BILL ANALYSIS Ó
AB 1610
Page 1
Date of Hearing: March 25, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1610 (Bonta) - As Amended: March 20, 2014
SUMMARY : Provides that if a defendant has been charged with
human trafficking, as specified, the people or the defendant, if
the defendant has been fully informed of his or her right to
counsel as provided by law, have a witness examined
conditionally. Specifically, this bill:
1)Provides that if a defendant has been charged with human
trafficking, as specified, the people or the defendant, if the
defendant has been fully informed of his or her right to
counsel as provided by law, have a witness examined
conditionally if any of the following apply:
a) There is evidence that the life of the witness is in
jeopardy;
b) There is evidence that the witness has been threatened
or dissuaded from testifying at trial; or,
c) The court finds there is a reasonable basis to believe
that the witness will not attend the trial.
EXISTING LAW :
1)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 right to counsel, may
have witnesses examined conditionally in his or her or their
behalf, as prescribed. (Pen. Code § 1335, subd. (a).)
2)States that when a defendant has been charged with a serious
felony, as defined, or in a case of domestic violence, the
people or the defendant may, if the defendant has been fully
informed of his right to counsel, as provided by law, have a
witness conditionally examined if there is evidence that life
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of the witness is in jeopardy. (Pen. Code § 1335, subd. (b).)
3)States that when a material witness for the defendant, or for
the people, is about to leave the state, 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 is a dependent adult, the
defendant or the people may apply for an order that a witness
be examined conditionally. (Pen. Code § 1336, subd. (a).)
4)Provides that when there is evidence that the life of a
witness is in jeopardy, the defendant or the people may apply
for an order that the witness be examined conditionally.
(Pen. Code § 1336, subd. (b).)
5)Provides that if 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, before a designated magistrate. (Pen. Code §
1339.)
6)States that the defendant has the right to be present in
person and with counsel at the examination, and if the
defendant is in custody, the officer in whose custody he is,
must take the defendant to the deposition and keep him in the
presence and hearing of the witness during the examination,
and if the court determines that the witness to be examined
is so sick or infirm as to be unable to participate in the
examination in person, the court may allow the
examination to be conducted by a contemporaneous, two-way video
conference system in which the parties and the witness can see
and hear each other via electronic communication. (Pen. Code
§ 1340 subds. (a) & (b).]
7)Provides that the testimony given by the witness shall be
reduced to writing and authenticated, as specified.
Additionally, the testimony may be video-recorded. (Pen. Code
§ 1343.)
8)Provides that, after a deposition is taken, if the court finds
witness is unavailable at trial, as specified, the deposition
may be read into the record, or if video-taped, that tape may
be played at trial by either party and the same objections may
be taken to a question or answer contained in the deposition
or video-recording as if the witness had been examined orally
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in court. (Pen. Code § 1345.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recently in
Orange County, at least one victim of human trafficking was
murdered and multiple juvenile victims received implicit
threats from people inside the community, all while the
defendants remained behind bars.
"AB 1610 allows for a conditional examination when a material
witness is a victim of, or witness to, a felony prosecution
involving human trafficking, commercial sex acts, or forced
labor or services. In much the same way that the elderly,
infirm, and transitory populations are afforded the
opportunity to testify early in case their status renders them
unavailable at the time of trial, AB 1610 does the same for
victims of human trafficking by giving the people and
defendant the opportunity to conditionally examine the witness
in order to preserve his or her testimony.
"Once a victim of human trafficking is threatened pre-trial or
moved outside the local jurisdiction, it could be too late to
capture his or her testimony, resulting in cases being
dismissed for lack of evidence and offenders getting away with
abuse simply because the testimony of the witness was not
obtained soon enough.
"AB 1610 is a fairly simple fix to this potentially enormous
problem. The bill simply provides a means to preserve
evidence. Existing law provides that, after a conditional
examination is conducted, if the court finds the witness is
unavailable at trial, the deposition may be read into the
record or, if video-taped, that tape may be played at trial by
either party and the same objections may be taken to a
question or answer contained in the deposition or
video-recording as if the witness had been examined orally in
court. (Penal Code § 1345.) Therefore, this law is not
intended to replace the court examination; it's simply a "back
up" of sorts to ensure the preservation of testimony in cases
where the victim-witness later becomes unavailable.
"The conditional exam is more important than ever because it
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provides the only avenue to preserve important testimony that
may not be available at the time a criminal case finally goes
to trial."
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
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
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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
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
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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.]
REGISTERED SUPPORT / OPPOSITION :
Support
AB 1610
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California District Attorneys Association
California Police Chiefs Association
City and County of San Francisco
Opposition
California Public Defenders Association
California Attorneys for Criminal Justice
Taxpayers for Improving Public Safety
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744