Forfeiture of cross-examination rights in California.

Author:Mendez, Miguel A.

    This Article is an outgrowth of my participation in a study the California Law Revision Commission undertook to determine whether California should add a new exception for hearsay by a declarant whose unavailability to testify at a criminal trial can be attributed to some wrongdoing by the defendant. In 1953, the California Legislature gave the Commission the responsibility for continuing to review California statutory and decisional law in order to discover defects and anachronisms, and recommend legislation to make needed reforms. (1)

    In February 2007, Assemblyman Charles Calderon introduced Assembly Bill 268 (AB 268), a measure that would amend the Evidence Code by adding a new forfeiture by wrongdoing exception to the hearsay rule. (2) After some amendments, the Assembly on June 5, 2007, unanimously passed the measure and referred it to the Senate. (3) "Because of the serious implications of codifying the forfeiture doctrine as a hearsay exception," a bill analysis prepared for the Senate Judiciary Committee recommended that the California Law Revision Commission be "directed to conduct a study of 'forfeiture by wrongdoing' doctrine, and issue a recommendation before the Legislature considers such a drastic change to the current hearsay rule." (4) By letter dated August 21, 2007, the Chair of the California Senate Judiciary Committee asked the Commission to undertake the study. (5) At its February 2008 meeting, the Commission approved a final recommendation for submission to the Legislature. (6)

    Although the Commission staff asked me to provide an analysis of the forfeiture by wrongdoing doctrine, I refrained from endorsing any of the Commission's tentative recommendations. I focused principally on the impact the hearsay exception proposed by Assemblyman Calderon would have on the accused's opportunity to use cross-examination to expose the unreliability of the prosecution's testimonial evidence. In this Article, I go further. I take a position on the wisdom of both Assemblyman Calderon's proposals as well as of an initiative that would have added a similar forfeiture hearsay exception as part of a broad anti-crime measure that was placed before the voters in the November 2008 election] Although the initiative was rejected by the voters (8) and Assemblyman Calderon's bill was not voted upon by the California Senate, other similar measures have been introduced in both the Assembly and Senate. (9)

    Parts II and III of the Article explain why the hearsay rule serves as an essential barrier to conviction and why cross-examination and confrontation are indispensable to exposing flaws in the credibility of witnesses. Part IV examines AB 268's hearsay exception in detail, including the author's claims that the exception is necessary to implement the Confrontation Clause's forfeiture doctrine. This Part also discusses whether AB 268 is appropriately circumscribed to preserve confrontation values.

    Part V explores AB 268's proposal to add a new ground of unavailability for witnesses who refuse to testify despite a court order to do so (the contumacious witness). As will be explained, such a provision, if not carefully limited, can undermine California law preserving the right to cross-examine adverse witnesses by restricting a judge's power to declare as unavailable, witnesses who refuse to testify out of fear for their safety.

    Part VI explores the initiative's analogous provisions establishing a forfeiture hearsay exception and declaring contumacious witnesses unavailable. The Article concludes with my assessment of AB 268 and the initiative (Part VII), my proposal for a forfeiture hearsay exception (Part VIII), and my views on the wisdom of enacting important rules of evidence by initiative (Part IX). At the end, I include an Addendum evaluating the proposals considered by the Commission.


    Occasionally, prosecutors find it indispensable to offer the statements of declarants who for some reason are unable to testify at the trial. Since these statements are often offered for the truth of the matter stated, California's hear say rule would bar their use in the absence of an exception. (10) Fortunately for prosecutors, the Evidence Code contains numerous useful exceptions. Among them are the exceptions for excited utterances, (11) dying declarations, (12) statements regarding gang-related crimes, (13) statements relating the infliction or threat of physical injury, (14) statements by the elderly and dependent adults offered in prosecutions for the crime of elderly or dependent adult abuse, (15) statements by children describing acts of child abuse, (16) and statements by declarants who are prevented from testifying in trials charging a serious felony. (17)

    With the exception of excited utterances and dying declarations, (18) the remaining exceptions require prosecutors to prove the declarant's unavailability to testify at the trial. If the declarant is available to testify, no justification exists for depriving defendants of their right to cross-examine the declarant under oath in the presence of the fact finder.

    All of the exceptions contain other restrictions. Some limit the exception to certain kinds of prosecutions, for example, prosecutions charging a serious felony, (19) elderly or dependent adult abuse, (20) or gang activities. (21) Some require the statement to be memorialized in a writing or recorded electromcally. (22) Others require the prosecution to give the defendant notice of its intention to offer the statement. (23) Still others provide the judge with guidelines for determining the admissibility of the statement. (24) Some require the statement to be supported by corroborative evidence. (25) Others merely require the judge to consider the presence or absence of supporting evidence in determining the admissibility of the statement. (26) The exception for statements offered in cases charging a serious felony is specifically designed to make admissible statements by decla rants who have been prevented from testifying. (27) None of the exceptions authorizes the judge to consider the hearsay declaration in determining whether the proponent has met the foundational requirements.

    Subdivision 1390(a) of AB 268 purports to enlarge the prosecutors' arsenal by creating a hearsay exception for a statement that "is offered against a party who has engaged or acquiesced in wrongdoing that has caused the unavailability of the declarant as a witness." The Federal Rules of Evidence contain a similar, though more limited, hearsay exception. Rule 804(b)(6) provides a hearsay exception for a "statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (28) Unlike Subdivision 1390(a), the Rule requires the proponent to prove the opposing party's intent to silence the declarant.

    Whether or not the declarant is unavailable as a witness is generally determined by Evidence Code Section 240. A declarant is unavailable if he or she is (1) exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, (2) disqualified from testifying to the matter, (3) dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity, (4) absent from the hearing and the court is unable to compel his or her attendance by its process, or (5) absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process. (29)

    AB 268 would add a sixth ground of unavailability. A declarant would also be unavailable as a witness if "the declarant refuses to testify, notwithstanding imposition of sanctions, and the statement is offered against the party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of the declarant as a witness." The Federal Rules of Evidence contain a similar but broader ground. Rule 804(a)(2) defines as unavailable a declarant who "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so." (30)

    Each of the two provisions added by AB 268 will be discussed separately. (31) At the outset, however, it is important to underscore that proposed Section 1390 is not limited to criminal cases or to prosecutors. By its terms the section applies both to criminal and civil cases, and is available to any of the parties to the proceeding. This Article, however, focuses primarily on the use of Section 1390 by prosecutors because the author's principal concern, as disclosed in the Assembly Committee on Public Safety's analysis of May 3, 2007, is with the prosecutors' need for a broader forfeiture hearsay exception than is currently provided by the Evidence Code. (32)


    A chief goal of the hearsay rule is to enhance the fact finding process by excluding certain declarations whenever the declarants cannot be cross-examined under oath in the presence of the fact finders. (33) The rule achieves this goal by permitting the opposing party to object to the use of out of court statements that are offered to prove the truth of the matter asserted. Since the use of hearsay deprives the opponent of an opportunity to challenge the credibility of the hearsay declarant whenever the declarant is not produced at the trial, the rule proceeds on the assumption that cross-examination is vital to assuring the reliability of evidence.

    The nature of testimony supports this assumption. In evaluating the testimony of witnesses, the fact finder should take into account the witnesses' abilities to perceive the subject matter of their testimony and to recall and narrate those perceptions at the...

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