BILL ANALYSIS                                                                                                                                                                                                    

SENATE RULES COMMITTEE                           AB 2068
Office of Senate Floor Analyses
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                       THIRD READING

Bill No:  AB 2068
Author:   Richter (R), et al
Amended:  7/15/96 in Senate
Vote:     27 - Urgency

AYES:  Johnson, Kopp, Polanco, Boatwright
NOES:  Watson, Marks

AYES:  Haynes, Lockyer, O'Connell, Petris, Sher, Solis,  
  Wright, Leslie, Calderon

 ASSEMBLY FLOOR:  60-7, 5/6/96 - See last page for vote

SUBJECT:    Hearsay:  exceptions

 SOURCE:     Allan Favish, Attorney at Law

DIGEST:    This bill creates a new exception to the hearsay  
rule to allow the admissibility of evidence made by an  
unavailable declarant.

 ANALYSIS:    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 "to be confronted with witnesses  
   against [him or her]."


                                                     AB 2068

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 -  

   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 1320 - 1324.]

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

   N.  Commercial, scientific, and similar publications.   


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      [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 injury  
      upon the declarant.

   B.  The declarant is unavailable as a witness pursuant  
      to Section 240; and, in a criminal proceeding, the  
      proponent of the statement establishes by a  
      preponderance of the evidence that the declarant's  
      unavailability is a result of an action by the person  
      identified in the statement as inflicting or  
      threatening physical injury upon the declarant.

   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  

   D.  The statement was made at or near the time of the  
      infliction or threat of physical injury.  Evidence of  
      statements made more than five years before the  
      filing of the current action or proceeding shall be  
      inadmissible under this section.

   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

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

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

3. A statement is admissible 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.

 FISCAL EFFECT:   Appropriation:  No   Fiscal Com.:  No    
Local:  No

 SUPPORT:   (Verified  7/15/96)

Allan Favish, Attorney at Law (source)
Doris Tate Crime Victim's Bureau
California District Attorneys Association

 OPPOSITION:    (Verified  7/15/96)

California Attorneys for Criminal Justice
American Civil Liberties Union (ACLU)

 ARGUMENTS IN SUPPORT:    According to the author's office,  
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  


                                                     AB 2068

notable recent 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.

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

"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 memory."  [Id.]

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

 ARGUMENTS IN OPPOSITION:    "The ACLU opposes this bill  
which allows witness statements -- not made under oath, nor  
with any opportunity for the criminal defendant to  
cross-examine the witness -- to be offered as the truth in  
trial regarding the inflection or threat of harm.

"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].'  In  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  

"As 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.'


                                                     AB 2068

"Allowing someone to offer testimony about an oral  
statement is especially problematic because there are the  
added filters of recollection and perception which might  
render a 'trustworthy' statement untruthful."

AYES:  Ackerman, Aguiar, Alby, Baca, Baldwin, Battin,  
  Baugh, Boland, Bordonaro, Bowen, Bowler, Brewer, Brown,  
  Brulte, Bustamante, Cannella, Conroy, Cortese, Cunneen,  
  Davis, Figueroa, Firestone, Frusetta, Goldsmith,  
  Granlund, Hannigan, Harvey, Hauser, Hawkins, Hoge, House,  
  Kaloogian, Katz, Knight, Knowles, Knox, Kuehl,  
  Kuykendall, Machado, Margett, Martinez, Mazzoni, Miller,  
  Morrissey, Morrow, W. Murray, Olberg, Poochigian, Rainey,  
  Richter, Rogan, Setencich, Speier, Sweeney, Takasugi,  
  Thompson, Vasconcellos, Weggeland, Woods, Pringle
NOES:  Archie-Hudson, Burton, Ducheny, Lee, Migden, K.  
  Murray, Villaraigosa
NOT VOTING:  Alpert, Bates, Caldera, Campbell, Escutia,  
  Friedman, Gallegos, Isenberg, McPherson, Napolitano,  

RJG:ctl  7/15/96  Senate Floor Analyses
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