BILL ANALYSIS �
AB 1610
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CONCURRENCE IN SENATE AMENDMENTS
AB 1610 (Bonta)
As Amended August 18, 2014
Majority vote
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|ASSEMBLY: |75-0 |(April 24, |SENATE: |32-0 |(August 21, |
| | |2014) | | |2014) |
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Original Committee Reference: PUB. S.
SUMMARY : Provides that if a defendant has been charged with
human trafficking, and there is evidence that the victim or a
material witness is being dissuaded from testifying at trial, as
specified, the people or the defendant, if the defendant has
been fully informed of his or her right to counsel as provided
by law, may have a witness examined conditionally.
The Senate amendments :
1)Provide that if there is a reasonable basis to believe that a
material witness will not attend the trial because he or she
is under the direct control of the defendant or another person
involved in human trafficking and, by virtue of this
relationship, the defendant or other person seeks to prevent
the witness from testifying, and if the defendant is fully
informed of his or her right to counsel, the court may have
the witness examined conditionally.
2)Delete the circumstance where there is evidence that the life
of the witness is in jeopardy as grounds for the ordering of a
conditional examination.
3)Recast the Assembly version of the bill.
EXISTING LAW :
1)Provides that when a defendant has been charged with any
crime, he or she in all cases, and the people in cases other
than those for which the punishment may be death, may if the
defendant has been fully informed of his right to counsel, may
have witnesses examined conditionally in his or her or their
behalf, as prescribed.
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2)States that when a defendant has been charged with a serious
felony, as defined, or in a case of domestic violence, the
people or the defendant may, if the defendant has been fully
informed of his right to counsel, as provided by law, have a
witness conditionally examined if there is evidence that life
of the witness is in jeopardy.
3)States that when a material witness for the defendant, or for
the people, is about to leave the state, or is so sick or
infirm as to afford reasonable grounds for apprehension that
he or she will be unable to attend the trial, or is a person
65 years of age or older, or is a dependent adult, the
defendant or the people may apply for an order that a witness
be examined conditionally.
4)Provides that when there is evidence that the life of a
witness is in jeopardy, the defendant or the people may apply
for an order that the witness be examined conditionally.
5)Provides that if the court or judge is satisfied that the
examination of the witness is necessary, an order must be made
that the witness be examined conditionally, at a specified
time and place, before a designated magistrate.
6)States that the defendant has the right to be present in
person and with counsel at the examination, and if the
defendant is in custody, the officer in whose custody he is,
must take the defendant to the deposition and keep him in the
presence and hearing of the witness during the examination,
and if the court determines that the witness to be examined is
so sick or infirm as to be unable to participate in the
examination in person, the court may allow the
examination to be conducted by a contemporaneous, two-way video
conference system in which the parties and the witness can see
and hear each other via electronic communication.
7)Provides that the testimony given by the witness shall be
reduced to writing and authenticated, as specified.
Additionally, the testimony may be video-recorded.
8)Provides that, after a deposition is taken, if the court finds
witness is unavailable at trial, as specified, the deposition
may be read into the record, or if videotaped, that tape may
be played at trial by either party and the same objections may
be taken to a question or answer contained in the deposition
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or video-recording as if the witness had been examined orally
in court.
AS PASSED BY THE ASSEMBLY , this bill:
1)Provided that if a defendant has been charged with human
trafficking, as specified, the people or the defendant, if the
defendant has been fully informed of his or her right to
counsel as provided by law, have a witness examined
conditionally if any of the following apply:
a) There is evidence that the witness has been threatened
or dissuaded from testifying at trial by the defendant or a
person acting on behalf of the defendant; and
b) The court finds there is a reasonable basis to believe
that the witness will not attend the trial.
FISCAL EFFECT : According to the Senate Appropriations
Committee, unknown, likely minor, trial court costs to the
extent conditional examinations require additional court time.
(There were 41 commitments to state prison between 2009-2012. )
COMMENTS : According to the author, "Recently in Orange County,
at least one victim of human trafficking was murdered and
multiple juvenile victims received implicit threats from people
inside the community, all while the defendants remained behind
bars.
"AB 1610 allows for a conditional examination when a material
witness is a victim of, or witness to, a felony prosecution
involving human trafficking, commercial sex acts, or forced
labor or services. In much the same way that the elderly,
infirm, and transitory populations are afforded the opportunity
to testify early in case their status renders them unavailable
at the time of trial, AB 1610 does the same for victims of human
trafficking by giving the people and defendant the opportunity
to conditionally examine the witness in order to preserve his or
her testimony.
"Once a victim of human trafficking is threatened pre-trial or
moved outside the local jurisdiction, it could be too late to
capture his or her testimony, resulting in cases being dismissed
for lack of evidence and offenders getting away with abuse
simply because the testimony of the witness was not obtained
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soon enough.
"AB 1610 is a fairly simple fix to this potentially enormous
problem. The bill simply provides a means to preserve evidence.
Existing law provides that, after a conditional examination is
conducted, if the court finds the witness is unavailable at
trial, the deposition may be read into the record or, if
video-taped, that tape may be played at trial by either party
and the same objections may be taken to a question or answer
contained in the deposition or video-recording as if the witness
had been examined orally in court. (Penal Code Section 1345)
Therefore, this law is not intended to replace the court
examination; it's simply a "back up" of sorts to ensure the
preservation of testimony in cases where the victim-witness
later becomes unavailable.
"The conditional exam is more important than ever because it
provides the only avenue to preserve important testimony that
may not be available at the time a criminal case finally goes to
trial."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744
FN: 0005130