Chapter 3 - §11. Exception—Sworn statement relevant to gang-related crime

• Jurisdiction: United States

§11. Exception—Sworn statement relevant to gang-related crime

A person's sworn out-of-court statement that is relevant to the prosecution of a gang-related offense is admissible as an exception to the hearsay rule if the person is unavailable to testify because she died of unnatural causes. Evid. C. §1231.

§11.1. Overview. Evid. C. §1231 was created as a safeguard against a witness being murdered by a member or members of a criminal street gang while a trial is pending.

Federal Comparison The FREs have no comparable rule.

§11.2. Requirements for exception. For a sworn statement to be admissible under the gang-related crimes exception, the following criteria must be met:

1. Statement relevant to gang-related offense. The statement must relate to acts or events relevant to a criminal prosecution of certain gang-related offenses. Evid. C. §1231(a).

2. Statement was recorded & sworn. The statement must have been recorded verbatim and been sworn to by the declarant or made under penalty of perjury. Evid. C. §1231(b), (d).

3. Declarant had personal knowledge of content. The statement must relate to matters within the declarant's personal knowledge. Evid. C. §1231(c).

4. Statement is trustworthy. The statement must have been made under circumstances indicating trustworthiness. Evid. C. §1231(f). This requirement may be met in a case where circumstances show the declarant had no interest in the outcome of the trial, where no bias or motive for fabrication is evident, and where the statement is corroborated by independent evidence. See id.

5. Declarant is unavailable due to unnatural death. The declarant must be unavailable because she died from unnatural causes. Evid. C. §1231(e). See "Requirement of declarant's unavailability," ch. 3-B, §1.2.

§11.3. Constitutional considerations. Sworn statements under Evid. C. §1231 commonly raise concerns under the Sixth Amendment's Confrontation Clause because they frequently involve testimony given at preliminary hearings or before grand juries, and thus will be considered testimonial under Crawford v. Washington (2004) 541 U.S. 36, 52. But if the...