BILL NUMBER: AB 268 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 3, 2007
AMENDED IN ASSEMBLY APRIL 9, 2007
INTRODUCED BY Assembly Member Charles Calderon
FEBRUARY 5, 2007
An act to amend Section 240 Sections 240
and 791 of, and to add Section Sections
1243 and 1390 to, the Evidence Code, relating to
hearsay evidence.
LEGISLATIVE COUNSEL'S DIGEST
AB 268, as amended, Charles Calderon. Hearsay evidence:
unavailable declarant. Evidence: admissibility of
statements.
Existing
(1) 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 refuses to testify, notwithstanding
imposition of sanctions, and that refusal was caused by
the statement is offered against the party that has
engaged or acquiesced in wrongdoing engaged or
acquiesced in by the party opposing admission of the witness'
testimony that was intended to, and did, procure the
unavailability of the declarant as a witness .
(2) Existing law provides that evidence of a statement previously
made by a witness that is consistent with his or her testimony at a
hearing is inadmissible to support his or her credibility, unless it
is offered after an inconsistent statement has been admitted for
purposes of attacking his or her credibility, as specified, or after
an express or implied charge has been made that his or her testimony
is recently fabricated or is influenced by bias or other improper
motive.
This bill would also except from that general prohibition of
inadmissibility, evidence of a statement in which the witness'
credibility is an important issue, the probative value of the
statement substantially outweighs any attendant probative dangers,
and there is independent, corroborating evidence for the truth of the
statement.
Existing
(3) 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 is not made
inadmissible by the hearsay rule if the statement is offered to
describe or explain an event or condition and is made while the
declarant was perceiving the event or condition, as specified.
This bill would further 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.
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.
(6) If the declarant refuses to testify, notwithstanding
imposition of sanctions, and the statement is offered against the
party that has engaged or acquiesced in wrongdoing that was intended
to, and did, procure the unavailability of the declarant as a
witness.
(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 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 791 of the Evidence
Code is amended to read:
791. Evidence of a statement previously made by a witness that is
consistent with his or her testimony at the hearing is
inadmissible to support his or her credibility ,
unless it is offered after one of the
following circumstances exists :
(a) Evidence It is offered
after evidence of a statement made by him or her
that is inconsistent with any part of his or her testimony
at the hearing has been admitted for the purpose of attacking his
or her credibility, and the statement was made before the
alleged inconsistent statement ; or .
(b) An It is offered after an
express or implied charge has been made that his or her
testimony at the hearing is recently fabricated or is
influenced by bias or other improper motive, and the statement was
made before the bias, motive for fabrication, or other improper
motive is alleged to have arisen.
(c) All of the following exist:
(1) The witness' credibility is an important issue, not merely
relevant, at the hearing.
(2) The probative value of the statement substantially outweighs
any attendant probative dangers.
(3) There is independent, corroborating evidence of the truth of
the statement that consists of evidence other than the witness'
similar statement on direct examination at the hearing.
SEC. 3. Section 1243 is added to the
Evidence Code , to read:
1243. Evidence of a statement is not made inadmissible by the
hearsay rule if both of the following conditions are satisfied:
(a) The statement is offered to describe or explain an event or
condition.
(b) The statement was made while the declarant was perceiving the
event or condition, or immediately thereafter.
SEC. 2. SEC. 4. 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.