Evidence: admissibility of statements.

(1) Existing law defines "unavailable as a witness," for purposes of the Evidence Code, to mean that the declarant is, among other things, exempted or precluded on the ground of privilege, disqualified, dead, or absent for a specified reason. This bill would supplement that definition to add the circumstance that the declarant is persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify. (2) 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 also provides exceptions to the hearsay rule to permit the admission of specified kinds of evidence. This bill would provide, until January 1, 2016, that evidence of a statement that is offered against a party who has engaged, or aided and abetted, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness is not made inadmissible by the hearsay rule. The bill would require the party seeking to introduce a statement to establish, by a preponderance of the evidence, that the elements of this provision have been met at a foundational hearing, as specified. These provisions would apply to any civil, criminal, or juvenile case or proceeding initiated or pending as of January 1, 2011.