BILL ANALYSIS
AB 268
Page 1
ASSEMBLY THIRD READING
AB 268 (Charles Calderon)
As Amended May 3, 2007
Majority vote
PUBLIC SAFETY 7-0 APPROPRIATIONS
(vote not
available)
--------------------------------
|Ayes:|Solorio, Aghazarian, |
| |Anderson, |
| |De La Torre, Leno, Ma, |
| |Portantino |
| | |
--------------------------------
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
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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:
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; or,
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:
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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
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; or,
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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, 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 General Fund 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.
COMMENTS : 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
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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."
Please see the policy committee analysis for full discussion of
this bill.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0000987