BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 717(DeSaulnier)
As Introduced February 22, 2013
Hearing date: April 2, 2013
Evidence Code
MK:dl
CREDIBILITY OF WITNESSES:
SEXUAL CONDUCT EVIDENCE
HISTORY
Source: Alameda County District Attorney
Prior Legislation: AB 2829 (Bogh) - Chapter 61, Stats. 2004
AB 782 (Bogh) - Chapter 225, Stats. 1996
Support: California District Attorneys Association; National
Association of Social Workers, California Chapter;
Coalition to Abolish Slavery and Trafficking
Opposition:None known
KEY ISSUE
SHOULD THE EVIDENCE CODE PROVISION LIMITING WHEN THE SEXUAL CONDUCT
OF A WITNESS CAN BE USED TO ATTACK THE CREDIBILITY OF THE WITNESS BE
EXPANDED TO INCLUDE ADDITIONAL OFFENSES UNDER WHICH THE PROCEDURES
FOR DETERMINING ADMISSIBLILITY WOULD APPLY?
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PURPOSE
The purpose of this bill is to expand the offenses to which the
procedure for determining the admissibility of sexual conduct
evidence applies.
Existing law generally provides that evidence of a person's
character is inadmissible to prove his or her conduct on a
specified occasion. However, nothing prohibits the admission of
evidence that a person committed a crime, civil wrong or other
act when relevant to prove some fact other than his or her
disposition to commit such an act. (Evidence Code § 1101)
Existing law provides that in a criminal action in which the
defendant is accused of a sexual offense, evidence of the
defendant's commission of another sexual offense or offenses is
not made inadmissible by Section 1101 if the evidence is
otherwise reliable. (Evidence Code § 1108)
Existing law provides that evidence that a victim of human
trafficking has engaged in any commercial sexual act as a result
of being a victim of human trafficking is inadmissible to prove
the victim's criminal liability for any conduct related to that
activity. (Evidence Code § 1161(a).)
Existing law provides that evidence of sexual history or history
of any commercial sexual act of a victim of human trafficking is
inadmissible to attack the credibility or impeach the character
of the victim in any civil or criminal proceeding. (Evidence
Code § 1161(b).)
Existing law provides that if evidence of sexual conduct of the
complaining witness is offered to attack the credibility of the
complaining witness the following procedure shall be followed:
1. A written motion shall be made by the defendant to the
court and prosecutor stating that the defense has an offer
of proof of the relevancy of evidence of the sexual conduct
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of the complaining witness proposed to be presented and its
relevancy in attacking the credibility of the complaining
witness.
2. The written motion shall be accompanied by an affidavit
in which the offer of proof shall be stated. The affidavit
shall be filed under seal and only unsealed by the court to
determine if the offer of proof is sufficient to order a
hearing. After that the determination, the affidavit shall
be resealed by the court.
3. If the court finds that the offer of proof is
sufficient, the court shall order a hearing out of the
presence of the jury, if any, and at the hearing allow the
questioning of the complaining witness regarding the offer
of proof made by the defendant.
4. At the conclusion of the hearing, if the court finds
that evidence proposed to be offered by the defendant
regarding the sexual conduct of the complaining witness is
relevant and not inadmissible the court may make an order
stating what evidence may be introduced by the defendant,
and the nature of the questions permitted. The defendant
may then offer evidence pursuant to the order of the court.
5. An affidavit resealed by the court shall remain sealed,
unless the defendant raises an issue on appeal or
collateral review relating to the offer of proof contained
in the sealed document. If the defendant raises that issue
on appeal, the court shall allow the Attorney General and
appellate counsel for the defendant access to the sealed
affidavit. If the issue is raised on collateral review, the
court shall allow the district attorney and defendant's
counsel access to the affidavit. The use of the
information contained in the affidavit shall be limited
solely to the pending proceeding. (Evidence Code §
782(a).)
This bill would allow the written motion to be brought by the
party seeking to introduce the evidence with notice to all
parties.
This bill would also specify that the court's order could allow
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only part of the evidence.
Existing law , for the purposes of sexual conduct evidence,
defines complaining witness as the alleged victim of the crime
charged or the alleged victim offering testimony. (Evidence
Code § 782(b).)
This bill also defines "sexual conduct" as including commercial
sexual conduct, including, but not limited to: human
trafficking; procuring; pimping; pandering; transporting a child
under 16 for lewd conduct; abduction for prostitution; bringing
into the state child porn; bringing obscene matter into the
state; producing obscene matter; using minor to assist in
distribution; advertising obscene matter; live obscene conduct;
extortion; disorderly conduct.
Existing law provides that the procedure provided for in
Evidence Code Section 782 (a) shall apply in the following
circumstances:
1. In a prosecution for: rape; spousal rape; rape in
concert; sodomy; lewd act on a child; oral copulation;
continuous sexual abuse of a child; or, penetration by a
foreign object and any attempt, or conspiracy to commit any
of the crimes unless the crime occurred in a local
detention facility or the state prison.
2. When an alleged victim testifies pursuant to Evidence
Code section 1101(b) as a victim of one of the following
crimes: sexual battery; rape; statutory rape; aggravated
sexual assault; incest; sodomy; lewd act on a child;
continuous sexual abuse of a child; penetration by a
foreign object; indecent exposure; or, child molest unless
that crime occurred in a local detention facility or the
state prison.
3. When the alleged victim of a sexual offense testifies
pursuant to Evidence Code Section 1108, except if the crime
is alleged to have occurred in a local detention facility.
(Evidence Code § 782 (c).)
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This bill includes: human trafficking; procuring; pimping;
pandering; transporting a child under 16 for lewd conduct;
abduction for prostitution; bringing into the state child porn;
bringing obscene matter into the state; producing obscene
matter; using minor to assist in distribution; advertising
obscene matter; live obscene conduct; extortion and disorderly
conduct to the list of crimes in 1 and 2 above.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard
and difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
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reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Need for This Bill
According to the author:
On November 6, 2012, the people of California overwhelming
supported (81.3% of the vote) Proposition 35, the
Californian's Against Sexual Exploitation Act. Proposition 35
made changes to California law surrounding human trafficking.
Some of these changes include: increasing prison terms for
human traffickers, requiring convicted sex traffickers to
register as sex offenders, and requiring criminal fines from
convicted human traffickers to pay for services to help
victims.
Additionally, Proposition 35 added Section 1161 to the
Evidence Code that prohibits the use of a human trafficking
victim's prior sexual history to attack the credibility of the
victim in any civil or criminal proceeding. Section 1161 is
important to protect a victim's credibility as a witness in
criminal proceedings against their captors. However,
Proposition 35 failed to put in place a procedure to be used
by a court to determine the admissibility of this evidence
under the newly enacted Section 1161.
2. Admissibility of Prior Conduct to Attack Credibility
Existing law sets forth a procedure to determine the
admissibility of evidence of the sexual conduct of a complaining
witness in the prosecution of specified sex offenses. Evidence
Code Section 782 allows the defense to bring a noticed motion to
seek to allow the evidence in to attack the credibility of the
complaining witness. This bill would allow either party to
bring such a motion and expands Evidence Code Section 782 to
include evidence of commercial sexual conduct and expands the
list of offenses to include human trafficking and related
offenses.
SHOULD THE PROCEDURE FOR ADMISSIBILITY OF PRIOR SEXUAL CONDUCT
EVIDENCE TO ATTACK THE CREDIBILITY OF A WITNESS BE EXPANDED TO
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INCLUDE WHEN THE WITNESS IS A VICTIM OF HUMAN TRAFFICKING?
3. Inadmissibility of Evidence in a Human Trafficking Case
Proposition 35, November 6, 2012, created Evidence Code Section
1161 which provides that evidence that a victim of human
trafficking has engaged in any commercial sexual act as a result
of being a victim of human trafficking is inadmissible to prove
the victim's criminal liability for any conduct related to that
activity or to attack the credibility or impeach the character
of the victim in any civil or criminal proceeding.
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It is unclear how Evidence Code Section 1161 and the changes to
Evidence Code Section 782 in this bill will work together.
Evidence Code Section 1161 is a prohibition on admissibility
while Evidence Code Section 782 is a procedure for admitting
language that also would be covered by 1161. If the intent to
create a procedure to allow in some of the evidence otherwise
made inadmissible by 1161, then a cross-reference should
probably be put into one of the sections.
SHOULD THIS BILL BE AMENDED TO CLARIFY THE CONFLICT BETWEEN
EVIDENCE CODE SECTION 782 AND EVIDENCE CODE SECTION 1161?
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