BILL ANALYSIS                                                                                                                                                                                                    







            SENATE COMMITTEE ON CRIMINAL PROCEDURE
                     Senator Milton Marks, Chair         A
                        1995-96 Regular Session          B

                                                         2
                                                         0
AB 2068  (Richter)                                       6
As amended June 17, 1996                                 8
Hearing date:  June 18, 1996
Evidence Code
MLK:ll

                      Hearsay:  exceptions

                           HISTORY

Source:  Allan Favish, Attorney at Law

Prior Legislation:  None

Support:  Doris Tate Crime Victims Bureau; California  
District Attorneys Association

Opposition:  California Attorneys for Criminal Justice

Assembly Floor Vote:  Ayes  60 - Noes  7



                                                 KEY ISSUE

             SHOULD A NEW EXCEPTION TO THE HEARSAY RULE BE CREATED WHICH WOULD ALLOW FOR  
             THE ADMISSIBILITY OF EVIDENCE MADE BY AN UNAVAILABLE DECLARANT THAT PURPORTS  
             TO DESCRIBE the infliction or threat of physical HARM UPON THE DECLARANT BY  
             THE PARTY AGAINST WHOM THE STATEMENT IS OFFERED AND THE STATEMENT WAS MADE  
             UNDER TRUSTWORTHY CIRCUMSTANCES?








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                                             AB 2068 (Richter)
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                           PURPOSE

Generally, existing law provides that evidence of an  
out-of-court statement that is offered to prove the truth of  
the matter stated is inadmissible as hearsay unless a  
statutory exception makes such evidence admissible.   
(Evidence Code section 1200.)

Existing law provides for the following hearsay exceptions:   
confessions; declarations against interest; spontaneous,  
contemporaneous and dying declarations; statements of mental  
or physical state; statements relating to wills; business  
records; official records; former testimony; judgments;  
family history; reputation within the community; dispositive  
instruments and ancient writings; commercial and scientific  
publications; statements by children under the age of 12 in  
child neglect and abuse proceedings.  (Evidence Code sections  
1220; 1230; 1240-1242; 1250; 1260; 1270; 1280; 1290; 1300;  
1310; 1320; 1330; 1340; 1360)

Article I, section 15 of the California Constitution declares  
that a person charged with a crime in our courts has the  
right "to be confronted with witnesses against [him/her]."

This bill creates and additional exception to the hearsay  
rule for "physical abuse."  It provides that evidence of a  
statement by a declarant is not made inadmissible by the  
hearsay rule if the statement purports to narrate, describe  
or explain the infliction or threat of physical harm upon the  
declarant against the party for whom the statement is  
offered; the declarant is unavailable as a result of actions  
by the party against whom the statement is offered; there is  
no evidence that the unavailability of the declarant was  
caused by the party offering the statement; that the threat  
of physical harm is not remote to when the declarant made the  
statement and the statement was made under circumstances  
which indicate its trustworthiness.

The purpose of this bill is to create a hearsay exception for  




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statements regarding "physical abuse."


                           COMMENTS


1.   Need for the bill.

According to the author:

     Under present law, California's hearsay rule  
     automatically excludes relevant and trustworthy evidence  
     of physical abuse and threat of physical abuse upon a  
     declarant, when that evidence is a hearsay statement  
     made by the declarant that does not satisfy any of the  
     present hearsay exceptions.  The most notable recent  
     example of this deficiency in California law is the  
     exclusion of hearsay statements by Nicole Brown made to  
     her diary and to others, describing threats and physical  
     abuses by Orenthal Simpson.  This bill would bring  
     California law closer to federal law in this narrow area  
     and allow such evidence to be admitted under certain  
     circumstances when the evidence is trustworthy.

2.   Hearsay.

Generally an out-of-court statement offered to prove the  
truth of the matter asserted is inadmissible under the  
hearsay rule unless a statutory exception makes it  
admissible. (Evidence Code section 1200)

"The chief reasons for excluding hearsay evidence are said to  
be" (a) the statements are not made under oath; (b) the  
adverse party has no opportunity to cross-examine the person  
who made them, and (c) the jury can not observe his demeanor  
while making them."  (Witkin, 1  California Evidence 3rd  
section 558)  "The emphasis today, both as a justification  
for the rule and as a test for its application is on the  
absence of opportunity for cross-examination of the  
declarant, to expose dishonesty and faulty perception or  




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memory." (Id.)

The Legislature has carved out the following exceptions to  
the hearsay rule:  confessions; declarations against  
interest; spontaneous, contemporaneous and dying  
declarations; statements of mental or physical state;  
statements relating to wills; business records; official  
records; former testimony; judgments; family history;  
reputation within the community; dispositive instruments and  
ancient writings; commercial and scientific publications;  
statements by children under the age of 12 in child neglect  
and abuse proceedings.  (Evidence Code sections 1220; 1230;  
1240-1242; 1250; 1260; 1270; 1280; 1290; 1300; 1310; 1320;  
1330; 1340; 1360)

3.   Exception for "physical abuse".

This bill provides that evidence of a statement is not made  
inadmissible by the hearsay rule if the following conditions  
are met:

The statement purports to narrate, describe or explain the  
  infliction or threat of physical harm upon the declarant by  
  the party against whom the statement is offered;

The declarant is unavailable as a result of actions by the  
  party against whom the statement is offered;

There is no evidence that the unavailability of the declarant  
  was caused by, aided by, solicited by, or procured on  
  behalf of, the party who is offering the statement;

The infliction or threat of physical harm is not remote,  
  under the entirety of the circumstances, to when the  
  declarant made the statement; and

The statement was made under circumstances such as to  
indicate its trustworthiness.

The conditions are intended to mitigate the risk of a lack of  




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veracity in the statement sought to be offered.

4.   Explains threat of physical harm against the declarant by  
the party.

The first condition that must be met in order for the hearsay  
exception created in this bill to apply is that the statement  
must "purport to narrate, describe, or explain the infliction  
or threat of physical harm upon the declarant by the party  
against whom the statement is offered."

The statement can be either written or spoken, it only needs  
to be a statement which the declarant wrote or spoke about  
the infliction of or threat of physical harm on the declarant  
by the party against whom the statement was offered.  A  
statement by a victim which said that the defendant said he'd  
kill her would meet this condition.

5.   The declarant is unavailable as a result of the party.

The second condition that must be met in order for the  
hearsay exception created in this bill to apply is that the  
declarant must be "unavailable as a result of the actions by  
the party against whom the statement is offered."

This requires the person who made the statement to be  
unavailable, which generally means physically unavailable, as  
a result of actions by the party against whom the statement  
is offered. 

This requirement is intended to make the exception narrow and  
lessen the risk of manipulation by someone making a false  
statement just to "frame" someone.  However, it seems that it  
is in very rare situations that this could ever be met.  For  
example, a statement by a victim in a murder trial is sought  
to be admitted against the defendant.  The statement is that  
the defendant had threatened to kill the victim.  The victim  
was then killed.  The only way the statement can come in  
under this condition is if it is shown that the defendant  
caused the victim to be unavailable.  However, since it is a  




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murder trial and the defendant is denying culpability, the  
fact that the victim is dead, and thus unavailable, due to  
actions of the defendant is the whole point of the trial in  
the first place and thus it seems impossible to prove that  
the defendant caused the victim to become unavailable without  
finishing the trial.    

will it be possible to show that the declarant is unavailable  
as a result of the party ?

6.   Remoteness.

The fourth condition which must be met for the hearsay  
exception created by this bill is that "the infliction or  
threat of physical harm is not remote, under the entirety of  
the circumstances, to when the declarant made the statement."

This is intended to link the time the statement was made with  
the threat so that a diary entry years after a threat  
occurred would not be admissible.

Remoteness is not defined specifically but would be up to the  
judge to determine.

The Litigation Section of the State Bar suggests that there  
also be a criteria that requires the event about which the  
statement is made to be near in time to the event for which  
the statement is being introduced to prove.  Thus, a  
statement concerning a threat made 15 years prior to a murder  
occurring would not be admissible because the threat itself  
was too remote in time from the act for which the defendant  
is being tried.  This is different than remoteness in time  
for the statement itself in relation to the threat or action  
which is the basis for the statement.

SHOULD WHAT IS "REMOTE" BE DEFINED? 

SHOULD THE STATEMENT WHICH IS BEING ADMITTED BE REQUIRED TO A  
HAVE BEEN MADE CLOSE IN TIME TO THE ACTION FOR WHICH THE  
DEFENDANT IS BEING CHARGED?




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7.   Trustworthiness.

The fifth and final condition which must be met for the  
hearsay exception created by this bill is that statement must  
be made under circumstances which indicate the  
trustworthiness of the statement.  The bill lists the  
following circumstances which are relevant to the issue of  
trustworthiness and should be evaluated by the court in  
determining admissibility but does not limit the court to  
only these factors.  The factors are:

"Whether the statement was made in contemplation of pending  
  or anticipated litigation in which the declarant was  
  interested."  Thus, a statement made in anticipation of a  
  divorce or child custody proceeding may not be considered  
  "trustworthy."



























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"Whether the party against whom the statement is offered has  
  previously committed a crime of violence against the  
  declarant."  Thus, a statement with no other evidence of  
  violence would be less "trustworthy" than a statement with  
  other evidence of violent acts.

"Whether the declarant has a bias or motive for fabricating  
  the statement, and the extent of such a bias or motive."   
  Again, motive such as a child custody or some type of  
  revenge against the defendant could be used to show the  
  statement was not trustworthy.

"Whether the statement is corroborated by evidence other than  
  statements which are admissible only pursuant to this  
  section."  The statement alone with no other non-hearsay  
  statements or acts would make a statement less  
  "trustworthy."

8.   Right to confrontation.

The California Constitution declares in Article I, section  
15, that a person charged with a crime in our courts has the  
right "to be confronted with witnesses against [him]."   
Opponents note that "[i]n  California v. Green 399 U.S.  
149(1970), the U.S. Supreme Court ruled that a defendant's  
right to confrontation is the right to ' full and effective  
cross-examination.'"

Opponents state that "[a]s with any exception to the hearsay  
rule, there is no way for the jury to view the demeanor, to  
evaluate the credibility, or truthfulness, or accuracy of  
perception of the witness when cross-examined concerning the  
basis of his statement.  However, the problem with this  
legislation is that untruthful (though 'trustworthy')  
statements will be admitted for the 'truth of the matter  
stated.'"

Opponents are especially concerned with the admission of oral  
statements under this exception because the person testifying  




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to the statement by the declarant will have the added  
problems of recollection and perception.  They will have to  
recall a statement made by a friend or loved one who is now  
"unavailable."  Time and circumstances may cloud their  
recollection and make the statement untruthful, even if  
unintentionally so.

DOES THIS EXCEPTION INTERFERE WITH THE DEFENDANT'S RIGHT TO  
CONFRONTATION?

WILL THIS ALLOW THE ADMISSION OF UNTRUTHFUL, ALTHOUGH  
TRUSTWORTHY STATEMENTS?

IS THERE A HIGH RISK OF UNTRUTHFULNESS IN ALLOWING IN ORAL  
STATEMENTS?

9.   Urgency Clause.

This bill contains an urgency clause.



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