BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair S
1995-96 Regular Session B
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8
SB 1876 (Solis) 7
As amended April 8, 1996 6
Hearing date: April 23, 1996
Evidence Code
MLK:js
CHARACTER EVIDENCE: DOMESTIC VIOLENCE
HISTORY
Source: Los Angeles City Attorneyos Office; California
Alliance Against Domestic Violence
Prior Legislation: AB 882 (Rogan) Chapter 439, Stats. 1995
Support: Santa Barbara County District Attorney; WEAVE;
Casa de Esperanza, Inc.; Alliance Against Family
Violence & Sexual Assault; Shelter Services for Women;
YWCA of San Diego County; Center for Community
Solutions; California State Sheriffos Association;
California Attorney Generalos Office; California
District Attorneys Association; Riverside County
District Attorney; Ventura County District Attorney;
Alameda County District Attorney; Santa Clara County
District Attorney; San Diego City Attorney; Marin
Abused Womenos Services; Sexual Assault and Domestic
Violence Center; Shelter Services for Women; El Dorado
Womenos Center; Haven Womenos Center of Stanislaus;
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Haven House, Inc.; Humboldt Women for Shelter; Doris
Tate Crime Victims Bureau; Calaveras Womenos Crisis
Center; The Coalition Against Domestic and Sexual
Violence; YWCA-WINGS; YWCA Monterey Peninsula; Women
Shelter; Center for Domestic Violence Prevention;
Women Shelter of Long Beach; Battered Womenos
Alternatives
Opposition: California Attorneyos for Criminal Justice;
American Civil Liberties Union
KEY ISSUES
UNDER CURRENT LAW EVIDENCE THAT A DEFENDANT HAS COMMITTED OTHER UNCHARGED
CRIMES, FOR WHICH THE DEFENDANT HAS NOT BEEN CONVICTED, IS GENERALLY
INADMISSIBLE TO PROVE A SPECIFIC CRIME.
SHOULD THE LAW PROVIDE THAT CHARACTER EVIDENCE IS NOT INADMISSIBLE IF IT IS
RELEVANT TO PROVE THE DISPOSITION OF THE DEFENDANT IN A CRIMINAL ACTION TO
ENGAGE IN CRIMINAL CONDUCT AGAINST A PARTICULAR INDIVIDUAL?
SHOULD AN EXCEPTION TO THAT RULE BE MADE TO ALLOW THE INTRODUCTION OF EVIDENCE
OF UNCHARGED prior acts of domestic violence BY THE DEFENDANT IN A DOMESTIC
VIOLENCE CASE?
PURPOSE
Existing law provides that, with certain exceptions, evidence
of a personos 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.
However, it may be admissible if it is found to be relevant
to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident.
(Evidence Code section 1101)
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In criminal actions the exceptions to this general rule are:
character of the defendant or victim may be proved 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 sections 1102 and 1103)
Existing law creates an exception to the inadmissibility of
uncharged character evidence by allowing in evidence of
commission of other sexual offenses when a defendant is
charged with a sexual offense. (Evidence Code section 1108)
Existing law 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 352)
This bill creates an exception to the general rule that
character evidence is inadmissible to prove disposition to
commit a crime by providing that evidence that a person
committed a crime, civil wrong or other act is admissible
when orelevant to prove the disposition of a defendant in a
criminal action to engage in criminal conduct against a
particular individual.o
This bill also creates an exception to uncharged past acts by
allowing evidence of past offenses involving domestic
violence when the defendant is charged with an act of
domestic violence.
The purpose of this bill is to create exceptions in criminal
actions to the general rule that character evidence, and
evidence of uncharged acts are inadmissible to prove a
personos disposition to commit a crime.
COMMENTS
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1. Need for the Bill.
The author states:
Under existing law the defendantos disposition to
engage in criminal conduct against a particular
individual is subject to suppression as
inadmissible evidence of ocharactero. In
domestic violence cases, the defendantos past
acts of violence committed on the victim of the
charged crime, or on other people, are not deemed
admissible to prove the defendantos disposition.
2. Background.
a. General rule in California.
Since the earliest days of statehood, California, has
generally excluded evidence of a persons character or
a trait of his/her character (whether in the form of
an opinion, evidence of reputation, or evidence of
specific instances of his/her conduct) when offered to
prove conduct on a specified occasion.
This provision is codified in Evidence Code section
1101(a). The general theory for excluding this type
of evidence is twofold. First, while the evidence is
relevant under the general meaning of orelevancyo, it
tends to distract the trier of fact from focusing on
the facts at issue. Second, disposition evidence can
be very inflammatory and prejudicial. In the classic
phrase, this evidence is generally inadmissible
precisely because it shows that he/she did it before,
he/she did it again. (See also generally 1 Witkin
California Evidence 3d ed. section 334.)
Character evidence is never admissible in a civil
action to prove conduct and it is generally
inadmissible in a criminal action for that purpose.
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Character evidence is also inadmissible to otrash the
victimo. For example, character evidence is generally
not admissible on the issue of consent in sexual
assault actions. (Evidence Code section 1106)
b. Exceptions to the general rule.
In criminal actions, there are some exceptions to the
general prohibition on the introduction of character
evidence.
Character evidence is admissible if it is initially
introduced by the defense either to prove conduct in
conformity with his/her own conduct or with the
victimos conduct. Once character evidence is
introduced by the defense, then the prosecution can
use character evidence to rebut the defense testimony.
(Evidence Code sections 1102 and 1103)
AB 882 (Rogan) Chapter 439, Stats. 1995, created an
exception to Evidence Code section 1101 by allowing,
in a criminal action in which the defendant is accused
of a sexual offense, evidence of the defendantos
commission of another sexual offense. (Evidence Code
section 1108)
c. Uncharged misconduct.
As opposed to character evidence, the common law and
Evidence Code section 1101(b) have allowed 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, generally,
uncharged misconduct is admissible only after various
safeguards are met. This is done in recognition that
when this type of evidence is admitted, the odds of a
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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.)
Evidence Code section 1108 is an exception to this
allowing in uncharged prior sexual offenses when a
defendant is charged with a sex offense.
3. This Bill.
a. Disposition to engage in conduct.
This bill amends Evidence Code section 1101 in a
manner which broadly lets in evidence of uncharged
acts. It provides that a prior uncharged act is
admissible oto prove disposition of a defendant in a
criminal action to engage in criminal conduct against
a particular individual.o
The author and sponsors state that their intent is to
allow in evidence of past acts in domestic violence
cases, but this section goes far beyond domestic
violence. For example, this section could be used to
allow in gang activities of a defendant who is charged
with a crime against a rival gang member. It could be
argued that a defendant would have the disposition to
engage in criminal conduct against members of the
rival gang and therefore against the particular
victim. This section may also be used to make
admissible otherwise inadmissible uncharged acts when
the defendant has allegedly committed similar acts
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against a similar type of victim i.e., elderly, young,
blond....
The ACLU notes that o[t]he purpose of the character
evidence rule is to ensure that people are punished
because they are guilty of the crime being charged,
not because they are obado people or the otype of
persono who would commit such a crime. This provision
defeats that purpose?o
is this exception broader than the author and sponsor
intend?
does this section effectively do away with the
protections of Evidence Code 1101?
does the exception swallow the rule?
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b. Exception for domestic violence evidence.
This bill also creates an exception for the admission
of character evidence in a criminal domestic violence
action which is similar to the exception created in
AB 882 (Rogan) for sex offenses. It allows in
evidence of prior uncharged acts of domestic violence,
against any victim, when the defendant is being tried
for a domestic violence crime.
(1) Past acts.
This provision allows the admission of evidence of
past acts of domestic violence, not convictions.
It does not matter how long ago the acts were, how
related they are to the current charged crime or
whether they related to the same individual.
should the admission of past acts of domestic violence
be limited to past convictions?
should the exception require that the past acts of
domestic violence were committed against the same
victim?
(2) Definition of Domestic Violence.
oDomestic violenceo is defined in this bill by
reference to Family Code section 6211 which reads:
oDomestic violenceo is abuse perpetrated against
any of the following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant, as defined
in Section 6209.
(c) A person with whom the respondent is having
or has had a dating or engagement relationship.
(d) A person with whom the respondent has had a
child, where the presumption applies that the
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male parent is the father of the child of the
female parent under the Uniform Parentage Act
(Part 3 (commencing with Section 7600) of
Division 12).
(e) A child of a party or a child who is the
subject of an action under the Uniform Parentage
Act, where the presumption applies that the male
parent is the father of the child to be
protected.
(f) Any other person related by consanguinity or
affinity within the second degree.
The Penal Code also defines odomestic violenceo and this
definition is slightly more narrow than the Family Code
definition in that it includes only abuse against
adults. It states:
oDomestic violenceo means abuse committed against an
adult or a fully emancipated minor who is a spouse,
former spouse, cohabitant, former cohabitant, or person
with whom the suspect has had a child or is having or
has had a dating or engagement relationship. For
purposes of this subdivision, ocohabitanto means two
unrelated adult persons living together for a
substantial period of time, resulting in some permanency
of relationship. Factors that may determine whether
persons are cohabiting include, but are not limited to,
(1) sexual relations between the parties while sharing
the same living quarters, (2) sharing of income or
expenses, (3) joint use or ownership of property, (4)
whether the parties hold themselves out as husband and
wife, (5) the continuity of the relationship, and (6)
the length of the relationship.
The broader Family Code definition would allow a broader
range of past bad acts to be admissible and make this
evidence admissible in more crimes. For example, under
the Family Code definition evidence that a defendant
once punched his sister could be admissible in a action
where the defendant is charged with slapping his own
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child.
should the penal code definition of domestic violence be
used instead of the family code definition so that the
exception to Evidence Code 1101 will be narrowly
tailored?
c. Probative value vs. prejudice.
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 352) This bill
provides that the provisions of Evidence Code section
352 still apply when determining whether evidence of
prior acts of domestic violence should be admitted.
d. Trial within a trial.
Allowing in past uncharged acts opens the doors to
trials within trials. The accused must defend against
the past bad act as well as the current charge. The
defendant could call witnesses and put on evidence to
dispute the past uncharged act. This would lead to a
mini-trial within the trial.
will a defendant be required to put on evidence
defending uncharged acts admissible under this
section?
4. Constitutional Issue.
In response to proposed changes to the admissibility
of character evidence at the federal level, a group of
Berkeley criminal law professors noted that when
character evidence is admitted, the risk is great that
the jury will convict the accused because he/she is a
obado person worthy of conviction and punishment and
not because they find the evidence regarding his/her
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guilt of the charged offense necessarily convincing
beyond a reasonable doubt. oAlthough the United States
Supreme Court has not passed on the constitutionality
of using character evidence to convict, the Court has
expressed great reservations about the use of state
power to convict individuals on account of their
status. ( Robinson v. California (1992) 370 U.S. 660)
In Robinson the Court held that the Eighth Amendment
precludes convicting an individual of a status
offense. The status offense in this case could be
having a prior criminal conviction for similar conduct
charged in the case in question.
will this BILL violate the eighth amendment guarantees
against cruel and unusual punishment?
5. Necessity of the Bill.
The opponents note that under existing law the admissibility
of character evidence is actually quite broad. Evidence of
past domestic violence against the same victim is often
brought in under the motive exception in Evidence Code
section 1101(b).
Is this bill necessary when character evidence is often
admissible under existing evidence code 1101(b)?
6. Ex Post Facto Clause.
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Under the ex post facto clause, the United States Supreme
Court has repeatedly held that evidentiary changes which
expands the type of evidence which may be admitted against an
accused is not admissible against a person for crimes
committed prior to the change in the law.
should this bill specify that the changes set forth in this
section may not be used where the acts alleged occurred prior
to the effective date of the legislation?
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7. Double-Referral of This Bill.
This bill was referred by the Senate Rules Committee first to
this Committee and then, if it is approved by Criminal
Procedure, it is to be referred next to the Senate Committee
on Judiciary.
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