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 AB 593 Page 2 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 AB 593 Page 3 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 AB 593 Page 4 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. AB 593 Page 5 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 AB 593 Page 6 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 AB 593 Page 7 Crime Victims United of California Opposition None on File Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334