BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1723|
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THIRD READING
Bill No: AB 1723
Author: Lieu (D) and Emmerson (R)
Amended: 7/15/10 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-1, 6/29/10
AYES: Leno, Cogdill, Hancock, Huff, Steinberg, Wright
NOES: Cedillo
ASSEMBLY FLOOR : 73-0, 4/22/10 - See last page for vote
SUBJECT : Evidence: admissibility of statements
SOURCE : California District Attorneys Association
DIGEST : This bill creates a new hearsay exception for
forfeiture by wrongdoing and to expand the definition of
unavailable as a witness.
ANALYSIS : Existing law defines unavailable as a witness,
for purposes of the Evidence Code, to include a declarant
who is:
1. Exempted or precluded on grounds of privilege from
testifying concerning the matter to which his or her
statement is relevant;
2. Disqualified from testifying to the matter;
3. Dead or unable to attend or testify because of physical
CONTINUED
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or mental illness or infirmity;
4. Physically absent and the court is unable to compel
attendance;
5. Physically absent even though the proponent has
exercised reasonable diligence but has been unable to
procure his or her attendance by the court process.
(Evidence Code Section 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
Section 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 having
been found in contempt for refusal to testify.
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
Section 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 Section
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 Section 1204.)
Existing law enumerates several "hearsay exceptions" that
permit the admission of hearsay statements where the
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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 Sections 1220 through 1341.)
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 Section
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 Section 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
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law enforcement official; and was made under circumstances
that would indicate its trustworthiness. (Evidence Code
Section 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 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 Section 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 or aided or a
betted in the 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 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 in deciding whether or not to admit
the statement, the judge may take into account whether it
is trustworthy and reliable. This bill provides that this
section shall apply to any civil, criminal, or juvenile
case or proceeding initiated or pending as of January 1,
2011.
This bill provides that if this section is repealed, the
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fact that it is repealed should it occur, shall not be
deemed to give rise to any ground for an appeal or a post
verdict challenge based on its use in a criminal or
juvenile case or proceeding before January 1, 2016.
This bill provides that the hearsay exception it creates
sunsets on January 1, 2016.
Background
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/3/10)
California District Attorneys Association (source)
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Association for Los Angeles Deputy Sheriffs
Bay Area Women Against Rape
California Coalition Against Sexual Assault
California Crime Victims Assistance Association
California Gang Investigators Association
California Partnership to End Domestic Violence
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
Crime Victims United of California
Los Angeles City Attorney
Los Angeles District County Attorney's Office
National Council of Jewish Women
Riverside Police Officers' Association
Riverside Sheriffs' Association
OPPOSITION : (Verified 8/3/10)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : 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. 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."
The California District Attorneys Association further
states, "It is critical that a judge be able to consider
hearsay, including the statement itself, in deciding
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
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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)."
ARGUMENTS IN OPPOSITION : 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 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
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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 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."
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Tom Berryhill, Blakeslee, Block,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Jeffries, Jones, Knight, Lieu, Bonnie Lowenthal, Ma,
Mendoza, Miller, Nava, Nestande, Niello, Nielsen, Norby,
V. Manuel Perez, Portantino, Ruskin, Salas, Saldana,
Silva, Skinner, Smyth, Solorio, Audra Strickland,
Swanson, Torlakson, Torres, Torrico, Tran, Villines,
Yamada, John A. Perez
NO VOTE RECORDED: Blumenfield, Caballero, Huber, Huffman,
Logue, Monning, Vacancy
RJG:do 8/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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