SENIOR ASSEMBLY PROPOSAL NO. 21

INTRODUCED BY SENIOR ASSEMBLY MEMBER TUCKER

(COAUTHER: SENIOR SENATOR FROMM)

LEGISLATIVE COUNSEL'S DIGEST

AP 21:  HEARSAY EVIDENCE.

UNDER EXISTING LAW, A PERSON IS GUILTY OF A MISDEMEANOR WHEN, UNDER CIRCUMSTANCES OR CONDITIONS OTHER THAN THOSE LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH, HE OR SHE WILLFULLY CAUSES OR PERMITS ANY ELDER OR A DEPENDENT ADULT, WITH KNOWLEDGE THAT HE OR SHE IS AN ELDER OR A DEPENDENT ADULT, TO SUFFER UNJUSTIFIABLE PHYSICAL PAIN OR MENTAL SUFFERING.

UNDER EXISTING LAW, IT IS ALSO A MISDEMEANOR FOR A PERSON, HAVING THE CARE OR CUSTODY OF ANY ELDER OR DEPENDENT ADULT, TO WILLFULLY CAUSE OR PERMIT THE PERSON OR HEALTH OF THE ELDER OR DEPENDENT ADULT TO BE INJURED OR TO WILLFULLY CAUSE OR PERMIT THE ELDER OR DEPENDENT ADULT TO BE PLACED IN A SITUATION IN WHICH HIS OR HER PERSON OR HEALTH MAY BE ENDANGERED.

EXISTING LAW ESTABLISHES AN EXCEPTION TO THE HEARSAY RULE, IN A CRIMINAL PROSECUTION WHERE THE VICTIM IS A MINOR, FOR THE ADMISSION OF STATEMENTS MADE BY A CHILD VICTIM WHEN UNDER THE AGE OF 12 YEARS DESCRIBING ACTS OR ATTEMPTED ACTS OF CHILD ABUSE OR CHILD NEGLECT, AS SPECIFIED.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION THAT WOULD CREATE AN EXCEPTION TO THE HEARSAY RULE IN A CRIMINAL PROSECUTION FOR THE ABOVE DESCRIBED CRIMES OF ABUSE AGAINST AN ELDER OR DEPENDENT ADULT UPON FINDINGS BY THE COURT THAT THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDES SUFFICIENT INDICIA OF RELIABILITY AND THE ADULT VICTIM IS UNAVAILABLE AS A WITNESS.

VOTE: MAJORITY.

AP 21: RELATING TO HEARSAY EVIDENCE

WHEREAS, THE LEGISLATURE FINDS AND DECLARES THAT CRIMES AGAINST ELDERS AND DEPENDENT ADULTS ARE DESERVING OF SPECIAL CONSIDERATION AND PROTECTION; AND WHEREAS, ELDERS AND DEPENDENT ADULTS MAY BE CONFUSED, ON VARIOUS MEDICATIONS, MENTALLY OR PHYSICALLY IMPAIRED, OR INCOMPETENT; AND

WHEREAS, THEY MAY BE LESS ABLE TO PROTECT THEMSELVES, TO UNDERSTAND OR REPORT CRIMINAL CONDUCT, OR TO TESTIFY IN COURT PROCEEDINGS ON THEIR OWN BEHALF; AND

WHEREAS, COURTS HAVE HELD THAT IN CASES OF ABUSE, EXCEPTIONS TO THE HEARSAY RULE ARE NOT LIMITED TO THOSE ENUMERATED IN THE EVIDENCE CODE; AND

WHEREAS, THE CALIFORNIA SUPREME COURT HAS HELD THAT IT IS APPROPRIATE FOR COURTS TO CREATE HEARSAY EXCEPTIONS, SPECIFICALLY IN CASES OF ABUSE WHERE THERE IS A LACK OF PHYSICAL EVIDENCE AND THE VICTIM IS UNABLE TO TESTIFY; AND

WHEREAS, THE INTENT OF THE COURTS AND THE LEGISLATURE IS TO TREAT ELDER ABUSE AND CHILD ABUSE SIMILARLY; AND

WHEREAS, AS MORE ELDER ABUSE CASES ARE BEING PROSECUTED, THE NEED FOR A HEARSAY EXCEPTION IS GROWING; AND

WHEREAS, ELDERS AND DEPENDENT ADULTS SHOULD BE AFFORDED THE SAME SPECIAL CONSIDERATIONS AND PROTECTIONS THAT ARE AFFORDED TO MINOR CHILDREN; NOW, THEREFORE, BE IT

RESOLVED, BY THE SENIOR ASSEMBLY AND THE SENIOR SENATE, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2004 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES AN EXCEPTION TO THE HEARSAY RULE IN INSTANCES INVOLVING ELDER ABUSE THAT MAKES HEARSAY EVIDENCE ADMISSABLE UPON A FINDING BY THE COURT THAT THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDE SUFFICIENT INDICIA OF RELIABILITY AND THE ADULT VICTIM IS UNAVAILABLE AS A WITNESS; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR OF THE STATE OF CALIFORNIA TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER RESOLVED, 

THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.