BILL ANALYSIS SENATE JUDICIARY COMMITTEE A Charles M. Calderon, Chairman B 1995-96 Regular Session 2 0 6 8 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. AB 2068 (Richter) Page 2 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 AB 2068 (Richter) Page 3 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 AB 2068 (Richter) Page 4 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 AB 2068 (Richter) Page 5 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 AB 2068 (Richter) Page 6 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 AB 2068 (Richter) Page 7 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 AB 2068 (Richter) Page 8 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.] AB 2068 (Richter) Page 9 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. AB 2068 (Richter) Page 10 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 AB 2068 (Richter) Page 11 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. **************