BILL ANALYSIS
AB 1723
Page 1
ASSEMBLY THIRD READING
AB 1723 (Lieu and Emmerson)
As Amended April 8, 2010
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Hill, Hagman, Huffman, | | |
| |Knight, Skinner, Monning, | | |
| |Nava | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
AB 1723
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later enacted statute, that is enacted before January 1, 2016,
deletes or extends that date.
FISCAL EFFECT : None
COMMENTS : According to the sponsor, the California District
Attorneys Association (CDAA), "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.
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 include
intimidation of a witness - 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.
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
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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
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.
Second, this bill would create, as an alternative to the
existing Evidence Code Section 1350, which only applies if the
witness is killed or kidnapped, requires that the hearsay
statement is one that has been memorialized in a tape recording
or a notarized written statement, and requires other
pre-conditions that, according to the sponsor, makes using
Section 1350 all but impossible. The hearsay exception proposed
by this bill, on the other hand, is more general and permissive.
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 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 on 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. 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.
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Although modeled on the forfeiture by wrongdoing hearsay
exception in the Federal Rules of Evidence, the exception
created by this bill differs in one important respect. The
federal rules permit the hearsay exception to be used against a
party who "engaged or acquiesced in" the wrongdoing that
procured the unavailability of the witness, while the exception
created in this bill would only apply to a party who "engaged
in, or knowingly approved of" the wrongdoing. Thus, unlike the
federal rules, this bill requires that the party against whom
the exception will be used has taken some affirmative steps in
support of the wrongdoing, whereas the federal rules permit its
use against a party who simply reacts passively while others
commit the wrongdoing on his or her behalf. The hearsay
exception in this bill is also more specific than the federal
rule as to the procedure to be followed in establishing the
wrongdoing, but this more specific language mirrors language in
the commentary to the Federal Rules of Evidence and federal case
law interpreting the exception.
Finally, recognizing that this bill creates an unusual and
somewhat unprecedented expansion of hearsay exceptions in the
California Evidence Code, the author has agreed to have the
legislation sunset as of January 1, 2016, so that the
Legislature can revisit the issue at that time and evaluate the
equities of this quite substantial change to California evidence
law.
According to supporters, 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
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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 present and ordered to do
so.
Opponents contend 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." Opponents also express concern about the provision in
the bill that permits the use of hearsay, included the contested
statement, at the foundational hearing. The author and sponsor
respond that hearsay is permitted at the foundational hearing
under the federal rules and that they have added a sunset in
order to permit evaluation of this aspect, among others, of the
legislation.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003900