BILL ANALYSIS
SB 197
Page 1
Date of Hearing: June 16, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 197 (Pavley) - As Amended: April 30, 2009
As Proposed to be Amended in Committee
SUMMARY : Authorizes the use of conditional examinations by the
People or the defendant in specific cases of domestic violence,
as specified. Specifically, this bill :
1)States when a defendant has been charged in a misdemeanor or
felony case of domestic violence, the People or the defendant
may have a witness examined conditionally if there is evidence
that the life of the witness is in jeopardy, as specified.
2)Provides that if a defendant has been charged in a case of
felony domestic violence and there is evidence that a victim
or material witness has been, or is being, dissuaded by the
defendant or any person acting on behalf of the defendant by
any means from cooperating with the prosecutor or testifying
at trial, the People or the defendant may have a witness
examined conditionally, as specified.
3)States if a defendant has been charged with a misdemeanor case
of domestic violence and there is evidence that a victim or
material witness has been dissuaded by the defendant or any
person acting on behalf of the defendant, by intimidation or a
physical threat, from cooperating with the prosecutor or
testifying at trial the people or the defendant may, have a
witness examined conditionally, as specified.
4)Provides that if a defendant has been charged in a case of
felony domestic violence and there is evidence that a victim
or material witness has been or is being dissuaded by the
defendant or any person acting on behalf of the defendant by
any means from cooperating with the prosecutor 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, as
specified.
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5)States the court may decline to admit conditional examination
testimony at trial if the witness's unavailability was caused
or procured by the party seeking its admission.
6)Defines "domestic violence" as any public offense arising from
acts of domestic violence listed in provisions of law related
to arrest.
EXISTING LAW :
1)Provides when a material witness for the defendant, or for the
People, is about to leave California, or is so sick or infirm
as to afford reasonable grounds for apprehension that he or
she will be unable to attend the trial, or is a person 65
years of age or older, or a dependent adult, the defendant or
the People may apply for an order that the witness be examined
conditionally. [Penal Code Section 1336(a).]
2)States when a defendant has been charged with a serious
felony, 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 as prescribed in
this chapter if there is evidence that the life of the witness
is in jeopardy. [Penal Code Section 1335(b).]
3)Provides that an application for conditional examination shall
be made upon affidavit stating all of the following: the
nature of the offense charged; the state of the proceedings in
the action; the name and residence of the witness, and that
his or her testimony is material to the defense or the
prosecution of the action; and, that the witness is about to
leave California, or is so sick or infirm 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 Section 1337(a)(1) to (4).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 197, as
proposed to be amended would permit a conditional examination
where there is evidence that the defendant or a person acting
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on behalf of the defendant has intimidated or threatened the
witness or where the life of the witness is in jeopardy . This
narrow extension of conditional examinations is essential.
Although misdemeanor domestic violence is not as serious as
cases charged as a felony, domestic violence escalates when
there are no consequences. When a case is dismissed because a
witness has been intimidated or threatened, the batterer is
emboldened and will continue, and often escalate, the
violence. Some eventually murder the victim or a future
partner. It is to the benefit of both the victim and the
batterer to intervene early in order to prevent an escalation
of violence."
"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 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 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.
"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
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"In response, SB 197 allows domestic violence victims and
material witnesses in certain domestic violence cases to
testify prior to a court appearance, and have that testimony
preserved for use during the trial. In the event, the victim
was unavailable at the time of the actual trial, this
conditional exam, which still allows for cross-examination by
the defense, could be presented by videotape or read to the
jury. SB 197 builds upon current law which allows preserved
testimony for certain populations, such as the elderly and the
disabled."
2)Conditional Examinations : As a general rule, state and
federal constitutional law requires every defendant on trial
be allowed to see, confront and meaningfully cross-examine all
the witnesses against him or her. [U.S. Const., 6th Amend;
Cal. Const, art. I, 15.] Under certain circumstances, if the
witness is about to leave California, or is so sick or infirm
that there is reasonable grounds to believe the witness will
be unable to testify at trial, a conditional examination may
be conducted in order to preserve the witness's testimony.
(Penal Code Section 1336.) Conditional examinations are
usually videotaped before trial and subsequently played for
the jury. The defendant is still entitled to
cross-examination and confrontation at the time of videotaping
thus preserving his or her right to confront and cross-examine
the witness. [People vs. Rojas (1975) 15 Cal.3rd 540.]
Penal Code Section 1336 explicitly lists the instances in which
conditional examinations may be ordered. Those instances
include: when a material witness for the defendant, or for
the people, is about to leave California, or is so sick or
infirm as to afford reasonable grounds to believe he or she
will be unable to attend the trial, or is a person 65 years of
age or older. When the defendant is charged with a serious
felony, a conditional examination may be ordered when there is
evidence that the life of a witness is in jeopardy. [Penal
Code Section 1336(a) and (b).] Penal Code Section 1339
provides that "[i]f the court or judge is satisfied that the
examination of the witness is necessary, an order must be made
that the witness be examined conditionally, at a specified
time and place, and before a magistrate designated therein."
Usually, the prosecution submits affidavits showing some
threat to the witness and the court decides whether to order
the conditional examination; although there is no requirement
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the witness be directly threatened or intimidated. [People vs.
Jurado (2006) 38 Cal.4th 72, 114.]
Sixth Amendment case law requires that the defendant have a
"meaningful" cross examination of the witness. [Chambers vs.
Mississippi (1973) 410 U.S. 284, 295; People vs. Patino (1994)
26 Cal.App.4th 1737, 1746.] If the witness states a refusal
to testify three weeks after the arrest and a conditional
examination is scheduled several months before the trial, the
defense attorney may not be fully prepared to cross-examine.
Investigation conducted prior to trial may reveal more facts
not addressed at the initial recording. Although this is true
in all cases of conditional examination, cross-examination is
critical at trial because even more than the witness's words,
his or her demeanor may significantly impact the jury.
Therefore, conditional examinations ought to be used only
sparingly and when absolutely necessary in order to protect
the integrity of a jury trial.
3)Unavailability and Evidence Code Section 240 : Conditional
examinations may not be introduced into evidence unless the
witness meets the legal definition of "unavailable".
Generally, out-of-court statements offered for the truth of
the matter asserted are inadmissible as hearsay. However, if
the declarant is "unavailable", his or her statement may be
admitted as an exception to the hearsay rule. Under existing
law, "unavailability" has a specific definition. Evidence
Code Section 240 lists several instances in which a declarant
may be legally "unavailable". The following grounds create
lawful "unavailability": an assertion of the declarant's
Fifth Amendment right against self-incrimination, the
declarant is disqualified from testifying to the matter, the
declarant is dead or unable to attend or testify due to
physical or mental illness or infirmity, or the declarant is
absent from the hearing and the court or the proponent of his
or her statement has exercised reasonable diligence but has
been unable to procure his or her attendance by the court's
process. [Evidence Code Section 240(a)(1) to (5).]
However, existing law also states the declarant is not
considered "unavailable" if the grounds for absence are
brought about by the procurement or wrongdoing of the
proponent for the purposes of preventing the declarant from
attending or testifying. [Evidence Code Section 240(b)].
This means a defendant on trial may not "arrange" for a person
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to be unavailable and then claim that his or her statements
are admissible under the hearsay rule. This is referred to as
"forfeiture by wrongdoing," meaning the defendant forfeits his
or her right to confrontation as to that witness.
The California Appellate Court in People vs. Allen further
explained this exception to the doctrine of unavailability:
"[Section 240 was not intended to apply] when the party, for
his or her own supposed advantage, creates the witnesses' or
his or her own legal unavailability or is somehow responsible
for allowing the unavailability to occur. This distinction
has long been acknowledged. [citations omitted] It was a
principal concern of the Law Revision Commission, as it had
been of the Commission on the Uniform Evidence Code, to
safeguard against 'sharp practices' in order to assure ''that
unavailability is honest and not planned in order to gain an
advantage'." [People vs. Allen (1989) 215 Cal.App. 3rd 392,
411.]
Courts have long held that "unavailability" should not be the
preferred form of evidence. The California Supreme Court
stated, "The fundamental purpose of the unavailability
requirement is to ensure that prior testimony is substituted
for live testimony, the generally preferred form of evidence,
only when necessary. 'Former testimony often is only a weaker
substitute for live testimony. . . . If the declarant is
available and the same information can be presented to the
trier of fact in the form of live testimony, with full
cross-examination and the opportunity to view the demeanor of
the declarant, there is little justification for relying on
the weaker version. When two versions of the same evidence
are available, long standing principles of the law of hearsay,
applicable as well to Confrontation Clause analysis, favor the
better evidence. But if the declarant is unavailable, no
'better' version of the evidence exists, and the former
testimony may be admitted as a substitute for live testimony
on the same point.' (citation omitted). As this court,
quoting Wigmore's treatise, has observed, "[t]he general
principle upon which depositions and former testimony should
be resorted to is the simple principle of necessity, - i.e.,
the absence of any other means of utilizing the witness'
knowledge.' (citation omitted)." [People vs. Reed (1996) 13
Cal.4th 219, 225.]
4)Background on Crawford vs. Washington : In 2004, the United
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States Supreme Court made a significant change to the
admissibility of hearsay evidence in Crawford vs. Washington
(2004) 541 U.S. 36. This ruling made it considerably more
difficult to admit hearsay evidence at trial and made cases
involving domestic violence specifically much harder to
prosecute. The court created a distinction between
"testimonial" and "non-testimonial" statements. "Testimonial"
statements, as defined by Crawford , include affidavits,
custodial examinations, and prior testimony. Prior testimony
is testimony given under oath in a judicial proceeding, such
as a conditional examination.
Where the statement at issue is "testimonial", the United States
Supreme Court held:
"[t]estimonial statements of witnesses absent from trial are
admitted only where the declarant is unavailable and only
where the defendant has had a prior opportunity to
cross-examine. Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy
constitutional demands is the one the United States
Constitution actually prescribes: confrontation." [Id. at
60.]
The United States Supreme Court in Davis vs. Washington and
Hammond vs. Indiana (2006) 126 S.Ct. 2266 (hereinafter
Davis/Hammond) further explained the distinction between
testimonial and non-testimonial statements. The Court further
held:
"The Confrontation Clause of the Sixth Amendment bars admission
of testimonial statements of a witness who does not appear at
trial unless he is unavailable to testify, and the defendant
has had a prior opportunity for cross-examination. Only
'testimonial' statements cause a declarant to be a 'witness'
within the meaning of the Confrontation Clause. It is the
testimonial character of the statement that separates it from
other hearsay that, while subject to traditional limitations
upon hearsay evidence, is not subject to the Confrontation
Clause. Statements are non-testimonial for purposes of the
Confrontation Clause when made in the course of police
interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no
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such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution." [Davis/Hammond
(2006) 126 S. Ct. 2266, 2277.]
5)Sixth Amendment Right of Confrontation : As mentioned above, a
defendant has a constitutional right to confront and
cross-examine the witnesses again him or her. The
Confrontation Clause in the United States Constitution
reflects a preference for face-to-face confrontation at trial,
and a primary interest secured by the provision is the right
of cross-examination. In short, the Confrontation Clause
envisions a personal examination and cross-examination of the
witness in which the accused has an opportunity, not only of
testing the recollection and sifting the conscience of the
witness, but of compelling him or her to stand face to face
with the jury in order that they may look at him or her and
judge by his or her demeanor upon the stand and the manner in
which he or she gives his testimony whether he or she is
worthy of belief. These means of testing accuracy are so
important that the absence of proper confrontation at trial
calls into question the ultimate integrity of the fact-finding
process. [Ohio vs. Roberts (1980) 448 U.S. 56.]
Even hearsay that falls within a specified exception must be
tested against the right of confrontation. The United States
Supreme Court in Ohio vs. Roberts explained the relationship
between the Confrontation Clause and inadmissible hearsay as
follows:
"The Confrontation Clause operates in two separate ways to
restrict the range of admissible hearsay. First, in
conformance with the Framers' preference for face-to-face
accusation, the Sixth Amendment establishes a rule of
necessity. In the usual case, including cases where prior
cross-examination has occurred, the prosecution must either
produce, or demonstrate the unavailability of, the declarant
whose statement it wishes to use against defendant. The
second way in which Confrontation Clause operates to restrict
the range of admissible hearsay is when a witness is shown to
be unavailable. Reflecting its underlying purpose to augment
accuracy in the fact-finding process by ensuring defendant an
effective means to test adverse evidence, the Clause
countenances only hearsay marked with such trustworthiness
that there is no material departure from the reason of the
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general rule.
"When a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing
that he is unavailable. Even then, his statement is
admissible only if it bears adequate 'indicia of reliability.'
Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness."
[Id. at 66.] Conditional examinations survive constitutional
scrutiny because the defendant may cross-examine the witness
at the time of the conditional examination.
6)Forfeiture by Wrongdoing : As noted above, existing law does
not allow a defendant to intimidate or otherwise dissuade the
witness from testifying and then cloak himself or herself in
the right of confrontation. The United States Supreme Court
ruling in Crawford and Davis/Hammond re-affirmed a
long-standing exception to the Sixth Amendment right to
confrontation: forfeiture by wrongdoing. The equitable
doctrine of forfeiture by wrongdoing dates back to Lord
Morley's Case (6 States Trials, 770) in the British House of
Lords in 1666. The United States Supreme Court recognized the
doctrine in Reynolds vs. United States (1879) 98 U.S. 145. In
that case, Mr. Reynolds was on trial for bigamy. The trial
court found he convinced one of his wives to evade testimony.
The court allowed for the admission of testimony she gave in
another trial on the grounds the defendant should not be able
to benefit from his wrongful act. The Court in Reynolds
stated:
"The Constitution gives the accused the right to a trial at
which he should be confronted with the witnesses against him;
but if a witness is absent by his own wrongful procurement, he
cannot complain if competent evidence is admitted to supply
the place of that which he has kept away. The Constitution
does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the
privilege of being confronted with the witnesses against him;
but if he voluntarily keeps the witnesses away, he cannot
insist on his privilege. If, therefore, when absent by his
procurement, their evidence is supplied in some lawful way, he
is in no condition to assert that his constitutional rights
have been violated." [Reynolds at 158.]
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The United States Supreme Court in Davis/Hammond recognized the
forfeiture doctrine again after its ruling in Crawford. The
Court held:
"The United States Supreme Court may not vitiate constitutional
guarantees when they have the effect of allowing the guilty to
go free. But when defendants seek to undermine the judicial
process by procuring or coercing silence from witnesses and
victims, the Sixth Amendment does not require courts to
acquiesce. While defendants have no duty to assist the State
in proving their guilt, they do have the duty to refrain from
acting in ways that destroy the integrity of the
criminal-trial system. The Court reiterates what was said in
Crawford v. Washington: that the rule of forfeiture by
wrongdoing extinguishes confrontation claims on essentially
equitable grounds. That is, one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to
confrontation." [Davis/Hammond at 2280.]
Forfeiture by wrongdoing was also recently confirmed by the U.S.
Supreme Court in Giles vs. California (2008) 128 S. Ct. 2678.
Giles was an appeal from the California Supreme Court in which
the U.S. Supreme Court held that a defendant who intentionally
causes the witness's unavailability through intimidation may
not claim a Sixth Amendment violation at trial. The Court
stated:
"The manner in which the common law forfeiture rule was applied
makes plain that un-confronted testimony would not be admitted
without a showing that the defendant intended to prevent a
witness from testifying. In cases where the evidence suggested
that the defendant had caused a person to be absent, but had
not done so to prevent the person from testifying, as in the
typical murder case involving accusatorial statements by the
victim, the testimony was excluded unless it was confronted or
fell within the dying-declaration exception." [Giles at
2684.]
7)Argument in Support : According to the Los Angeles District
Attorney's Office (the sponsor of this bill), "A conditional
examination is a legal proceeding in which a witness testifies
under oath. Because the defendant and his or her attorney
have the right to be present for the conditional examination
and to cross-examine the witness and because the conditional
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examination may only be used if the witness is proved to be
unavailable to testify at the time of trial, this procedure is
constitutional (see Crawford v. Washington (2004) 541 US 36).
"Domestic violence cases have long presented special,
particularized concerns which impact a prosecutor's ability to
proceed upon criminal charges. Because of the unique dynamic
presented by these cases, which involve violent acts committed
by an intimate partner, victims are frequently unavailable for
court. They may be deceased, medically unable to attend,
frightened by their abuser, or have been the target of witness
intimidation or subtle persuasion not to appear for testimony.
"SB 197 would preserve the testimony of victims and witnesses in
domestic violence cases at a time in the proceeding when they
are available to testify, through the conditional examination.
In the event the witness cannot testify at trial, the
conditional examination may be presented by videotape at
trial.
"Domestic violence is the leading cause of injury to women
between the ages of 15 and 44. Each year 1.3 million women
are physically assaulted by an intimate partner. Over a
thousand women are murdered by their husbands or boyfriends
each year.
"Unfortunately, we are unable to prosecute many of the above
cases because the victims and witnesses are intimidated or
otherwise dissuaded from testifying at trial. When an
offender escapes punishment by intimidating the witness or
persuading the victim not to testify, he will often abuse his
victim or another victim in the future and will sometimes go
on to kill. SB 197 will help to put an end to this pattern of
violence and abuse.
8)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "This measure turns current law on its
head by permitting conditional examinations based upon the
type of prosecution as opposed to the specific characteristics
or circumstances of the individual witness.
"First, this bill takes the very narrow provisions of
conditional examination of witnesses and makes such
examinations applicable to all, or nearly all, domestic
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violence cases totally apart from the traditional requirements
for a conditional exam such as a witness's illness, age or the
likelihood the witness leaving the jurisdiction. Conditional
examination is designed only to preserve the testimony of a
witness, who typically, because of her/his physical condition
or age, may not be available to testify at the time of the
trial. It is not about allowing certain kinds of witnesses
based on the nature of the charge from having to come to trial
and confront the accused before a jury. SB 197 seeks to carve
an exception into conditional examination for alleged victims
and witnesses of domestic violence simply because they are
alleged victims and witnesses of domestic violence. SB 197
completely unhinges the narrow exceptions of PC 1335 and 1336
from their moorings.
"Second, PC 1335(b) currently allows for conditional examination
in cases where the accused is charged with a serious felony
and there is evidence that the life of the witness is in
jeopardy. This bill would expand PC 1135(b) to include any
charge of domestic violence, including misdemeanors. If the
life of the witness is truly in jeopardy in a misdemeanor
domestic violence case the charges are more than likely going
to be increased to felony terrorist threats (PC 422) or
dissuading a witness (PC 136.1) both of which are 'strikes'
under the '3 Strikes, You're Out' Law.
"Third, pursuant to PC 1387 (a) (2) (3) and (b), the prosecution
is not barred from re-filing dismissed charges in domestic
violence cases under the conditions set forth in those
sections. SB 197 would give the prosecution, in addition to
this so-called second bite of the apple, a conditional
examination of a complaining witness not available in any
other type of prosecution. Furthermore, PC 1387(a)(3) and
(b) do not require any showing of wrongdoing by the accused;
only that the complaining witness failed to appear for trial
after being properly served with a subpoena. SB 197 would
allow the conditional examination of these witnesses in the
re-filed case with no showing at all that their first failure
to appear was because of the defendant or that they are
unlikely to appear in the second case because of fear of the
defendant. This is completely at odds with the rule and
rationale behind conditional examinations. There is no good
reason to encourage certain witnesses to ignore subpoenas for
trial and then reward them for doing so by allowing them to
give their testimony outside of court and avoid facing a jury.
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"Currently, PC 1387(a)(2) allows the prosecution to re-file
dismissed charges if the reason for the dismissal can be shown
by a preponderance of the evidence to have been the result of
witness intimidation. Were SB 197 to pass, the defendant in
this scenario would not only have the dismissed charges
re-filed against him/her but also lose the right to confront
his/her accuser in open court before a jury of his/peers.
"The constitutional significance of contemporaneous examination
of a witness before a jury is set forth in Barber v. Page
(1968) 390 U.S. 719, 721-722, 725, 88 S.Ct. 1318 where
Justice Marshall stated that the primary object of the
confrontation clause of the Sixth Amendment was to ensure that
an accused has the opportunity to compel the witness '?to
stand face to face with the jury in order that they may look
at him, and judge his demeanor upon the stand the manner in
which he gives his testimony whether he is worthy of belief.'
(Citation omitted) The only exception recognized by the
Barber court is where there has been a previous confrontation
of the witness and the witness is now unavailable and thus
there is a "necessity" to use this previous testimony.
Whereas the current language of PC 1335 and 1336 is grounded
in this 'necessity' requirement, SB 197 is not. Barber goes
on to say that the right to confrontation is basically a trial
right and previous examination of a witness, such as at a
preliminary hearing, may not always satisfy this right. So
would be the case in conditional examinations under the
proposed language of SB 197 where the conditional examination
may be held at an early stage before the defense has had time
to fully prepare and investigate their case and thus the
examination of the witness would not be as full as it would be
at trial. The defendant's right to a fair trial and due
process of law could easily be denied were he/she forced to
participate in a conditional examination of the prosecution's
main witness well before trial and before the defense has a
reasonable opportunity to complete its investigation of the
case and is prepared to fully attack the credibility of the
prosecution's main witness. It could also take place before
all discovery has been provided.
"As a practical matter, if the prosecution has evidence that
their witness failed to appear or failed to testify because of
wrongdoing by the accused at or before the first trial, they
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could and would file new charges of dissuading a witness under
PC 136.1, which is a 'strike.' It should also be understood
that a conditional examination does not mean the witness is
not testifying against the accused. If the witness is truly
afraid of the accused, she is no more likely to testify at a
conditional examination than she is in open court at a trial.
She still has to come into an examination room and testify in
front of the defendant. Her testimony is on the record. The
witness and the accused both know that she has testified
against him. Thus, this proposal does not solve the alleged
problem.
"SB 197 also appears to run afoul of the new law protecting
victim's rights as embodied in Prop. 9, which is now Art. I,
section 28 of the California Constitution. Prop. 9 goes to
great lengths to protect a victim from any form of harassment
by any party in the criminal justice system. Compelling a
reluctant victim to go through a conditional examination when
she/he does not want to do so, could very well be a violation
of Prop. 9. Misleading a victim that testifying at a
conditional examination is not really testifying against the
accused would also constitute a violation of Prop. 9's clear
goal to protect victims.
"Another potential violation of Prop. 9 is that SB 197 gives the
right to conditional examination to the defendant as well as
the prosecution. Conditional examination at the request of
the defendant would appear to violate Art. I, sec. 28 (b)(5)
which gives the victim the right to refuse being interviewed
by the defense. Nothing in SB 197 sets out the procedure for
establishing, for example, that the witness in question is
being or has been dissuaded from cooperating with the
prosecution or testifying at the trial as proposed in the
amendments to PC 1135(e), PC 1336(a) and PC 1337(d). Is
there a requirement of a hearing? What type of hearing? What
is the burden of proof on the moving party? Under the current
provisions of EC 1337 it is fairly simple to show that the
witness in question is over 65 years of age, or is a dependent
adult, or is so ill that it is reasonably likely he/she will
not be able to attend the trial, or is about to leave the
state. But questions about intimidation of a witness are not
so simple to determine. SB 197 is silent on this very
important issue.
"Part of SB 197 would allow conditional examinations where a
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previous domestic violence case was dismissed simply because
of the failure to appear by the complaining witness.
Presumably, the complaining witness had no valid excuse for
not appearing at the trial. However, unlike any other
complaining witness who fails to appear for his/her own trial,
this domestic violence complaining witness gets unusual
treatment without any showing required at all that she/he
cannot attend the actual trial. This defeats the entire
rationale behind PC 1335 and 1336 which is to provide a
procedure for examination of a witness pre-trial when there is
reliable evidence that the witness will not be able to attend
the trial and thus there is a necessity to obtain this
witness's testimony before trial.
"Finally, SB 197 seeks to create a special provision of PC 1335
and 1336 for witnesses in domestic violence cases,
misdemeanors and felonies. As stated earlier, up until now,
PC 1335 and 1336 were about the characteristics of the witness
not the kind of case in which the witness was involved. SB
197 is the proverbial camel's nose in the tent. Today it is
domestic violence witnesses. Tomorrow it will be witnesses in
criminal street gang prosecutions. After that, it will be
witnesses in sexual abuse cases. And then, child abuse cases.
And so on, and so on, and so on. In their current
incarnations, PC 1335 and 1336 already allow conditional
examinations where there is evidence that the witness's life
is in jeopardy. This satisfies the 'necessity' element we
have spoken of irrespective of the kind of case in question;
there is no lawful reason to expand this exceptional procedure
to the routine domestic violence case."
9)Prior Legislation :
a) AB 1158 (Benoit) Chapter 14, Statues of 2008, provided
that if a court determines that the witness to be examined
in a criminal proceeding is so sick or infirm as to be
unable to attend the examination in person, the examination
may be conducted by a contemporaneous, two-way video
conference in which the parties and the witness can see and
hear each other via electronic communications.
b) AB 2228 (Cook), of the 2007-08 Legislative Session,
would have authorized the district attorney and the
defendant to introduce conditional examinations of
witnesses in all cases, including those where the
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punishment may be death; and deletes portions of existing
law that authorize conditional examinations only where the
defendant is charged with a serious felony, as specified,
and there is evidence the witness's life is in jeopardy.
AB 2228 failed passage in the Senate Committee on Public
Safety.
c) SB 1356 (Yee), Chapter 49, Statutes of 2008, eliminated
the court's discretion to imprison or otherwise confine in
custody a victim of a domestic violence crime for contempt
when the contempt consists of refusing to testify
concerning that domestic violence crime.
d) AB 268 (Calderon), of the 2007-08 Legislative Session,
would have expanded the definition of "unavailability" to
an instance where a declarant refuses testify,
notwithstanding imposition of sanctions, and the statement
is offered against a party who has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the
unavailability of the declarant. AB 268 was never heard in
the Senate Judiciary Committee.
e) AB 2093 (Karnette), of the 2005-06 Legislative Session,
would have expanded the existing "state of mind" exception
to the inadmissibility of hearsay to include
non-testimonial statements by a decedent declarant
expressing fear of the defendant in homicide proceedings
involving domestic violence, as specified. AB 2093 was
never heard at the request of the author in this Committee.
f) AB 620 (Negrete-McLeod), Chapter 305, Statutes of 2005,
extended the right to defendants as well as the prosecution
to request a conditional examination of a witness where
there is evidence that the witness' life is in jeopardy.
REGISTERED SUPPORT / OPPOSITION :
Support
AAUW California
California Commission on the Status of Women
California Communities United Institute
California District Attorneys Association
California National Organization for Women
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California Partnership to End Domestic Violence
California Probation, Parole and Correctional Association
California State Sheriffs' Association
District Attorney for the City and County of San Francisco,
Kamala Harris
Los Angeles District Attorney's Office (Sponsor)
Peace Over Violence
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744