BILL ANALYSIS Ó AB 1610 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1610 (Bonta) As Amended August 18, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |75-0 |(April 24, |SENATE: |32-0 |(August 21, | | | |2014) | | |2014) | ----------------------------------------------------------------- Original Committee Reference: PUB. S. SUMMARY : Provides that if a defendant has been charged with human trafficking, and there is evidence that the victim or a material witness is being dissuaded from testifying at trial, 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, may have a witness examined conditionally. The Senate amendments : 1)Provide that if there is a reasonable basis to believe that a material witness will not attend the trial because he or she is under the direct control of the defendant or another person involved in human trafficking and, by virtue of this relationship, the defendant or other person seeks to prevent the witness from testifying, and if the defendant is fully informed of his or her right to counsel, the court may have the witness examined conditionally. 2)Delete the circumstance where there is evidence that the life of the witness is in jeopardy as grounds for the ordering of a conditional examination. 3)Recast the Assembly version of the bill. 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. AB 1610 Page 2 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 of the witness is in jeopardy. 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. 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. 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. 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. 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. 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 videotaped, 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 AB 1610 Page 3 or video-recording as if the witness had been examined orally in court. AS PASSED BY THE ASSEMBLY , this bill: 1)Provided 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 witness has been threatened or dissuaded from testifying at trial by the defendant or a person acting on behalf of the defendant; and b) The court finds there is a reasonable basis to believe that the witness will not attend the trial. FISCAL EFFECT : According to the Senate Appropriations Committee, unknown, likely minor, trial court costs to the extent conditional examinations require additional court time. (There were 41 commitments to state prison between 2009-2012. ) COMMENTS : 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 AB 1610 Page 4 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 Section 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 provides the only avenue to preserve important testimony that may not be available at the time a criminal case finally goes to trial." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0005130