BILL ANALYSIS                                                                                                                                                                                                    






                SENATE JUDICIARY COMMITTEE    A
                   Charles M. Calderon, Chairman  B
                    1995-96 Regular Session
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AB 2068
Assemblymember Richter
As amended on June 24, 1996
Hearing Date:  July 2, 1996
Evidence Code
MBS:cb

                           EVIDENCE
                     HEARSAY EXCEPTIONS
                              
                          HISTORY

Source:  Allan Favish, Attorney at Law

Related Pending Legislation:  SB 1876 (Solis).

Prior Vote: Senate Criminal Procedure Committee Vote:  4 -  
2
             Assembly Judiciary Committee Vote:  15 - 0
             Assembly Floor Vote:  60 - 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?


                          PURPOSE

It is the intent of this bill to provide a new exception to  
the hearsay rule.







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 Existing law:

1.Provides in Article 1, Section 15 of the California  
  Constitution that a person charged with a crime in our  
  courts has the right oto be confronted with witnesses  
  against [him or her].o

2.Provides that evidence of an out-of-court statement that  
  is offered to prove the truth of the matter stated is  
  admissible as hearsay unless a statutory exception makes  
  such evidence admissible.  [Evidence Code Section 200.   
  Hereinafter, all references are to the Evidence Code  
  unless otherwise stated.]

3.Provides for the following statutory hearsay exceptions:

   a.   Confessions or admissions.  [Sections 1220 - 1228.]

   b.   Declarations against interest.  [Section 1230.]

   c.   Prior statement of witnesses.  [Sections 1235 -  
     1238.]

   d.   Spontaneous, contemporaneous, and dying  
     declarations.  [Sections 1240 - 1242.]

   e.   Statements of mental of physical state.  [Sections  
     1250 - 1253.]

   f.   Statements relating to wills and to claims against  
     estates.  [Sections 1260, 1261.]

   g.   Business records.  [Sections 1270 - 1272.]

   h.   Official records and other official writings.   
     [Sections 1280 - 1284.]

   i.   Former testimony.  [Sections 1290 - 1293.]

   j.   Judgments.  [Sections 1300 - 1302.]

   k.   Family history.  [Sections 1310 - 1316.]

   l.   Reputation and statements concerning community  
     history, property interests, and character.  [Sections  




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     1320 - 1324.]

   m.   Dispositive instruments and ancient writings.   
     [Sections 1330, 1331.]

   n.   Commercial, scientific, and similar publications.   
     [Sections 1340, 1341.]

   o.   Declarant unavailable as witness.  [Section 1350.]

   p.   Statements by children under the age of 12 in child  
     abuse and neglect proceedings.  [Section 1360.]

 This bill adds a new exception to the hearsay rule, for  
physical abuse, which provides:

1.Evidence of a statement by a declarant is not made  
  inadmissible by the hearsay rule if all of the following  
  conditions are met:

   a.   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.

   b.   The declarant is unavailable; and in a criminal  
     proceeding, the declarantos unavailability is a result  
     of an action by the person against whom the statement  
     is offered.

   c.   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.

   d.   The statement was made at or near the time of the  
     infliction or threat of physical harm, or the  
     statement is corroborated by other evidence and the  
     delay in making the statement is reasonable under the  
     entirety of the circumstances.

   e.   The statement was made under circumstances that  
     would indicate its trustworthiness.

   f.   The statement was made in writing, was  
     electronically recorded, or made to a law enforcement  




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     officer.

2.Circumstances relevant to the issue of trustworthiness  
  include, but are not limited to, the following:

   a.   Whether the statement was made in contemplation of  
     pending or anticipated litigation in which the  
     declarant was interested.

   b.   Whether the party against whom the statement is  
     offered has previously committed an act of violence  
     against the declarant.

   c.   Whether the declarant has a bias or motive for  
     fabricating the statement, and the extent of any bias  
     or motive.

   d.   Whether the statement is corroborated by evidence  
     other than statements that are admissible only  
     pursuant to this section.

3.A statement is admissible pursuant to this section only  
  if the proponent of the statement makes known to the  
  adverse party the intention to offer the statement and  
  the particulars of the statement sufficiently in advance  
  of the proceedings in order to provide the adverse party  
  with a fair opportunity to prepare to meet the statement.

 This bill has an urgency clause.
                              
                          COMMENTS

 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?

     According to the author, Californiaos 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  




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    examples of this deficiency in California law is  
    the exclusion of hearsay statements made by  
    Nichole Brown 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.


oThe 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 cannot observe his  
demeanor while making them.o  [Witkin, 1  California  
Evidence 3rd, Section 588.]

oThe 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 memory.o  [Id.]

This bill provides certain conditions which must be met for  
a statement to meet the hearsay exception:

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

This statement can be either written or spoken, and only  
  needs to be a statement which the declarant spoke or  
  wrote about the infliction of, or threat of, physical  
  harm upon the declarant by the party against whom the  
  statement is offered.

A statement by the declarant that the defendant said heod  
  kill her, would be admissible.  So would a statement such  
  as, oshe said sheod rather see me dead than with another  
  woman;o or omy parents said theyod kill me if I took the  
  car without permission one more time.o

By providing the admission of mere threats, which is speech  
  and not conduct, particularly without the ability to  
  cross-examine the declarant, does this bill create a  
  chilling effect on the exercise of the first amendment  




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  right to free speech? 

2. The declarant is unavailable as a result of actions by  
  the party against whom the statement is made.

This requires the declarant be ounavailableo as a result of  
  actions by the party against whom the statement is made,  
  but provides no guide as to specifically what is intended  
  by the term ounavailable.o

Current law, Section 1350 provides an exception to the  
  hearsay rule for an unavailable witness in a criminal  
  proceeding charging a serious felony.  Section 1350  
  requires all of the following:

   a.   There is clear and convincing evidence that the  
     declarantos unavailability was knowingly caused by,  
     aided by, or solicited by, the party against whom the  
     statement is offered for the purpose of preventing the  
     arrest or prosecution of the party and is the result  
     of the death by homicide or the kidnapping of the  
     declarant.

   b.   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.

   c.   The statement has been memorialized in a tape  
     recording made by a law enforcement official, or in a  
     written statement prepared by a law enforcement  
     official and signed by the declarant and notarized in  
     the presence of the law enforcement official, prior to  
     the death or kidnapping of the declarant.

   d.   The statement was made under circumstances which  
     indicate its trustworthiness and was not the result of  
     a promise, inducement, threat, or coercion.

   e.   The statement is relevant to the issues to be  
     tried.

   f.   The statement is corroborated by other evidence  
     which tends to connect the party against whom the  
     statement is offered with the commission of the  
     serious felony with which the person is charged.  The  




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     corroboration is not sufficient if it merely shows the  
     commission of the offense or the circumstances  
     thereof.

  Section 1350 also specifies at least 10-days written  
  notice to the other side must be given when such evidence  
  is being offered.

As the exception provided for by AB 2068 could clearly be  
  used in the same instances as Section 1350, what is the  
  basis for providing such fewer protections?  Would a  
  court be bound by Section 1350 or the new Section 1370?

As Section 1370 provides for the admission of statements  
  made by a person who is unavailable to be cross-examined,  
  thus seriously affecting the ability of a defendant to  
  defend himself or herself, should the types of  
  circumstances which would constitute unavailability, at a  
  minimum be defined in the statute?  For example, should  
  the fact that a declarant is afraid of the defendant, or  
  does not want to confront him or her be sufficient?   
  Would this apply, and permit the district attorney to go  
  forward, where the declarant has changed his or her mind  
  about testifying and now opposes the prosecution?

3. 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.

This is the same language as provided for in Section  
  1350(c) and so, is part of current law.

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

This condition 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 specifically defined, but would be left  
  up to the judge to determine.

Current law, Sections 1240, 1241, and 1242 provide for the  
  admission of contemporaneous, spontaneous and dying  
  statements and declarations.  The theory behind allowing  




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  these types of statements is that the declarantos lack of  
  opportunity for reflection and deliberate fabrication  
  supply an adequate assurance of the statementos  
  trustworthiness.  [ People v. Pensinger (1991) 52 Cal.3d.  
  1210;  Box v. California Date Growers Asson (1976) 57  
  Cal.App.3d 266.]












































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The time differential between being spontaneous or  
  contemporaneous and onot remoteo can be very large.

Remoteness relates not only to trustworthiness but also to  
  relevancy.  One other important aspect of Section 1350  
  that is missing from Section 1370 is the requirement in  
  Section 1350 that the declaration be relevant to the  
  issues being tried.  Without such a direct tie, it  
  becomes more possible that the evidence (the declaration)  
  is more in the way of ocharacter evidenceo as opposed to  
  direct evidence that the defendant did the act  
  threatened.  [See the discussion regarding SB 1876  
  (Solis) in comment 5(b), below.]

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

The factors listed in this bill which are relevant to the  
  issue of trustworthiness are:

   a.   Whether the statement was made in contemplation of  
     pending or anticipated litigation.

   b.   Whether the party against whom the statement is  
     being offered has previously committed an act of  
     violence against the declarant.

   c.   Whether the declarant has a bias or motive for  
     fabricating the statement, and the extent of any bias  
     or motive.

   d.   Whether the statement is corroborated by evidence  
     other than statements that are admissible only  
     pursuant to this section.

  Every one of the factors listed clearly relates to  
  ountrustworthiness,o not to inherent otrustworthiness.o   
  These factors demonstrate the subtle but significant  
  change that is the primary impact on the hearsay rule  
  promulgated by this bill:  it takes the affirmative  
  statement that hearsay evidence is inadmissible unless it  
  meets one of the very specific requirements of current  
  hearsay exceptions, and instead, provides that the  
  hearsay evidence is admissible unless proved to be  
  inadmissible.




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For example:  Rather than the proponent of a statement  
  being required to prove that a declaration is spontaneous  
  or contemporaneous; the other party must prove it is  
  remote.  Rather than the proponent of a statement being  
  required to prove, by clear and convincing evidence, that  
  the declarant is unavailable due to death or kidnapping;  
  the opposing party must now, as a practical matter, prove  
  that the declarant is available (as any basis for being  
  unavailable is permitted).  Rather than a declaration  
  being inadmissible unless trustworthy; it is admissible  
  unless deemed untrustworthy.

This shift in focus creates a change that could well be the  
  undoing of the hearsay rule in cases in which evidence  
  relating to the infliction of physical harm or the threat  
  of such may be introduced.  It is unclear how the  
  contradictions which could arise between the current rule  
  exceptions and the isometric approach of this billos  
  exception would be resolved.

 SB 1876 (Solis):  SB 1876 (Solis) which passed this  
committee earlier this session specifically provides that  
in a criminal action in which the defendant is accused of  
an offense involving domestic violence, evidence of the  
defendantos commission of other domestic violence is not  
inadmissible as character evidence, if it is not  
inadmissible as prejudicial pursuant to Section 352.

Under SB 1876, in order to be admissible, the acts  
generally must be within ten years of the offense being  
charged.

The way AB 2068 and SB 1876 would work together, could mean  
that a statement about a fight with the defendant referred  
to in a letter written six months after the event, by a  
declarant 8 years earlier, could be admissible if the  
declarant is on vacation during trial and the statement is  
admitted as evidence of past domestic violence on the part  
of the defendant, who is on trial for battery of a dating  
partner.

Thus, acts relating to the character of the defendant in  
his or her dealings with other persons will be admissible  
to prove the fact the defendant did commit this offense,  
even where the witness to the prior acts is not available  




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in the courtroom and only his or her statements are being  
admitted into evidence.


Support:       Doris Tate Crime Victimos Bureau, California  
               District Attorneys Association.

Opposition:    California Attorneys for Criminal Justice;  
               ACLU.

Prior Legislation:  None known.
                              
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