BILL ANALYSIS
AB 2068
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2068 (Richter)
As Amended August 8, 1996
2/3 vote. Urgency
ASSEMBLY: 60-7 (May 6, 1996) SENATE: 29-1(August 14, 1996)
Original Committee Reference: JUD.
SUMMARY: Changes the hearsay rule to permit a diary entry or
other statement by an unavailable victim to be more readily
accepted as evidence in court under certain circumstances. The
hearsay rule would not prevent introduction of evidence if all of
the following criteria are met under this bill:
1) The statement describes or explains an incident or condition
which occurred within five years preceeding filing of the action.
2) The incident involves a threat or actual physical injury to
the victim.
3) The declarant is unavailable as a witness.
4) The statement was made in writing, electronically recorded, or
made to a law enforcement official, and the circumstances
surrounding the statement indicate its trustworthiness.
5) The proponent has given the evidence of the statement to the
other side in a timely way.
Senate amendments adjust and clarify the tests for determining
whether a statement should be deemed trustworthy, limit the
exception to statements made within five years preceding the
action, and make the provisions equally applicable to all parties
to the action.
FISCAL EFFECT: None
EXISTING LAW establishes rules of evidence, governed in part by
statute, and in part by constitutional requirements, as follows:
1) Permits a court to accept evidence of an out-of-court statement
as proof of the facts stated if one of 14 general exceptions to
the "hearsay rule" is applicable. Exceptions to the hearsay
rule include: prior statements of a witness; spontaneous,
contemporaneous or dying declarations; and statement of mental
or physical state.
2) Defines "statement" to include oral or written verbal
expression or nonverbal conduct intended as a substitute for
verbal expression.
3) Provides that a statement of the victim's state of mind,
motive or feeling is not made inadmissible by the hearsay rule
when offered to prove the victim's state of mind when it is itself
an issue, or when the statement explains the victim's conduct.
Excludes such evidence if the accused's conduct is in issue rather
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than that of the victim (as in most domestic violence cases).
4) Excludes some otherwise admissible hearsay evidence in criminal
cases if the defendant is unable to confront and cross examine
the hearsay declarant.
5) Excludes an out-of-court statement that qualifies under an
exception to the hearsay rule if the declarant had no personal
knowledge of the subject matter, or if the statement is
irrelevant, or if a privilege has been invoked or if the
statement contains inadmissible opinion. The court may also
exclude evidence which is unduly prejudicial, confusing,
misleading or time consuming.
AS PASSED BY THE ASSEMBLY, this bill limited the exception to
evidence of threats by the party against whom the statement is
offered. It also made evidence of a statement inadmissible if
made under circumstances indicating it is untrustworthy.
BACKGROUND: Hearsay evidence is often excluded from court
proceedings because out-of-court statements cannot be
cross-examined. In criminal cases, the defendant has certain
rights to confront witnesses.
Where the victim is available to testify, the cases generally
require live testimony. Where the victim is unavailable, the
cases search for indicia of reliability before permitting hearsay.
The courts state that it is error to admit a victim's hearsay
statements who has expressed fear of the defendant unless the
defense has raised some issue about the victim's conduct which is
explained by the expression of fear.
In the Nicole Brown Simpson case, the court excluded from evidence
seven hearsay statements by the victim (one of which was a diary
entry). However, the court allowed evidence of nine hearsay
statements which were corroborated by the observation of
witnesses, and which tended to prove the violent nature of the
Simpson relationship, as well as identity, intent and motive.
ARGUMENTS IN SUPPORT: According to the author, the fact that very
credible evidence of a victim's fear of murder cannot be admitted
into evidence is a nail in the coffin for the credibility of the
courts. Nicole Brown Simpson made statements in her diaries and
to friends in order to tell the world who her possible future
murderer might be. She probably did not know that an archaic
legal rule would keep a jury from hearing this relevant evidence.
Victims should be able to make statements with knowledge that if
sufficiently corroborated, they will not be kept from juries
trying to discover the truth. Most importantly, the public
deserves courts that operate in a manner commensurate with common
sense.
ARGUMENTS IN OPPOSITION: California Attorneys for Criminal
Justice state that evidence of prior incidents can be enormously
prejudicial. Presented with evidence of a prior assault by a
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defendant, a jury may be inclined to convict in order to punish
the defendant for these previous acts. Allowing this kind of
evidence without the opportunity for cross-examination of the
declarant, which may reveal critical information regarding the
incident, will allow juries to base their verdicts on unreliable
and incomplete information.
Analysis prepared by: Stephen Birdlebough / ajud / (916) 445-4560
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