BILL ANALYSIS
AB 268
Page 1
Date of Hearing: May 23, 2007
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mark Leno, Chair
AB 268 (Calderon) - As Amended: May 3, 2007
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill creates an evidentiary hearsay exemption that allows
introduction of a hearsay statement of an "unavailable" witness
if the prosecution can prove it is more likely than not that the
statement is offered against a party who has engaged or
"acquiesced" in "wrongdoing" that has caused the unavailability
of the witness. Specifically, this bill:
1)Specifies that if a statement to be admitted includes a
hearsay statement made by any person other than the witness
who is unavailable due to the "wrongdoing," that other hearsay
statement is inadmissible unless it meets the existing
requirements of an exception to the hearsay rule.
2)Specifies that 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 inconsistent
with any part of his or her testimony has been admitted for
the purpose of attacking the witness' credibility, and the
statement was made before that alleged inconsistent
statement.
b) It is offered after a charge that the witness' testimony
at the hearing is fabricated or 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.
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c) When all of the following exist:
i) The witness' credibility is an important issue, not
merely relevant, at the hearing.
ii) The probative value of the statement substantially
outweighs any attendant dangers.
iii) There is independent, corroborating evidence of the
truth of the statement that consists of evidence other
than the witness' statement.
3)Specifies 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 witness was perceiving
the event or condition.
FISCAL EFFECT
No direct state costs. To the extent, however, that expanded
exceptions to hearsay rules result in additional convictions and
commitments to state prison - which is certainly the goal of the
measure - this bill would result in significant annual GF costs.
For example, assuming the proposed hearsay exceptions would
generally be used to prosecute defendants charged with violent
crimes, if this bill resulted in four additional homicide
convictions, with an average of seven years served, in about
2015, the annual cost for additional state prison commitments
would be $1.2 million.
COMMENT
1)Rationale. The intent of this bill is to address situations in
which hearsay statements may be ruled inadmissible even though
the defendant is responsible for the witness being
"unavailable" to testify in court.
According to the author, "California prosecutors need to
utilize the forfeiture by wrongdoing doctrine in order to
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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."
The sponsors of this measure, the California District
Attorneys Association note in background material, that in
order for hearsay to be admissible in a courtroom, it must
overcome both a hearsay objection and Confrontation Clause
objection. A statement may fall within a hearsay exception
and yet still be found to be inadmissible because its
admission would violate the Confrontation Clause and vice
versa. The California Supreme Court in Giles allowed hearsay
that fell within one of the existing hearsay exceptions and
then said its admission would not violate the Confrontation
Clause because the Confrontation Clause does not prevent the
admission of hearsay when the defendant is responsible for the
unavailability of the witness. Many statements, however, do
not fall into an existing hearsay exception. The hearsay
exception created by AB 268 is necessary, notwithstanding the
holding in Giles , to allow such statements over a hearsay
objection. Giles solves the problem of getting statements in
over a Confrontation Clause objection, but it does not solve
the problem of getting those statements in over a hearsay
objection other than to let us know that the hearsay exception
will be held constitutional if it is adopted.
2)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 U.S. 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 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
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compelling a witness to stand face to face with the jury so
they may look at the witness and judge by his or her demeanor
and the manner in which he or she offers testimony whether the
witness is believable
3)Current law :
a) Defines "unavailable" as a witness as meaning the
witness is (1) exempt on the grounds of privilege from
testifying; (2) disqualified from testifying to the matter;
(3) dead or unable to attend or to testify at the hearing
due to an existing physical or mental infirmity; (d) absent
from the hearing and the court is unable to compel his or
her attendance.
b) Provides a witness is not unavailable if the exemption,
disqualification, death, inability, or absence of the
witness was caused by the wrongdoing of the defendant.
c) Defines hearsay evidence as evidence of a statement made
by someone other than a witness testifying at the hearing
that is offered to prove the truth of the matter stated.
Except as provided by law, hearsay evidence is
inadmissible.
4)Opposition . The ACLU, California Attorneys for Criminal
Justice and the San Francisco Public Defender oppose this
bill, all contending the proposed expansion of the hearsay
rule is overly broad and vague.
San Francisco Public Defender Jeff Adachi writes, AB 268 is
unconstitutional and ill-conceived in four distinct ways:
First, it proposes to create an exception to the right of
cross-examination if a party merely "acquiesces" in conduct
that causes the unavailability of a witness. Second, it would
apparently allow out-of-court statements to be admitted upon a
finding of engaging or acquiescing in wrongdoing whether the
statements are competent or not. Third, it has no intent
requirement, which is inherent in the concept of the
forfeiture by wrongdoing doctrine. Fourth, if the witness in
question is the decedent in a homicide and the defendant has
not admitted the killing, the trial court has to decide the
defendant's guilt or innocence in order to apply the proposed
evidence rule."
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Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081