BILL ANALYSIS Ó
AB 593
Page 1
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