Chapter 3 - §23. Special hearsay exceptions in criminal proceedings

• Jurisdiction: United States

§23. Special hearsay exceptions in criminal proceedings

§23.1. Overview. This section identifies hearsay exceptions that apply only in specific types of criminal cases. Although these statutes are unique in their application, they remain subject to a defendant's right to due process and confrontation under the U.S. and California Constitutions. These exceptions are also subject to the rules of relevance (Evid. C. §§210, 350) and special rules of exclusion (e.g., Evid. C. §§352, 1101 to 1160).

§23.2. Statement of murdered or abducted declarant.

1. Overview. In a prosecution for a serious felony, a formal statement to law enforcement made by a declarant before the declarant was murdered or abducted can be admissible as an exception to the hearsay rule. Evid. C. §1350.

2. Requirements for exception. For this hearsay exception to apply, the following criteria must be met:

(1) The proceeding must be for a "serious felony" identified in Evid. C. §1350(d). See People v. Mitchell (4th Dist.2020) 46 Cal.App.5th 919, 929 (charged conduct referenced in statutes like Evid. C. §1350 is basis for limiting application of an evidentiary exception).

(2) The declarant must be unavailable as a witness. Evid. C. §1350(a). See "Requirement of declarant's unavailability," ch. 3-B, §1.2.

(3) There must be clear and convincing evidence that the declarant's unavailability is the result of homicide or kidnapping knowingly caused by (or aided or solicited by) the defendant for the purpose of preventing the arrest or prosecution of the defendant. Evid. C. §1350(a)(1).

(4) There is no evidence that the prosecution caused, aided, solicited, or procured the unavailability of the declarant. Evid. C. §1350(a)(2).

(5) Before the declarant's death or kidnapping, the statement must have been memorialized either in an audio recording made to a law-enforcement officer or in a written statement prepared by law enforcement, signed by the declarant and notarized in the presence of law enforcement. Evid. C. §1350(a)(3).

(6) The statement must be relevant to the issues being tried. Evid. C. §1350(a)(5).

(7) The statement must have been made under circumstances indicating its trustworthiness and not as a result of inducement or coercion. Evid. C. §1350(a)(4).

(8) The statement must be corroborated by other evidence tending to connect the defendant with the serious felony for which he is charged. Evid. C. §1350(a)(6).

Federal Comparison The FREs have no comparable rule.

3. Procedural requirements for admissibility.

(1) Notice. Unless good cause is shown, the prosecution must give the defendant ten days' written notice before a hearing or trial of its intent to introduce the statement. Evid. C. §1350(b).

(2) Hearing. If the defendant elects to testify at the hearing on a motion brought under Evid. C. §1350, the court must exclude from the examination every person except the clerk, court reporter, bailiff, prosecutor, investigating officer, defendant, defendant's counsel and investigator, and officer having custody of the defendant. Evid. C. §1350(c). Any testimony given by the defendant at the hearing will not be admissible in any other proceeding. Id. If a transcript is made of the defendant's testimony, the transcript must be sealed and transmitted to the court clerk. Id.

(3) Trial. If the statement is offered during trial, the court must determine the admissibility of the statement outside the presence of the jury. Evid. C. §1350(c).

4. Constitutional considerations. Although there is no California case authority directly addressing the issue, legitimate concerns can be raised about the constitutionality of Evid. C. §1350 under the Sixth Amendment's Confrontation Clause when the statement is testimonial and the defendant did not have a prior opportunity to cross-examine the declarant. However, if a defendant engages in conduct intending to make a declarant unavailable to testify, the defendant will forfeit his Sixth Amendment right to confront and cross-examine that declarant, even if the statement is considered testimonial. See Giles v. California (2008) 554 U.S. 353, 360; Davis v. Washington (2006) 547 U.S. 813, 833; People v. Zambrano (2007) 41 Cal.4th 1082, 1146 & n.21, disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390. See "Forfeiture by wrongdoing," ch. 5-E, §3.2.5(2).

§23.3. Statement by...