BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 593


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          Date of Hearing:   April 7, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 593  
          (Levine) - As Introduced February 24, 2015


                                  PROPOSED CONSENT


          SUBJECT:  Hearsay: admissibility of statements


          KEY ISSUE:  Should California EXTEND THE "FORFEITURE BY  
          WRONGDOING" HEARSAY EXCEPTION INDEFINITELY?  


                                      SYNOPSIS


          Under the hearsay rule an out-of-court statement cannot be  
          admitted as evidence if introduced to prove the truth of the  
          matter asserted.  The hearsay rule reflects the law's preference  
          for live witnesses, who take oaths, are cross-examined, and can  
          be seen by the jury.  However, existing law recognizes several  
          hearsay exceptions, which generally apply when the declarant is  
          unavailable to testify as a witness but where the circumstances  
          surrounding the statement create a presumption of reliability.   
          (For example "dying declarations" or spontaneous utterances,  
          etc.)  Under the common law, a hearsay exception known as  
          "forfeiture by wrongdoing" permitted statements to be admitted  
          if the declarant was "unavailable as a witness" and the  
          unavailability was due to some wrongdoing on the part of the  








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          defendant. 


          California enacted the "forfeiture by wrongdoing" hearsay  
          exception in 2011, with a four-year sunset.  As currently  
          enacted, the "forfeiture by wrongdoing" exception to the hearsay  
          rule permits the introduction of hearsay into evidence, if the  
          party seeking to introduce the statement can establish by a  
          preponderance of the evidence that the other party has engaged,  
          or aided and abetted, in wrongdoing that was intended to, and  
          did, cause the declarant of the statement to be unavailable as a  
          witness.  This bill would delete the sunset which expires at the  
          end of 2015.


          According to the author and supporters, this bill is necessary  
          to maintain this hearsay exception, which helps to prevent the  
          injustice that occurs when hearsay statements of an unavailable  
          victim or witness are excluded from evidence, even though the  
          person against whom the statement is offered, is the very person  
          who is responsible for the victim or witness being unavailable  
          to testify in court.  The exception has been used in the trial  
          courts without any major problems.  There is no known opposition  
          to this bill.


          SUMMARY:  Extends the "forfeiture by wrongdoing" exception to  
          the hearsay rule indefinitely.  Specifically, this bill repeals  
          the January 1, 2016 sunset date of the "forfeiture by  
          wrongdoing" hearsay exception. 


          EXISTING LAW:  


          1)Provides that evidence of a statement is not made inadmissible  
            by the hearsay rule if the statement is offered against a  
            party that has engaged, or aided and abetted, in wrongdoing  
            that was intended to, and did, procure the unavailability of  








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            the declarant as a witness. (Evidence Code Section 1390(a).   
            All further references are to the Evidence Code, unless  
            otherwise indicated.)
              
          2)Requires the party seeking to introduce a statement to  
            establish the essential elements at a foundational hearing,  
            outside the presence of the jury.  (Section 1390(b)(1).)

          3)Permits the use of hearsay evidence, including the contested  
            statement, at the foundational hearing.  A finding that a  
            statement is admissible against a wrongdoer may be based on  
            the hearsay statement of the unavailable declarant, but it  
            must also be supported by independent corroborative evidence.   
            (Section 1390(b)(2).)

          4)Provides that this hearsay exception applies to any civil,  
            criminal, or juvenile case initiated or pending as of January  
            1, 2011.  (Section 1390(c).)

          5)Provides that the "forfeiture by wrongdoing" exception will  
            sunset on January 1, 2016, unless a later enacted statute,  
            deletes or extends that date.  (Section 1390(d).)

          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS: Under the hearsay rule an out-of-court statement  
          cannot be admitted as evidence if introduced to prove the truth  
          of the matter asserted.  (Section 1200.)  The hearsay rule  
          reflects the law's preference for live witnesses, who take  
          oaths, are cross-examined, and can be seen by the jury.   
          However, existing law recognizes several hearsay exceptions,  
          which generally apply when the declarant is unavailable to  
          testify as a witness but where the circumstances surrounding the  
          statement create a presumption of reliability.  (For example  
          "dying declarations" or spontaneous utterances, etc.)  (Sections  
          1242 & 1240.) Under the common law, a hearsay exception known as  
          "forfeiture by wrongdoing" permitted statements to be admitted  








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          if the declarant was "unavailable as a witness" and the  
          unavailability was due to some wrongdoing on the part of the  
          defendant.  (Federal Rule of Evidence Section 804(b)(6).)  


          The author explains the reason for the bill as follows:


               In 2010, the Legislature unanimously approved and the  
               Governor signed AB 1723 (Lieu) Chapter 537, Stats. 2010,  
               which established the "forfeiture by wrongdoing" hearsay  
               exception.  This exception allowed for the introduction of  
               hearsay as evidence if the witness is unavailable due to  
               some wrongdoing on the part of the defendant.


               At the time this exception was created, the Assembly  
               Judiciary Committee requested that a sunset date be  
               included, to allow the Legislature to consider whether the  
               negative consequences predicted by the opponents would  
               actually come to pass.  The sunset date is fast  
               approaching, and we are unaware of any widespread problems  
               that the forfeiture by wrongdoing exception has created in  
               the last four years.


          No Evidence That the "Forfeiture by Wrongdoing" Exception Has  
          Been Problematic to the Execution of Justice in California  
          Courts?  In 2010, when the Legislature was considering the  
          forfeiture by wrongdoing exception to the hearsay rule,  
          opponents expressed concern about the provision in the bill that  
          permits the use of hearsay, including the contested statement,  
          at the foundational hearing.  The opponents also argued that  
          this new exception would unduly expand the use of inherently  
          unreliable hearsay evidence and was more than likely  
          unconstitutional under the Sixth Amendment's "confrontation  
          clause."  At that time, the author and the sponsor responded to  
          opponents' concerns by pointing out that hearsay is already  
          permitted at a foundational hearing under the federal Rules.   








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          Federal Rules of Evidence section 104(a) states, "the court must  
          decide any preliminary question about whether a witness is  
          qualified, a privilege exists, or evidence is admissible.  In so  
          deciding, the court is not bound by evidence rules, except those  
          on privilege." 


          The "forfeiture by wrongdoing" exception has been in effect for  
          more than three years, and if there were a problem with its use  
          one would think that it would have manifested itself by this  
          time.  Courts have allowed the use of this hearsay exception and  
          there has been no determination, to the knowledge of this  
          Committee, that this exception has been ruled as  
          unconstitutional in any of these cases.  The purpose of a sunset  
          provision is to permit the Legislature to revisit the policy and  
          to determine if there have been unwanted or unintended  
          consequences.  The Committee has not been provided with any  
          evidence that any such unwanted or unintended consequences have  
          come to pass; thus, the Committee may conclude it is reasonable  
          to remove the sunset. 


          It should be noted that this exception to the hearsay rule  
          applies in civil and juvenile cases, as well as criminal cases.   
          Therefore, a hearsay statement can be offered against  
          individuals other than criminal defendants.


          Court Ruling on the Use of the Forfeiture by Wrongdoing  
          Exception.  California courts have ruled on the forfeiture of  
          wrongdoing exception, but there is no published case law  
          demonstrating the court challenging the validity of the  
          exception.  When considering the unavailability of a witness,  
          the court found that the exception was properly used, when a  
          witness was threatened by the defendant and was too fearful to  
          appear in court to testify.  (See, e.g., People v. Jones (2012),  
          207 Cal. App. 4th 1392, 1397 (the Court of Appeals held that the  
          defendant's threatening telephone calls from jail to the witness  
          constituted sufficient wrongdoing to make the witness  








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          unavailable, and allowed her out of court statements to be used  
          as testimony under the forfeiture by wrongdoing exception).)  


          ARGUMENTS IN SUPPORT:  According to the sponsor, the California  
          District Attorneys Association (CDAA), "this bill would remove  
          the sunset date from the forfeiture by wrongdoing hearsay  
          exception, which permits the introduction of hearsay into  
          evidence if the party seeking to introduce the statement can  
          establish by a preponderance of the evidence that the other  
          party has engaged or acquiesced in wrongdoing that was intended  
          to, and did, procure the unavailability of the declarant of the  
          hearsay."


          Previous Relevant Legislation: AB 1723 (Lieu) Chapter. 537,  
          Stats. 2010 amended the California Evidence Code to include the  
          "forfeiture by wrongdoing" exception to the hearsay rule.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California District Attorneys Association (sponsor)


          California Chamber of Commerce


          California College and University Police Chiefs


          California State Sheriffs" Association









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          Crime Victims United of California




          




          Opposition




          None on File




          Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334