BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 593| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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; AB 593 Page 2 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.) AB 593 Page 3 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. AB 593 Page 4 (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 AB 593 Page 5 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 AB 593 Page 6 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 **** END ****