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?
(More)
AB 2068 (Richter)
Page 2
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
(More)
AB 2068 (Richter)
Page 3
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
(More)
AB 2068 (Richter)
Page 4
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
(More)
AB 2068 (Richter)
Page 5
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
(More)
AB 2068 (Richter)
Page 6
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?
(More)
AB 2068 (Richter)
Page 7
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."
(More)
"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
(More)
AB 2068 (Richter)
Page 9
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.
***************