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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