BILL NUMBER: AB 268	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 9, 2007

INTRODUCED BY   Assembly Member Charles Calderon

                        FEBRUARY 5, 2007

   An act to  add Section 1350.5 to   amend
Section 240 of, and to add Section 1390 to,  the Evidence Code,
relating to hearsay evidence.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 268, as amended, Charles Calderon. Hearsay evidence:
unavailable declarant. 
   Existing law defines "unavailable as a witness," for purposes of
the Evidence Code, to mean that the declarant is, among other things,
exempted or precluded on the ground of privilege, disqualified,
dead, or absent for a specified reason.  
   This bill would supplement that definition to add the circumstance
that the declarant is present at the hearing but refusing a court
order to testify, notwithstanding imposition of sanctions, and that
refusal was caused by wrongdoing engaged or acquiesced in by the
party opposing admission of the witness' testimony.  
   Existing law, known as the "hearsay rule," provides that, at a
hearing, evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove
the truth of the matter stated is inadmissible. Existing law also
provides exceptions to the hearsay rule to permit the admission of
specified kinds of evidence.  
   This bill would provide that evidence of a statement that is
offered against a party who has engaged or acquiesced in wrongdoing
that has caused the unavailability of the declarant as a witness is
not made inadmissible by the hearsay rule. The bill would require the
party seeking to introduce a statement to establish, by a
preponderance of the evidence, that the elements of this provision
have been met at a foundational hearing. The bill would provide that
hearsay evidence, including the hearsay evidence that is the subject
of the foundational hearing, is admissible at the foundational
hearing. The bill also would provide that a finding that those
elements have not been met shall not be based solely on the
unconfronted hearsay statement of the unavailable declarant, as
specified. The bill would provide that, if a statement to be admitted
pursuant to these provisions includes a hearsay statement made by
anyone other than the unavailable declarant, that other hearsay
statement is inadmissable unless it meets the requirements of an
exception to the hearsay rule.  
   Existing law provides, in a criminal proceeding charging a serious
felony, that evidence of a statement made by a declarant is not made
inadmissible by the hearsay rule if the declarant is unavailable as
a witness, and certain other conditions apply. Those conditions
include, among other things, that (1) there is clear and convincing
evidence that the declarant's 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, and (2) 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.  
   This bill would provide, in a criminal proceeding charging an act
of domestic violence, child abuse, elder abuse, or a prosecution
under the Street Terrorism Enforcement and Prevention Act, that
evidence of a statement made by a declarant is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness and
the unavailability of the declarant was caused by, aided by,
solicited by, or procured on behalf of the party against whom the
statement is to be used. The bill would provide that a party may be
deemed to have caused or procured the absence of the declarant,
either directly or indirectly, by the use of threatening or violent
conduct directed at the declarant with the intention to dissuade the
declarant from appearing or testifying at the hearing, or with
knowledge that the conduct is reasonably likely to result in the
unavailability of the declarant. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 240 of the   Evidence
Code   is amended to read: 
   240.  (a) Except as otherwise provided in subdivision (b),
"unavailable as a witness" means that the declarant is any of the
following:
   (1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
relevant.
   (2) Disqualified from testifying to the matter.
   (3) Dead or unable to attend or to testify at the hearing because
of then existing physical or mental illness or infirmity.
   (4) Absent from the hearing and the court is unable to compel his
or her attendance by its process.
   (5) Absent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to
procure his or her attendance by the court's process. 
   (6) Present at the hearing but refusing a court order to testify,
notwithstanding imposition of sanctions, and that refusal was caused
by wrongdoing engaged or acquiesced in by the party opposing
admission of the witness' testimony. 
   (b) A declarant is not unavailable as a witness if the exemption,
preclusion, disqualification, death, inability, or absence of the
declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the
declarant from attending or testifying.
   (c) Expert testimony  which   that 
establishes that physical or mental trauma resulting from an alleged
crime has caused harm to a witness of sufficient severity that the
witness is physically unable to testify or is unable to testify
without suffering substantial trauma may constitute a sufficient
showing of unavailability pursuant to paragraph (3) of subdivision
(a). As used in this section, the term "expert" means a physician and
surgeon, including a psychiatrist, or any person described by
subdivision (b), (c), or (e) of Section 1010.
   The introduction of evidence to establish the unavailability of a
witness under this subdivision shall not be deemed procurement of
unavailability, in absence of proof to the contrary.
   SEC. 2.    Section 1390 is added to the  
Evidence Code   , to read:  
   1390.  (a) Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party who has
engaged or acquiesced in wrongdoing that has caused the
unavailability of the declarant as a witness.
   (b) (1) The party seeking to introduce a statement pursuant to
subdivision (a) shall establish, by a preponderance of the evidence,
that the elements of subdivision (a) have been met at a foundational
hearing.
   (2) Hearsay evidence, including the hearsay evidence that is the
subject of the foundational hearing, is admissible at the
foundational hearing. However, a finding that the elements of
subdivision (a) have not been met shall not be based solely on the
unconfronted hearsay statement of the unavailable declarant, and
shall be supported by independent corroborative evidence.
   (3) The foundational hearing shall be conducted outside the
presence of the jury. However, if the hearing is conducted after a
jury trial has begun, the judge presiding at the hearing may consider
evidence already presented to the jury in deciding whether the
elements of subdivision (a) have been met.
   (c) If a statement to be admitted pursuant to this section
includes a hearsay statement made by anyone other than the declarant
who is unavailable pursuant to subdivision (a), that other hearsay
statement is inadmissable unless it meets the requirements of an
exception to the hearsay rule.  
  SECTION 1.    Section 1350.5 is added to the
Evidence Code, to read:
   1350.5.  (a) In a criminal proceeding charging an act of domestic
violence, child abuse, elder abuse, or a prosecution under the Street
Terrorism Enforcement and Prevention Act (Chapter 11 (commencing
with Section 186.20) of Title 7 of Part 1 of the Penal Code),
evidence of a statement made by a declarant is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness and
the unavailability of the declarant was caused by, aided by,
solicited by, or procured on behalf of the party against whom the
statement is to be used.
   (b) A party may be deemed to have caused or procured the absence
of the declarant, either directly or indirectly, by the use of
threatening or violent conduct directed at the declarant with the
intention to dissuade the declarant from appearing or testifying at
the hearing, or with knowledge that the conduct is reasonably likely
to result in the unavailability of the declarant.
   (c) In a hearing to establish the unavailability of a declarant
under this section, hearsay statements of the declarant are not
inadmissible to prove the cause of the declarant's unavailability.
The court may determine the cause of the unavailability by a
preponderance of the evidence.