BILL ANALYSIS �
AB 1958
Page 1
Date of Hearing: May 6, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1958 (Maienschein) - As Introduced: February 19, 2014
SUMMARY : Prohibits a criminal defendant from introducing a
hearsay statement or other conduct that is inconsistent with
another hearsay statement by the defendant that has been
introduced as evidence at trial by the prosecution.
EXISTING LAW :
1)Provides that hearsay evidence is inadmissible unless it
satisfies the requirements of one of the specified exceptions
to the hearsay rule. (Evid. Code, � 1200, subd. (b).)
2)Defines "hearsay" as "a statement that was made other than by
a witness while testifying at the hearing and that is offered
to prove the truth of the matter stated. (Evid. Code, � 1200,
subd. (a).)
3)Contains various exceptions to the hearsay rule. (See e.g.
Evid. Code, �� 1220-1370.)
4)Defines a "declarant" as a person who makes a statement.
(Evid. Code, � 135.)
5)Allows a hearsay declarant to be impeached by inconsistent
statements in all cases. (Evid. Code, � 1202.)
6)Allows a witness to be impeached with a prior inconsistent
statement. (Evid. Code, � 1235.)
7)States that all relevant evidence is admissible unless
excluded by statute. (Evid. Code, � 351.)
8)Prohibits the admission of irrelevant evidence. (Evid. Code, �
350.)
9)Gives the court discretion to exclude otherwise admissible
AB 1958
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evidence if its probative value is substantially outweighed by
the probability that its admission will create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evid. Code, � 352.)
10)Requires the admissibility of all relevant evidence in all
criminal proceedings, except for any existing statutory rule
of evidence relating to privilege, hearsay, or to specified
Evidence Code provisions. (Cal. Const. art. I, � 28(f)(2).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recognizing
that this issue in the unique context of a criminal defendant
flies in the face of common sense and the legal underpinnings
of the rule, the Court of Appeal for the Second Appellate
District in People v. Baldwin (2010) 189 Cal.App.4th 991,
asked the Legislature to remedy this problem. The adversarial
process of the defendant having the right to take the stand
and explain or deny an admission of guilt, subject to
cross-examination and credibility determinations by the jury,
should continue to be the method by which the truth of
evidence is judged.
"AB 1958 expressly states that Evidence Code �1202, which allows
for the limited admission of hearsay evidence, does not apply
to criminal defendants seeking to attack their own credibility
as hearsay declarants."
2)Impetus for this Bill : In People v. Baldwin (2010) 189
Cal.App.4th 991, appellant was placed in a cell with his
accomplices following his arrest for murder and conspiracy to
commit murder, as well as an individual not involved in the
murder. The cell was equipped with recording devices and
numerous statements by appellant were recorded and introduced
by the prosecution as party admissions. (Id. at pp. 996-997,
1002.) Appellant sought to introduce other inconsistent
statements in which he claimed he was present when the killing
occurred, but was not the shooter. But the trial court ruled
the inconsistent statements could not come into evidence
unless appellant testified. (Id. at p. 1002.)
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The appellate court held that under Evidence Code section 1202,
the hearsay declarant's unavailability is not a condition for
introduction of the declarant's inconsistent statements
offered for impeachment. The court came to this conclusion
based on the clear language of the statute. Appellant should
have been allowed to introduce other impeaching statements
even though he was available to testify. (Id. at pp.
1002-1003.)
The appellate court agreed that "at first blush, [this was] an
odd result: the language permits a criminal defendant to
attack his own credibility as a hearsay declarant (here, as a
declarant in his own confession) by offering evidence of an
inconsistent statement (here, a denial of culpability made to
the police), even though the defendant is available to testify
for the defense but cannot be called by the prosecution to be
attacked by the prosecution to be examined about the
inconsistent statement. Nonetheless, the statute's plain
language permits the credibility of any hearsay declarant to
be attacked by the introduction of an inconsistent statement
made by the declarant, and we cannot say that this result is
so incongruous as to create an absurdity justifying a
departure from the statutory language." (Id. at p. 1004.)
But, the court urged the Legislature to examine whether Evidence
Code section 1202 should be amended to exclude criminal
defendants seeking to attack their own credibility as
declarants. (Id. at p. 1005, fn. 11.)
3)Constitutional Implications : Under the United States and
California Constitutions, a defendant has a due process right
to present a defense. (U.S. Const., 5th, 6th, & 14th Amends;
Cal. Const., art. I, 7, 15-16; Crane v. Kentucky (1986) 476
U.S. 683, 690 [the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense]; Davis
v. Alaska (1974) 415 U.S. 308, 317.) A defendant is
constitutionally entitled to present all relevant evidence of
significant probative value in his favor. (People v. Marshall
(1996) 13 Cal.4th 799, 836; People v. Burrell-Hart (1987) 192
Cal.App.3d 593, 599.) Relevant evidence includes evidence
affecting the credibility of a witness. (People v. Green
(1980) 27 Cal.3d 1, 19.)
Even so, relevant evidence may be excluded under Evidence Code
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section 352 if the trial court in its discretion concludes
"'its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the
jury.'" (People v. Minifie (1996) 13 Cal.4th 1055,
1069-1070.)
This type of evidence would be particularly important in cases
where a defendant claimed his confession or admission was
coerced or where the prosecution was relying on the testimony
of an informant or an accomplice. However, if this bill was
enacted, the defendant would be forced to choose between
presenting relevant evidence in his defense and the
constitutional right not to testify. The Fifth Amendment to
the U.S. Constitution provides, in pertinent part, "No person
?. shall be compelled in any criminal case to be a witness
against himself?." (U. S. Const., Amend. V; see also Cal.
Const., art. I, � 15.) By testifying in his own defense, a
defendant relinquishes his privilege against compelled
self-incrimination with respect to cross-examination on
matters within the scope of the testimony he provides, as well
as on matters that impeach his credibility as a witness.
(People v. Stanfill (1986) 184 Cal.App.3d 577, 581; People v.
James (1976) 56 Cal.App.3d 876, 887-888; see People v.
Gallagher (1893) 100 Cal.466, 475; see also People v. Schader
(1969) 71 Cal.2d 761, 771; see generally 2 Witkin, Cal.
Evidence (4th ed. 2000) Witnesses, � 428, p. 730.)
It should be noted that under the current rules of evidence, the
trial court retains the discretion to disallow the evidence if
it finds that the evidence creates a substantial danger of
undue prejudice, of confusing the issues, or of misleading the
jury. (Evid. Code, � 352.) Additionally, the jury is free to
conclude that the evidence offered by the defendant is
self-serving, and therefore reject it.
4)Distinction Between Prior Inconsistent Statements of Witnesses
and Hearsay Declarants : Evidence Code section 1235 allows
prior inconsistent hearsay statements made by a witness who
testifies at trial. If the witness does not testify at trial,
then Evidence Code section 1235 does not apply. This section
provides in effect that a prior inconsistent statement of a
witness is admissible not only to impeach his credibility but
also to prove the truth of the matters asserted therein.
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(People v. Fierro (1991) 1 Cal.4th 173, 221; People v.
Williams (1976) 16 Cal.3d 663, 668-669.)
Evidence Code section 1202, on the other hand, permits the
admission of evidence of another hearsay statement or the
conduct of a hearsay declarant who does not testify at trial
to impeach that declarant's credibility. This evidence is
admissible only for impeachment purposes. (People v.
Williams, supra, 16 Cal.3d at p. 669.)
This bill amends only Evidence Code section 1202, and so applies
only in cases with non-testifying defendants. If the
defendant does testify at trial, Evidence Code section 1235
would apply.
5)Effect of Proposition 8 : The truth in evidence provision of
Proposition 8, effective June 8, 1982, calls for the
admissibility of all relevant evidence in all criminal
proceedings, except for any existing statutory rule of
evidence relating to privilege, hearsay, or to Evidence Code
sections 352, 782 or 1103. (Cal. Const. art. I, � 28(f)(2).)
The provisions of this bill seek to exclude relevant evidence
and change provisions relating to hearsay evidence as they
existed at the time Proposition 8 was passed.
6)Argument in Support : According to the San Diego County
District Attorney , a co-sponsor of this bill, "EC 1202 permits
a criminal defendant to present his own statements of denial
after the People present evidence of either his confession or
statements admitting guilt. The defendant is therefore able
to offer protestations of his innocence under EC 1202 to
impeach himself as a hearsay declarant. This includes the
ability to introduce statements made to friends, family, or
criminal associates denying the defendant's guilt, all without
ever having to take the witness stand and expose himself to
cross examination. EC 1202 essentially allows a defendant to
put on a case without the prosecution having a right to
cross-examination and impeachment. Recognizing a problem with
this, the Court of Appeal for the Second Appellate District in
People v. Baldwin (2010) 189 Cal.App.4th 991, asked the
Legislature to remedy this problem.
"Lastly, it is important to note that criminal justice resources
are currently being wasted in motions and appeals from
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defendants that were not allowed to 'attack their credibility'
with subsequent self-serving statements. Amending EC 1202
will make it clear that criminal defendants cannot attack
their own credibility without answering questions before a
jury."
7)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ) , "CACJ opposes AB 1958 for several
reasons. First, it would amend EC 1202 so that California
would have two rules of evidence when it comes to admitting
out-of-court statements. As it is currently written, EC 1202
provides that if a hearsay declarant's out- of-court statement
is admitted into evidence, a different out-of-court statement
made by that declarant is admissible into evidence to either
attack or support the declarant's credibility. However, as
proposed in AB 1958, the out-of-court statements of criminal
defendants would be inadmissible under EC 1202 to attack or
support his/her own credibility. Thus, the bill would create
one set of evidence rules for criminal defendants and a
different set of rules for everyone else.
"Second, AB 1958 would allow the prosecutor to put into evidence
a criminal defendant's admission to the charged crime but bar
the jury from hearing that at other times the same criminal
defendant had denied any wrongdoing. As such, this bill
enshrines the concept of the jury hearing only one side of the
story. AB 1958 flies in the face of two of the key principles
set out in the constitutional amendments some 20-plus years
ago embodied in then-Prop. 8 which extolled the virtues that
'all admissible evidence' must be admitted at trial, and that
a 'trial was a search for the truth.' AB 1958, by barring
only the criminal defendant from introducing otherwise
admissible evidence, makes it clear that the ideals of Prop. 8
are no longer welcome as they pertain to someone accused of a
crime.
"A third ground for our opposition to AB 1958 is that by
allowing the prosecution to put on only one side of the
accused's story, it contradicts the rule in EC 356 which
states that if one side introduces part of a witness's
out-of-court statement, the opposing side may introduce any
other part of that same out-of-court statement that is
relevant to the portion introduced by the initial party. EC
356 recognizes the unfairness of allowing only part of a
statement to be introduced by one side and then allowing that
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same side to prohibit the other relevant parts of that
statement to be submitted for the jury's consideration. This
is simply a matter of fairness and giving the jury the
proverbial, 'whole story.'
"Finally, CACJ finds AB 1958 to be an unconstitutional violation
of a criminal defendant's right to due process of law under
the Sixth and Fourteenth Amendments to the United States
Constitution as well as the companion portions of the
California Constitution. Pursuant to the twin holdings in
Rock v. Arkansas (1987) 483 U.S. 44, 107 S.Ct. 2704 and Davis
v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105 a denial of the
defendant's right to present evidence in his own behalf is a
violation of his/her constitutional right to due process of
law at trial."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Co-Sponsor)
San Diego County District Attorney (Co-Sponsor)
California State Sheriffs Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744