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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