Existing law, known as the hearsay rule, provides that, at a hearing, evidence of 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 is inadmissible. Existing law provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. Among other exceptions, certain evidence of prior inconsistent statements of a witness in the form of a video recorded statement or transcript that is properly admitted in a preliminary hearing or trial of the same criminal matter is admissible if certain conditions are met.

This bill would expand this exception to the hearsay rule to include audio recorded statements if the same conditions are met.

Existing law authorizes the defendant or the people, in cases where the defendant has been charged with a specified felony or arrest or where a material witness is about to leave the state, is sick or infirm, or is a dependent adult, to have a witness examined conditionally, as specified. Existing law specifies the information required to be stated in the affidavit applying to examine a witness conditionally.

This bill would expand the above-described exception to the hearsay rule to include prior inconsistent statements of a witness properly admitted in a conditional examination.

Existing law, known as the hearsay rule, provides that, at a hearing, evidence of 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 is inadmissible. Existing law provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. Among other exceptions, certain evidence of prior inconsistent statements of a witness in the form of a video recorded statement or transcript that is properly admitted in a preliminary hearing or trial of the same criminal matter is admissible if certain conditions are met.

This bill would expand this exception to the hearsay rule to include audio recorded statements if the same conditions are met.

Existing law authorizes the defendant or the people, in cases where the defendant has been charged with a specified felony or arrest or where a material witness is about to leave the state, is sick or infirm, or is a dependent adult, to have a witness examined conditionally, as specified. Existing law specifies the information required to be stated in the affidavit applying to examine a witness conditionally.

This bill would expand the above-described exception to the hearsay rule to include prior inconsistent statements of a witness properly admitted in a conditional examination.

Existing law, known as the hearsay rule, provides that, at a hearing, evidence of 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 is inadmissible. Existing law provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. Among other exceptions, certain evidence of prior inconsistent statements of a witness in the form of a video recorded statement or transcript that is properly admitted in a preliminary hearing or trial of the same criminal matter is admissible if certain conditions are met.

This bill would expand this exception to the hearsay rule to include audio recorded statements if the same conditions are met.

Existing law authorizes the defendant or the people, in cases where the defendant has been charged with a specified felony or arrest or where a material witness is about to leave the state, is sick or infirm, or is a dependent adult, to have a witness examined conditionally, as specified. Existing law specifies the information required to be stated in the affidavit applying to examine a witness conditionally.

This bill would expand the above-described exception to the hearsay rule to include prior inconsistent statements of a witness properly admitted in a conditional examination.

Existing law, known as the hearsay rule, provides that, at a hearing, evidence of 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 is inadmissible. Existing law provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. Among other exceptions, certain evidence of prior inconsistent statements of a witness in the form of a video recorded statement or transcript that is properly admitted in a preliminary hearing or trial of the same criminal matter is admissible if certain conditions are met.

This bill would expand this exception to the hearsay rule to include audio recorded statements if the same conditions are met.

Existing law authorizes the defendant or the people, in cases where the defendant has been charged with a specified felony or arrest or where a material witness is about to leave the state, is sick or infirm, or is a dependent adult, to have a witness examined conditionally, as specified. Existing law specifies the information required to be stated in the affidavit applying to examine a witness conditionally.

This bill would expand the above-described exception to the hearsay rule to include prior inconsistent statements of a witness properly admitted in a conditional examination.

 THIRD READING  

Bill No: AB 1736

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 5/15/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

ASSEMBLY FLOOR: 67-0, 2/20/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill extends the “prior inconsistent statement” exception to the hearsay rule to conditional examinations and to allow audio recordings.

ANALYSIS:

Existing law:

1. Provides the right of the accused to face their accuser. (U.S. Const. amend. VI; Cal. Const., art. 1, §15.)
2. Provides, in case law, that a defendant’s right of confrontation is satisfied if they are afforded an opportunity to cross-examine the witness. (Crawford v. Washington (2004) 541 U.S. 36, 54-55.)
3. Requires that, unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing must be excluded unless one of the following applies:

• The witness while testifying had an opportunity to explain or to deny the statement.
• The witness was not excused from giving further testimony in the action. (Evidence Code § 770.)

1. Allows the examination of a defendant conditionally when one of the following applies:

• The witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy.
• The witness is a victim or a material witness in a human trafficking case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial.
• The witness is a victim or material witness in a domestic violence case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial. (Penal Code § 1337.)

1. Allows a conditional examination to be ordered if the court or judge deems it necessary and shall be taken before a designated magistrate. (Penal Code § 1339.)
2. Requires the testimony to be reduced to writing and authenticated, or video recorded, and shall be sealed and transmitted to the Clerk of the Court pending trial. (Penal Code §§ 1343 and 1344.)
3. Defines “hearsay evidence” as a statement that was made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated and is inadmissible, except as provided by law. (Evidence Code §1200.)
4. Makes an exception to the hearsay rule for former testimony if the declarant is unavailable as a witness and one of the following applies (Evidence Code § 1291(a)):

• The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person. (Section 1291(a)(1).)
• The party against whom the prior inconsistent statement is offered had the right and opportunity to cross-examine any witness who testified at the preliminary hearing or prior proceeding as to the statements of the witness. (Section 1291(a)(2).)

1. Provides an exception to the hearsay rule for prior inconsistent statements of a witness that were properly admitted in a prior preliminary hearing or trial of the same criminal matter if the witness is later unavailable and former testimony of the witness was admitted as a prior inconsistent statement pursuant to Evidence Code Section 1291, provided that the statement is included in one of the following:

• A video recorded statement introduced at the preliminary hearing or prior proceeding. (Section 1294(a)(1).)
• A transcript of the preliminary hearing or prior proceeding. (Section 1294(a)(2).)

1. Allows the party against whom the prior inconsistent statements are offered, to examine or cross-examine any person who testified at the preliminary hearing or prior proceeding, as to the prior inconsistent statements of the witness. (Evidence Code § 1294(b).)

This bill:

1. Includes audio recording as an acceptable means to admit prior unsworn statements.
2. Adds conditional examinations to the pre-trial proceedings through which a prior unsworn inconsistent statement may be admitted later.
3. Clarifies that the term “conditional examination” is described in Part 2, Title 10, Chapter 4 of the Penal Code.

Background

Prior Inconsistent Statements

Evidence of a witness’s prior out-of-court statement that is inconsistent with the witness’s in-court testimony is generally inadmissible. (Evidence Code § 770.) However, the Evidence Code allows prior inconsistent statements to be admitted under some circumstances, including when the declarant is a witness in a court proceeding and has an opportunity to explain or to deny the inconsistencies between the statements. (Evidence Code § 770(a).)

The Evidence Code further allows a prior inconsistent statement of a declarant to be admitted as evidence, even when the hearsay declarant is not available to testify as a witness at trial under two conditions: (1) there was a prior opportunity for the declarant to explain or deny the inconsistency at certain prior court proceedings–specifically preliminary hearings and trials–about the same criminal matter; and (2) there is a video recording or certified transcript of the prior testimony. (Evidence Code § 1294)

Conditional Examinations

A conditional examination is a pre-trial hearing in which the testimony of a witness who is anticipated to be unavailable for trial is recorded and preserved. The conditions for a conditional examination include circumstances where the witness is elderly or infirm, or is about to leave the state. (Penal Code § 1337.) There are additional parameters that allow the testimony of certain witnesses in human trafficking, domestic violence, and “other serious crimes” to be taken at a conditional examination because the witness may be subject to a higher degree of influence by the defendant or the defendant’s agents. (Penal Code §§1335, 1336.) Conditional examinations are similar to preliminary examinations in many ways, including the fact that the defendant has the right to be present and to cross-examine the witness who is conditionally examined. (Penal Code § 1340.) The Penal Code also requires that a written transcript, or a video recording of the proceeding is made and that the record is preserved by the county clerk. (Penal Code §§ 1343, 1344.)

Expanded Hearsay Exception

When a conditional examination is entered into the record at trial, this bill also allows prior statements inconsistent with the statements made during the conditional examination to be allowed into evidence for the truth of the matter asserted at the trial.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/15/18)

California District Attorneys Association

California Statewide Law Enforcement Association

Riverside Sheriffs’ Association

OPPOSITION: (Verified 5/15/18)

American Civil Liberties Union of California

California Public Defenders Association

ARGUMENTS IN SUPPORT: The California Statewide Law Enforcement Association states:

The hearsay rule exists to ensure that the live witnesses are present to give their testimonies under oath, provide the opportunity for cross examination, and to be seen by the jury to determine credibility. While this is valuable, there are occasions where live testimony is not feasible or available, which is why there are exceptions to the hearsay rule. This bill will offer a minor expansion of those exceptions to add audio recordings to be accepted as a record of an original statement. There are many crimes, such as domestic violence and human trafficking cases, that can cause inconsistencies between an original testimony and when the witness’ testimony is retaken at a conditional hearing. This expansion will help ensure that accurate testimonies are recorded and that the integrity of judicial decisions are upheld.

ARGUMENTS IN OPPOSITION: The American Civil Liberties Union states:

Under existing law, if the witness testified at a preliminary hearing, or prior trial in the same matter, and evidence of prior inconsistent statements was admitted in that proceeding, the evidence of those statements can be admitted at trial in an exception to the hearsay rule. (Evidence Code § 1294) If a witness tells the police at the scene of the crime “Smith did it,” but later at the preliminary hearing testifies otherwise, the evidence of that initial statement, as admitted at the preliminary hearing, can then be admitted at trial as evidence that Smith did it. However, if the evidence of the prior inconsistent statement is admitted in a conditional examination, there is no exception to the hearsay rule, and the statement can only be used for impeachment purposes.

There are good reasons for this distinction. A conditional examination, allowed under certain circumstances when a witness will be unavailable at trial, generally happens early in the criminal process, and can be held on as little as three days’ notice. The defense may not have had time to fully prepare, and will not have all the evidence that will be available at the time of the preliminary hearing or trial. The defense is thus less able, at a conditional examination, to thoroughly cross-examine a witness. A cross-examination regarding the prior statement, when defense counsel does not yet have all the relevant evidence, will simply not be as effective as the cross-examination at the preliminary hearing would be.

We know of no reason why this change is needed. When appropriate, prosecutors use the procedures for conditional examination of witnesses. In those cases where a prior inconsistent statement is brought in at a conditional examination, although it cannot be used at trial to prove the truth of the statement, it can be brought in to impeach the later inconsistent testimony of the witness. This procedure works to allow the prosecution flexibility when a witness may be unavailable at trial, balancing that need with the right of the defendant to confront that witness. The system is not broken in this regard, there is no need for the fix proposed in AB 1736.

ASSEMBLY FLOOR: 67-0, 2/20/18

AYES: Acosta, Arambula, Baker, Berman, Bloom, Bonta, Brough, Burke, Caballero, Carrillo, Cervantes, Chau, Chávez, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Aguiar-Curry, Travis Allen, Bigelow, Calderon, Chen, Eggman, Cristina Garcia, Jones-Sawyer, Mullin, Nazarian

Prepared by:

5/16/18 10:58:21

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1736 Hearing Date: May 15, 2018

Subject: Evidence: Hearsay: Prior Inconsistent Statements

HISTORY

Source: Author

Prior Legislation: None

Support: California District Attorneys Association; California Statewide Law Enforcement Association; Riverside Sheriffs’ Association

Opposition: American Civil Liberties Union of California; California Public Defenders Association

Assembly Floor Vote: 67 - 0

PURPOSE

The purpose of this bill is to extend the “prior inconsistent statement” exception to the hearsay rule to conditional examinations and to allow audio recordings.

Existing law provides the right of the accused to face their accuser. (U.S. Const. amend. VI; Cal. Const., art. 1, §15.)

Existing law provides, in case law, that a defendant’s right of confrontation is satisfied if they are afforded an opportunity to cross-examine the witness. (Crawford v. Washington (2004) 541 U.S. 36, 54-55.)

Existing law requires that, unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing must be excluded unless one of the following applies:

• The witness while testifying had an opportunity to explain or to deny the statement.
• The witness was not excused from giving further testimony in the action. (Evidence Code § 770.)

Existing law allows the examination of a defendant conditionally when one of the following applies:

• The witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy;
• The witness is a victim or a material witness in a human trafficking case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial;
• The witness is a victim or material witness in a domestic violence case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial. (Penal Code § 1337.)

Existing law allows a conditional examination to be ordered if the court or judge deems it necessary and shall be taken before a designated magistrate. (Penal Code § 1339.)

Existing law requires the testimony to be reduced to writing and authenticated, or video recorded, and shall be sealed and transmitted to the Clerk of the Court pending trial. (Penal Code §§ 1343 and 1344.)

Existing law defines “hearsay evidence” as a statement that was made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated and is inadmissible, except as provided by law. (Evidence Code §1200.)

Existing law provides an exception to the hearsay rule for former testimony if the declarant is unavailable as a witness and one of the following applies (Evidence Code § 1291(a)):

• The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person. (Section 1291(a)(1).)
• The party against whom the prior inconsistent statement is offered had the right and opportunity to cross-examine any witness who testified at the preliminary hearing or prior proceeding as to the statements of the witness. (Section 1291(a)(2).)

Existing law provides an exception to the hearsay rule for prior inconsistent statements of a witness that were properly admitted in a prior preliminary hearing or trial of the same criminal matter if the witness is later unavailable and former testimony of the witness was admitted as a prior inconsistent statement pursuant to, Evidence Code Section 1291, provided that the statement is included in one of the following:

• A video recorded statement introduced at the preliminary hearing or prior proceeding. (Section 1294(a)(1).)
• A transcript of the preliminary hearing or prior proceeding. (Section 1294(a)(2).)

Existing law allows the party against whom the prior inconsistent statements are offered, to examine or cross-examine any person who testified at the preliminary hearing or prior proceeding, as to the prior inconsistent statements of the witness. (Evidence Code § 1294 (b))

This bill includes audio recording as an acceptable means to admit prior unsworn statements.

This bill adds conditional examinations to the pre-trial proceedings through which a prior unsworn inconsistent statement may be admitted later.

This bill clarifies that the term “conditional examination” is described in Part 2, Title 10, Chapter 4 of the Penal Code.

COMMENTS

1. Need for This Bill

According to the author:

When a victim/witness is legally unavailable to testify at trial, Evidence Code Section 1291 provides a mechanism for introducing prior sworn testimony of that witness/victim. If the witness testified at the prior hearing in a manner that was inconsistent with prior unsworn statements, the previous unsworn statements were not admissible at trial to prove that the prior unsworn statements are true. Evidence Code section 1294 provided a carve-out that allowed the prior unsworn statements to be admitted at trial to prove that the subject matter in those statements were true only if those statements were “properly admitted” in the prior “preliminary hearing or trial.”

Currently, Penal Code sections 1335-1336 allow for conditional examinations in certain enumerated circumstances (such as if the witness is elderly or infirm, about to leave the state, or in certain human trafficking situations, etc.). Under the current state of the law, if the prior testimony of an unavailable witness was given at a conditional examination rather than a preliminary hearing or prior trial, section 1294’s provision for the admissibility of prior unsworn statements would not apply. The rationale underlying section 1294 applies to conditional examinations as well.

2. The Right to Confrontation

Under both the U.S. and California constitutions, criminal defendants have the right to confront witnesses against them. (U.S. Const., amend. VI; Cal Const. art. 1, Sect. 15.) Hearsay statements made by an absent witness are presumptively inadmissible because they violate this right to confront and cross-examine witnesses. However, when the defendant is given an opportunity to cross-examine the witness in a prior proceeding, the defendant’s right to confront and cross-examine them is satisfied and the declarant’s statements are no longer inadmissible. (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) The Evidence Code codifies this exception to the hearsay rule and allows former testimony to be admitted in a later proceeding. (See Evidence Code §§ 1290, 1291 (a)(2).)

3. Prior Inconsistent Statements

Evidence of a witness’s prior out-of-court statement that is inconsistent with the witness’s in-court testimony is generally inadmissible. (Evidence Code § 770.) However, the Evidence Code allows prior inconsistent statements to be admitted under some circumstances, including when the declarant is a witness in a court proceeding and has an opportunity to explain or to deny the inconsistencies between the statements. (Evidence Code § 770(a).)

The Evidence Code further allows a prior inconsistent statement of a declarant to be admitted as evidence, even when the hearsay declarant is not available to testify as a witness at trial under two conditions: (1) there was a prior opportunity for the declarant to explain or deny the inconsistency at certain prior court proceedings–specifically preliminary hearings and trials–about the same criminal matter; and (2) there is a video recording or certified transcript of the prior testimony. (Evidence Code § 1294)

4. Conditional Examinations

A conditional examination is a pre-trial hearing in which the testimony of a witness who is anticipated to be unavailable for trial is recorded and preserved. The conditions for a conditional examination include circumstances where the witness is elderly or infirm, or is about to leave the state. (Penal Code § 1337.) There are additional parameters that allow the testimony of certain witnesses in human trafficking, domestic violence, and “other serious crimes” to be taken at a conditional examination because the witness may be subject to a higher degree of influence by the defendant or the defendant’s agents. (Penal Code §§1335, 1336.) Conditional examinations are similar to preliminary examinations in many ways, including the fact that the defendant has the right to be present and to cross-examine the witness who is conditionally examined. (Penal Code § 1340.) The Penal Code also requires that a written transcript, or a video recording of the proceeding is made and that the record is preserved by the county clerk. (Penal Code §§ 1343, 1344.)

5. Expansion of Hearsay Exception

This bill expands Evidence Code Section 1294 to allow for prior statements admitted in a conditional examination and to allow the testimony to be audio recorded. This bill provides that a conditional examination is as defined Penal Code Section 1335 et seq.

-- END –

Date of Hearing: February 13, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1736

Author:(Cunningham) – As Introduced Ver:January 3, 2018

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: EVIDENCE: HEARSAY: PRIOR INCONSISTENT STATEMENTS

KEY ISSUES:

1. SHOULD THE HEARSAY EXCEPTION that now allows the admission of video recordings and transcripts of certain prior inconsistent statements BE EXPANDED TO also allow STATEMENTS whicH are RECORDED BY AUDIO DEVICE to be admitted?
2. SHOULD THE HEARSAY EXCEPTION that now allows the admission of certain statements that are made prior to trial and preliminary hearings BE EXPANDED TO also aLlow statements that are made prior to CONDITIONAL EXAMINATIONS to be admitted?

SYNOPSIS

Under the hearsay rule, an out-of-court statement cannot be admitted as evidence to prove the truth of the matter asserted in that statement. The hearsay rule reflects the law's preference for live witnesses who take oaths, are cross-examined, and can be seen by the jury in order to determine their credibility. However, existing law recognizes several hearsay exceptions, including for prior testimony and prior inconsistent statements. Exceptions to the hearsay rule generally apply when the declarant is unavailable to testify as a witness but where the circumstances surrounding the statement create a presumption of the statement’s reliability (for example, "dying declarations" or spontaneous utterances, etc.). Existing exceptions to the hearsay rule include exceptions allowing former testimony and prior inconsistent statements to be admitted as evidence. This bill proposes to make a modest expansion to an existing hearsay exception.

Current law allows out-of-court statements that are made before certain pre-trial court proceedings to be admitted at a later trial, even if the declarant does not testify at the trial, as long as the declarant had an opportunity, at the pre-trial court proceeding, to explain the inconsistency between his or her testimony and the out-of-court statement. The pre-trial court proceedings that are allowed under this exception are preliminary hearings and prior trials on the same criminal matter. This bill would expand the pre-trial proceedings to include conditional examinations. Conditional examinations provide for material witnesses who are at risk of becoming unavailable for the ultimate trial to have their testimony preserved by either the defense or prosecution. Current law only provides for video recordings or transcripts to be admitted as a record of the original unsworn statement. This bill would provide for audio recordings to be admitted, as well. Such recordings would still be required to be relevant and properly authenticated in order to satisfy the foundational requirements of the Evidence Code. By including audio recordings, this bill seems to ensure that the best evidence of the statement is available to the court.

According to the author, this bill is necessary to preserve material witness testimony in cases where the witness is at a high risk of unavailability for the final trial. In proceedings such as domestic violence and human trafficking conditional examinations provide a means for the court to preserve testimony of material witnesses. The author states that this change is necessary because conditional examinations are often used in human trafficking cases to preserve the testimony of victims who may not be available at trial and if the victim testifies that the crime did not occur(because of the influence that defendants exert over witnesses in such cases), the victim’s prior statement that the crime occurred can be admitted as proof of the truth of the original statement at both the conditional examination and the later trial Because the term “conditional examination” is not defined or used in the Evidence Code, the author has agreed to clarify that the term is described in Part 2, Title 10, Chapter 4 of the Penal Code. That amendment is discussed and included in this analysis. This bill, which is author-sponsored, has no support or opposition on file.

SUMMARY: Extends the “prior inconsistent statement” exception to the hearsay rule within certain parameters. Specifically, this bill adds the following provisions to existing law:

1. Includes audio recording as an acceptable means to admit prior unsworn statements.
2. Adds conditional examinations to the pre-trial proceedings through which a prior unsworn inconsistent statement may be admitted later.
3. Clarifies that the term “conditional examination” is described in Part 2, Title 10, Chapter 4 of the Penal Code.

EXISTING LAW:

1. Provides the right of the accused to face their accuser. (U.S. Const. amend. VI; Cal. Const., art. 1, §15.)
2. Provides, in case law, that a defendant’s right of confrontation is satisfied if they are afforded an opportunity to cross-examine the witness. (Crawford v. Washington (2004) 541 U.S. 36, 54-55.)
3. Requires that, unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing must be excluded unless one of the following applies:
   1. The witness while testifying had an opportunity to explain or to deny the statement.
   2. The witness was not excused from giving further testimony in the action. (Evidence Code Section 770. All further statutory references are to the Evidence Code, unless otherwise indicated.)
4. Defines “hearsay evidence” as a statement that was made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated and is inadmissible, except as provided by law. (Section 1200.)
5. Provides an exception to the hearsay rule for former testimony if the declarant is unavailable as a witness and one of the following applies (Section 1291(a)):
6. The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person. (Section 1291(a)(1).)
7. The party against whom the prior inconsistent statement is offered had the right and opportunity to cross-examine any witness who testified at the preliminary hearing or prior proceeding as to the statements of the witness. (Section 1291(a)(2).)
8. Provides an exception to the hearsay rule for prior inconsistent statements of a witness that were properly admitted in a prior preliminary hearing or trial of the same criminal matter if the witness is later unavailable and former testimony of the witness was admitted as a prior inconsistent statement pursuant to 5), above, provided that the statement is included in one of the following:
   1. A video recorded statement introduced at the preliminary hearing or prior proceeding. (Section 1294(a)(1).)
   2. A transcript of the preliminary hearing or prior proceeding. (Section 1294(a)(2).)
9. Allows the examination of a defendant conditionally when one of the following applies:
   1. The witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy;
   2. The witness is a victim or a material witness in a human trafficking case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial;
   3. The witness is a victim or material witness in a domestic violence case who has been or is being intimidated or threatened from cooperating with the prosecutor or testifying at trial. (Penal Code Section 1337.)
10. Allows a conditional examination to be ordered if the court or judge deems it necessary and shall be taken before a designated magistrate. (Penal Code Section 1339.)
11. Requires the testimony to be reduced to writing and authenticated, or video recorded, and shall be sealed and transmitted to the Clerk of the Court pending trial. (Penal Code Sections 1343 and 1344.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Under the hearsay rule, a statement that was made other than by a witness while testifying at the hearing and is offered to prove the truth of the matter stated is inadmissible. (Section 1200.) The hearsay rule reflects the law's preference for live witnesses, who take oaths, are cross-examined, and can be seen by the jury in order to evaluate the credibility of the witness and reliability of the testimony. However, existing law recognizes several exceptions to the hearsay rule, 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 (for example, "dying declarations" or spontaneous utterances, etc.). Existing exceptions to the hearsay rule include prior testimony and prior inconsistent statements. This bill proposes to make a modest expansion to an existing hearsay exception.

The Confrontation Clause and Former Testimony. Under both the U.S. and California constitutions, criminal defendants have the right to confront witnesses against them. (U.S. Const., amend. VI; Cal Const. art. 1, Sect. 15.) Hearsay statements made by an absent witness are presumptively inadmissible because they violate this right to confront and cross-examine witnesses. However, when the defendant is given an opportunity to cross-examine the witness in a prior proceeding, the defendant’s right to confront and cross-examine them is satisfied and the declarant’s statements are no longer inadmissible. (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) Such reliability is clear in statements that have been given under oath where there is an opportunity for cross-examination. The Evidence Code codifies this exception to the hearsay rule and allows former testimony to be admitted in a later proceeding. (See Sections 1290, 1291 (a)(2).)

Prior Inconsistent Statements of a Declarant are Admissible as Long as the Declarant Has an Opportunity--in Current or Certain Prior Court Proceedings--to Explain or Deny Inconsistencies. Evidence of a witness’s prior out-of-court statement that is inconsistent with the witness’s in-court testimony is generally inadmissible. (Section 770.) However, the Evidence Code allows prior inconsistent statements to be admitted under some circumstances, including when the declarant is a witness in a court proceeding and has an opportunity to explain or to deny the inconsistencies between the statements. This typically occurs when a witness testifies to a fact at trial that differs from, or contradicts, a prior statement made by that same witness. In this scenario, the party seeking to admit the prior statement as evidence can do so as long as the witness/declarant has the opportunity to explain or deny the inconsistency between the statements. (Section 770(a).)

The Evidence Code takes this hearsay exception for prior inconsistent statements one step further by allowing a prior inconsistent statement of a declarant to be admitted as evidence, even when the hearsay declarant is not available to testify as a witness at trial. However, the exception only applies under two conditions: (1) there was a prior opportunity for the declarant to explain or deny the inconsistency at certain prior court proceedings–specifically preliminary hearings and trials–about the same criminal matter; and (2) there is a video recording or certified transcript of the prior testimony. This exception is codified as Section 1294, the section amended by this bill.

This bill expands this prior inconsistent statements exception in two ways: (1) to include conditional examinations in the types of proceedings where a declarant has testified and had an opportunity to explain or deny the prior statement; and (2) to include an audio tape of the prior statement. These would permit the both properly admitted original statements from witnesses at the time of an incident, as well as their inconsistent testimony at the conditional examination to be admitted for the truth of the matter asserted at the ultimate trial.

Conditional Examinations Appear to Satisfy the Confrontation Clause. A conditional examination is a pre-trial hearing in which the testimony of a witness who is anticipated to be unavailable for trial is recorded and preserved. The conditions for a conditional examination are outlined in Part 2, Title 10, Chapter 4 of the Penal Code, and include circumstances where the witness is elderly or infirm, or is about to leave the state. (Penal Code Section 1337.) There are additional parameters that allow the testimony of certain witnesses in human trafficking, domestic violence, and “other serious crimes” to be taken at a conditional examination because the witness may be subject to a higher degree of influence by the defendant or the defendant’s agents. (Penal Code Sections 1335, 1336.) Conditional examinations are similar to preliminary examinations in many ways, including the fact that the defendant has the right to be present and to cross-examine the witness who is conditionally examined. (Penal Code Section 1340.) The Penal Code also requires that a written transcript, or a video recording of the proceeding is made and that the record is preserved by the county clerk. (Penal Code Sections 1343, 1344.)

Even if Audio Recordings are Authorized to be Admitted Into Evidence, as Proposed by This Bill, Such Recordings Would Still Be Required to be Authenticated. Current law allows the prior unsworn statements that were properly submitted during a preliminary hearing or trial to be admitted for the truth of the matter asserted if those statements were preserved in a video recording or in a certified transcript. (Section 1294.) A video or audio recording qualifies as a “writing” under the Evidence Code, which defines a writing as any “recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (Section 250 [emphasis added].) As such, the recording would be subject to the Best Evidence Rule and would also be required to be authenticated.

Best Evidence Rule. Under the Federal Rules of Evidence as well as the California Evidence Code, secondary evidence is inadmissible in favor of the original whenever possible. (FRE Section 1002; Sections 1520, 1521.) The bill’s proposed inclusion of audio recordings in Section 1294 would allow the original recordings of unsworn statements to be admitted into evidence themselves, rather than requiring secondary evidence (i.e. a transcript of testimony at the prior court proceeding) to prove the content of the recording. According to the author, it is appropriate and necessary to expand the law to cover audio recordings because not all law enforcement agencies have access to body cameras. Where enforcement agencies have been able to equip their police force with body cameras the video recording of the original unsworn statement by a witness is admissible under 1294. However, in departments where police do not use body cameras and carry audio recorders instead, the audio recording would not be admissible under Section 1294, whereas the transcript of an officer about the prior unsworn statement would be admissible. Assuming the audio recording can be authenticated, admitting a transcript instead of the original writing to prove the statement would seem to violate the Best Evidence Rule.

Authentication. Authentication of a “writing” is required before the writing may be admitted into evidence. (Section 1401.) California courts have found that the admission of an audio recording may be admitted so long as “the evidence would support a finding of authenticity.” (People v. Dawkins (2014) 230 Cal. App. 4^th 1991; People v. Goldsmith (2014) 59 Cal. 4^th 258.) Audio recordings that would become admissible under this bill would still have to satisfy the foundational authentication requirements of all writings in order to be admitted into evidence.

Clarifying Amendment Regarding the Meaning of “Conditional Examination.” The bill, as currently in print, does not define the term “Conditional Examination.” Furthermore, the term is not found elsewhere in the Evidence Code and is not formally defined, even in the Penal Code. Rather, the Penal Code includes numerous provisions in where it is discussed in a number of sections that make up Part 2 of Title 10 of Chapter 4 of the Penal Code. Even within that Part of the Penal Code, the term “Conditional Examination” is not used in a consistent manner. Therefore, in order to clarify the meaning of the term, the author has agreed to amend the bill to refer to that part of the Penal Code.

Author’s Statement. According to the author, “Under the current state of the law, if the prior testimony of an unavailable witness was given at a conditional examination rather than a preliminary hearing or prior trial, section 1294’s provision for the admissibility of prior unsworn statements would not apply. The rationale underlying section 1294 applies to conditional examinations as well. . .” There is a gap in the current law that prohibits original testimony, admitted at a conditional hearing, to come into a subsequent trial for the truth of the matter asserted if the witness is absent. In cases involving issues such as domestic violence and human trafficking it is not uncommon for a material witness to change his or her testimony from the time of the original event and when their testimony is retaken at a conditional hearing, preliminary hearing, or deposition. It is also common for those material witnesses to become absent prior to the ultimate hearing on the issues, which is why preserving their statements through the use of conditional examinations is of such importance.

This bill is responsive to issues that have arisen in the courts in California relating to the preservation of testimony of material witnesses. The author states:

The Appellate Court noted that current law may act as a disincentive for prosecutors to quickly request a conditional examination if there was a concern that the witness was about to be unavailable. The Court noted that “[t] problem might be resolved if the Legislature were to amend the Evidence Code to permit a detained witness’s prior inconsistent statement to be considered for their truth at trial…” People v. Chuncey Garcia (2016) 5 Cal.App.5th 640, 652. In addition, this bill would allow those statements to now have the option of being audio recorded instead of simply video recorded.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Allison Adey and Alison Merrilees / JUD. / (916) 319-2334