provide for the deposition of a witness in
the presence of the defendant and the defendant's counsel.
. . ." (Cal.Const. Art. I 15.)
Current law provides that when a defendant has been charged
with any crime, he or she in all cases, and the people in
cases other than those for which the punishment may be
death, may, if the defendant has been fully informed of his
or her right to counsel as provided by law, have witnesses
examined conditionally, in the following cases:
1.When a defendant has been charged with a serious felony,
as specified, if there is evidence that the life of the
witness is in jeopardy; (Penal Code 1335)
2.When a material witness for the defendant, or for the
people, will be unable to attend the trial for one of the
following reasons:
A. The person is about to leave the state;
B. The person is so sick or infirm as to afford
reasonable grounds for apprehension that he or she
will be unable to attend the trial; or
C. The person is 65 years of age or older, or a
dependent adult, as specified (Penal Code 1336
(a).)
D. When there is evidence that the life of a witness
is in jeopardy. (Penal Code 1336 (b).)
Current law generally requires a noticed application for
such an order and, if the application is granted, that the
examination must occur before a magistrate, as specified.
(Penal Code 1338; 1339.) The defendant has the right to
be present in person and with counsel at the examination,
as specified. (Penal Code 1340.) Testimony given by the
witness shall be reduced to writing and authenticated in
the same manner as the testimony of a witness taken in
support of any information. (Penal Code 1343.) The
deposition or video-tape may be entered into evidence, as
specified. (Penal Code 1345.)
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Current law provides that, if at the examination "it is
shown to the satisfaction of the magistrate that the
witness is not about to leave the state, or is not sick or
infirm, or is not a person 65 years of age or older, or a
dependent adult, or that the life of the witness is not in
jeopardy, or that the application was made to avoid the
examination of the witness at the trial, the examination
cannot take place." (Penal Code 1341.)
This bill expands these provisions allowing conditional
exams to authorize a conditional exam in a domestic
violence case as follows:
1.If a defendant has been charged in a case of misdemeanor
or felony domestic violence and the life of the witness
is in jeopardy;
2.If a defendant has been charged in a case of domestic
violence and there is evidence that criminal charges
arising out of the same acts have been previously
dismissed and refiled, as specified, the people or the
defendant may, if the defendant has been fully informed
of his or her right to counsel as provided by law, have a
witness examined conditionally; or
3.If a defendant has been charged in a case of domestic
violence and there is evidence that a victim or material
witness has been or is being dissuaded by any means from
cooperating with the prosecution or testifying at trial,
the people or the defendant may, if the defendant has
been fully informed of his or her right to counsel as
provided by law, have a witness examined conditionally.
This bill defines "domestic violence" to mean any public
offense arising from acts of domestic violence as defined
in Section 13700. ("Domestic violence" means abuse
committed against an adult or a minor who is a spouse,
former spouse, cohabitant, former cohabitant, or person
with whom the suspect has had a child or is having or has
had a dating or engagement relationship. For purposes of
this subdivision, "cohabitant" means two unrelated adult
persons living together for a substantial period of time,
resulting in some permanency of relationship. Factors that
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may determine whether persons are cohabiting include, but
are not limited to, (1) sexual relations between the
parties while s haring the same living quarters, (2)
sharing of income or expenses, (3) joint use or ownership
of property; (4) whether the parties hold themselves out as
husband and wife, (5) the continuity of the relationship,
and (6) the length of the relationship. (Penal Code
13700(b).)
Current law requires that a noticed application for an
order that a witness be examined conditionally be made upon
an affidavit stating all of the following:
1.The nature of the offense charged.
2.The state of the proceedings in the action.
3.The name and residence of the witness, and that his or
her testimony is material to the defense or the
prosecution of the action.
4.That the witness is about to leave the state, or is so
sick or inform as to afford reasonable grounds for
apprehending that he or she will not be able to attend
the trial, or is a person 65 years of age or older, or a
dependent adult, or that the life of the witness is in
jeopardy. (Penal Code 1337.)
This bill adds to this section the provision that "the
witness is a victim or material witness in a domestic
violence case who has been or is being dissuaded by any
means from cooperating with the prosecution or testifying
at trial, or that the witness is a victim or material
witness in a domestic violence case and criminal charges
arising out of the same acts have been previously dismissed
and refiled," as specified.
Current law provides a mechanism for stopping a conditional
examination from occurring if at its time and place the
magistrate determines that the required elements for such
an exam are now shown. (Penal Code 1341.)
This bill makes conforming changes to Penal Code 1341 to
state that if, at the time and place so designated, it is
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shown to the satisfaction of the magistrate that the stated
ground for conditional examination is not true or that the
application was made to avoid the examination of the
witness at the trial, the examination cannot take place.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/23/09)
Los Angeles District Attorney's Office (source)
California Communities United Institute
California District Attorneys Association
California National Organization for Women
California Partnership to End Domestic Violence
Peace Over Violence
State Commission on the Status of Women
ARGUMENTS IN SUPPORT : The author's office states,
"Domestic violence continues to be one of the most
devastating issues facing women today, but many cases are
still frequently dismissed, because victims and witnesses
fear to testify against their accuser in court. Under
current law, when the life of a witness is in jeopardy in a
domestic violence case, there is no procedure to preserve
the testimony of that witness if a witness fails to testify
due to threats upon his or her life. Even if the witness
is murdered, prior statements of the witness cannot be
introduced and the perpetrator can go free. California
also lacks a procedure to preserve the testimony of a
witness when a prior domestic violence case is dismissed
and re-filed due to the unavailability of that witness.
"It is estimated that over two million acts of domestic
violence take place each year in the United States. This
particular type of violence promotes a culture of
depression, hopelessness and fear within families because
it is an ongoing steady cycle of abuse. It can be blamed
for increased medical care costs, decreased productivity
and increased absences at work. One incidence of domestic
violence can create a cycle of despair that is difficult
for not only the victim, but also entire families to
overcome. We all have heard the stories of escalating
violence within families that has culminated in the death
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of the victim or the victim's children because they were
afraid to come forward out of extreme fear of the abuser or
because they believed the abuser's false promises to never
harm them again.
"This bill would create an additional procedural vehicle to
preserve testimony of domestic violence victims and
witnesses so that it can be presented to a jury and help
prevent the dismissal of domestic violence cases with the
perpetrator free to commit the violence again."
RJG:cm 4/23/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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