BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 268 A
Assemblymember Calderon B
As Amended May 3, 2007
Hearing Date: June 26, 2007 2
Evidence Code 6
KB:rm 8
SUBJECT
Evidence: admissibility of hearsay statements
DESCRIPTION
This bill would create two new exceptions to the hearsay
rule. The first proposed hearsay exception generally
referred to as the "forfeiture by wrongdoing" exception
would:
expand the definition of "unavailability" to
include where a declarant refuses to testify,
notwithstanding the 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;
provide that if a statement that 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;
require the party seeking to introduce the
statement at issue to establish by a preponderance of
the evidence that the elements authorizing admission
of the statement be met at a foundational hearing;
provide that 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
(more)
AB 268 (Calderon)
Page 2
declarant and shall be supported by independent
corroborative evidence; and
require that 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.
The second proposed hearsay exception, generally referred
to as the "present sense impression" exception, would:
provide that 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.
This bill is doubled referred to the Senate Public Safety
Committee.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
Under the hearsay rules of evidence, out-of-court
statements offered to prove the truth of the matter
asserted are inadmissible in court unless the actual
declarant testifies or the testimony fits into one of the
categorical exceptions to the rule. (Evidence Code 1200
et seq.) The general exclusion of hearsay from evidence is
premised on the notion that out-of-court statements are
inherently more unreliable than live testimony.
Specifically, hearsay statements are not made under oath,
the adverse party has no opportunity to cross-examine the
declarant, and the jury cannot observe the declarant's
demeanor while making the statements (People v. Duarte
(2000) 24 Cal.4th 603, 610.) In our adversary system of
justice, the factors of credibility, and accuracy of
perception and recollection need to be tested through the
presence of a declarant under oath before a judge or jury,
and through cross-examination by the adverse party.
AB 268 (Calderon)
Page 3
Numerous exceptions have long co-existed with the hearsay
rule. Courts have developed these categorical exceptions
because of 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).) In general, however, hearsay is presumptively
unreliable.
This bill is being co-sponsored by the Los Angeles City
Attorney's Office and the California District Attorneys
Association for the purpose of creating three additional
exceptions to the hearsay rule. Although the proposed
exceptions would have primary use in criminal proceedings,
they would also be applicable in civil action.
(Author's amendments offered in committee will delete one
of the proposed exceptions, leaving two for the committee's
review and consideration.)
CHANGES TO EXISTING LAW
1.Existing law provides that "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
1200(a) and (b).)
Existing law , for the purposes of the Evidence Code,
provides that "unavailable as a witness," means that 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
AB 268 (Calderon)
Page 4
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. (Evidence Code 240(a)(4).)
Existing law provides a declarant is not unavailable as a
witness (and therefore the hearsay exception does not
apply) 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
240(b).)
This bill would expand the definition of "unavailability"
to include where a declarant refuses to testify,
notwithstanding the 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.
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
admissible by the hearsay rule.
This bill would require the party seeking to introduce
the statement at issue to establish by a preponderance of
the evidence that the elements authorizing admission of
the statement be met at a foundational hearing.
This bill would provide that hearsay evidence is
admissible at the foundational hearing; however, a
AB 268 (Calderon)
Page 5
finding of "wrongdoing" shall not be based solely on the
un-confronted hearsay statement of the unavailable
declarant and shall be supported by independent
corroborative evidence.
This bill would require that 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.
This bill would provide if a statement 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.
2. Existing law provides that 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 while the declarant
was engaged in such conduct. (Evidence Code 1241(a)
and (b).)
This bill would provide that 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.
COMMENT
1. Stated need for the bill
The author states:
"Witness intimidation is a huge problem facing gang,
homicide, domestic violence, elder abuse, and child
molestation prosecutors. Prosecutions are often
AB 268 (Calderon)
Page 6
prevented or hobbled when witnesses are eliminated or
deterred from testifying."
"The proposed legislation helps address the problem of a
defendant profiting from his or her wrong by having
killed, threatened or intimidated the witness into
refusing to testify in two ways. First, it allows a
prosecution to proceed against a criminal defendant even
though the witness has been killed, threatened or
intimidated by the defendant. Second, it removes an
incentive to murder or intimidate witnesses."
2.This bill would expand the definition of "unavailable as
a witness" and create a new hearsay exception based on
the doctrine of "forfeiture by wrongdoing"
(a) The Sixth Amendment Right to Confrontation
The Sixth Amendment of the United States Constitution
guarantees the right of the accused to be confronted
with the witnesses against him. There is a fundamental
relationship between the Sixth Amendment Right of
Confrontation and the admissibility of hearsay
evidence. The Confrontation Clause reflects a
preference for cross-examination of the witness in
which the accused has an opportunity to test the
witness' credibility and recollection, and to compel
him to testify in front of a jury so that the
fact-finders may judge his demeanor and determine
whether his testimony is believable. 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. ( Ohio
vs. Roberts (1980) 448 U.S. 56.)
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. Crawford overruled Ohio v. Roberts , which had
permitted introduction of an unavailable witness'
testimonial hearsay statement over a confrontation
clause objection if the statement had "adequate
indicia of reliability." ( Ohio , at 66.) Crawford
held that the Sixth Amendment require exclusion of an
unavailable witness' testimonial hearsay statement
AB 268 (Calderon)
Page 7
unless the defendant has had a prior opportunity to
cross-examine that witness. (See also Davis vs.
Washington and Hammond vs. Indiana (2006) 126 S.Ct.
2266, 2277.) The Supreme Court's decision in Crawford
reaffirmed the importance of the Sixth Amendment's
confrontation clause, and created more stringent
standards for the admissibility of hearsay evidence.
(b) "Unavailable as a witness" under
current law
Usually, the phrase "unavailable as a witness" is
used in the Evidence Code to state the condition that
must be met whenever the admissibility of hearsay
evidence is dependent upon the declarant's present
unavailability to testify. "Unavailable as a
witness" includes both situations in which the
declarant is physically unavailable (i.e. dead or
mentally ill, or beyond the reach of the court's
process) and legally unavailable (i.e., prevented
from testifying due to privilege). (Evidence Code
240, Law Revision Commission Comment (1965).)
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. 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 hearsay version. However, if the declarant is
"unavailable," no better version of the evidence
exists, and the former testimony may be admitted.
(See People vs. Reed (1996) 13 Cal.4th 219, 225,
citing United States v. Inadi (1986) 475 U.S. 387,
394-395.)
(c) The doctrine of "forfeiture by wrongdoing"
The United States Supreme Court first recognized the
AB 268 (Calderon)
Page 8
doctrine of "forfeiture by wrongdoing" 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, and 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 United States Supreme Court reaffirmed the
"forfeiture by wrongdoing" doctrine in both Crawford
and Davis/Hammond :
"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 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 noted that
federal courts using the Federal Rule of Evidence,
which codifies the forfeiture doctrine, have
generally held that the Government uses the
preponderance-of-the-evidence standard and that
states courts tend to follow the same practices.
( Id. at 2280)
The California Supreme Court specifically ruled on
the doctrine of "forfeiture by wrongdoing" in People
vs. Giles (2007) Cal. LEXIS 3110 decided March 27,
AB 268 (Calderon)
Page 9
2007. In Giles , the defendant was tried for murder
and asserted 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. The
California Supreme Court ruled that the wife's
statements were admissible pursuant to the equitable
doctrine of forfeiture by wrongdoing.
In Giles , the Court stated that application of the
doctrine 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' unconfronted testimony; there must be
independent corroborative evidence that supports the
forfeiture finding. Third, the jury should not be
advised of the trial court's underlying finding that
the 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. Finally, the forfeiture by wrongdoing
doctrine, only bars a defendant's objection under the
confrontation clause of the federal Constitution and
does not bar statutory objections under the Evidence
Code. (Id. at 25.)
The latter condition is critical in the
analysis of AB 268. Under Giles , 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, and a trial
court must still determine whether the hearsay
statement falls within a hearsay exception and
whether its probative value outweighs its prejudicial
effect. The bill would eliminate or skip that
determination entirely.
(d) The doctrine of "forfeiture by wrongdoing" as a
codified hearsay exception
This bill would codify the doctrine of "forfeiture by
AB 268 (Calderon)
Page 10
wrongdoing" under the definition of "unavailable as a
witness" in Evidence Code 250, and as its own
separate hearsay exception. Essentially, a declarant
would be unavailable if the declarant refuses to
testify, notwithstanding the imposition of sanctions,
and the refusal is a result of wrongdoing by the
party against whom the testimony is offered.
For example, witnesses who are intimidated by a
defendant on trial may refuse to testify out of fear
for their lives, even after the court imposes
sanctions. These witnesses would be considered
legally "unavailable" even if they are physically
present. Furthermore, a party could introduce the
witness' hearsay statements if they can establish by
a preponderance of the evidence that the opposing
party engaged in wrongdoing that resulted in the
witness' "unavailability."
The author states that this proposed addition
to the Evidence Code is drafted in accordance with
procedure established in People v. Giles for
determining if the defendant's wrongdoing allows
admission of the statements at issue. However, in
issuing its ruling, the Court made it clear that the
declarant must be "unavailable" under existing law,
and specifically stated the doctrine only served to
bar confrontation clause objections, but not those
based on the hearsay rule. The court never analyzed
the doctrine of forfeiture by wrongdoing as a hearsay
exception itself.
The author acknowledges this and explains:
"Our proposed hearsay exception addresses the problem
identified in Giles that for a statement to be
admissible under the doctrine of forfeiture it must
fall into a recognized hearsay exception. Our
legislation creates such a hearsay exception so that
statements of witnesses who have been killed,
threatened or intimidated into refusing to testify by
criminal defendants will be admissible over a hearsay
objection in addition to being admissible over a
Confrontation Clause exception."
AB 268 (Calderon)
Page 11
The author also states that the proposed hearsay
exception is modeled after Federal Rule of Evidence
804(b), and that other states have adopted a similar
exception.
However, codifying the doctrine of "forfeiture by
wrongdoing" as a hearsay exception is problematic
because it allows the offering party to circumvent
the existing hearsay rule that is meant to filter out
unreliable testimony. Hearsay exceptions are based
on the premise that certain statements are inherently
reliable despite the absence of direct testimony and
because the need for certain evidence outweighs the
risks. In contrast, the doctrine of forfeiture by
wrongdoing is not based on the inherent reliability
of the hearsay, but on the equitable idea that a
person should not benefit from their own wrongdoing.
For this reason, in California, the doctrine may only
be used to overcome a constitutional confrontation
clause objection and not a statutory hearsay
objection.
If the doctrine of forfeiture by wrongdoing
were codified into a hearsay exception, a party would
be able to introduce potentially unreliable evidence
that could have a determinative effect on the outcome
of the trial.
In addition, although the party seeking to introduce
a statement under the forfeiture exception would have
to establish the wrongdoing by a preponderance of the
evidence at a foundational hearing outside the
presence of the jury, all hearsay evidence would be
admissible at this hearing. Thus, a party could meet
its burden of establishing the wrongdoing entirely by
using hearsay evidence. This would create a
situation where hearsay evidence is admissible to
meet a burden that would allow additional hearsay
evidence to be introduced at trial in front of the
jury. In this instance, the potential for the
introduction of unreliable evidence would increase
exponentially. The sponsors have argued that this is
consistent with what the United States Supreme Court,
in Davis/Hammon , noted was allowed in Massachusetts
courts under their state rules of evidence. However,
the Supreme Court only made an observation as to the
AB 268 (Calderon)
Page 12
practice in other states, and it need not be the
basis for what the California Legislature deems
appropriate as the state's public policy.
The California Law Revision Commission is currently
conducting a review of the Evidence Code, including a
comparison of the hearsay exceptions in California
with those in the Federal Rules. Once the Commission
completes its study the Legislature will have more
information and be in a better position to determine
whether additional hearsay exceptions should be
codified in state law.
Because of the serious implications of codifying this
doctrine as a hearsay exception, the California Law
Revision Commission should be directed to conduct a
study of the "forfeiture by wrongdoing" doctrine, and
issue a recommendation before the Legislature
considers such a drastic change to the current
hearsay rule.
SHOULD NOT THIS BILL INSTEAD DIRECT THE LAW REVISION
COMMISSION TO STUDY THE ISSUE OF WHETHER THE
"FORFEITURE BY WRONGDOING" SHOULD BE CODIFIED AS A
HEARSAY EXCEPTION?
1.This bill would create a hearsay exception of "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 of the declarant and was made while the declarant
engaged in such conduct. (Evidence Code 1241(a) and
(b).) Also, 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 1240 (a) and (b).)
This bill adds an additional hearsay exception commonly
referred to as the "present sense impression" hearsay
AB 268 (Calderon)
Page 13
exception, and is modeled after the Federal Rule of
Evidence 803(1). Specifically, this exception would
provide that 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.
Although this hearsay exception, like "forfeiture by
wrongdoing," is codified in the Federal Rules of
Evidence, it also merits thorough study and discussion
before the Legislature determines whether it should be
codified in California law. "Present sense" of an
accident or event will differ according to the
perceptions of the various witnesses. Thus, a prosecutor
could potentially have three different "present sense"
accounts from three different witnesses at a bank
robbery, but only choose to introduce the most
incriminating one without affording the defendant an
opportunity to cross-examine the witness.
As previously noted, the Law Revision Commission
(Commission) is currently conducting a review of the
Evidence Code, including a comparison of the hearsay
exceptions in California with those in the Federal Rules.
Committee staff is advised that the Commission has
issued staff memoranda that include a discussion of the
"present sense impression" exception, but has not issued
a tentative recommendation on the subject. Once the
Commission completes its study the Legislature will have
more information and be in a better position to determine
whether additional hearsay exceptions should be codified
in state law. In light of the Commission's on-going
study, it would be premature for the Legislature to enact
the "present sense impression" exception before the
Commission issues a recommendation.
SHOULD NOT THIS BILL, IF ENACTED, INSTEAD DIRECT THE LAW
REVISION COMMISSION TO COMPLETE ITS REVIEW OF THE
EVIDENCE CODE SO THAT THE LEGISLATURE MAY DETERMINE
WHETHER ADDITIONAL HEARSAY EXCEPTIONS SHOULD BE CODIFIED
IN CALIFORNIA LAW?
2.Author's Amendments would remove provisions of the bill
that would expand the hearsay exception for "prior
consistent statements"
AB 268 (Calderon)
Page 14
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. (Law
Revision Commission Comment (1965) Evidence Code 791.)
The current version of this bill contains provisions that
would expand the hearsay exception for "prior consistent
statements." These provisions would allow admission of a
prior consistent statement where:
(1) the witness' credibility is important;
(2) the probative value outweighs the harm of the
statement; and
(3) there is independent corroborating evidence the
prior consistent statement is true other than the
witness' statement on the stand.
Concerns were expressed that this additional provision
purports to allow the admission of prior consistent
statements in the complete absence of an attack on the
witness' credibility. This is inconsistent with the
current exceptions which only allow "prior consistent
statements" to rehabilitate witnesses and reaffirm their
credibility. Further, the proposed exception does not
specify who has the burden, if any, of establishing the
importance of the witness' credibility. Codifying this
exception could open the floodgates to allowing in
unreliable hearsay evidence for no discernable purpose.
The author has offered amendments to remove these
specific provisions from the bill. The amendments shall
be as follows:
On page 4, strike lines 4-26, inclusive.
1. Suggested Amendment
To implement the suggested policy of having these hearsay
proposals reviewed by the Law Revision Commission, the
following amendment is suggested.
AB 268 (Calderon)
Page 15
Strike pages 3 through 5 and insert:
"The California Law Revision Commission is directed to
study the "forfeiture by wrongdoing" and "present sense
impression" hearsay exceptions as these provision are
stated in the May 3, 2007 version of AB 268 (Calderon).
The Law Revision Commission shall report all of its
findings to the Legislature and issue a recommendation as
to whether these provisions should be codified as
exceptions to the hearsay rule in the California Evidence
Code."
Support: Domestic Violence Education and Services;
Catalyst Domestic Violence Services; Haven House,
Inc.; House of Ruth; California Women's Law Center;
California State Sheriffs' Association; Crime
Victims United of California; Women's and Children's
Crisis Shelter; Peace Officers Research Association
of California; Marin Abused Women's Services
Opposition: California Attorneys for Criminal Justice; San
Francisco Public Defender's Office; American Civil
Liberties Union; California Public Defenders
Association
HISTORY
Source: Los Angeles City Attorney's Office & California
District Attorney's
Association
Related Pending Legislation: AB 1210 (Horton) would
eliminate the requirement present in
an existing hearsay exception that
the declarant have died from other
than natural causes. This bill is
currently being held in the Assembly
Public Safety Committee.
Prior Legislation: AB 2093 (Karnette), of the 2005-06
Legislative Session, would have expanded the
existing "state of mind" exception to hearsay
rule to include non-testimonial statements by
a decedent declarant expressing fear of the
AB 268 (Calderon)
Page 16
defendant in homicide proceedings where such
statements are found to be trustworthy and
not substantially more prejudicial than
probative. This bill was held in the
Assembly Public Safety Committee.
Prior Vote: Asm. Public Safety (Ayes 7, Noes 0)
Asm. Appropriations (Ayes 17, Noes 0)
Asm. Floor (Ayes 77, Noes 0)
**************