BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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7
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AB 1723 (Lieu) 3
As Amended April 8, 2010
Hearing date: June 22, 2010
Evidence Code
MK:mc
EVIDENCE: ADMISSIBILITY OF STATEMENTS
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 268 (Calderon) - 2007, amended to be
different subject matter while in Senate
Judiciary Committee
AB 2093 (Karnette) - 2006, failed Assembly Public
Safety
AB 141 (Cohn) - Chapter 116, Stats. 2004
SB 1876 (Solis) - Chapter 261, Stats. 1996
Support: Los Angeles District County Attorney's Office;
California Partnership to End Domestic Violence;
California Crime Victims Assistance Association; Los
Angeles City Attorney; National Council of Jewish
Women; Crime Victims United of California; Riverside
Sheriffs' Association; Association for Los Angeles
Deputy Sheriffs; Riverside Police Officers'
Association; California Probation, Parole and
Correctional Association; Chief Probation Officers of
California; California State Sheriffs' Association;
California Gang Investigators Association; Bay Area
Women Against Rape
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Opposition:California Public Defenders Association; American
Civil Liberties Union; California Attorneys for
Criminal Justice; Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUES
SHOULD THE DEFINITION OF "UNAVAILABLE AS A WITNESS" BE EXPANDED TO
INCLUDE A PERSON WHO IS PERSISTENT IN REFUSING TO TESTIFY CONCERNING
THE SUBJECT MATTER OF THE DECLARANT'S STATEMENT DESPITE AN ORDER
FROM THE COURT TO DO SO?
SHOULD A NEW HEARSAY EXCEPTION BE CREATED IN CALIFORNIA FOR
SITUATIONS WHEN 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?
PURPOSE
The purpose of this bill is to create a new hearsay exception
for forfeiture by wrongdoing and to expand the definition of
"unavailable as a witness."
Existing law defines "unavailable as a witness," for purposes of
the Evidence Code, to include a declarant who is:
exempted or precluded on grounds of privilege from
testifying concerning the matter to which his or her
statement is relevant;
disqualified from testifying to the matter;
dead or unable to attend or testify because of physical
or mental illness or infirmity;
physically absent and the court is unable to compel
attendance;
physically absent even though the proponent has
exercised reasonable diligence but has been unable to
procure his or her attendance by the court process.
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(Evidence Code 240 (a).)
Existing law 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 240 (b).)
This bill provides that a witness is also unavailable if he or
she is persistent in refusing to testify concerning the subject
matter of the declarant's statement despite an order of the
court to do so.
Existing law 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).)
Existing law 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. Existing law
specifies that except as provided by law, hearsay evidence is
inadmissible. (Evidence Code 1200.)
Existing law 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 1204.)
Existing law 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
official records, and other recorded statements or published
writings, as specified. (Evidence Code 1220 through 1341.)
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Existing law 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. Existing law 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 1350.)
Existing law 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.
Existing law requires the proponent of the statement to provide
the adverse party with advance notice in order to provide the
adverse party with a fair opportunity to prepare to meet the
statement. (Evidence Code 1360.)
Existing law 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 1370.)
Existing law 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
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circumstances which indicate its trustworthiness, and the
victim, at the time of the proceeding or hearing, suffers from
the infirmities of advanced age or other form of organic brain
damage, or other physical, mental, or emotional dysfunction.
(Evidence Code 1380.)
This bill 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. The party seeking
to introduce such a statement must establish at a foundational
hearing by a preponderance of the evidence that the elements
have been met.
This bill provides that hearsay evidence, including the hearsay
evidence that is subject of the foundational hearing, is
admissible at the foundational hearing. However, a finding that
the elements 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.
This bill provides that 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 are met.
This bill provides that the hearsay exception it creates sunsets
on January 1, 2016.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
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reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
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have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Witnesses to a crime, and crime victims are frequently
intimidated or killed in order to prevent them from
testifying. Even under the current law, a criminal
defendant is able to exclude many hearsay statements by
-----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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making the victim or witness unavailable to testify.
This is true even though the defendant is the very
person who is responsible for the victim or witness
being unavailable to testify in court.
AB 1723 seeks to address this situation by adopting a
new forfeiture by wrongdoing hearsay exception. Under
the hearsay rule an out-of-court statement cannot be
admitted as evidence if introduced to prove the truth of
the matter asserted. 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. The hearsay exception
known as forfeiture by wrongdoing, upheld as
constitutionally acceptable by the U.S. Supreme Court,
permits 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 twenty-one
states. California has a hearsay exception that applies
only to cases of murder and kidnap, but this exception
has such stringent requirements that it is never used.
AB 1723 creates a forfeiture by wrongdoing hearsay
exception more consistent with federal rules but not
identical to them. This bill would also amend the
statutory definition of unavailable as a witness to
include a witness who persistently refuses to testify
even when ordered to do so by a court, again consistent
with federal rules and California case law. While the
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, we believe that amendments taken in the
Assembly address and lessen some of their concerns.
Specifically, a five-year sunset clause was added to
allow the Legislature the opportunity to later evaluate
whether the unintended negative consequences predicted
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by the opponents will actually come to pass.
If a witness refuses to testify for fear of their life,
it is inexcusable to allow a defendant to benefit from
that conduct. AB 1723 will ensure that prosecutors can
properly administer justice for victims.
2. The Hearsay Rule
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.
3. Forfeiture by Wrong Doing in Existing Law
The California District Attorneys Association (CDAA) points out
that under the Federal Rules of Evidence, as well as a number of
other states' evidence codes, out of court statements can 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
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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 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,
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 take that statement to a notary public to be
notarized, a prosecutor might have grounds to invoke Section
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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. Even if the requirements could be met, Section 1350
only applies to 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.
The key issue before the U.S. Supreme Court in Giles v.
California (2008) 128 S. Ct. 2678 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 the
witness's unavailability was caused by the wrongdoing of the
defendant, whether the defendant had killed 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, 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 that if the
prosecution's argument were carried to its logical conclusion,
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.
4. Forfeiture by Wrongdoing Provisions in This Bill
This bill would create, as an alternative to the existing
Section 1350, a more general forfeiture by wrongdoing hearsay
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exception. 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 "engaged in or knowingly approved of
wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a 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 provides:
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;
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
That the foundational hearing must be conducted outside
of the presence of the jury, but the judge may consider
evidence that was already presented to the jury.
This 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, there may no longer be any reason for
a party to seek admission under Section 1350, even if it
involved killing or kidnapping.
5. 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, there are
differences between this bill and Federal Rule 804(b)(6). The
Federal Rule, stating that a statement is not excluded by the
hearsay rule if it is:
A statement offered against a party that has engaged or
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acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a
witness.
As discussed in Comment 6, 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 another
difference between this bill and the federal rule. The 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, amendments in the Senate
Judiciary Committee have replaced "engaged or acquiesced in"
with "engaged in, or knowingly approved of " the wrongdoing.
The Senate Judiciary Committee analysis states that this
amendment was taken at the request of the Chair of that
Committee after he had met with the opponents and states that
the amendment would require the defendant to take some sort of
affirmative action in the wrongdoing which might not be required
with the term "acquiesced."
a. Supporters.
Supporters of this bill argue that the exception created by
this bill largely parallels the Federal Rules of Evidence and
is similar to hearsay exceptions existing in numerous other
states.
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CDAA states:
Witnesses to, or victims of, crimes are being
intimidated or killed in order to prevent them from
testifying; and under the current law, a criminal
defendant is able to exclude many hearsay statements
of an unavailable victim or witness even though the
defendant is the very person who is responsible for
the victim or witness being unavailable to testify in
court. This legislation would help prevent this
injustice ?
Professor Tom Lininger, Elmer Sahlstrom Senior Fellow,
University of Oregon School of Law, says in response to some
of the opposition arguments raised below:
The use of hearsay, including the victim's hearsay
statements is absolutely essential to providing the
wrongdoers' attempts to procure the victims'
unavailability at trial. Stricter foundational
requirements would reward the very tactics that AB
1723 strives to counteract.
I have carefully examined the statutes in various
states that adopted to codify the doctrine of
forfeiture by wrongdoing. The vast majority of
states adopting this doctrine have not prohibited the
use of hearsay in foundational hearings. I am not
aware of any abuses that occurred as a result of such
statutes. The concern about "bootstrapping" arose
sometimes in legislative hearings, but legislatures
generally opted to follow the federal approach
notwithstanding such concerns, and the concerns never
materialized after the adoption of the statutes.
The California District Attorneys Association further states:
It is critical that a judge be able to consider
hearsay, including the statement itself, in deciding
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whether to admit the statements of a witness who has
been killed or deterred from testifying by the actions
of the defendant. Without being able to do so, the
already extremely difficult burden of proving all the
elements of the proposed section 1390 becomes almost
impossible to overcome. AB 1723 already is more
restrictive than the forfeiture by wrongdoing hearsay
exception explicitly approved by the United States
Supreme Court and all but one of the comparable
exceptions existing in the 21 other states and Guam.
With one exception, every other state that has a
forfeiture by wrongdoing exception permits the use of
hearsay at the foundational hearing. There is no
evidence of any abuse or problems arising from this
fact. Indeed, the vast majority of states permit the
use of hearsay at any foundational hearing on the
admissibility of hearsay. Without weighing in on the
merits of whether hearsay should be admissible at
foundational hearings in general, there is a very good
reason for allowing it in when it comes to the
forfeiture by wrongdoing hearsay exception. Unlike
like other hearsay exceptions, the forfeiture by
wrongdoing exception is based on equitable principles
designed "to deal with abhorrent behavior which
strikes at the heart of the system of justice itself"
(Fed.R.Evid. 804(b)(6) advisory committee note) and to
"further the truth-seeking function of the adversary
process, allowing fact finders access to valuable
evidence no longer available through live testimony"
(Commonwealth v. Edwards (2005) 830 N.E.2d 158, 167).
Prohibiting hearsay at the foundational hearing
effectively rewards the very tactics that AB 1723
seeks to prevent. (Emphasis in original)
b. Opponents.
Opponents argue that the hearsay exception in this bill goes
beyond the Giles case. CACJ states:
EC 1390 goes beyond the holding in Giles by creating
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a new hearsay exception based on "forfeiture by
wrongdoing." However, Giles is expressly clear that
because a showing of "forfeiture by wrongdoing" has
been made does not make the hearsay evidence
admissible. The forfeiture finding only bars the
defendant's confrontation clause objection but it
does not bar statutory objections under the Evidence
Code. Having overcome the defendant's confrontation
clause objection, the prosecution must still cite the
court to a hearsay exception that would allow the
unavailable declarant's statement to be admissible.
The opinion in Giles does not support the new hearsay
exception sought to be created by 1390. (Emphasis in
original)
Opponents further argue that while Giles recognized the
language from the federal law, it stated that the requirement
of intent means that the exception applies only if the
defendant has in mind the particular purpose of making the
witness unavailable. (Giles at 2687.)
Opponents also point out that the burden of proof for Evidence
Code Section 1350 is clear and convincing, while the burden in
this bill is by a preponderance. Whether preponderance of the
evidence is the appropriate standard is still arguably
unsettled law. Opponents argue that this will create a
inconsistency not based on the evidence itself, but on the
unavailability of the defendant.
Another concern of defendants is that under this bill, for the
first time, California will be permitting hearsay to be used
as a foundation for determining whether another hearsay
statement should be admitted. While supporting the creation
of the forfeiture by wrongdoing exception Professor Gerald
Uelmen of the University of Santa Clara, School of Law, states
that he opposes the provision of the new section that would
allow hearsay evidence as a foundation. Specifically, he
states:
The single reservation I have is with Section
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1390(b)(2) in Section 2 of the bill. This would
allow California judges to consider otherwise
inadmissible hearsay evidence in determining the
preliminary foundation question of whether the
defendant engaged or acquiesced in wrongdoing that
was intended to, and did, procure the unavailability
of the declarant as a witness. This sort of
"bootstrapping" is not allowed in any other provision
of the California Evidence Code. Although the
Federal Rules permit it under Rule 104(a). The
drafters of the California Evidence Code explicitly
rejected this approach, and I believe their decision
was correct. The admissibility of evidence under
Section 1390 should be made pursuant to Section 405
of the California Evidence Code, just as all other
preliminary question decided by the judge are
decided, utilizing evidence that is admissible under
the Evidence Code to make the determination. There is
not justification to open the door to
"boot-strapping" here, when we reject it under every
other hearsay exception and every other situation
under the California Evidence Code where the
admissibility of evidence depends upon the resolution
of a preliminary question by the judge.
6. Expanding the Definition of "Unavailable as a Witness"
This bill would expand the definition of "unavailable as a
witness" in Evidence Code Section 240 by including "persistent
refusal" to testify even when ordered to do so by a court. The
California District Attorneys Association states that this
definitional change is being proposed:
In order to effectively implement the new hearsay
exception, a corollary amendment to Evidence Code
section 240, which defines what it means for a witness
to be unavailable, is also being proposed. The proposed
amendment essentially codifies existing California case
law and expands the statutory definition of unavailable
to include a declarant who is present at the hearing but
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refusing a court order to testify, notwithstanding the
imposition of sanctions. This amendment also parallels
one of the existing definitions of unavailability under
the Federal Rules of Evidence (see F.R.E. 804(a)(2)) and
practically every other state's evidence code.
Professor Gerald Uelmen of the University of Santa Clara School
of Law states in support of this provision of the bill:
The expansion of the Evidence Code Section 240
definition of unavailable witness corrects an oversight
that has long haunted the California Evidence Code and
brings it into conformity with the law of every other
state and the Federal Rules of Evidence. California
Courts have struggled with an implausible expansion of
"mental illness or infirmity" to deal with this
oversight which strains logic, and the change brought by
AB 1723 will allow a more rational and consistent
approach to the problems presented by uncooperative
witnesses.
Opponents disagree that the new language in Evidence Code
Section 240 merely codifies existing state law. They believe
that the terms "persistent in refusing" are vague and could
receive a wide interpretation by the courts. They also note
that the language does not require the imposition of sanctions
by the court as CDAA asserts but merely requires the court to
order a person to testify.
Opposition further asserts that the expansion of the definition
of "unavailable as a witness" may lead to potential violations
of the 6th Amendment right to confrontation. Specifically,
California Attorneys for Criminal Justice states:
It is obvious that he purpose behind this proposed
amendment to EC 240 is to create an opportunity to
introduce more hearsay testimony into trials.
Specifically, hearsay in cases where the recognized
hearsay exception requires an element of unavailability
of the witness before her/his out of court statement may
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be offered under the appropriate hearsay exception ?
.[D]uring the past six years since Crawford v.
Washington (2004) 541 U.S. 36, 124 S. Ct. 1354 the
United States Supreme Court has repeatedly taken the
position that hearsay testimony which denies a
criminally accused defendant her/his right to
confrontation violates the Sixth Amendment to the United
States Constitution and therefore is illegal. Any
attempt to increase the number of hearsay statement
admitted into evidence in a criminal trial against the
accused is highly likely to run afoul of the rule in
Crawford and its growing progeny and so it is with AB
1723's amendment to EC 240.
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Supporters reply that unavailability is just the first step and
a hearsay exception still has to be found before a statement is
admitted; therefore, the expansion of Evidence Code Section 240
would not violate Crawford.
Opponents also argue that the expansion of Evidence Code 240
will aid those who file false police reports to gain advantage
in a case, such as custody, or to get back at a neighbor, rival
gang member, et cetera, then later refuse to testify in court as
to the report at times to protect the actual perpetrator. The
California Public Defenders Association believes:
AB 1723 would lead to more convictions of factually
innocent people who are willing to or more likely are
being threatened to take the rap for the actual
perpetrator, particularly when charges involve violence
or injury to a child. AB 1723 exploits the reality that
human nature motivates the trier of fact to hold someone
accountable, even if that person is innocent.
7. Prior Legislation and the California Law Revision
Commission (CLRC)
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
witness" to include persistent refusal to testify even when
ordered 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 (CLRC)
to study these issues.
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
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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 despite being held in
contempt of court due to fears of violence suffered from a
temporary mental "infirmity" and was therefore unavailable under
Evidence Code Section 240(a)(3)-(4).) The CLRC recommended that
California's provision on unavailability be amended. (CLRC
Miscellaneous Hearsay Exceptions: Tentative Recommendation
(October 2007; Id. Final Recommendation, 2008.)
http://clrc.ca.gov/pub/Printed-Reports/REC-K600-Forfeiture.pdf
page 465)
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
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
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"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.
8. Sunset
This bill has as sunset date of January 1, 2016. Although
sunsetting an Evidence Code provision could cause some
uncertainty and confusion in the future as to what rules
will apply in a trial, it was requested by the Chair of the
Judiciary Committee.
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