BILL ANALYSIS
AB 114
Page 1
Date of Hearing: April 19, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 114 (Cohn) - As Amended: April 13, 2005
SUMMARY : Provides that in a criminal prosecution for child
abuse or continuous sexual abuse of a child, evidence of a
defendant's prior acts of domestic violence may be admitted to
prove the defendant's conduct, as specified. Specifically, this
bill :
1)States that in a prosecution involving child abuse or
continuous sexual abuse of a child, evidence of the
defendant's prior acts of domestic violence is admissible as
evidence unless the court determines that the probative value
is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice,
as specified.
2)Defines "child abuse" as an act proscribed by specified Penal
Code sections:
a) Corporal punishment or injury of a child (Penal Code
Section 273d); and,
b) Continuous sexual abuse of a child (Penal Code Section
288.5).
3)For purposes of admission of prior acts of domestic violence
in a child abuse prosecution, includes the definition of
"domestic violence" in the Family Code, if the act occurred no
more than five years before the charged offense, subject to an
evidentiary hearing regarding probative value of the evidence.
This adds children and persons related by consanguinity or
affinity within the second degree which are not currently
within the Penal Code definition of domestic violence. (Family
Code Section 6211.)
EXISTING LAW :
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1)Provides that, with certain exceptions, evidence of a person's
character or a trait of his or her character, whether in the
form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct, is inadmissible when
offered to prove his or her conduct on a specified occasion.
(Evidence Code Section 1101.)
2)States that the court may, in its discretion, exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evidence Code Section 352.)
3)Provides that in a criminal case in which the defendant is
accused of a sexual offense, evidence of the defendant's
commission of another sexual offense or offenses is not made
inadmissible by Evidence Code Section 1101. [Evidence Code
Section 1108(a).]
4)Defines "sexual offense" as a crime that involved any of the
following conduct: sexual battery, rape, unlawful
intercourse, spousal rape, rape in concert, sodomy, a lewd act
upon a child, oral copulation, continuous sexual abuse of a
child, forcible sexual penetration, child pornography,
indecent exposure, and the annoying or molesting of a child.
[Evidence Code Section 1108(d).]
5)Defines the offense of "aggravated sexual assault" of a child
as rape, rape in concert, forcible sodomy, oral copulation, or
sexual penetration by a person who is 10 or more years older
than a child under 14. The punishment for aggravated sexual
assault of a child is 15 years to life in prison. (Penal Code
Section 269.)
6)Defines "domestic violence" in the Penal Code as abuse
committed against an adult or a minor who is a spouse, former
spouse, cohabitant, former cohabitant, or person with whom the
suspect has had a child or is having or has had a dating or
engagement relationship. Defines "abuse" as intentionally or
recklessly causing or attempting to cause bodily injury or
placing another person in reasonable apprehension of imminent
serious bodily injury to him or herself, or another. (Penal
Code Section 13700.)
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7)Defines "domestic violence" in the Family Code as abuse
perpetrated against a spouse or former spouse, a cohabitant or
former cohabitant, a person with whom the respondent is having
or has had a dating or engagement relationship, a person with
whom the respondent has had a child, a child of a party or a
child who is the subject of an action under the Uniform
Parentage Act, where the presumption applies that the male
parent is the father of the child to be protected, or any
other person related by consanguinity or affinity within the
second degree. (Family Code Section 6211.)
8)Provides that "affinity," when applied to the marriage
relation, signifies the connection existing in consequence of
marriage between each of the married persons and the blood
relatives of the other. (Family Code Section 6205.)
9)Defines "abuse" as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, to place
another person in reasonable apprehension of imminent serious
bodily injury to that person or to another, or to engage in
behavior that has been or could be enjoined pursuant to Family
Code sections relative to protective orders. (Family Code
Section 6203.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
help to protect victims of family violence by allowing prior
evidence of domestic violence to be heard in a child abuse
case. In a violent home, violence does not discriminate by
age and frequently it is perpetrated against both the mother
and the children. This bill allows for juries to know all of
the facts regarding an abuser's history of violence towards
the entire family, recognizing the issue of family violence."
2)Background : According to background information provided by
the author, "Currently, if a defendant in a child abuse case
has a prior history of domestic violence, that information is
not admissible in court. This bill will allow for juries to
hear prior evidence of domestic violence in a child abuse
case. This recognizes the prevalence of domestic violence
perpetrated against all family members, not just children or
adults but both. This bill closes a loophole regarding
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admissibility of evidence in family violence cases.
"Men who batter their wives are likely to assault their
children. The battering of women who are mothers usually
predates the infliction of child abuses. (Citations omitted.)
At least one-half of all battering husbands also batter their
children. (Citations omitted.)
"Domestic violence is widespread and occurs among all
socioeconomic groups. In a national survey of over 6.000
American families, it was estimated that between 53 percent
and 70 percent of male batterers (i.e. they assaulted their
wives) also frequently abused their children. (Straus & Gelles
1990.)
"Children from homes where domestic violence occurs are
physically or sexually abused and/or seriously neglected at a
rate of 15 times the national average (McKay 1994.)
Approximately 45% to 70% of battered women in shelters have
reported the presence of child abuse in their home
(Meichenbaum, 1994.) About two-thirds of abused children are
being parented by battered women (McKay, 1994.) Of the abused
children, they are three times more likely to have been abused
by their fathers." (Volpe, Joseph S. "Effects of Domestic
Violence on Children and Adolescents: An Overview, January
21, 2003.)
3)What This Bill Does : Generally, evidence of a person's
character, including specific conduct on a particular
occasion, is inadmissible when offered to prove his or her
conduct on a specified occasion. (Evidence Code Section
1101.) This type of evidence is sometimes called "propensity
evidence" because it involves a person's propensity to commit
certain kinds of acts. There are various exceptions to this
rule, including an exception for any criminal action in which
the defendant is accused of a domestic violence crime. In
such a case, evidence of the defendant's commission of other
acts of domestic violence is not barred by Evidence Code
Section 1101 unless its probative value is substantially
outweighed by the probability that its admission will
necessitate undue consumption of time or create substantial
danger of undue prejudice, confusing the issues, or misleading
the jury. (Evidence Code Section 1109.)
This bill allows propensity evidence of violence in the form of
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domestic violence in a prosecution for child abuse or
continuous sexual abuse of a child. Continuous sexual abuse
of a child is defined as three or more acts of substantial
sexual conduct with a child under 14 years of age, over a
period of time not less than three months in duration, by a
person resides in the same home as the child or has recurring
access to the child. [Penal Code Section 288.5(a).] Is there
a sufficient nexus between continuous sexual abuse of a child
and domestic violence to support changing the general
evidentiary rule that excludes propensity evidence?
Moreover, under the Family Code definition of domestic violence
(Family Code Section 6211), abuse against specified children
already constitutes domestic violence. If abuse against such
children or any person related by consanguinity (defined as a
relationship by descent from the same ancestor or blood
relationship, Webster's New World Dictionary) or affinity to
the second degree constitutes domestic violence and since
prior acts of domestic violence are already admissible in a
current prosecution for domestic violence, is this bill
necessary?
4)History of Evidence Code Section 1108 : In 1995, the
Legislature enacted Section 1108 to expand the admissibility
of propensity evidence in sex offense cases. In 1996, the
Legislature added a similar provision to allow for the
admission of evidence that the defendant committed other acts
of domestic violence in domestic violence cases. (See
Evidence Code Section 1109.
The legislative history indicates that Evidence Code Section
1108 was intended in sex offense cases to relax the
evidentiary restraints of Evidence Code Section 1101(a),
imposed to assure that the trier of fact would be made aware
of the defendant's other sex offenses in evaluating the
victim's and the defendant's credibility. Evidence Code
Section 1108 was modeled on Rule 413 of the Federal Rules of
Evidence, adopted in 1994, which provided in pertinent part
that "(a) In a criminal case in which the defendant is accused
of an offense of sexual assault, evidence of the defendant's
commission of another offense or offenses of sexual assault is
admissible, and may be considered for its bearing on any
matter to which it is relevant."
California Courts have upheld the validity of both Evidence
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Codes Section 1108 and 1109. [See People v. Falsetta (1999)
21 Cal. 4th 903; People v. Fitch , (1997) 55 Cal. App. 4th
753.]
5)Sufficient Similarity between Continuous Sexual Abuse of a
Child and Domestic Violence ? Courts have generally held that
despite the prohibition against admitting evidence of an
uncharged crime to demonstrate a defendant's criminal
propensity, such evidence is admissible to show identity or
the existence of a common scheme or plan. "Evidence tending
to establish a common scheme or design should demonstrate not
merely a similarity in the results, but such a concurrence of
common features that the various acts are naturally to be
explained as caused by a general plan of which they are the
individual manifestations." [ People v. Caitlin , 26 Cal. 4th
81 (2001), cert. den. 535 U.S. 976.]
Is there a sufficient "concurrence of common features" between
domestic violence and child abuse or continuous sexual abuse
of a child that both acts are naturally explained as caused by
a general plan of which they are individual manifestations?
The author's statement references allowing "juries to know all
of the facts regarding an abuser's history of violence towards
the entire family, recognizing the issue of family violence."
Does this assume if the composition of the entire family is the
same in either the child abuse or continuous sexual abuse of
child prosecution and in the prior alleged instance of
domestic violence? Would it be a significant difference if
the domestic violence allegations involved a former
girlfriend, but there were no instances of domestic violence
as to the current wife and mother of the child alleged to be
the victim of abuse or continuous sexual abuse?
It should be noted that this bill discusses "evidence of a
defendant's commission of domestic violence," which could be
mere allegations, not charged and not proved, made by a party
completely unrelated to the current prosecution. In fact,
propensity evidence, or evidence of prior bad acts, generally
involves acts for which there has been no conviction.
Is the conduct proscribed in the statutes prohibiting domestic
violence the same type of conduct as that involved in corporal
punishment or continuous sexual abuse of a child, so as to be
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indicative of a common scheme or plan?
6)Non-Traditional Families : If prior acts of domestic violence
were deemed appropriately admissible in a prosecution for
continuous sexual abuse of a child, what is the basis for not
including less traditional relationships; e.g., LGBT families?
7)Evidentiary Hearing : This bill provides for the court to
conduct a hearing on the proposed propensity evidence to
determine whether the evidence of prior domestic violence
should be admitted in the child abuse prosecution. The
hearing is for the purpose of determining if the probative
value is outweighed by the prejudicial effect on the
defendant. The courts have held that "the "prejudice"
referred to in Evidence Code Section 352 applies to evidence
which uniquely tends to evoke an emotional bias against
defendant as an individual and which has very little effect on
the issues. In applying Evidence Code Section 352,
"prejudicial" is not synonymous with "damaging." [See People
v. Popular (1999) 70 Cal.App.4th 1129, 1139; People v.
Jennings (2000) 81 Cal.App.4th 1301, 1315.]
Is evidence of prior domestic violence the type of evidence
likely to evoke an emotional bias against the defendant as an
individual, but have little effect on the issues in a child
abuse or continuous sexual abuse of a child case? Certainly
both domestic violence and child abuse and continuous sexual
abuse of a child are issues which probably tend to evoke an
emotional response in many people. Is the evidentiary hearing
pursuant to Evidence Code Section 352 provided for by this
bill, sufficient to assure that any evidence admitted on prior
allegations of domestic violence will not be so prejudicial
that it outweighs the probative value of any evidence of
continuous sexual abuse of a child?
8)Is This Bill Necessary ? Inasmuch as children are specified
victims of domestic violence under the Family Code and since
Penal Code Section 1109 already provides that evidence of a
defendant's commission of other domestic violence is not made
inadmissible in a prosecution for domestic violence subject to
an evidentiary determination by the court pursuant to Evidence
Code Section 352, supra, is this bill necessary? It seems
that the purpose of this bill is already covered by Evidence
Code Section 1109, as amended effective January 1, 2005.
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9)Additional Exceptions to Rule Against Propensity Evidence Is
it good public policy to create additional exceptions to the
longstanding principle that evidence of a person's character,
including his or her propensity to engage in a certain type of
conduct, is not admissible to support an inference that he or
she behaved in conformity with that character on a particular
occasion? Arguably, when propensity evidence is admitted, the
risk is significant that the jury will convict the defendant
because he or she is a "bad" person and not because they find
the evidence regarding his or her guilt of the offense charged
necessarily convincing beyond a reasonable doubt.
This risk is more serious where there is a greater distinction
between the propensity evidence and the charged crime.
Admission into evidence of prior acts of domestic violence in
a domestic violence prosecution may be more relevant that
admission of prior acts of violence involving a stranger,
e.g., armed robbery or prior acts of violence with an
acquaintance, such as a fight. Although all involve the
propensity for violence, the similarity between the acts is
otherwise non-existent, and it is unlikely that the propensity
evidence would be admissible.
Although domestic violence and child abuse / continuous sexual
abuse of a child may both involve violence within a family, it
is also quite possible to pose a number of scenarios in which
that is not the case. "Domestic violence" includes the use
of force or violence upon a person with whom one has, or has
had, a dating relationship among other things. Is an alleged
battery upon a former girlfriend or boyfriend sufficiently
similar to continuous sexual abuse of a child to render the
battery admissible in the prosecution for continuous sexual
abuse of a child? Persons in a dating relationship (that may
have ended several years prior to the present prosecution) are
not members of the same family, and the acts are totally
different. Nonetheless, the author's statement states as the
purpose of this bill the recognition of "the prevalence of
domestic violence perpetrated against all family members, not
just children or adults but both. This bill closes a loophole
regarding admissibility of evidence in family violence cases."
With respect to familial relationships, does the "affinity"
language of the Family Code raise concerns about allowing this
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propensity evidence in a child abuse prosecution? Is the
alleged, prior act of domestic violence any less relevant if f
committed against a person related by affinity to the third,
rather than second, degree? (For example, if the victim of
the prior alleged act is the defendant's sister-in-law, there
is a relationship by affinity to the second degree. On the
other hand, if the victim is the defendant's wife's aunt, the
relationship is by affinity to the third degree.) It could be
questioned what relevance alleged acts of domestic violence
against either of such persons have to do with a prosecution
for child abuse or continuous sexual abuse of a child,
particularly if the child is unrelated to any of the parties.
By incorporating the Family Code definitions of domestic
violence, prior uncharged acts of domestic violence against
the defendant's wife's aunt would not be admissible whereas
prior acts of domestic violence against the defendant's
sister-in-law would be admissible. Yet, neither of these
persons may be a member of the defendant's household and have
no closer a relationship to the defendant than would a
stranger walking down the street. Is it reasonable to admit
into evidence in a child abuse / continuous sexual abuse of a
child prosecution alleged prior acts of domestic violence as
to a defendant's sister-in-law and to exclude the same
evidence of such acts as to an aunt by marriage?
By incorporating the Family Code definitions of domestic
violence as to relationships by affinity, this bill ignores
the reality of many non-traditional family relationships and
the possible existence of prior acts of domestic violence in
such families. Does this bill contemplate treating alleged
prior acts of domestic violence against relatives of domestic
partners differently from alleged prior acts of domestic
violence against relatives of a spouse?
Is either sufficiently relevant in a child abuse or continuous
sexual abuse of a child prosecution so that the probative
effect outweighs the prejudicial value of the testimony?
Although the court may hold a separate hearing pursuant to
Evidence Code Section 352 on this issue, as discussed below,
the court is likely to rely heavily on legislative history, as
interpreted by the court, in rendering its decision.
If prior acts of domestic violence were deemed appropriately
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admissible in a prosecution for continuous sexual abuse of a
child, what is the basis for not including less traditional
relationships; e.g., LGBT families?
10)Similarity of Domestic Violence and Child Abuse : Are the
acts of domestic violence and child abuse / continuous sexual
abuse of a child so inherently similar that unproven acts of
domestic violence have sufficient probative value to overcome
the prejudicial effect on the jury in a child abuse
prosecution? Although this bill creates the opportunity for
an evidentiary hearing under Evidence Code Section 352, would
passage of this bill indicate to the courts a legislative
intent to generally make such evidence admissible?
The courts look to legislative history in interpreting statutory
language. For example, in People v. Rucker , (2005) Cal. App.
LEXIS 231, the court noted, "The Legislature was entitled to
conclude the domestic violence statutes should apply to a
range of dating relationships. The Legislature could
reasonably conclude dating relationships, even when new, have
unique emotional and privacy aspects that do not exist in
other social or business relationships and those aspects may
lead to domestic violence early in a relationship. An
individual who engages in domestic violence may have a pattern
of abuse that carries over from short-term relationship to
short-term relationship. As the legislative history of
Evidence Code Section 1109 indicates, the Legislature
recognized domestic violence is an ongoing problem. [See
People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 (Cal.
Rptr. 2d 208), quoting the Assembly Committee on Public Safety
analysis on SB 1876 (Solis) of the 1995-96 Legislative
Session, June 25, 1996, pp. 3-4, " 'The propensity inference
is particularly appropriate in the area of domestic violence
because on-going violence and abuse is the norm in domestic
violence cases. Not only is there a great likelihood that any
one battering episode is part of a larger scheme of dominance
and control, that scheme usually escalates in frequency and
severity. Without the propensity inference, the escalating
nature of domestic violence is likewise masked."]
This bill proposes allowing evidence of propensity in the form
of prior acts of domestic violence in child abuse and
continuous sexual abuse of a child prosecutions. An appellate
court reviewing admission of such evidence is likely to give
weight to the legislative history and make a similar finding
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as that in the Rucker case; i.e., that the Legislature
intended that prior acts of domestic violence in fact show a
propensity for child abuse and /or continuous sexual abuse of
a child.
However, depending upon the factual circumstances of a
particular case, that conclusion might well be incorrect.
Logically, what is the connection between continuous sexual
abuse of a child (defined as three or more acts of sexual
contact over a period of time not less than three months) and
prior uncharged acts of domestic violence? Continuous sexual
abuse of a child is inherently a sex crime, while domestic
violence can be a range of conduct against whom the defendant
has or had a specified relationship. Although both acts may
(or may not) involve violence, continuous sexual abuse of a
child is vastly different from a simple battery, such as
pushing or grabbing of the arm alleged by an ex-girlfriend or
an ex-spouse's sister.
Does a simple battery, uncharged and unproved, constitute solid
evidence of a propensity to commit continuous sexual abuse of
a child, such that it should be submitted to the trier of fact
in a prosecution for continuous sexual abuse of a child?
11)Expansion of the Admissibility of Propensity Evidence : There
has been a recent trend indicating legislative intent to
expand the prohibition of propensity evidence, or evidence of
uncharged, prior acts to prove the defendant's character. The
recent laws which expand admission of such evidence are
generally limited to prior acts of the same kind (e.g., prior
domestic violence allegations in domestic violence
prosecutions, to show a trend or pattern of escalating
conduct, in a special relationship meriting particular
protection). These recent laws are exceptions to the coveted
legal principle regarding the inadmissibility of improper
character evidence, which can be mere allegations, uncharged
and unproven. In view of the importance of this legal
principle, is continued expansion of the exceptions to it good
public policy?
12)Argument in Support :
a) The Los Angeles County District Attorney's Office
states, "[we] are pleased to support AB 114." Their letter
further states "evidence of prior acts of domestic violence
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may only be introduced if the accused was the natural or
adopted parent of the child?It would be preferable to
expand the eligible population of defendants to include
anyone who has care or custody of any child."
b) The Child Abuse Prevention Council of Contra Costa
County states, "This bill would allow for past evidence of
domestic violence to be admissible in child abuse cases.
This bill takes steps to help ensure the safety of children
by showing that patterns of violence exist."
c) The American Federation of State, County, and Municipal
Employees states, "This bill will protect children by
allowing previous acts of domestic violence, which reflect
strongly on the character of a defendant, to be introduced
as part of the case against an alleged abuser."
d) The Peace Officers Research Association of California
states, "To not allow previous conduct, when we are talking
about some of the heinous crimes, crimes against children,
is not only warranted but should be mandated by the people
of this state. [C]hild abusers injure a child for life,
and potentially create an ongoing generational problem of
abuse. This bill will help stop this unnecessary
violence."
e) The Gay and Lesbian Adolescent Social Services, Inc .
(GLASS) states, "This bill recognizes the deep emotional
scars domestic violence situations cause a child. This
bill shows that state government will protect children by
allowing evidence of violence to be introduced when
perpetrators of child abuse are being tried for their
alleged crime . . . . GLASS believes that this bill will
offer LGBT youth a greater possibility to be placed in
homes that are safer. Also, this bill will clearly
demonstrate that violence is unacceptable behavior and will
help raise self-esteem to better mainstream as productive
members of society."
13)Argument in Opposition :
a) The California Public Defenders Association (CDPA)
states, "CPDA opposes this bill, as it seeks to convict
persons who may be accused of child abuse allegedly against
a child who is not a member of the accused's household and,
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indeed, even a child the accused does not know, by misusing
a prior conviction of an unrelated battery on the accused's
spouse.
"Established jurisprudence [see People v. Falsetta (1999) 21
Cal. 4th 903; People v. Harris (1998) 60 Cal.App. 4th 727]
requires a high degree of similarity between the prior act
and the current accusation for the general rule prohibiting
the admission of prior bad acts to prove current conduct to
not apply."
b) The Family Law Section of the State Bar of California
states, "While the Family Law Executive Committee of the
State Bar strongly supports the goal of preventing child
abuse, it opposes this bill for a variety of reasons, as
set forth [below]:
i) "The concept of the inadmissibility of improper
character evidence is a coveted principle in the legal
profession. While it may be understandable that, for
example, evidence of prior abuse of an elder may be
relevant, under certain circumstances, in a case of abuse
of an elder, the proposed addition to Evidence Code
Section 1109 does not propose the same consistency.
Instead, it indicates that where a defendant is accused
of an offense involving child abuse, evidence of the
defendant's commission of domestic violence may be
admissible. While there may be some connection, they are
not so connected to warrant a breach of this coveted rule
of evidence.
ii) "The evidence which is sought to be allowable into
evidence is vague and all-encompassing, to wit:
'evidence of the defendant's commission of domestic
violence.' The language of this bill does not require
prior conviction, but prior commission. This could
include mere allegations of domestic violence -
allegations which are never proven. This is a frequent
occurrence and problem for families.
iii) "Under this bill, mere allegations of domestic
violence could be used against a defendant in a child
abuse case to prove that the alleged conduct of abusing a
child was in conformity with the defendant's character.
Essentially, the evidence could be used to show that
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because the defendant may have been alleged to commit
domestic violence in the past, the defendant likely
perpetrated the child abuse in the present case, because
it is his or her 'character'.
iv) "Issues relating to domestic violence are seen and
adjudicated in family law, often on a daily basis, and
are within the special knowledge, training, experience,
or technical expertise of the Family Law Section of the
State Bar. The position advocated will promote justice
and the best interests of families."
The Family Law Section of the California State Bar, on
April 8, 2005, stated its continued opposition to this
bill, as proposed to be amended, stating, "[We] continue to
oppose this bill even it was amended [to delete the
provisions related to child endangerment]. Evidence Code
Section 1109 is very specific and restricted because of the
coveted principles relating to character evidence and
admissibility and the damage that can come from the
admissibility of that type of evidence to an innocent
defendant."
c) The American Civil Liberties Union states, "California's
jurisprudence generally requires that the prosecution prove
the required facts to establish that the individual
committed the crime; and evidence of an individual's
character, character traits, or prior acts does not prove
that the person committed the crime. (Evidence Code
Section 1101.) This bill would undermine the general
principle by allowing the prosecution to introduce evidence
of prior domestic violence in any child abuse case. While
we understand that child abuse cases may be difficult to
prove in some instances, we are concerned that the
'solution' to that problem would be to allow evidence of
another crime - domestic violence - to prove that the
individual committed child abuse. While there may be some
connection between these two crimes, they are not so
connected to warrant disregarding this evidentiary rule.
"We are gravely concerned that the trend of continuing to
expand the circumstances where evidence of someone's
character or prior acts are being used to prove that an
individual committed a crime will lead to the erosion and
eventual elimination of the principle that the prosecution
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must prove that the individual committed the particular
crime."
d) The California Attorneys for Criminal Justice states,
"This bill will allow evidence in a child abuse case that
is totally irrelevant to those charges. Since child abuse
can be committed by acts of negligence, one's propensity
for violence or domestic violence has absolutely no
relationship to many of the child abuse cases filed in
California.
"Additionally, Evidence Code Section 1109(a)(1) and (a)(2)
provide for the admissibility of certain evidence as long
as it is in the nature of the same crime, that is, in a
domestic violence case, evidence of the defendant's
commission of other domestic violence is admissible and, in
a case involving elder abuse, evidence of the defendant's
commission of other elder abuse charges is also admissible.
This bill is putting apples against oranges and in many
cases will have no relationship to the charged crime."
14)Prior Legislation : AB 141 (Cohn), Chapter 116, Statutes of
2004, provided that propensity evidence regarding prior acts
of domestic violence was admissible in the prosecution of
domestic violence cases, including domestic violence involving
children, as specified.
AB 2252 (Cohn), Chapter 194, Statutes of 2002, expanded the
definition of "sexual offense" for purposes of expansion of
the rule against the admission of character or propensity
evidence to provide the defendant's conduct of assault with
intent to commit specified sex crimes.
AB 380 (Wright), Chapter 517, Statutes of 2001, expanded the
definition of "sexual offense" to include aggravated sexual
abuse of a child, for purposes of admissibility to prove the
character of the defendant.
SB 1876 (Solis), Chapter 261, Statutes of 1996, allowed
propensity evidence of prior domestic violence in domestic
violence prosecutions.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Federation of State, County, and Municipal Employees
California Correctional Supervisors Organization
California District Attorneys Association
California Sexual Assault Investigators
California Correctional Supervisors Organization
Child Abuse Prevention Council of Contra Costa County
Gay and Lesbian Adolescent Social Services, Inc.
Junior Leagues of California
Lambda Letters Project
Los Angeles District Attorney's Office
Peace Officers Research Association of California
Sheriff, San Bernardino County
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Family Law Section, State Bar of California
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744