BILL ANALYSIS
AB 1723
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1723 (Lieu and Emmerson) - As Amended: April 8, 2010
SUBJECT : Evidence: Admissibility of Statements
KEY ISSUE : Should California rules of evidence be amended to
create a "forfeiture by wrongdoing" hearsay exception MODELED
AFTER FEDERAL LAW?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the California District Attorneys
Association (CDAA), seeks to address the situation in which a
witness is unavailable to testify as to prior out-of-court
statements, and that unavailability is due to some wrongdoing by
the party against whom the statement will be used (typically a
criminal defendant). Under the hearsay rule an out-of-court
statement cannot be admitted as evidence if introduced to prove
the truth of the matter asserted. The hearsay rule reflects the
law's preference for live witnesses, who take oaths, are
cross-examined, and can be seen by the jury. However, existing
law recognizes several hearsay exceptions, which generally apply
when the declarant is unavailable to testify as a witness but
where the circumstances surrounding the statement create a
presumption of reliability. (For example "dying declarations"
or spontaneous utterances, etc.) Under the common law, a
hearsay exception known as "forfeiture by wrongdoing" permitted
statements to be admitted if the declarant was "unavailable as a
witness" and the unavailability was due to some wrongdoing on
the part of the defendant. The Federal Rules of Evidence
include a forfeiture by wrongdoing hearsay exception, as do
about fourteen states. California has an exception that applies
only to cases of murder and kidnap but, according to CDAA, has
such stringent requirements that it is never used. This bill,
following extensive collaborative efforts by the CDAA, the chair
and committee counsel, creates a "forfeiture by wrongdoing"
hearsay exception more consistent with federal rules but not
identical to them. The bill would also amend the statutory
definition of "unavailable as a witness" to include a witness
AB 1723
Page 2
who persistently refuses to testify even when ordered to do so
by a court, again consistent with federal rules. The bill is
supported by law enforcement and victim's rights groups.
Opponents claim that this bill is a dangerous departure from
existing California hearsay principles and will deny defendants
their constitutional right to confront their accusers. Recent
amendments appear to address some, but by no means all, of the
opponents' concerns. The authors have also added a sunset
clause so that the Legislature may later evaluate whether the
unintended negative consequences predicted by the opponents will
actually come to pass.
SUMMARY : Creates a new "forfeiture by wrongdoing" hearsay
exception modeled after the federal rules and expands the
definition of "unavailable as a witness" for purposes of
admitting hearsay evidence. Specifically, this bill :
1)Expands the statutory definition of "unavailable as a witness"
to include a declarant who, when called upon as a witness,
persistently refuses to testify on the subject matter of the
declarant's out-of-court statement despite an order of the
court to do so.
2)Provides that evidence of a statement is not made inadmissible
by the hearsay rule if the statement is offered against a
party that has engaged in or knowingly approved of wrongdoing
that was intended to, and did, procure the unavailability of
the declarant as a witness. Requires the party seeking to
introduce a statement to establish the essential elements at a
foundational hearing, as specified, outside of the presence of
the jury.
3)Permits the use of hearsay evidence, including the contested
statement, at the foundational hearing. Specifies, however,
that a finding that a statement is admissible against a
wrongdoer shall not be based solely on the unconfronted
hearsay statement of the unavailable declarant, but must be
supported by independent corroborative evidence.
4)Provides that the provision creating the forfeiture by
wrongdoing exception shall sunset on January 1, 2016, unless a
later enacted statute, that is enacted before January 1, 2016,
deletes or extends that date.
AB 1723
Page 3
EXISTING LAW :
1)Defines "unavailable as a witness," for purposes of the
Evidence Code, to include a declarant who is
a) Exempted or precluded on grounds of privilege or is
otherwise disqualified from testifying on a matter;
b) Dead or unable to attend or testify because of physical
or mental infirmity;
c) Physically absent and the court is unable to compel
attendance;
d) Physically absent even though the proponent has
exercised reasonable diligence in procuring attendance.
(Evidence Code Section 240 (a).)
2)Specifies that a declarant is not unavailable as a witness if
the declarant's unavailability was procured by the wrongdoing
of the proponent of the declarant's out-of-court statement for
the purpose of preventing the declarant from attending or
testifying. (Evidence Code Section 240 (b).)
3)Defines "unavailable as a witness" under federal rules of
evidence to include, among other things, a declarant who
persists in refusing to testify concerning the subject of the
declarant's out-of-court statement despite a court order to do
so. (Federal Rule of Evidence 804(a)(2).)
4) Defines "hearsay evidence" as a statement made by a
declarant, other than a witness while testifying, that is
offered to prove the truth of the matter stated. Specifies
that except as provided by law, hearsay evidence is
inadmissible. (Evidence Code Section 1200.)
5)Provides that, in a criminal action, a statement that is
otherwise admissible as hearsay evidence under the Evidence
Code is inadmissible if its admission would violate the
constitutions of either California or the United States.
(Evidence Code Section 1204.)
6)Enumerates several "hearsay exceptions" that permit the
admission of hearsay statements where the circumstances
surrounding the statement create presumptions in favor of its
truthfulness, including dying declarations, "excited
utterances," statements against interest, statements of mental
or physical states and, under specified circumstances, certain
prior recorded statements, former testimony, business and
AB 1723
Page 4
official records, and other recorded statements or published
writings, as specified. (Evidence Code Sections 1220 through
1341.)
7)Provides that, in a criminal proceeding charging a serious
felony, a statement made by a declarant is not made
inadmissible by the hearsay rule if the declarant is
unavailable and there 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 and the unavailability is the result of the death by
homicide or the kidnapping of the declarant. Requires further
that the declarant's out-of-court statement was memorialized
by a tape recording made by law enforcement or a written
statement prepared by a law enforcement official and signed by
declarant and notarized prior to the death or kidnapping of
the declarant. Specifies the procedure by which the above
elements must be proved. (Evidence Code Section 1350.)
8)Provides that, in a criminal prosecution, where the victim is
a minor, a statement made by the victim when under the age of
12 describing any act of child abuse or neglect, as specified,
is not made inadmissible by the hearsay rule if the court
finds certain indicia of reliability and the child either
testifies at the proceedings or is unavailable as a witness.
Requires the proponent of the statement to provide adverse
party with advance notice in order to provide adverse party
with a fair opportunity to prepare to meet the statement.
(Evidence Code Section 1360).
9)Provides that a statement that purports to narrate or describe
the infliction or threat of physical injury is not made
inadmissible by the hearsay rule if the declarant is
unavailable as a witness AND the statement was made at the
time of infliction or threat; was made in writing and recorded
by a physician, nurse, paramedic, or law enforcement official;
and was made under circumstances that would indicate its
trustworthiness. (Evidence Code Section 1370.)
10)Provides that, in a criminal prosecution for elder and
dependent adult abuse, a statement made by the victim is not
made inadmissible by the hearsay rule if the victim is
unavailable as a witness, the statement was made under
circumstances which indicate its trustworthiness, and the
victim, at the time of the proceeding or hearing, suffers from
AB 1723
Page 5
the infirmities of advanced age or other form of organic brain
damage, or other physical, mental, or emotional dysfunction.
(Evidence Code Section 1380.)
COMMENTS : According to the author and sponsor, this bill seeks
to address, quite literally, matters of life and death. The
California District Attorneys Association (CDAA), the sponsor of
this bill, claims that "witnesses to or victims of crimes are
sometimes intimidated or killed in order to prevent them from
testifying." For example, a gang member on trial for murder may
command or encourage fellow gang members to kill a likely
witness, or at least threaten or intimidate that likely witness
so that he or she does not testify. Persons who commit domestic
violence, it is claimed, often threaten victims with retaliation
should they testify against the abuser. Often times these
witnesses or victims have made statements in other contexts,
including statements to neighbors, police, or even grand juries,
which could provide relevant evidence at trial. However, CDAA
claims, if the defendant actually succeeds in making the person
unavailable as a witness - either by killing, kidnapping, or
intimidating - existing law does not provide a practical way by
which those prior out-of-court statements can be introduced.
The World's Shortest Primer on Hearsay : Under the hearsay rule,
an out-of-court statement cannot be admitted if it is offered to
prove the truth of the matter asserted. This general rule is
subject to several hearsay exceptions that have developed over
the years, first at common law and then codified into federal
and state rules of evidence. The hearsay rule reflects the
law's preference for live testimony, which is given under oath,
subject to cross-examination, and seen by the jury. The several
exceptions to the hearsay rule generally come into play when the
witness is not available to testify, but the circumstances of
their out-of-court statements somehow suggest the reliability or
probable truthfulness of those statements. Some classic
examples include the "dying declaration" and "excited
utterances," since presumably people do not have the inclination
or the time, respectively, to think up a lie under such
circumstances. In theory, the circumstances under which the
statement was made creates a measure of reliability that serves
as an imperfect but necessary substitute for the things that
supposedly make in-court statements more reliable, such as an
oath and the opportunity to cross-examine. Of course, dying
declarations can be false and exited utterances can be mistaken.
But the same is true of in-court statements made under oath.
AB 1723
Page 6
Moreover - and this is a critical but often overlooked point -
hearsay exceptions speak only to the admissibility of the
evidence, not to the weight of the evidence. It is still up to
the jury or trier of fact to decide how much weight to give to
the statement once it is admitted into evidence.
The Alleged Inadequacies of Existing Law : The CDAA points out
that under the Federal Rules of Evidence, as well as about a
dozen state evidence codes, such out-of-court statements could
be admitted under a so-called "forfeiture by wrongdoing" hearsay
exception. Although the particulars of this hearsay exception
can vary from state to state, the jurisdictions that have
adopted it provide, generally, that an out-of-court statement is
not made inadmissible under the hearsay rule if the person who
made the statement is no longer available as a witness because
of some wrongdoing committed by the party against whom the
statement is offered. In its starkest form: if you kill a
potential witness in order to keep that person from testifying,
you cannot complain if the victim's out-of-court statements -
which would otherwise constitute inadmissible hearsay - are used
against you. However, the exception need not apply just to
killing the potential witness; threats and intimidation that are
intended to, and do in fact, prevent the witness from testifying
can also be forms of wrongdoing that can trigger the exception.
Whatever particular form it takes, the forfeiture by wrongdoing
exception is based on the equitable principle that a wrongdoer
should not derive a legal benefit from his or her wrongdoing.
In this sense, it is different from other hearsay exceptions
which are based on a "reliability principle" - that is, an
assumption that there is something about circumstances under
which the statement was made that suggests its reliability. The
forfeiture by wrongdoing exception is defended, instead, as a
matter of equity.
As the opponents of this measure point out, the California
Evidence Code already contains a "forfeiture by wrongdoing"
hearsay exception; however, it is one that the proponents of
this measure claim is so woefully inadequate that it is almost
never used, let alone used successfully. Specifically, Evidence
Code Section 1350 permits hearsay evidence to be admitted, but
only where it can be shown by "clear and convincing" evidence
that the person against whom it is to be used knowingly caused,
aided, or solicited the killing or kidnapping of the potential
witness. In addition, the out-of-court statement must have been
memorialized in either a tape recording made by law enforcement,
AB 1723
Page 7
or in a written statement prepared by law enforcement, signed by
the now unavailable declarant, and "notarized in the presence of
the law enforcement official, prior to the death or kidnapping
of the declarant." In short, if the witness is killed or
kidnapped and the police, believing that the witness might be
killed or kidnapped, had the foresight to tape record the
statement, or in lieu of that get a signed statement from the
declarant and then take that to a notary public to be notarized,
then a prosecutor might have grounds to invoke Section 1350.
These statements must then be corroborated by other evidence
which connects the party against whom the statement is to be
used with the underlying offense. CDAA claims that the
requirements are almost impossible to meet as a practical
matter. And even if the requirements could be met, Section 1350
only applies to the extreme cases that involve killing or
kidnapping. It does not cover the more common situation where
witnesses are subjected to threats, intimidation, or violence
short of murder.
How this Bill Will Change Existing Law : To address what it sees
as the inadequacies of existing law, the CDAA seeks a broader
forfeiture by wrongdoing exception that would apply to any kind
of wrongdoing that is intended to, and does in fact, procure the
unavailability of a witness. Most importantly, this generalized
wrongdoing would not be restricted to killing and kidnapping,
but would include intimidation as well - a problem that CDAA
claims is especially problematic in crimes involving domestic
violence and criminal gang activity.
In order to achieve this, this bill would make two substantive
changes to the existing provisions of the Evidence Code: (1) it
extends the definition of "unavailable as a witness;" and (2) it
creates a new forfeiture by wrongdoing hearsay exception.
Expanding the Definition of "Unavailable as a Witness :" First,
this bill would expand the definition of "unavailable as a
witness" in Evidence Code Section 240 to include "persistent
refusal" to testify even when ordered to do so by a court. This
definition is adopted in the Federal Rules of Evidence and the
vast majority of state evidence codes. CDAA contends that this
definitional change is necessary because many hearsay exceptions
have a threshold requirement that the out-of-court declarant
must be unavailable as a witness - otherwise the declarant could
simply be called to the stand to make the statement under oath
and subject to cross-examination. CDAA claims that expanding
AB 1723
Page 8
the definition in this way is especially important when a
potential witness has been subjected to threats and intimidation
and is too frightened to testify. In this case, if the witness
has made out-of-court statements - including statements before a
grand jury or in a police report - those statements can be used
if the prosecution can prove that the defendant was the source
of the threats and intimidation.
As noted below, opponents claim that this change in definition
will violate the Sixth Amendment confrontation clause. However,
some of the opponents appear to mistake this definitional change
with the creation of a new hearsay exception. Adding the
"persistent refusal" category to this definitional section does
not mean that whenever a witness refuses to testify then that
witness's out-of-court statements may be admitted. The mere
unavailability of a witness is not a basis for admitting
hearsay, but is rather a threshold element for many hearsay
exceptions. That is, those hearsay exceptions can only apply if
the declarant is unavailable. The mere unavailability does not
permit admission of the hearsay; rather, the declarant must be
unavailable and all other elements of the hearsay exception must
be met. (See e.g. Evidence Code Sections 1230, 1290-1292, and
1350.) In short, some opponents seem to have mistaken the
proposed change in definition with the creation of an
independent hearsay exception. For example, the California
Public Defender's Association claims that this change in
definition will encourage the filing of false police reports.
CPDA proposes the following scenario: in order to seek revenge
or gain some advantage, a person could file a deliberately false
police report against another person (e.g. an enemy, rival gang
member, ex-spouse, etc.) and then deliberately refuse to testify
so that the false report could be admitted. But this line of
reasoning is based on the false assumption that mere refusal to
testify is sufficient to admit hearsay. However that is not the
case; the hearsay could only be admitted if the person refused
to testify and all the other elements of the hearsay exemption
were met.
Second, this bill would create, as an alternative to the
existing Section 1350, a more general and usable forfeiture by
wrongdoing hearsay exception. Most notably, the new exception
would differ from Section 1350 in that it would apply not only
to killing and kidnapping, but to any wrongdoing that was
intended to, and did, procure the unavailability of the witness.
This bill also sets forth how the court shall determine, at a
AB 1723
Page 9
foundational hearing, whether the person against whom the
statement is to be used either engaged in or knowingly approved
the wrongdoing. Specifically, the bill specifies that (1) The
party seeking to introduce the statement must prove by a
preponderance of evidence the party against whom the statement
is offered actually committed the wrongdoing; (2) That hearsay
evidence, including that statement in question, may be used at
the foundational hearing, but a finding that the party engaged
in the wrongdoing cannot be based solely the unconfronted
hearsay statement and must be supported by independent
corroborative evidence; and (3) That the foundational hearing
must be conducted outside of the presence of the jury, but that
the judge may consider evidence that was already presented to
the jury. (Note that the bill does not delete Section 1350 or
replace it with this new proposal. However, because a party
seeking to introduce hearsay evidence is free to choose the most
amendable hearsay exception that qualifies, it is presumed that
there would no longer be any reason for a party to seek
admission under Section 1350, even if it involved killing or
kidnapping.)
The Proposed Hearsay Exception Compared to Federal Rules:
Although this bill is based on the Federal Rules of Evidence and
the commentaries that accompany those Rules, it is important to
acknowledge that there are important differences between this
bill and Federal Rule 804(b)(6). The Federal Rule is remarkably
brief, stating that the exception applies to "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. " As noted above,
the definitional section in the Federal Rules defines
"unavailability" to include, among other things, persistent
refusal to testify even when ordered by a court to do so.
Although the rule does not expressly address the standard of
proof or the means by which the wrongdoing must be established,
the commentary to the Rules cite case law showing that
wrongdoing must be established at a foundational hearing by a
preponderance of evidence and that hearsay, including the
contested statement, is permissible at the foundational hearing.
(See also Federal Rule 104(a) regarding the use of hearsay to
establish the facts justifying the admissibility of hearsay.)
In addition to being more specific than the federal rule as to
how the wrongdoing shall be established, there is also one
critical difference between this bill and the federal rule. The
AB 1723
Page 10
federal rule applies to the party against whom the statement is
offered who has "engaged or acquiesced in" the wrongdoing or who
procured the unavailability of the witness. As introduced, this
bill used similar language; however, the most recent amendments
have replaced "engaged or acquiesced in" with "engaged in, or
approved of " the wrongdoing. The authors offered this amendment
in response to concerns raised by opponents which were shared by
the chair, committee counsel and scholarly commentary. Although
"acquiesced" is used in the Federal Rules, the California Rules
of Evidence generally take a more restrictive view of admitting
hearsay evidence. By using the term "acquiesced," the federal
rules would seemingly permit hearsay evidence even though the
alleged wrongdoing was committed by others and the defendant's
role was completely passive. Indeed, one federal case has held
that a defendant can be deemed to have acquiesced in the
wrongdoing for failing to report to authorities any wrongdoing
done by others on the defendant's behalf. (United States v.
Mastrangelo, 693 F.2d 269, 273-74 (2nd Cir. 1982).) While one
might argue that a defendant who knows that others may be
engaging in wrongful activity on his behalf has a moral
obligation to report that to authorities, there is no other area
in law, in California at least, as far as committee counsel and
scholarly commentary is aware, where one is legally compelled to
intervene to stop wrongdoing by others. This bill as recently
amended therefore appears to appropriately require that a
defendant take some affirmative action in the wrongdoing, even
if it is only "approval," before losing the right to object to
hearsay or waiving a constitutional right to confront adverse
witnesses.
The Implications of Giles II and the Sixth Amendment Issue :
Despite the competing claims of both proponents and opponents to
the contrary, it is not clear that the pertinent U.S. Supreme
Court ruling addressing issues triggered by this legislation
provides definitive guidance one way or the other on the major
issues presented in this bill. The key issue before the U.S.
Supreme Court in Giles v. California (Giles II) was whether
prosecutors could invoke the common law forfeiture by wrongdoing
exception to the Sixth Amendment's confrontation clause when the
defendant had indeed killed his girlfriend (he claimed he shot
her in self defense) but where there was nothing to indicate
that he had killed her with the intent of keeping her from
testifying as a witness. The prosecution argued that it was
enough that witness's unavailability was caused by the
wrongdoing of the defendant, whether the defendant had killed
AB 1723
Page 11
with that intent or not. After all, the prosecution reasoned,
if the equitable principle is that one should not derive any
legal benefit from one's wrongdoing, then why should it matter
what motive prompted the wrongdoing? Writing for the majority
in Giles II, Justice Scalia said that it mattered greatly.
Scalia and the majority held that the traditional doctrine
sought to prevent a defendant from undermining the integrity of
the trial by attempting to prevent a witness from presenting
relevant and probative evidence to the court. The Court noted,
quite reasonably, that if the prosecution's argument were
carried to its logical conclusion, then the out-of-court
statements of victims could be used in every murder case. But
the Court concluded that the traditional forfeiture by
wrongdoing exception was never meant to sweep this broadly; it
only applied where the defendant intended to, and succeeded, in
making the witness unavailable.
The other holdings in Giles II apply mostly to with the question
of when the admission of out-of-court statements infringe upon a
criminal defendant's Sixth Amendment right to confront adverse
witnesses. To be sure, there is considerable overlap between
the Sixth Amendment's confrontation clause and hearsay
exceptions, since out-of-court statements necessarily cannot be
confronted and cross-examined. But the two are nonetheless
conceptually distinct. The constitutional right sets a minimum
baseline. Any evidence admitted under a hearsay exception must
meet the minimum standards of the confrontation clause; but even
if the evidence could be admitted without violating the
confrontation clause, it could still only be admitted through a
recognized hearsay exception. Thus, the courts have
consistently recognized forfeiture by wrongdoing to overcome a
confrontation clause exception; but even evidence that would
meet that constitutional test, it could still only be admitted
as hearsay if there were statutory hearsay exception. This
bill, in short, will create that statutory exception.
As opponents contend (see below), in recent years the U.S.
Supreme Court appears to be heading in the direction of making
it more difficult to admit hearsay evidence over a confrontation
clause objection, which would seem to imply that hearsay
exceptions (which must meet the minimum requirements of the
confrontation clause) should also be more stringent and
protective of criminal defendants. For example, in Crawford v.
Washington (2004) 541 U.S. 35, the Court held that the
confrontation clause bars admission of any "testimonial"
AB 1723
Page 12
evidence unless (1) the witness is unavailable AND (2) the
defendant had prior opportunity to confront the prior
testimonial evidence. (Id. at 68.) Rarely does a hearsay
exception require a prior opportunity to confront the witness.
However, the Crawford opinion has been a source of some
confusion; for example, it did not really define what it meant
by "testimonial" evidence. (See e.g. California Law Revision
Commission, Miscellaneous Hearsay Exceptions: Forfeiture by
Wrongdoing (2008).) Moreover, the Crawford court simultaneously
recognized an exception to its own rule, adding the defendant
can, by his own "wrongdoing" forfeit the confrontation right on
"equitable grounds." (Id. at 62.) Two years later the Court
also recognized a forfeiture by wrongdoing exception in Davis v.
Washington (2006) 547 U.S. 813, stating that "one who obtains
the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation." (Id. at 833.) Giles II
also recognized a forfeiture by wrongdoing exception, even while
it decided in favor of the defendant. The Court specified,
however, that the exception only could apply where the
wrongdoing was done with the intent of procuring the
unavailability of the witness.
In short, both the confrontation clause and the hearsay rule are
animated by the same principle: that live testimony is more
reliable than hearsay because it is given under oath and it can
be subjected to cross examination. At the same time, however,
the courts have long recognized exceptions that have been
codified in both state and federal rules of evidence. But the
confrontation clause and the hearsay rule are not one and the
same. Evidence can be admitted in conformity with the
confrontation clause, but still be precluded for lack of an
appropriate hearsay exception. On the other hand, evidence can
be admitted under a statutory hearsay exception and still be
barred by the confrontation clause. A hearsay exception that
does not offer as much protection to the defendant as the
confrontation clause would be effectively void. Yet a state can
adopt hearsay rules that offer more protection to the defendant
than does the confrontation clause.
Prior Legislation and the California Law Revision Commission :
The Legislature last considered the questions presented by this
bill in 2007 with AB 268. Although that bill included other
changes to the Evidence Code that are not included in this bill,
it did contain to the two major substantive provisions in this
bill: (1) changing the definition of "unavailability of a
AB 1723
Page 13
witness" to include persistent refusal to testify even when
order by the court to do so; and (2) adopting a "forfeiture by
wrongdoing" hearsay exception modeled roughly on the Federal
Rules of Evidence. AB 268 failed to pass out of the Senate
Judiciary Committee, but the Committee Chair, Senator Ellen
Corbett, requested the California Law Revision Commission to
study these issues.
Recommendations of the California Law Revision Commission: On
the question of whether or not to expand the definition of
"unavailable as a witness" to include persistent refusal to
testify even when ordered to do so, the CLRC responded in the
affirmative. The CLRC noted that a witness who refuses to
testify even when ordered to do so is, for all practical
purposes, just as "unavailable" as a witness under any of the
other existing categories. For example, under existing law, a
witness is considered "unavailable" if the court was unable to
compel his or her attendance, or if the witness exercised a
right not to testify due to a recognized privilege (e.g. a
spousal privilege.) The CLRC added that, as a matter of case
law, California courts have already held that a person who
refused to testify out of fear for the safety of his family was
"unavailable" as a witness, but the court could only so only by
forcing the facts into one of the other definitional categories.
(See e.g. People v. Rojas, 15 Cal. 3d 540, holding that a
witness who refused orders to testify due to fears of violence
suffered from a temporary mental "infirmity" and was therefore
unavailable under Evidence Code Section 240(a)(3)-(4).)
Professor Miguel Mendez, a principle consultant to the CLRC, has
argued that it would be more straightforward to simply recognize
that a witness who persistently refuses to testify is
"unavailable" for all practical purposes, rather than forcing
the courts to force the facts into another definitional
category. The CLRC agreed, which is why it recommended the
definitional change that this bill now adopts. (See Miguel
Mendez, California Evidence Code - Part I, Hearsay and Its
Exceptions," 37 USFL Rev 251 (2005); and CLRC Miscellaneous
Hearsay Exceptions: Tentative Recommendation (October 2007; Id.
Final Recommendation, 2008).
While the CLRC saw the change in definition of "unavailability"
as fairly non-controversial, its final report offered no
recommendation on the question of whether California should
follow the Federal Rules of Evidence and the Evidence Codes of
about fourteen other states in adopting forfeiture by wrongdoing
AB 1723
Page 14
hearsay exception. Instead, the CLRC presented to the
Legislature four possible options:
Option 1 : Repeal California's existing, rarely used forfeiture
by wrongdoing exception (Section 1350, discussed above) and
replace it with a statute that tracks the constitutional
minimum for meeting the confrontation clause. (Though this
may entail waiting for further judicial guidance.)
Option 2 : Repeal Section 1350 and replace it with a provision
that tracks Federal Rule of Evidence 804(b)(6), which, as
noted above, simply permits the admission of 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."
Option 3 : Broaden Section 1350 so that it is not so narrowly
restricted, for example, by applying it to any wrongdoing
instead of only killing and kidnapping; eliminate the
requirement that the statement be memorialized in a police
recording or in a signed and notarized written statement.
Option 4 : Leave existing law as it is.
ARGUMENTS IN SUPPORT : According to the authors and sponsor,
California should follow the lead of the Federal Rules and a
growing number of states and adopt a workable and usable
forfeiture by wrongdoing hearsay exception, and it should expand
the definition of "unavailability" to include a witness who
persistently refuses to testify even when ordered to do so by a
court. Supporters contend that criminal defendants sometimes
kill, intimidate, or otherwise engage in wrongdoing in order to
eliminate potential witnesses against them, or they encourage
others to engage in such wrongdoing on their behalf. While
Evidence Code Section 1350 attempts to address these situations,
it applies to such a narrow set of circumstances and sets such
stringent requirements that prosecutors have given up trying to
use it. In addition, CDAA claims that because Section 1350 only
applies where a witness has been killed or kidnapped, it does
nothing to address the more common problem of witness
intimidation. The CDAA claims that intimidation can be present
in any criminal case, but it is especially prevalent in domestic
violence and gang-related activity. Finally, in order to
address the problem of intimidation, this bill also seeks to
define "unavailability" to include refusal to testify even when
AB 1723
Page 15
present and ordered to do so.
A number of law enforcement groups support this bill for
substantially the same reasons as those offered by CDAA. For
example, the California State Sheriffs' Association claims that
under current law "a criminal defendant is able to exclude many
hearsay statements of an unavailable victim or witness [who is]
unavailable to testify in court. AB 1723 would address this
very serious issue of witnesses [and] victims . . . being
intimidated or killed in order to prevent them from testifying."
The Riverside Police Officers' Association (RPOA) echoes the
concerns of other law enforcement groups when it asserts that
criminal gang activity is often accompanied by "attempts to
create intimidation in the community." RPOA also sees witness
intimidation in many domestic violence cases, "wherein, again,
the victim is often bullied, threatened, and pressured not to
testify."
The National Council of Jewish Women (NCJW) - which works with
domestic violence victims, among its many other community
services - supports this bill because it will, it believes,
address the situation in which a husband is charged with spousal
abuse and "then successfully intimidates the woman so that she
is no longer willing to testify."
ARGUMENTS IN SUPPORT (WITH ONE RESERVATION) : Professor Gerald
Uelmen, who has taught evidence law for more than forty years at
Santa Clara University School of Law, writes that "with one
reservation" he would "enthusiastically endorse" AB 1723.
First, Professor Uelmen supports expanding the definition of
"unavailability" to include persistent refusal to testify.
Consistent with the arguments made by Professor Mendez and the
CLRC (see above) this change will allow the courts to deal with
the intimidation problem "in a more rational and consistent
approach," instead of having to "strain logic" to fit the
problem into another definitional category. In addition,
Professor Uelmen argues that this change will bring California
"into conformity with the law of every other state and the
Federal Rules of Evidence." (The Committee staff has not been
able to verify whether this definition is used in "every other
state," though it may be so, but it does appear to be used in at
least the vast majority of states.)
In addition, Professor Uelman supports the effort to create a
forfeiture by wrongdoing hearsay exception this is broader than
AB 1723
Page 16
the existing Section 1350 and closer to the Federal Rules.
However, Professor Uelmen has a serous reservation about the
provision that would permit the use of hearsay evidence at the
foundational hearing. [See paragraph (2) on page 3 lines 13-18
of the bill in print.] According to Professor Uelmen, using
hearsay to determine whether or not the defendant procured the
unavailability of the declarant is a form of "boot-strapping"
that "is not allowed in any other provision of the California
Evidence Code." Professor Uelmen acknowledges the use of
hearsay is similarly allowed under Federal Rule 104(a), "the
drafters of the California Evidence Code explicitly rejected
this approach, and I believe their decision was correct."
Professor Uelmen suggest that the admissibility of hearsay under
the proposed new exception should be made pursuant to Evidence
Code Section 405, which provides generally preliminary questions
must be decided by the judge using evidence that meets the usual
tests of admissibility. (As noted in the analysis above, the
author and sponsor are aware of this objection, and in large
measure this is why the agreed the impose a sunset so that the
effect of this and other provisions of the bill can be revisited
by the Legislature after there is some evidence to show how this
approach will work in practice.)
ARGUMENTS IN OPPOSITION : This bill is opposed by the American
Civil Liberties Union (ACLU), the California Public Defenders
Association (CPDA), and the California Attorneys for Criminal
Justice (CACJ). In general, these groups claim that both
provisions of this bill - amending the definition of
"unavailability" and creating a new hearsay exception - will
unduly expand the use of inherently unreliable hearsay evidence
and, more than likely than not, is unconstitutional under the
Sixth Amendment's "confrontation clause."
ACLU argues that amending the definition of "unavailability" to
include persistent refusal to testify will not meet
constitutional muster under Giles v. California. (See
discussion of this case above.) For example, ACLU reads Giles
to hold that a person cannot be considered unavailable as
witness for refusal to testify unless such an exception was
recognized at common law at the time that the Sixth Amendment
was adopted.
CPDA claims that changing the definition of "unavailability"
would "justify the receipt of inadmissible hearsay evidence for
any person who 'persistently refused' to testify in a criminal
AB 1723
Page 17
matter despite a court's order to do so." (As noted above,
however, this bill does not provide that refusal to testify
justifies the admissibility of hearsay evidence; it only
provides that refusal to testify would meet the threshold
requirement that the witness is "unavailable." Other elements
of the hearsay exception will still need to be established.)
CACJ opposes the redefinition for "unavailability" for similar
reasons, but adds that the bill fails to define what
"persistent" means and therefore provides the court will no
objective criteria. For example, CACJ argues that it is unclear
whether "persistent refusal" would be based on the number of
times that the witness refused to testify, or upon the quality
of that refusal. CACJ recognizes that the change in definition
of "unavailability" will only address the threshold element for
those hearsay exceptions that require the unavailability of the
witness, but that "the obvious purpose behind this proposed
amendment to EC 240 is to create an opportunity introduce more
hearsay testimony into trials."
ACLU, CDPA, and CACJ oppose the second provision of this bill -
the creation of a new hearsay exception - for many of the same
reasons. ACLU and CACJ, for example, contend that this new
hearsay exception will not pass constitutional muster under the
more restrictive confrontation clause requirements established
by the U.S. Supreme Court in Crawford v. Washington (2004) 541
U.S. 36. In Crawford, CACJ contends, the U.S. Supreme Court
took the position that hearsay testimony that denies a criminal
defendant of his right to confront and cross-examine witnesses
violates the Sixth Amendment. Indeed, the position of ACLU,
CDPA, and CAJC appears to be that any hearsay exception is
potentially suspect under the confrontation clause, and that we
should be cautious about any changes that expand the opportunity
to admit hearsay evidence.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (sponsor)
California Gang Investigators Association (sponsor)
California State Sheriffs' Association
Chief Probation Officers of California
Crime Victims of California
Riverside Police Officers' Association
AB 1723
Page 18
California Probation, Parole and Correctional Association
Association of Los Angeles Deputy Sheriffs
Riverside Sheriffs' Association
National Council of Jewish Women California
National Council of Jewish Women, LA Section
Professor Gerald Uelman, Santa Clara University School of Law
(with reservation)
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334