BILL ANALYSIS
AB 268
Page 1
Date of Hearing: May 8, 2007
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 268 (Calderon) - As Amended: May 3, 2007
SUMMARY : Expands the definition of "unavailability" to an
instance where a declarant refuses testify, notwithstanding
imposition of sanctions, and the statement is offered against a
party who has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the
declarant. Specifically, this bill :
1)Requires the party seeking to introduce the statement at issue
establish by a preponderance of the evidence that the elements
authorizing admission of the statement be met at a
foundational hearing.
2)States hearsay evidence is admissible at the foundational
hearing; however, a finding of no "wrongdoing" shall not be
based solely on the un-confronted hearsay statement of the
unavailable declarant and shall be supported by independent
corroborative evidence.
3)Requires the foundational hearing shall be conducted outside
the presence of the jury. However, if the hearing is
conducted after the jury trial has begun, the judge presiding
at the hearing may consider evidence already presented to the
jury in deciding whether the elements of "wrongdoing" have
been met.
4)Provides if a statement is to be admitted includes a hearsay
statement made by any person other than the declarant who is
unavailable due to the "wrongdoing", that other hearsay
statement is inadmissible unless it meets the requirements of
an exception to the hearsay rule.
5)Provides evidence of a statement is not made inadmissible by
the hearsay rule if both of the following conditions are
satisfied:
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a) The statement is offered to describe or explain an event
or condition; and,
b) The statement was made while the declarant was
perceiving the event or condition, or immediately
thereafter.
6)States 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 one of
the following circumstances exists:
a) It is offered after evidence of a statement made by he
or she 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 that alleged inconsistent statement.
b) 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) Where the witness' credibility is an important issue,
not merely relevant, at the hearing; the probative value of
the statement substantially outweighs any attendant
probative dangers; and, 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.
EXISTING LAW :
1)States except as otherwise provided, "unavailable as a
witness" is defined as the declarant is any of the following:
a) Exempt or precluded on the ground of privilege from
testifying concerning the matter to which his or her
statement is relevant.
b) Disqualified from testifying to the matter.
c) Dead or unable to attend or to testify at the hearing
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because of then existing physical or mental illness or
infirmity.
d) Absent from the hearing and the court is unable to
compel his or her attendance by its process.
e) 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. [Evidence Code Section 240(a)(4).]
2)Provides 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. [Evidence Code Section 240(b).]
3)States "hearsay evidence" is 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.
Except as provided by law, hearsay evidence is inadmissible.
[Evidence Code Section 1200(a) and (b).]
4)Provides that evidence of a statement previously made by a
witness that is consistent with his testimony at the hearing
is inadmissible to support his credibility unless it is
offered after:
a) Evidence of a statement made by him that is inconsistent
with any part of his or her testimony at the hearing has
been admitted for the purpose of attacking his credibility,
and the statement was made before the alleged inconsistent
statement; or,
b) An express or implied charge has been made that his
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.
[Evidence Code Section 791(a) and (b).]
5)States evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered to explain, qualify,
or make understandable conduct of the declarant and was made
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while the declarant was engaged in such conduct. [Evidence
Code Section 1241(a) and (b).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "California
prosecutors need to utilize the forfeiture by wrongdoing
doctrine in order to admit hearsay statements of
victim/witnesses whose failure to appear to testify at trial
is the result of the criminal conduct of the defendant. Based
on the holding of the California Supreme Court in People v.
Giles , decided on March 6, 2007, prosecutors must establish
that evidence proffered to establish forfeiture by wrongdoing
meets a statutory hearsay exception. Current law provides no
viable hearsay exception to permit the introduction of this
evidence. This bill provides this needed hearsay exception."
2)Background : According to information provided by the author,
"In domestic violence, gang-related and other criminal
prosecutions, victims are often reluctant to testify due to
fear of harm from defendants and/or their agents. In response
to this, prosecutors have learned to rely heavily (and
successfully) on 'evidence-based' prosecutions wherein
physical evidence combined with victims' statements made to
law enforcement, 911 operators and others were admitted into
evidence despite the absence of the victim in court.
"The United States Supreme Court Rules in Crawford, Hammon &
Davis : Recent United States Supreme Court decisions in
Crawford v. Washington, Davis v. Washington and Indiana v.
Hammon have defined a defendant's Sixth Amendment right to
confront his accuser expansively, significantly limiting the
type of evidence that may be admitted at trial when the victim
is not present in court to testify. These decisions have
greatly hampered prosecutors' ability to move forward with
evidence-based prosecutions and have resulted in a substantial
increase in the number of cases that must be dismissed.
"The Exception: Forfeiture By Wrongdoing : The Crawford, Hammon
and Davis decisions have carved out one express exception to a
defendant's right to confront his accuser - circumstances
where the accuser/declarant's absence is the result of the
conduct of the defendant himself. This doctrine, known as
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'forfeiture by wrongdoing' prevents a defendant from
benefiting from his own misconduct. One example of such
conduct is where a defendant threatens his accuser with bodily
harm if he/she appears to testify. Forfeiture by wrongdoing
prevents the defendant in that situation from asserting his
Sixth Amendment right to confront witnesses to keep out the
hearsay statements of the accuser. Although Crawford, Hammon
and Davis confirmed the viability of forfeiture by wrongdoing,
it did not address how the doctrine should be implemented.
Accordingly, trial courts were left to develop ad hoc
procedures to determine how and when a defendant had forfeited
his right to confront the witnesses against him.
"The California Supreme Court Explains in People v. Giles : On
March 6, 2007, the California Supreme Court decided People v.
Giles . In that case, the court decided how the forfeiture by
wrongdoing doctrine should be applied in California.
Specifically, the court decided:
"In proving the 'wrongdoing' committed by the defendant to the
court, a prosecutor need not show that the defendant committed
the act with the intention of silencing the witness or
preventing him/her from testifying. In other words, if a
defendant kills a victim who previously made hearsay
statements incriminating him in either the murder or another
crime, the prosecution does not need to show that the reason
the defendant committed the murder was to prevent the victim
from testifying against him. The defendant is responsible for
the consequence of his wrongdoing, regardless of his intent.
"The 'wrongdoing' alleged against the defendant may be the same
'wrongdoing' for which he is on trial. For example, if the
defendant is on trial for murder of the victim and the
prosecutor is seeking to admit prior statements of the victim,
who is now unavailable to testify, the prosecutor can use the
murder as the act that was the wrongdoing that created the
unavailability of the witness. In other words, there does not
have to be, although there could be, some other wrongdoing
beyond the crime that is presently charged.
"The burden of proof at the hearing to decide forfeiture by
wrongdoing is a preponderance of the evidence. The
'wrongdoing' alleged against the defendant must have been an
intentional criminal act. The hearsay that is the subject of
the forfeiture by wrongdoing hearing is admissible in the
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hearing. However there must be independent corroborative
evidence of the wrongdoing established before the Sixth
Amendment hurdle is overcome. Clearing all of these hurdles
simply puts a prosecutor over the constitutional hurdle. The
prosecutor must also establish that the evidence sought to be
admitted satisfies a statutory hearsay exception.
"Based on the ruling in Giles , California must enact a
forfeiture by wrongdoing exception so that the doctrine can
operate fairly and effectively. This bill is consistent with
the Giles case to ensure that defendant's are not deprived of
any applicable constitutional protections. At the same time,
this bill provides guidance to judges, prosecutors and
criminal defense attorneys by setting forth a concise
description of the manner in which the doctrine is practically
applied."
3)Hearsay : Under the hearsay rule, out-of-court statements
"offered in evidence to prove the matter asserted" are
inadmissible in court unless the original declarant testifies
or the declaration fits into one of the categorical exceptions
to the rule. The hearsay doctrine arises from the belief that
out-of-court statements are intrinsically inferior proof.
This perception is usually explained in terms of the risks
involved with admitting hearsay - of misperception, faulty
memory, insincerity, and narrative ambiguity - and the
preference for cross-examination at trial.
The lack of trustworthiness of hearsay evidence comes from the
fact that when the declarant's statement is offered to prove
the truth of the matter stated in such statement, the
declarant's veracity or credibility is involved, as well as
the accuracy of the declarant's perception, recollection, and
communication of the facts perceived. In our adversary
system, these two factors of veracity and accuracy of
perception, recollection, and communication need to be tested
through the presence of declarant under oath before the
current trier of fact and cross-examination of declarant by
the adverse party. [Jefferson, The Hearsay Rule-Determining
when Evidence is Hearsay or Non-Hearsay and Determining Its
Relevance as One or the Other , 30 U. West. Los Angeles L. Rev.
135 (1999).]
Numerous exceptions have long co-existed with the hearsay rule.
Courts have developed these categorical exceptions because of
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the perception that certain statements are inherently reliable
despite the absence of direct testimony and because the need
for certain evidence outweighs the risks. [See Mathews,
Making the Crucial Connection: A Proposed Threat Hearsay
Exception , 27 Golden Gate U. Law Rev. 117 (1993).] For
example, statements made when the declarant knows he or she is
about to die or excited statements made without an opportunity
to reflect are considered more believable because the
declarant has neither the motive nor the time to fabricate the
statement. [Evidence Code Section 1240 (spontaneous,
contemporaneous or dying declarations as an exception to the
hearsay rule).] These types of statements are only admissible
because they are seen as more reliable. In general, however,
hearsay is presumptively unreliable.
4)Unavailability and Evidence Code Section 240 : As noted above,
as a general matter, out-of-court statements offered for the
truth of the matter asserted are inadmissible. However, if
the declarant is "unavailable", his or her statement may be
admitted despite being hearsay. Under existing law,
"unavailability" has a specific definition. Evidence Code
Section 240 lists several instances in which a declarant may
be legally "unavailable". The following grounds create lawful
"unavailability": the declarant's Fifth Amendment right
against self-incrimination; the declarant is disqualified from
testifying to the matter; the declarant is dead or unable to
attend or testify sue to physical or mental illness or
infirmity; or the declarant is absent from the hearing and the
proponent of the his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance
by the court's process. [Evidence Code Section 240(a).]
However, existing law also states the declarant is not
"unavailable" if the grounds for absence is brought about by
the procurement or wrongdoing of the proponent or his or her
statement for the purposes of preventing the declarant from
attending or testifying. [Evidence Code Section 240(b)].
This means a defendant on trial may not "arrange" for a person
to be unavailable and then claim that his or her statements
are admissible under the hearsay rule.
The California Appellate Court in People vs. Allen further
explained this exception to the doctrine of unavailability,
"[Section 240 was not intended to apply] when the party, for
his or her own supposed advantage, creates the witnesses' or
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his or her own legal unavailability or is somehow responsible
for allowing the unavailability to occur. This distinction
has long been acknowledged. [citations omitted] It was a
principal concern of the Law Revision Commission, as it had
been of the Commission on the Uniform Evidence Code, to
safeguard against 'sharp practices' in order to assure ''that
unavailability is honest and not planned in order to gain an
advantage'." [ People vs. Allen (1989) 215 Cal.App. 3rd 392,
411.]
Courts have long held that "unavailability" should not be the
preferred form of evidence. The California Supreme Court
stated, "The fundamental purpose of the unavailability
requirement is to ensure that prior testimony is substituted
for live testimony, the generally preferred form of evidence,
only when necessary. 'Former testimony often is only a weaker
substitute for live testimony. . . . If the declarant is
available and the same information can be presented to the
trier of fact in the form of live testimony, with full
cross-examination and the opportunity to view the demeanor of
the declarant, there is little justification for relying on
the weaker version. When two versions of the same evidence
are available, long standing principles of the law of hearsay,
applicable as well to Confrontation Clause analysis, favor the
better evidence. But if the declarant is unavailable, no
'better' version of the evidence exists, and the former
testimony may be admitted as a substitute for live testimony
on the same point.' (citation omitted). As this court,
quoting Wigmore's treatise, has observed, 'The general
principle upon which depositions and former testimony should
be resorted to is the simple principle of necessity,--i.e.,
the absence of any other means of utilizing the witness'
knowledge.' (citation omitted). ' [ People vs. Reed (1996) 13
Cal.4th 219, 225.]
5)Sixth Amendment Right to Confrontation : There is a
fundamental relationship between the Sixth Amendment Right of
Confrontation and the admissibility of hearsay evidence.
Regardless of the form of the hearsay, the court must still
contend with the Sixth Amendment right for an accused to
confront the witnesses against him or her. The Confrontation
Clause in the United States Constitution reflects a preference
for face-to-face confrontation at trial, and a primary
interest secured by the provision is the right of
cross-examination. In short, the Confrontation Clause
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envisions a personal examination and cross-examination of the
witness in which the accused has an opportunity, not only of
testing the recollection and sifting the conscience of the
witness, but of compelling him to stand face to face with the
jury in order that they may look at him and judge by his
demeanor upon the stand and the manner in which he gives his
testimony whether he is worthy of belief. These means of
testing accuracy are so important that the absence of proper
confrontation at trial calls into question the ultimate
integrity of the fact-finding process. [United States
Constitution, Sixth Amendment; Ohio vs. Roberts (1980) 448
U.S. 56.]
Even hearsay that falls within a specified exception must be
tested against the right of confrontation. The United States
Supreme Court in Ohio vs. Roberts explained the relationship
between the Confrontation Clause and inadmissible hearsay as
follows:
"The Confrontation Clause operates in two separate ways to
restrict the range of admissible hearsay. First, in
conformance with the Framers' preference for face-to-face
accusation, the Sixth Amendment establishes a rule of
necessity. In the usual case, including cases where prior
cross-examination has occurred, the prosecution must either
produce, or demonstrate the unavailability of, the declarant
whose statement it wishes to use against defendant. The
second way in which Confrontation Clause operates to restrict
the range of admissible hearsay is when a witness is shown to
be unavailable. Reflecting its underlying purpose to augment
accuracy in the fact-finding process by ensuring defendant an
effective means to test adverse evidence, the Clause
countenances only hearsay marked with such trustworthiness
that there is no material departure from the reason of the
general rule.
"When a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing
that he is unavailable. Even then, his statement is
admissible only if it bears adequate 'indicia of reliability.'
Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness."
[ Id . at 66.]
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If a declarant is unavailable, in order for his or her testimony
to be admissible, it must be seen as reliable, meaning that it
falls within a "firmly rooted" hearsay exception.
6)Crawford vs. Washington : In 2004, the United States Supreme
Court made a significant change to the admissibility of
hearsay evidence in Crawford vs. Washington (2004) 541 U.S.
36. The court created a distinction between "testimonial" and
"non-testimonial" statements. "Testimonial" statements, as
defined by Crawford, include affidavits, custodial
examinations, and prior testimony. Where the statement at
issue is "testimonial", the United States Supreme Court held,
"Testimonial statements of witnesses absent from trial are
admitted only where the declarant is unavailable and only
where the defendant has had a prior opportunity to
cross-examine. Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy
constitutional demands is the one the United States
Constitution actually prescribes: confrontation." [ Id . at
60.] The United States Supreme Court in Davis vs. Washington
and Hammond vs. Indiana (2006) 126 S.Ct. 2266 further
explained the distinction between testimonial and
non-testimonial statements. The Court further held,
"The Confrontation Clause of the Sixth Amendment bars admission
of testimonial statements of a witness who does not appear at
trial unless he is unavailable to testify, and the defendant
has had a prior opportunity for cross-examination. Only
'testimonial' statements cause a declarant to be a 'witness'
within the meaning of the Confrontation Clause. It is the
testimonial character of the statement that separates it from
other hearsay that, while subject to traditional limitations
upon hearsay evidence, is not subject to the Confrontation
Clause. Statements are non-testimonial for purposes of the
Confrontation Clause when made in the course of police
interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution." [ Davis/Hammond
(2006) 126 S. Ct. 2266, 2277.]
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7)Equitable Doctrine of Forfeiture by Wrongdoing : The United
States Supreme Court in ruling in Crawford and Davis/Hammond
re-affirmed a long-standing exception to the Sixth Amendment
right to confrontation: forfeiture by wrongdoing. The
equitable doctrine of forfeiture by wrongdoing dates back to
Lord Morley's Case (6 States Trials, 770) in the British House
of Lords in 1666. The United States Supreme Court recognized
the doctrine in Reynolds vs. United States (1879) 98 U.S. 145.
In that case, Mr. Reynolds was on trial for bigamy. The
trial court found he convinced one of his wives to evade
testimony. The court allowed for the admission of testimony
she gave in another trial on the grounds the defendant should
not be able to benefit from his wrongful act. The Court in
Reynolds stated,
"The Constitution gives the accused the right to a trial at
which he should be confronted with the witnesses against him;
but if a witness is absent by his own wrongful procurement, he
cannot complain if competent evidence is admitted to supply
the place of that which he has kept away. The Constitution
does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the
privilege of being confronted with the witnesses against him;
but if he voluntarily keeps the witnesses away, he cannot
insist on his privilege. If, therefore, when absent by his
procurement, their evidence is supplied in some lawful way, he
is in no condition to assert that his constitutional rights
have been violated." [ Reynolds at 158.]
The United States Supreme Court in Davis/Hammond recognized the
forfeiture doctrine again after its ruling in Crawford . The
Court held,
"The United States Supreme Court may not vitiate constitutional
guarantees when they have the effect of allowing the guilty to
go free. But when defendants seek to undermine the judicial
process by procuring or coercing silence from witnesses and
victims, the Sixth Amendment does not require courts to
acquiesce. While defendants have no duty to assist the State
in proving their guilt, they do have the duty to refrain from
acting in ways that destroy the integrity of the
criminal-trial system. The Court reiterates what was said in
Crawford v. Washington : that the rule of forfeiture by
wrongdoing extinguishes confrontation claims on essentially
equitable grounds. That is, one who obtains the absence of a
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witness by wrongdoing forfeits the constitutional right to
confrontation." [ Davis/Hammond at 2280.]
The Court acknowledged the constitutional viability of the
doctrine but stated it would take no position on the standards
necessary to demonstrate such forfeiture. However, the Court
did express approval for the both the Federal Rule of Evidence
on forfeiture by wrongdoing and the Massachusetts Evidence
Code expressed in Commonwealth vs. Edwards (2005) 444 Mass.
526. The Federal Rule of Evidence on forfeiture by wrongdoing
states, "Forfeiture by wrongdoing. A statement offered
against a party that has engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of
the declarant as a witness." [USCS Fed. Rules Evid. R
804(b)(6).] Both the Federal Rule and the Massachusetts case
apply the forfeiture by wrongdoing doctrine only where the
defendant threatens or otherwise attempts to dissuade the
witness from testifying. It is under those circumstances the
United States Supreme Court expressly authorizes the use of
forfeiture by wrongdoing to extinguish the Sixth Amendment
right to confrontation.
8)People vs. Giles : The California Supreme Court ruled
specifically on the issue of "forfeiture by wrongdoing" in
People vs. Giles (2007) Cal. LEXIS 3110 decided March 27,
2007. In that case, the defendant was tried for murder and
argued he killed his wife in self-defense. Giles argued that
his wife's statements to police regarding her fear of her
husband should be excluded as a violation of the rule against
hearsay and Gile's Sixth Amendment right to confrontation.
However, the California Supreme Court agreed with the lower
court decision to admit the statement pursuant to the
equitable doctrine of forfeiture. The California Supreme
Court stated:
"The application of the rule should be subject to several
limitations. First, the witness should be genuinely
unavailable to testify and the unavailability for
cross-examination should be caused by the defendant's
intentional criminal act. Second, a trial court cannot make a
forfeiture finding based solely on the unavailable witness's
unconfronted testimony; there must be independent
corroborative evidence that supports the forfeiture finding.
The forfeiture by wrongdoing doctrine, as adopted by us, only
bars a defendant's objection under the confrontation clause of
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the federal Constitution and does not bar statutory objections
under the Evidence Code.
"Thus, even if it is established that a defendant has forfeited
his or her right of confrontation, the contested evidence is
still governed by the rules of evidence; a trial court should
still determine whether an unavailable witness's prior hearsay
statement falls within a recognized hearsay exception and
whether the probative value of the proffered evidence
outweighs its prejudicial effect. (Evidence Code Section
352.) Finally, the jury should not be advised of the trial
court's underlying finding that defendant committed an
intentional criminal act so that the jury will draw no
inference about the ultimate issue of guilt based on the
evidentiary ruling itself." [ Id . at 25.]
People vs. Giles created a clear procedure for determining if
the defendant's wrongdoing allows admission of the statements
at issue. As the Giles court outlines how and under what
circumstances such evidence is admitted, statutory language
seems unnecessary. Also, the Court made clear that the
declarant must be "unavailable" under existing law. This bill
requires only that the declarant does not want to testify, not
that he or she actually unavailable.
9)Evidence Code Section 1350 : Evidence Code Section 1350 was
added to statute in 1985. The California Supreme Court
described the exception as follows, "That provision
establishes an exception to the hearsay rule for a statement
by an unavailable declarant when, among other things, '[t]here
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'." The Court went on to clarify the meaning
of "serious" felony included those crimes listed in existing
law related to "Three Strikes". [ People vs. Jurado (2006) 38
Cal.4th 72, 112; See Penal Code Section 1192.7(c).] This
language is considerably more demanding than the text of this
bill or what the California Supreme Court authorized in Giles .
Evidence Code Section 1350 requires the charge at issue must
be a serious felony and there must be clear and convincing
evidence the defendant caused the declarant's unavailability
through means of death or kidnapping.
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10)Prior Consistent Statements : Existing law provides prior
consistent statements of a witness are inadmissible to support
his credibility unless it is offered after: Evidence of
statement is inconsistent with any part of the declarant's
testimony at the hearing is admitted for the purpose of
attacking his credibility and the statement was made before
the alleged inconsistent statement; or, an express or implied
charge has been made that his 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. [Evidence Code Section 791(a) and (b).] The Law
Revision Commission stated,
"Under existing California law, evidence of a prior consistent
statement is admissible to rebut a charge of bias, interest,
recent fabrication, or other improper motive. Existing law
may preclude admission of a prior consistent statement to
rehabilitate a witness where only a prior inconsistent
statement has been admitted for the purpose of attacking his
credibility (internal citation omitted). However, recent
cases indicate that the offering of a prior inconsistent
statement necessarily is an implied charge that the witness
had fabricated his testimony since the time the inconsistent
statement was made and justifies the admission of a consistent
statement made prior to the alleged inconsistent statement
(internal citation omitted). Subdivision (a) makes it clear
that evidence of a previous consistent statement is admissible
under these circumstances to show that no such fabrication
took place. Subdivision (a), thus, is no more than a logical
extension of the general rule that evidence of a prior
consistent statement is admissible to rehabilitate a witness
following an express or implied charge of recent fabrication."
[Law Revision Commission Comment (1965) Evidence Code Section
791].
Existing law only allows prior consistent statements to be
introduced where it is offered after the witness' credibility
has been attacked and the consistent statement was made before
the inconsistent statement. The prior consistent statements
may also be admitted where there is claim the witness recently
fabricated or was otherwise influenced by bias and the prior
consistent statement was made before the motive to fabricate
allegedly occurred. This bill seeks to expand those
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provisions and allows admission of a prior consistent
statement where the witness' credibility is important, the
probative value outweighs the harm of the statement, and there
is independent corroborating evidence the prior consistent
statement is true other than the witness' statement on the
stand.
11)Present Sense Impression : Under existing law, evidence of a
statement is not made inadmissible by the hearsay rule if the
statement is offered to explain, qualify or make
understandable conduct the declarant and was made while the
declarant engaged in such conduct. [Evidence Code Section
1241(a) and (b).] Also under existing law evidence of a
statement is not made inadmissible by the hearsay rule if the
statement purports to narrate, describe, or explain an act,
condition or event perceived by the declarant and the
statement was made spontaneously while the declarant was under
the stress of excitement caused by such perception. [Evidence
Code Section 1240 (a) and (b).] This section is commonly
referred to as the "excited utterance" exception to hearsay.
This bill adds an additional hearsay exception commonly
referred to as the "present sense impression" hearsay
exception under the Federal Rules of Evidence. This bill
states evidence of a statement is not made inadmissible by the
hearsay rule where the statement is offered to describe or
explain an event and the statement was made while the
declarant perceived the event or condition or made immediately
thereafter.
12)Related Legislation : AB 1210 (Horton) eliminates the
requirement present in an existing hearsay exception that the
declarant have died from other than natural causes. AB 1210
is pending hearing by this Committee.
13)Prior Legislation : AB 2093 (Karnette), of the 2005-06
Legislative Session, would have expanded the existing "state
of mind" exception to the inadmissibility of hearsay to
include non-testimonial statements by a decedent declarant
expressing fear of the defendant in homicide proceedings where
such statements are found to be trustworthy and not
substantially more prejudicial than probative. AB 2093 was
held in this Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
City Attorney, City of Los Angeles (Co-Sponsor)
California District Attorneys Association (Co-Sponsor)
California Women's Law Center
Crime Victims United of California
Doves Domestic Violence Education & Services
Marin Abused Women's Services
Police Officers Research Association of California
Women's and Children's Crisis Shelter
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744