BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 593        Hearing Date:    June 9, 2015    
          
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          |Author:    |Levine                                               |
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          |Version:   |February 24, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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                   Subject:  Hearsay: Admissibility of Statements



          HISTORY

          Source:   California District Attorneys Association

          Prior Legislation:AB 1723 (Lieu) Chapter 537, Stats. 2010
                           AB 268 (Calderon) 2007 (Amended to be different  
                         subject matter while in Senate Judiciary  
                         Committee)
                         AB 2093 (Karnette) 2006 (Failed Assembly Public  
                         Safety)
                         AB 141 (Cohn), Chapter 116, Stats. 2004
                         SB 1876 (Solis) - Ch. 261, Stats. 1996

                         
          Support:  The California Chamber of Commerce; California College  
                    and University Police Chiefs; California State  
                    Sheriffs' Association; Crime Victims United of  
                    California

          Opposition:None known

          Assembly Floor Vote:                 79 - 0
          

          PURPOSE







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          This bill repeals the January 1, 2016 sunset date of the  
          "forfeiture by wrongdoing" hearsay exception. 

          Existing law defines "unavailable as a witness," for purposes of  
          the Evidence Code, to include a declarant who is:

                 Exempted or precluded on grounds of privilege from  
               testifying concerning the matter to which his or her  
               statement is relevant;
                 Disqualified from testifying to the matter;
                 Dead or unable to attend or testify because of physical  
               or mental illness or infirmity;
                 Physically absent and the court is unable to compel  
               attendance;
                 Physically absent even though the proponent has  
               exercised reasonable diligence but has been unable to  
               procure his or her attendance by the court process;
                 Persistent in refusing to testify concerning the subject  
               matter of the delcarant's statement despite having been  
               found in contempt for refusal to testify (Evidence Code  
               Section 240 (a).)
           
           Existing law specifies that a declarant is not unavailable as a  
          witness if the declarant's unavailability was procured by the  
          wrongdoing of the proponent of the declarant's out-of-court  
          statement for the purpose of preventing the declarant from  
          attending or testifying.  (Evidence Code § 240 (b).)

          Existing law defines "hearsay evidence" as a statement made by a  
          declarant, other than a witness while testifying, that is  
          offered to prove the truth of the matter stated.  Specifies that  
          except as provided by law, hearsay evidence is inadmissible.   
          (Evidence Code § 1200.)
           
          Existing law provides that, in a criminal action, a statement  
          that is otherwise admissible as hearsay evidence under the  
          Evidence Code is inadmissible if its admission would violate the  
          constitutions of either California or the United States.   
          (Evidence Code § 1204.)
           
          Existing law enumerates several "hearsay exceptions" that permit  








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          the admission of hearsay statements where the circumstances  
          surrounding the statement create presumptions in favor of its  
          truthfulness, including dying declarations, "excited  
          utterances," statements against interest, statements of mental  
          or physical states and, under specified circumstances, certain  
          prior recorded statements, former testimony, business and  
          official records, and other recorded statements or published  
          writings, as specified.  (Evidence Code §§1220 through 1341.)
           
          Existing law provides that, in a criminal proceeding charging a  
          serious felony, a statement made by a declarant is not made  
          inadmissible by the hearsay rule if the declarant is unavailable  
          and there is clear and convincing evidence that the declarant's  
          unavailability was knowingly caused by, aided by, or solicited  
          by the party against whom the statement is offered and the  
          unavailability is the result of the death by homicide or the  
          kidnapping of the declarant.  Requires further that the  
          declarant's out-of-court statement was memorialized by a tape  
          recording made by law enforcement or a written statement  
          prepared by a law enforcement official and signed by declarant  
          and notarized prior to the death or kidnapping of the declarant.  
           Specifies the procedure by which the above elements must be  
          proved.  (Evidence Code § 1350.)
           
          Existing law provides that, in a criminal prosecution, where the  
          victim is a minor, a statement made by the victim when under the  
          age of 12 describing any act of child abuse or neglect, as  
          specified, is not made inadmissible by the hearsay rule if the  
          court finds certain indicia of reliability and the child either  
          testifies at the proceedings or is unavailable as a witness.   
          Requires the proponent of the statement to provide adverse party  
          with advance notice in order to provide adverse party with a  
          fair opportunity to prepare to meet the statement.  (Evidence  
          Code §1360).
           
          Existing law provides that a statement that purports to narrate  
          or describe the infliction or threat of physical injury is not  
          made inadmissible by the hearsay rule if the declarant is  
          unavailable as a witness and the statement was made at the time  
          of infliction or threat; was made in writing and recorded by a  
          physician, nurse, paramedic, or law enforcement official; and  
          was made under circumstances that would indicate its  
          trustworthiness.  (Evidence Code § 1370.)
           








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          Existing law provides that, in a criminal prosecution for elder  
          and dependent adult abuse, a statement made by the victim is not  
          made inadmissible by the hearsay rule if the victim is  
          unavailable as a witness, the statement was made under  
          circumstances which indicate its trustworthiness, and the  
          victim, at the time of the proceeding or hearing, suffers from  
          the infirmities of advanced age or other form of organic brain  
          damage, or other physical, mental, or emotional dysfunction.   
          (Evidence Code § 1380.)
          Existing law 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 in, or aided and abetted, in  
          the wrongdoing intended to, and did procure the unavailability  
          of the declarant as a witness. (Evidence Code § 1390(a))

          Existing law provides that hearsay evidence, including the  
          hearsay evidence that is subject of the foundational hearing, is  
          admissible at the foundational hearing.  However, a finding that  
          the elements have been met shall not be based solely on the  
          uncomforted hearsay statement of the unavailable declarant and  
          shall be supported by independent corroborative evidence.  
          (Evidence Code § 1390(b)(2))

          Existing law provides that the foundational hearing shall be  
          conducted outside the presence of the jury. However, if the  
          hearing is conducted after a jury trial has begun, the judge  
          presiding at the hearing may consider evidence already presented  
          to the jury in deciding whether the elements are met. (Evidence  
          Code § 1390(b)(3))

          Existing law provides that this hearsay exception it creates  
          sunsets on January 1, 2016. (Evidence Code § 1390(d)).

          This bill removes the sunset on this provision.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  








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          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  








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               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1. Need for The Bill
          
          According to the author:

               AB 593 continues to allow an exception to the hearsay  
               rule in cases where a witness is unavailable to  
               testify, for reasons such an intimidation or death.

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

               At the time this exception was created, a sunset date  
               was included (January 1, 2016), to allow the  
               Legislature to consider whether the negative  
               consequences predicted by the opponents would actually  
               come to pass. That sunset date is fast approaching, and  
               we are unaware of widespread problems that the  
               forfeiture by wrongdoing exception has created in the  
               last four years.

          2.  The Hearsay Rule
          
          Under the hearsay rule, an out-of-court statement cannot be  
          admitted if it is offered to prove the truth of the matter  
          asserted.  This general rule is subject to several hearsay  
          exceptions that have developed over the years, first at common  
          law and then codified into federal and state rules of evidence.   
          The hearsay rule reflects the law's preference for live  
          testimony, which is given under oath, subject to  
          cross-examination, and seen by the jury.  The several exceptions  
          to the hearsay rule generally come into play when the witness is  
          not available to testify, but the circumstances of their  
          out-of-court statements somehow suggest the reliability or  
          probable truthfulness of those statements.  Some classic  








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          examples include the "dying declaration" and "excited  
          utterances," since presumably people do not have the inclination  
          or the time, respectively, to think up a lie under such  
          circumstances.  In theory, the circumstances under which the  
          statement was made creates a measure of reliability that serves  
          as an imperfect but necessary substitute for the things that  
          supposedly make in-court statements more reliable, such as an  
          oath and the opportunity to cross-examine.   

          3. Forfeiture by Wrongdoing Exception
          
          In 2010 the Legislature created a new hearsay exception  
          providing that evidence of a statement that is offered against a  
          party who has engaged, or aided and abetted, in wrongdoing that  
          was intended to, and did, procure the unavailability of the  
          declarant as a witness is not made inadmissible by the hearsay  
          rule.  At the time supporters of the bill argued that it this  
          exception was necessary prevents the "injustice" that occurs  
          when a party is responsible for a person not being able to  
          testify in court and that it is consistent with a federal  
          hearsay exception and exceptions in other states. However,  
          because of concerns raised by the opposition, a sunset was  
          placed in the bill.  The author argues that there is no evidence  
          of abuse of this exception and thus the sunset should be  
          removed.  The sponsor, the California District Attorneys  
          Association states:

               EC 1390 has proven to be a valuable tool for  
               prosecutors in instances where witnesses or victims  
               have been intimidated or killed in order to prevent  
               them from testifying.

               To illustrate the types of cases in which the  
               forfeiture by wrongdoing exception is used, suppose a  
               witness testifies before a grand jury that she ahs seen  
               a gang member commit a drive-by shooting. Without EC  
               1390, if the gang member then kills, or acquiesces in  
               the killing of, the witness, the witness' testimony is  
               not admissible in the trial on the drive-by shooting.

               Similarly, suppose a woman makes a report to the police  
               that her husband has assaulted her and the husband is  
               then charged with spousal abuse. Without EC 1390, if  
               the husband then successfully intimidates the woman so  








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               that she is no longer willing to testify, her  
               out-of-court statements would be inadmissible at trial.

               AB 593 is necessary to remove the sunset date on the  
               forfeiture by wrongdoing hearsay exception. This helps  
               prevent the injustice that occurs when a criminal  
               defendant is able to exclude hearsay statements of an  
               unavailable victim or witness, even though the  
               defendant is the very person who is responsible for the  
               victim or witness being unavailable to testify in  
               court.
           


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