BILL NUMBER: AB 1723	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Members Lieu and Emmerson

                        FEBRUARY 3, 2010

   An act to amend Section 240 of, and to add Section 1390 to, the
Evidence Code, relating to evidence.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1723, as introduced, Lieu. Evidence: admissibility of
statements.
   (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 persistent in refusing to testify concerning
the subject matter of the declarant's statement despite an order of
the court to do so.
   (2) 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 that is
offered against a party who has engaged or acquiesced in wrongdoing
that was intended to, and did, procure 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, as specified.

   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) Persistent in refusing to testify concerning the subject
matter of the declarant's statement despite an order of the court to
do so. 
   (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  which   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 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 that has
engaged or acquiesced in wrongdoing that was intended to, and did,
procure 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 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.