BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 593|
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                                   THIRD READING 


          Bill No:  AB 593
          Author:   Levine (D)
          Introduced:2/24/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  7-0, 6/9/15
           AYES:  Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

           ASSEMBLY FLOOR:  79-0, 4/13/15 (Consent) - See last page for  
            vote

           SUBJECT:   Hearsay: admissibility of statements


          SOURCE:    California District Attorneys Association


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


          ANALYSIS:   


          Existing law:

          1)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;









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                 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; or

                 Persistent in refusing to testify concerning the subject  
               matter of the declarant's statement despite having been  
               found in contempt for refusal to testify.  (Evidence Code §  
               240 (a).)
           
           1)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).)

          2)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.)
           
          3)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.)
           
          4)Enumerates several "hearsay exceptions" that permit 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.)







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          5)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.)
           
          6)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).
           
          7)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.)
           
          8)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.   







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            (Evidence Code § 1380.)

          9)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)).

          10)Provides that hearsay evidence, including the hearsay  
            evidence that is the 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)).

          11)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)).

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

          This bill removes the sunset on this provision.


          Background


          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.   

          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 this  
          exception was necessary to prevent  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


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified  6/10/15)


          California District Attorneys Association (source)
          California Chamber of Commerce
          California College and University Police Chiefs Association
          California State Sheriffs' Association
          Crime Victims United of California
          Los Angeles County District Attorney's Office


          OPPOSITION:   (Verified  6/10/15)


          None received








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          ASSEMBLY FLOOR:  79-0, 4/13/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin,  
            Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,  
            Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,  
            Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Harper

          Prepared by:Mary Kennedy / PUB. S. / 
          6/10/15 14:32:01


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