BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
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8
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AB 882 (Rogan)
As amended June 27, 1995
Hearing date: July 11, 1995
Penal Code
GWW:md
EVIDENCE IN CIVIL TRIALS
-ADMISSIBILITY OF A CRIMINAL CONVICTION BASED UPON EVIDENCE
WHICH IS INADMISSIBLE IN A IN CIVIL PROCEEDING-
HISTORY
Source: Department of Justice
Related Pending Legislation: None Known
Senate Committee on Criminal Procedure Vote: 5 - 0
Assembly Floor Vote: 66 - 2
Assembly Committee on Public Safety Vote: 5 - 2
KEY ISSUE
1. IN A CIVIL TRIAL FOR DAMAGES FOR A SEXUAL OFFENSE COMMITTED BY
THE DEFENDANT, SHOULD THE FACT OF A CRIMINAL CONVICTION FOR THAT
SEXUAL OFFENSE BE ADMISSIBLE IN THE CIVIL TRIAL TO PROVE THE FACT OF
THE OFFENSE CONCLUSIVELY, EVEN IF THE CRIMINAL CONVICTION IS BASED
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ON EVIDENCE WHICH IS NOT ADMISSIBLE IN THE CIVIL PROCEEDING?
SHOULD THAT CRIMINAL CONVICTION BE GIVEN RES JUDICATA AND
COLLATERAL ESTOPPEL EFFECT?
2. IS IT NECESSARY TO GIVE FELONY CONVICTIONS OBTAINED UNDER AB 882
CONCLUSIVE RES JUDICATA EFFECT WHEN THE CONVICTION IS ALSO
ADMISSIBLE UNDER EVIDENCE CODE SECTION TO PROVE ANY FACT ESSENTIAL
TO THE JUDGMENT?
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3. SHOULD THE PROPOSED USE OF CHARACTER EVIDENCE OF THE DEFENDANT'S
COMMISSION OF ANOTHER SEXUAL OFFENSE TO PROVE THE COMMISSION OF THE
CHARGED SEXUAL OFFENSE, BE LIMITED TO OTHER SIMILAR SEXUAL OFFENSES?
4. SHOULD THE PROPOSED DEFINITION OF "SEXUAL OFFENSE" BE NARROWED
TO ELIMINATE REDUNDANCY AND POSSIBLE OVERBREADTH?
PURPOSE
Evidence Code section 352 generally provides that a court may
exclude otherwise admissible evidence if the probative value of the
evidence is outweighed by the probability that its admission will
create substantial danger of undue prejudice to the defendant.
Evidence Code section 1101 provides that with certain exceptions,
evidence of a person's character or trait of his character, whether
in the form of an opinion, evidence of reputation, or evidence of
specific instances of his conduct, is inadmissible when offered to
prove his or her conduct on a specified occasion. A limited
exception is made to allow the admissibility of evidence that a
person committed a crime, civil wrong, or other act if it is found
to be relevant to prove some fact, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake
or accident, other than his or her disposition to commit the act.
Evidence Code section 1102 provides that in a criminal action,
evidence of the defendant's character or a trait of his character in
the form of an opinion or evidence of his reputation is admissible
when (1) it is offered by the defendant to prove his/her conduct in
conformity with such character or trait of character; or, (2) it is
offered by the prosecution to rebut evidence adduced by the
defendant.
Evidence Code section 1103(a) provides that in a criminal action,
evidence of the victim's character or a trait of his or her
character in the form of an opinion, evidence of reputation, or
evidence of specific instances of conduct, is admissible when (1) it
is offered by the defendant to prove the conduct of the victim in
conformity with the character or trait of character; or, (2) it is
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offered by the prosecution to rebut the defendant's evidence.
Under Section 1103(b), evidence of the defendant character for
violence or a trait of character for violence, in the form of an
opinion, evidence of reputation, or evidence of specific instances
of conduct, is admissible when it is offered by the prosecution to
prove the conduct of the defendant in conformity with the character
or trait of character and is offered after the defendant has
introduced evidence under Section 1103(a) that "the victim had a
character for violence or a trait of character tending to show
violence."
Section 1103(c) provides that in a prosecution for rape, rape in
concert, sodomy, oral copulation or child molestation, or for an
assault to commit any one of the sex offenses, opinion evidence,
reputation evidence, and evidence of specific instances of the
complaining witness' sexual conduct with other persons is not
admissible by the defendant to prove consent by the victim.
Evidence Code Section 1106 provides that in a civil action for
damages resulting from sexual harassment, sexual assault, or sexual
battery, opinion evidence, reputation evidence, and evidence of
specific instances of the plaintiff's sexual conduct with other
persons is not admissible by the defendant to prove consent by the
plaintiff or the absence of injury to the plaintiff. However, if
the plaintiff introduces evidence or testimony relating to the
plaintiff's sexual conduct, then the defendant may cross-examine the
witness and offer relevant evidence limited specifically to the
rebuttal of the evidence introduced or given by the plaintiff.
This bill would make an additional exception to section 1101
to allow the introduction of evidence in a criminal action of the
defendant's commission of another sexual offense when a defendant is
being charged with a sexual offense. As defined, the term sexual
offense would include the following offense, some of which are
misdemeanors and wobblers:
- Sexual battery - Section 243.4
- Rape - Section 261
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- Unlawful sexual intercourse, a wobbler - Sec. 261.5
- Spousal rape - Section 262
- Rape in concert - Section 264.1
- Inducing consent to intercourse through false representations
creating fear, a wobbler - Section 266c
- Sodomy - Section 286
- Child molestation - Section 288
- Oral copulation - Section 288a
- Distribution of lewd material to a minor, a wobbler - Sec. 288.2
- Three or more acts of substantial conduct with child under age
14 - Section 288.5
- Foreign object rape - Section 289
- Knowing possession or production of child pornography to
distribute for commercial consideration - Sec. 311.2(b)
- Knowing possession or production of child pornography to
distribute for non-commercial consideration, a wobbler - Sec.
311.2(c)
- Knowing development, duplication, or exchange of any video or
photograph depicting sexual conduct by a minor, a misdemeanor -
Sec. 311.3
- Using minor in commission of Section 311.2, a misdemeanor -
Sec. 314(a)
- Using minor to pose for child pornography - Sec. 311.4(b)
- Advertising for sale of distributing child pornography, a
wobbler - Section 311.10
- Possession or matter depicting sexual conduct by minors, a
misdemeanor (first offense) - Section 311.11
- Indecent exposure, a misdemeanor - Section 314
- Annoying or molesting child under 18, a misdemeanor
- Section 647.6
The term would also be defined to include:
- "Contact, without consent, between any part of the defendant's
body or an object and the genitals or anus of another person."
- "Contact, without consent, between the genitals or anus of the
defendant and any part of another person's body.
- "Deriving sexual pleasure or gratification from the infliction of
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death, bodily injury, or physical pain on another person."
- Any attempt or conspiracy to engage in any conduct listed above.
The purpose of this bill is to permit evidence to be admitted that
the defendant committed one of a list of other sexual offenses when
the defendant is being prosecuted for a sexual offense.
COMMENT
1. Should the fact of a criminal conviction for a sexual offense be
admissible in a civil trial to prove the fact of the offense
conclusively under the doctrines of res judicata and collateral
estoppel, even if the criminal conviction was based on character
evidence which is not admissible in the civil proceeding?
The doctrine of res judicata gives certain conclusive effect to
an earlier judgment in subsequent litigation involving the same
controversy. The doctrine seeks to curtail multiple litigation
causing vexation and expense to the parties and wasted effort
and expense in judicial resources. The doctrine is
well-established in common law and is codified in California in
Code of Civil Procedure sections 1908, 1908.5, and 1911.
In the context of criminal convictions which may be introduced
to prove a fact in a civil lawsuit, the doctrine operates to
collaterally estop the parties from re-litigating issues
actually litigated and determined in the former action. The
former judgment (conviction) is conclusive between the parties
in the former action.
In Teitelbaum Furs v. Dominion Insurance Co., (1962) 58 Cal.2d
601, the California Supreme Court established the present rule
applying the doctrine to give conclusive effect in a civil
action to a felony conviction for the same act. It was reasoned
that if the jury in a criminal case finds the accused guilty of
wrongdoing, by proof beyond a reasonable doubt, that finding can
properly be considered conclusive on the issue in a later civil
action.
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Thus, under Teitelbaum, a felony conviction for a sexual offense
will be given binding effect in a civil damages action for that
offense, even if character evidence which is not admissible in
the civil action was used to obtain the felony conviction.
Opponents contend that application of res judicata principles to
a felony conviction based on civilly inadmissible character
evidence unfairly prejudices the defendant.
SHOULD RES JUDICATA AND COLLATERAL ESTOPPEL APPLY TO MAKE THESE
FELONY CONVICTIONS BINDING IN A SUBSEQUENT CIVIL ACTION?
DOES NOT THE BILL SIGNIFICANTLY EASE THE PLAINTIFF'S BURDEN OF
OBTAINING A CIVIL JUDGMENT?
The proponents respond that trial judge retains the discretion
under Section 352 to bar the admissibility of the evidence if it
is too prejudicial. Opponents respond that judges who must face
re-election may exercise that discretion sparingly.
Until recently, the rule of Teitelbaum Furs has not been applied
to misdemeanor convictions. "Practical considerations make this
undesirable. Frequently, defendants do not appear, accepting a
fine without contest, so the issue may not be litigated. And
even if the charge is contested, there is grave danger in
permitting a conviction for minor misdemeanors to lay an
irrefutable foundation for recovery of substantial damages."
Witkin, California Procedure, 3d Ed., "Judgments", at pp. 674,
675.
In Mueller v. J.C. Penney Co. (1985) 173 Cal.App.3d 713, the
court held that collateral estoppel may be applied in
appropriate cases such as where the misdemeanor case was
thoroughly litigated. In Leader v. California (1986) 182
Cal.App.3d 1079, the court cited the trend towards broader use
of misdemeanor convictions for purposes of collateral estoppel,
took notes of cases in other jurisdictions which have held that
the collateral estoppel effect of a misdemeanor conviction
should be determined on a case-by-case basis, and held that
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collateral estoppel may be given where the prior conviction was
for a "serious offense" which the defendant was fully motivated
to litigate and where there was a full and fair misdemeanor
trial.
Several of AB 882's listed sexual offenses are misdemeanors or
misdemeanor/felony wobblers.
2. Conviction obtained by use of character evidence to prove
conduct would also be admissible hearsay
Generally, a judgment in a prior action which is offered as
substantive evidence of the matters determined by the judgment
is "hearsay" evidence. In effect, it is a statement of the
court that decided the prior action which is offered to prove
the truth of the matters stated. Under Evidence Code Section
1300, a final judgment adjudicating a person guilty of an
offense punishable by a felony is admissible to prove any fact
essential to the judgment. The Comment to the section deems
evidence of a prior felony conviction to be "peculiarly
reliable" and notes that the seriousness of the charge "assures
the facts will be thoroughly litigated."
This evidentiary use of the felony conviction is distinguishable
from the substantive use of the conviction to conclusively
establish certain facts against a party under principles of res
judicata and collateral estoppel.
The same issue of fairness arises as to whether these
convictions should be admissible in the civil action when they
were based on evidence which is itself inadmissible in the civil
action. However, as an evidentiary use rather than a conclusion
determination, the consequences are less severe, to an extent.
IS IT NECESSARY TO ALSO GIVE FELONY CONVICTIONS OBTAINED UNDER
AB 882 CONCLUSIVE RES JUDICATA EFFECT WHEN THE CONVICTION IS
ADMISSIBLE TO PROVE ANY FACT ESSENTIAL TO THE JUDGMENT?
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3. Stated need for admissibility of prior acts in criminal
proceedings
According to the author:
"Under current law, evidence that a particular defendant has
committed rape, acts of child molestation , or other sexual
offenses against other victims is not necessarily admissible in
a trial where the defendant is being accused of a subsequent
sexual offense. The propensity to commit sexual offenses is not
a common attribute among the general public. Therefore,
evidence that a particular defendant has such a propensity is
especially probative and should be considered by the trier of
fact when determining the credibility of a victim's testimony.
This proposal will amend the Evidence Code so as to establish,
in sexual offense actions, a presumption of admissibility for
evidence that the defendant has committed similar crimes on
other occasions. (Emphasis added,)
The text of the measure itself, however, does not restrict the
introduction into evidence of "similar" crimes. Rather, it
would allow the introduction of evidence alleging the commission
of any one of 20 felonies or misdemeanors to prove the defendant
character in a prosecution for one of listed sexual offenses.
The measure makes the value judgment that an alleged misdemeanor
indecent exposure incident is evidence of
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the character of a defendant who is charged with spousal rape or
sodomy.
SHOULD NOT THE MEASURE BE NARROWED TO ALLOW THE ADMISSIBILITY OF
SIMILAR SEXUAL OFFENSES?
4. Definition of sexual offense may be overly broad
AB 882 would define "sexual offense" to mean 21 listed offenses,
some of which are misdemeanors and wobblers.
SHOULD THE TERM ONLY INCLUDE FELONY OFFENSES?
In addition to the list of 21 offenses, the term "sexual
offense" is also defined to include:
- "Contact, without consent, between any part of the
defendant's body or an object and the genitals or anus of
another person."
- "Contact, without consent, between the genitals or anus of
the defendant and any part of another person's body.
The inclusion of these acts are already covered under sexual
battery and therefore seems redundant.
The term is also defined to mean:
- "Deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on
another person."
- Any attempt or conspiracy to engage in any conduct listed
above.
IS THE DEFINITION INTENDED TO COVER "TORTURE"?
5. Law evolving to allow misconduct evidence to prove plan or
motive
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a) General rule in California
Since the earliest days of statehood, California, has
generally excluded evidence of a person's character or a
trait of the person's character (whether in the form of an
opinion, evidence of reputation, or evidence of specific
instances of the person's conduct) when offered to prove
conduct on a specified occasion.
This provision flows from common law origins and is codified
in Evidence Code section 1101(a). In McCormick on Evidence
2d Ed., it is stated:
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The disfavor for receiving proof of the character of a
person as evidence that on a particular occasion he acted in
keeping with his disposition is strongly felt when the state
seeks to show that the accused is a bad man and thus more
likely to have committed the crime. The long-established
rule, accordingly, forbids the prosecution, unless and until
the accused gives evidence of his good character, to
introduce initially evidence of the bad character of the
accused. It is not irrelevant, but in the setting of jury
trial the danger of prejudice outweighs the probative value.
This danger is at its highest when character is shown by
other criminal acts.... ( Id., at page 447.)
b) Trend to admit uncharged misconduct admissible to show plan
or motive
As opposed to character evidence, the common law and
Evidence Code section 1101(b) allows the admissibility of
evidence that a person committed a crime, civil wrong or
other act when relevant to prove some fact other than his or
her disposition of committing such an act, i.e., motive,
intent, opportunity, preparation, plan, knowledge, etc.
given its highly inflammatory nature, uncharged misconduct
is admissible after various safeguards are met. This is
done in recognition that when this type of evidence is
admitted, the odds of a conviction increase dramatically.
The hurdles which must be met before uncharged misconduct
evidence may be admitted are: first, the evidence to be
admitted must bear on an issue genuinely in dispute; and,
secondly, in the action of prior crimes of the same type,
the evidence must relate primarily to identity such that the
methodology of committing the crime are so close as to be
the signature of the same person, i.e., the same person
committed both crimes. (See generally 1 Witkin, California
Evidence, 3d Ed., Sections 357, 370 and 374.)
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CACJ, in opposition, contends that AB 882 is not necessary
because evidence of prior sex offenses is broadly admissible
under existing law. It states:
"The only purpose for which such evidence is not
admissible is for use as evidence of the defendant's
character, in order further to prove that defendant
acted in accordance with that character in committing
the charged crime.
"Thus, for example, a prosecutor may bring in evidence
of prior sex offenses where the uncharged offenses and
the charged offense can be shown to be part of one
"plan." The plan theory has been interpreted broadly
by the California Supreme Court to allow in evidence of
prior offense in nearly any situation in which might be
helpful.'
To confirm this point, Prof. Imwinkelried (of UC Davis)
notes that in People v. Ewoldt (1984) 36 Cal.3d 77, a sex
offense prosecution, the California Supreme Court expanded
the scope of the "plan" theory for admitting evidence of an
accused's uncharged misconduct. Furthermore he states that
"[i]n a recent article, three federal prosecutors asserted
that the 'practical effects' of the character evidence
prohibition are 'minor' because the standards for admitting
uncharged misconduct on noncharacter theories are now so
liberal that other most relevant evidence of a person's bad
character is still presented to the jury."
Support: Doris Tate Crime Victims Bureau; Adam Walsh Center;
California Attorneys for Criminal Justice; Mothers Against
Sexual Abuse; Protect Our Children; Sacramento County
District Attorney; Citizens for Law and Order Inc.; Los
Angeles County District Attorney
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Opposition: ACLU; CACJ; Judicial Council; Edward J. Imwinkelried (UC
Davis Law Prof.; former Chair, Evidence Section of the
American Association of Law Schools
Prior legislation: None Known
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