BILL ANALYSIS
SENATE JUDICIARY COMMITTEE S
Charles M. Calderon, Chairman B
1995-96 Regular Session
1
8
7
6
SB 1876
Senator Solis
As amended on April 29, 1996
Hearing Date: May 7, 1996
Evidence Code
MBS:cb
CHARACTER EVIDENCE
DOMESTIC VIOLENCE
HISTORY
Source: The Office of the City Attorney of Los Angeles and
the California
Alliance Against Domestic Violence.
Prior Vote: Criminal Procedure: 4 - 0
KEY ISSUES
1. SHOULD CHARACTER EVIDENCE BE ADMISSIBLE TO PROVE THAT A
PERSON COMMITTED A CRIME, CIVIL WRONG OR OTHER ACT, WHEN
RELEVANT TO PROVE THE DISPOSITION OF THE DEFENDANT IN A
CRIMINAL ACTION TO ENGAGE IN CRIMINAL CONDUCT AGAINST THE
VICTIM OF THE CHARGED CRIME?
2. SHOULD EVIDENCE OF PAST ACTS OF DOMESTIC VIOLENCE,
GENERALLY, BE ADMISSIBLE AS CHARACTER EVIDENCE IN A
CRIMINAL ACTION IN WHICH DOMESTIC VIOLENCE IS CHARGED?
3. DOES THIS BILL VITIATE THE CHARACTER EVIDENCE RULE IN
CALIFORNIA?
PURPOSE
Existing law: (All references are to the Evidence Code
unless otherwise provided.)
SB 1876 (Solis)
Page b
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 a substantial danger of undue
prejudice to the defendant.
Section 1101 provides that with certain exceptions,
evidence of a personos character or traits of his or her
character (hereinafter, referred to as character evidence),
whether in the form of an opinion, evidence of reputation,
or evidence of specific instances of his or her conduct, is
inadmissible when offered to prove his or her conduct on a
specific occasion.
A limited exception in Section 1101(b) 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, or whether the defendant in a prosecution for
an unlawful sexual act or attempted unlawful sexual act,
did not reasonable and in good faith believe that the
victim consented) other than his or her disposition to
commit the act (italics added).
Section 1102 provides that in a criminal action, character
evidence regarding the defendant in the form of an opinion
or evidence of his or her reputation is admissible when:
(1) it is offered by the defendant to prove his or her
conduct in conformity with such character trait; or (2) it
is offered by the prosecution to rebut evidence adduced by
the defendant.
Section 1103(a) provides that in a criminal action,
character evidence regarding the victim 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 trait; or (2) it is
offered by the prosecution to rebut the defendantos
evidence.
Section 1103(b) provides that character evidence regarding
the defendantos penchant 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
SB 1876 (Solis)
Page c
the prosecution to prove the conduct of the defendant in
conformity with the character trait and is offered after
the defendant has introduced evidence pursuant to Section
1003(a) that the victim had a character trait for 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 witnesso
sexual conduct with other persons is not admissible by the
defendant to prove consent by the victim.
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 the plaintiffos 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 plaintiffos sexual conduct, then the
defendant may cross-examine the witness and offer relevant
evidence limited specifically to the rebuttal of
plaintiffos evidence.
Section 1108(a) provides that in a criminal action in which
the defendant is accused of a sexual offense, evidence of
the defendantos commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352. (In
other words, it is admissible to prove disposition of the
defendant if the probative value of the evidence is not
outweighed by a substantial danger of undue prejudice.)
Section 1108(b) provides that if evidence is to be
admissible under this section the people must disclose the
evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony
that is expected to be offered, at least 30 days before the
scheduled date of trial (or at such later time as the trial
court may allow for good cause).
Section 1108(c) provides that this section shall not be
construed to limit the admission or consideration of
evidence under any other section of this code.
SB 1876 (Solis)
Page d
This bill adds to the provision in Section 1101(b),
allowing admissibility of evidence that a person committed
a crime, civil wrong or other act, when relevant to prove
some fact (such as motive, etc.) -- an additional basis for
admissibility, owhen relevant to prove the disposition of a
defendant in a criminal action to engage in criminal
conduct against the victim of the charged crime.o
This bill also adds Section 1109 which parallels the
provisions of Section 1108, but relates to criminal actions
based on domestic violence, rather than sexual offenses.
It is the authoros intent by this bill to expand the bases
for inclusion of a defendantos character evidence, most
specifically evidence of a disposition toward violence with
a particular victim
COMMENT
1. Should character evidence that a person committed a
crime, civil wrong or other act, be admitted when
relevant to prove the disposition of the defendant in a
criminal action to engage in criminal conduct against the
victim of the charged crime?
The author argues that courts should be able to admit
evidence of other acts of violence committed by the
defendant against the victim to show his or her violent
disposition toward the victim. The author believes that
ocharacter evidenceo connotes something more general than
a personos inclinations toward a particular individual,
and so the policies underlying the general restriction
against use of character evidence has little application
to conduct which is so specific.
The author states that allowing evidence of this type does
not open the door to a limitless inquiry concerning all
the obad actso the defendant may have committed in the
course of his or her life. It only allows more to be
shown concerning his or her relationship with and acts
towards the particular victim.
The author notes that courts in other jurisdictions have
found evidence of the defendantos disposition toward the
victim to be outside the scope of codified rules that
SB 1876 (Solis)
Page e
prohibit use of character evidence, but California
continues to so prohibit.
The author agrees that such evidence can already be
admitted pursuant to Section 1101(b) if it is admitted to
prove a relevant fact, such as motive, intent,
preparation, etc. However, the author argues, requiring
character evidence to meet such criteria results in
inconsistency, as the determination whether the evidence
will be admitted depends upon the courtos willingness to
find it probative of some ostensibly non-character
purpose.
The author believes that a more honest approach is to allow
character evidence to show disposition in crimes which
are continuing in nature, such as domestic violence.
Such a rule would also be applicable to crimes such as
stalking, according to the author.
The author supports her argument in favor of permitting
character evidence to be admitted to prove disposition by
finding a distinction between evidence of ogeneral bad
behavior,o which she seems to agree may continue to be
inadmissible, and ospecific bad behavioro toward the
particular defendant, which she argues should be
admissible.
It is not that the authoros distinction is without merit;
it is simply that, when stripped of its rhetoric, it
boils down to an evaluation of the comparative probative
values of the two types of character evidence. Her
argument is that evidence of a defendantos disposition of
violence toward the particular victim is highly probative
of whether or not the defendant did, in fact, commit the
act of domestic violence being charged.
The common law and statutory basis for not allowing
character evidence has never been that it lacked in
probative value. Quite the contrary, it is that the
potential for prejudice to a defendant outweighs the
probative value.
Since the earliest days of statehood, California has
generally excluded character evidence (whether in the
form of an opinion, evidence of reputation, or evidence
of specific instances of the personos conduct) when
SB 1876 (Solis)
Page f
offered to prove conduct on a specific occasion.
This provision flows from common law origins and is
codified in Section 1101(a). In McCormick on Evidence 2d
Ed., where it is stated:
The disfavor for receiving proof of the
character of a person as evidence that on a
particular occasion he acted in keeping with his
dispositions 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 a 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.)
The author further bolsters her support of this provision
by arguing that the current authority to admit such
evidence if used to prove some other relevant fact,
results in inconsistency because it depends upon the
willingness of judges to find the fact relevant to the
other fact. However, even with this bill there will be
no guarantee of greater consistency. Courts will still
have to make a case-by-case determination of whether or
not the probative value of the character evidence is
outweighed by its risk of prejudice to the defendant.
The American Civil Liberties Union (ACLU) opposes this
bill which it believes guts the character evidence rule
by allowing admission of evidence of a prior act to prove
the odisposition of a [criminal] defendant ... to engage
in criminal conduct against a particular individual.o
The ACLU argues that the implications of this provision
extend far beyond the domestic violence context,
essentially allowing character evidence to be introduced
to show disposition to commit an act against a particular
individual. Current law already allows character
evidence when relevant to prove some fact such as motive
SB 1876 (Solis)
Page g
or intent, but specifically disallows such evidence to
prove disposition. Immediately after this prohibition,
this bill inserts a provision allowing evidence of
disposition to oengageo in criminal conduct against a
particular individual.
The ACLU notes that the 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.
2. Should evidence of past acts of domestic violence,
generally, be admissible as character evidence in a
criminal action in which domestic violence is charged?
The author notes that this portion of the bill is
narrower than the first, in that both the charged and
uncharged acts must satisfy the definition of odomestic
violenceo in Family Code Section 6211. The author notes
that it is broader than the first provision, however, in
that evidence of past acts committed against other
victims could be admitted. (For example, in a
prosecution for abuse committed by the defendant against
his present wife, evidence could be admitted that he also
committed such abuse against a former wife.)
Family Code Section 6211 provides that domestic violence
is abuse perpetrated against any of the following
persons: a spouse or former spouse; a cohabitant or
former cohabitant; a person with whom the respondent is
having or has had a dating relationship, a person with
whom the respondent has a child; a child of a protected
party; and any other person related by consanguinity or
affinity.
The author states that domestic violence prosecutions are
difficult because of pervasive problems of victim
noncooperation. Where the prosecution is necessary to
stop extreme and escalating violence by the abuser,
prosecutors are presented to a unique degree with the
problem of making a case with a victim who is
uncooperative, or even actively opposing the prosecution.
The author believes that this provision will give the
prosecutors the ability to show more consistently that
the defendant has engaged in domestic violence on other
SB 1876 (Solis)
Page h
occasions.
The author argues that the restrictions on hearsay evidence
and the courtos ability to exclude evidence which poses a
substantial risk of prejudice to the defendant are not
impaired by this billos provisions, and thus the
interests of the defendant are protected.
In determining what type of evidence of past acts of
domestic violence will be used, a primary candidate will
be the existence of a domestic violence restraining order
(TRO).
Generally, a judgment in a prior action which is offered as
substantive evidence of the matters determined by the
judgment is ohearsayo 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. The prohibition against the use of hearsay
evidence is its unreliability. However, 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 that section deems evidence of a prior felony
conviction to be opeculiarly reliableo and notes that the
seriousness of the charge oassures the facts will be
thoroughly litigated.o
This is not the case in many instances when the existence
of a TRO is the evidence being used to prove the truth of
the fact that a defendant did, in fact, commit the
alleged domestic violence. This is due to the unique
nature of domestic violence cases, and how courts handle
them.
For many years, the domestic violence community complained
that courts were requiring too much in the way of
evidence before granting a domestic violence restraining
order(TRO), particularly when requested ex parte. Much
legislation was introduced and passed, and much education
of the judiciary undergone, in order to encourage the
granting of TROs upon the poorest written request
regardless of whether or not the alleged victim could
sufficiently bolster his or her request with sufficient
facts to demonstrate a need.
SB 1876 (Solis)
Page i
As a result, many courts began issuing TROs as a matter or
course. After all, when there is an allegation of abuse,
even if it may be unfounded, it is better to grant the
TRO and keep the parties separated, rather than risk
future abuse. For this reason, mutual TROs became
popular with the courts. There was a new and enlightened
mindset that the priority was to provide for temporary
safety first, ask legal questions and demand evidence
later -- even when this meant one party was suddenly, and
without notice, kicked out of his or her home and kept
away from his or her children. Constitutional rights to
property and pursuit of happiness were put aside with
minimal due process because alleged defendants could have
their day in court, and the ultimate results were simply
a temporary taking which provided a measure of safety.
Thus, unless a court issued a particular TRO based upon
sufficient legally admissible evidence and the issue were
litigated fully, there is a question as to whether or not
admission of such a TRO would violate the hearsay rule.
Further, if it is the authoros and sponsorso intents to
curb domestic violence by making it easier to convict
alleged batterers, consideration must be given to the
potential practical consequences of attaching greater and
greater consequences to domestic violence restraining
orders.
Legislation continued and continues to be introduced which
imposes greater consequences on the TROs being issued.
Courts are no longer permitted to grant mutual TROs in
order to provide immediate safety and cooling off while
waiting to get the parties into court. Now a court must
determine who is the primary aggressor. This means the
court needs more evidence before granting the TRO.
The existence of a TRO can seriously impinge on a parentos
ability to obtain custody and visitation (Family Code
Sections 3011, 3031 and 3100). Current legislation
would: create a rebuttable presumption against the award
of sole physical or legal custody to a parent who has
perpetrated domestic violence (AB 800 - Kuehl); impinges
on the ability to provide reunification services to an
alleged batterer (AB 2647 - Kuehl); and impinges on the
ability of non-married fathers to establish paternity (SB
1444 - Solis).
SB 1876 (Solis)
Page j
In all of these cases, the mere existence of a TRO is used
as evidence that domestic violence did, in fact, occur,
even though the TRO may not have been granted on legally
admissible evidence supporting the truth of the
allegations, but on the desire to provide for immediate
separation and safety of the parties and children.
At what point do these consequences of the existence of the
TRO act to caution courts against granting them except
upon sufficient, legally admissible evidence?
Perhaps it is with this bill, which would permit the
existence of a TRO to oproveo the disposition of an
alleged defendant toward an alleged victim, in a criminal
action, one that may result in the taking of the
defendantos liberty. Is this where the Constitution
bends to the point of breaking?
The ACLU opposes this provision because it adds a major
exception to the rules of evidence for domestic violence
by allowing evidence of prior domestic violence as
evidence of the personso character to prove that the
defendant acted in accordance with that character by
committing the charged crime. ACLU states that this
would admit evidence of a defendantos past similar acts
-- not convictions -- in criminal domestic violence
cases, regardless of how attenuated in time the charges
or accusation may have been or whether they related to
the same individual.
The ACLU notes that the rule excluding character evidence
was developed because certain evidence -- such as
domestic violence or sex offenses -- is so prejudicial to
the jury. The prosecution has the burden of proving
beyond a reasonable doubt that the individual committed
the charged crime. The ACLU argues that allowing
evidence of prior acts to prove disposition to commit the
crime in essence, lowers the burden of proof for the
prosecution because they will be able to argue that this
crime was oin keeping with the personos character.o
3. Does this bill vitiate the character evidence rule in
California?
As opposed to character evidence, the common law and
SB 1876 (Solis)
Page k
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, such as motive, intent, opportunity,
preparation, 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. (See generally,
1 Witkin, California Evidence, 3d Ed., Section 357, 370
and 374.)
The provisions of this bill which permit the admission of a
defendantos character evidence based upon commission of
acts, not convictions for crimes, to prove that a
defendant did what is being alleged, strikes at the heart
of the character evidence rule: the ability to prove
that because a person was obado in the past he or she
must be guilty of being obado in this specific instance.
The prejudicial value of such evidence is inherently
high.
While the author argues that this bill will do nothing to
impinge on Section 352os mandate (that a court exclude
evidence where the prejudice outweighs the probative
value), if that were truly the case, the author would not
be bringing this bill. How else is a court expected to
read the new statute but as a statement by the
Legislature that the probative value of this type of
character evidence is deemed to be sufficiently high as
to outweigh any but the greatest degree of prejudice to
the defendant?
Support: California Alliance Against Domestic
Violence, California Department of Justice,
Doris Tate Crime Victims Bureau, Contra
Costa County District Attorney, Los Angeles
County District Attorney, The Nicole Brown
SB 1876 (Solis)
Page l
Simpson Charitable Foundation, California
District Attorneys Association, California
State Sheriffos Association, San Francisco
District Attorneyos Family violence Project,
Riverside County District Attorney, Ventura
County District Attorney, Alameda County
District Attorney, Santa Barbara County
District Attorney, Santa Clara District
Attorney, Orange County District Attorney,
Shasta County Domestic Violence Coordinating
Council, California Peace Officerso
Association and California Police Chiefso
Association, San Diego City Attorneyos
Criminal Division, Alternatives to Domestic
Violence, Casa de Esperanza, Inc., Marin
Abused Womenos Services, Sexual Assault and
Domestic Violence Center, Shelter Services
for Women, El Dorado Womenos Center, Haven
Womenos Center, Shasta County Womenos
Refuge, DOVES of Big Bear Valley, Inc., EYE
Counseling & Crisis Services, Alliance
Against Family Violence and Sexual Assault,
Haven House, Inc., Humboldt Women for
Shelter, WEAVE, Calaveras Womenos Crisis
Center, San Diego County YWCA, The Coalition
Against Domestic and Sexual Violence, YWCA -
WINGS For Battered Women and their Children,
Monterey Peninsula YWCA, Women Shelter,
Center for Domestic Violence Prevention,
South Lake Tahoe Womenos Center, San Diego
Domestic Violence Council, Inc., Valley
Oasis Shelter,
Opposition: ACLU
Prior Legislation: AB 882 (Rogan), Statutes of 1995
**************