BILL ANALYSIS SENATE RULES COMMITTEE AB 2068 Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 . THIRD READING . Bill No: AB 2068 Author: Richter (R), et al Amended: 7/15/96 in Senate Vote: 27 - Urgency . SENATE CRIMINAL PROCEDURE COMMITTEE: 4-2, 6/18/96 AYES: Johnson, Kopp, Polanco, Boatwright NOES: Watson, Marks SENATE JUDICIARY COMMITTEE: 9-0, 7/2/96 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 Page 2 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 1320 - 1324.] M. Dispositive instruments and ancient writings. [Sections 1330, 1331.] N. Commercial, scientific, and similar publications. ?2 ? AB 2068 Page 3 [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 statement. 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 officer. ?3 ? AB 2068 Page 4 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 ?4 ? AB 2068 Page 5 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 cross-examination.' "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.' ?5 ? AB 2068 Page 6 "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." ASSEMBLY FLOOR: 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, Tucker RJG:ctl 7/15/96 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** ?6 ?