BILL ANALYSIS
AB 2068
Page 1
ASSEMBLY THIRD READING
AB 2068 (Richter)
As Amended April 18, 1996
2/3 vote. Urgency
JUDICIARY 15-0
SUMMARY: Changes the hearsay rule to permit diaries and other
statements by victims to be more readily accepted as evidence in
court. Specifically, this bill establishes a new exception to the
hearsay rule for a statement which relates the victim's
perceptions if the statement passes all of the following five
tests:
1) The statement describes or explains an incident or condition.
2) The incident involves a threat or actual physical harm to the
victim by the accused.
3) The witness is unavailable.
4) Circumstances surrounding the statement must not indicate a
lack of trustworthiness.
5) The proponent has given the evidence of the statement to the
other side in a timely way.
FISCAL EFFECT: Unknown
EXISTING LAW: Establishes rules of evidence, governed in part by
statute, and in part by constitutional requirements, as follows:
1) Permits a court to accept evidence of an out-of-court statement
as proof of the facts stated if one of 14 general exceptions to
the "hearsay rule" is applicable. Exceptions to the hearsay
rule include: prior statements of a witness; spontaneous,
contemporaneous or dying declarations; and statement of mental
or physical state.
2) Defines "statement" to include oral or written verbal
expression or nonverbal conduct intended as a substitute for
verbal expression.
3) Provides that a statement of the victim's state of mind,
motive or feeling is not made inadmissible by the hearsay rule
when offered to prove the victim's state of mind when it is itself
an issue, or when the statement explains the victim's conduct.
Excludes such evidence if the accused's conduct is in issue rather
than that of the victim (as in most domestic violence cases).
4) Excludes some otherwise admissible hearsay evidence in criminal
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cases if the defendant is unable to confront and cross examine
the hearsay declarant.
5) Excludes an out-of-court statement that qualifies under an
exception to the hearsay rule if the declarant had no personal
knowledge of the subject matter, or if the statement is
irrelevant, or if a privilege has been invoked or if the
statement contains inadmissible opinion. The court may also
exclude evidence which is unduly prejudicial, confusing,
misleading or time consuming.
BACKGROUND: The primary reason for excluding hearsay is that
out-of-court statements are considered unreliable because they
cannot be cross-examined. The courts have held that the right of
confrontation in a criminal case is usually satisfied if the
defendant had the opportunity to cross-examine the witness at a
prior judicial hearing, but normally only if the witness is
unavailable.
Where the victim is available to testify, the cases generally
require live testimony. Where the victim is unavailable, the
cases search for indicia of reliability before permitting hearsay.
The courts state that it is error to admit hearsay statements of
a victim who has expressed fear of the defendant unless the
defense has raised some issue about the victim's conduct which is
explained by the expression of fear.
In the Nicole Brown Simpson case, the court refused to admit seven
hearsay statements by the victim (one of which was a diary entry).
However, the court did admit nine hearsay statements which were
corroborated by the observation of witnesses, and which tended to
prove the violent nature of the Simpson relationship, as well as
identity, intent and motive.
ARGUMENTS IN SUPPORT: According to material provided by the
author, the fact that very credible evidence of a defendant's
motive for murder cannot be admitted into evidence is a nail in
the coffin for the credibility of the courts. Nicole Brown
Simpson made statements in her diaries and to friends in order to
tell the world who her possible future murderer might be. She
probably did not know that an archaic legal rule would keep a jury
from hearing this relevant evidence.
It is reasonable to allow use of such evidence where a defendant
has admitted charges, or entered a no contest plea to charges of
physically abusing the victim, because the admission gives the
victim's statements an indicia of trustworthiness that at least
should be able to make statements with knowledge that if
sufficiently corroborated, they will not be kept from juries
trying to discover the truth about possible future murders. Most
importantly, the public deserves courts that operate in a manner
commensurate with the common sense possessed by the majority of
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the public.
ARGUMENTS IN OPPOSITION: California Attorneys for Criminal
Justice state that evidence of prior incidents can be enormously
prejudicial. Presented with evidence of a prior assault by a
defendant, a jury may be inclined to convict in order to punish
the defendant for these previous acts. Allowing this kind of
evidence without the opportunity for cross-examination of the
declarant, which may reveal critical information regarding the
incident, will allow juries to base their verdicts on unreliable
and incomplete information.
Analysis prepared by: Stephen Birdlebough / ajud / 445-4560
FN 022892