SECTIONS 1370-1390 - California Statutes

EVIDENCE CODE

SECTION 1370-1390

1370. (a) Evidence of a statement by a declarant is not made
inadmissible by the hearsay rule if all of the following conditions
are met:
(1) The statement purports to narrate, describe, or explain the
infliction or threat of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to Section
240.
(3) The statement was made at or near the time of the infliction
or threat of physical injury. Evidence of statements made more than
five years before the filing of the current action or proceeding
shall be inadmissible under this section.
(4) The statement was made under circumstances that would indicate
its trustworthiness.
(5) The statement was made in writing, was electronically
recorded, or made to a physician, nurse, paramedic, or to a law
enforcement official.
(b) For purposes of paragraph (4) of subdivision (a),
circumstances relevant to the issue of trustworthiness include, but
are not limited to, the following:
(1) Whether the statement was made in contemplation of pending or
anticipated litigation in which the declarant was interested.
(2) Whether the declarant has a bias or motive for fabricating the
statement, and the extent of any bias or motive.
(3) Whether the statement is corroborated by evidence other than
statements that are admissible only pursuant to this section.
(c) A statement is admissible pursuant to this section only if the
proponent of the statement makes known to the adverse party the
intention to offer the statement and the particulars of the statement
sufficiently in advance of the proceedings in order to provide the
adverse party with a fair opportunity to prepare to meet the
statement.

1380. (a) In a criminal proceeding charging a violation, or
attempted violation, of Section 368 of the Penal Code, evidence of a
statement made by a declarant is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness, as defined in
subdivisions (a) and (b) of Section 240, and all of the following are
true:
(1) The party offering the statement has made a showing of
particularized guarantees of trustworthiness regarding the statement,
the statement was made under circumstances which indicate its
trustworthiness, and the statement was not the result of promise,
inducement, threat, or coercion. In making its determination, the
court may consider only the circumstances that surround the making of
the statement and that render the declarant particularly worthy of
belief.
(2) There is no evidence that the unavailability of the declarant
was caused by, aided by, solicited by, or procured on behalf of, the
party who is offering the statement.
(3) The entire statement has been memorialized in a videotape
recording made by a law enforcement official, prior to the death or
disabling of the declarant.
(4) The statement was made by the victim of the alleged violation.
(5) The statement is supported by corroborative evidence.
(6) The victim of the alleged violation is an individual who meets
both of the following requirements:
(A) Was 65 years of age or older or was a dependent adult when the
alleged violation or attempted violation occurred.
(B) At the time of any criminal proceeding, including, but not
limited to, a preliminary hearing or trial, regarding the alleged
violation or attempted violation, is either deceased or suffers from
the infirmities of aging as manifested by advanced age or organic
brain damage, or other physical, mental, or emotional dysfunction, to
the extent that the ability of the person to provide adequately for
the person's own care or protection is impaired.
(b) If the prosecution intends to offer a statement pursuant to
this section, the prosecution shall serve a written notice upon the
defendant at least 10 days prior to the hearing or trial at which the
prosecution intends to offer the statement, unless the prosecution
shows good cause for the failure to provide that notice. In the event
that good cause is shown, the defendant shall be entitled to a
reasonable continuance of the hearing or trial.
(c) If the statement is offered during trial, the court's
determination as to the availability of the victim as a witness shall
be made out of the presence of the jury. If the defendant elects to
testify at the hearing on a motion brought pursuant to this section,
the court shall exclude from the examination every person except the
clerk, the court reporter, the bailiff, the prosecutor, the
investigating officer, the defendant and his or her counsel, an
investigator for the defendant, and the officer having custody of the
defendant. Notwithstanding any other provision of law, the defendant'
s testimony at the hearing shall not be admissible in any other
proceeding except the hearing brought on the motion pursuant to this
section. If a transcript is made of the defendant's testimony, it
shall be sealed and transmitted to the clerk of the court in which
the action is pending.

1390. (a) Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party that has
engaged or aided and abetted in the wrongdoing that was intended to,
and did, procure the unavailability of the declarant as a witness.
(b) (1) The party seeking to introduce a statement pursuant to
subdivision (a) shall establish, by a preponderance of the evidence,
that the elements of subdivision (a) have been met at a foundational
hearing.
(2) The hearsay evidence that is the subject of the foundational
hearing is admissible at the foundational hearing. However, a finding
that the elements of subdivision (a) have been met shall not be
based solely on the unconfronted hearsay statement of the unavailable
declarant, and shall be supported by independent corroborative
evidence.
(3) The foundational hearing shall be conducted outside the
presence of the jury. However, if the hearing is conducted after a
jury trial has begun, the judge presiding at the hearing may consider
evidence already presented to the jury in deciding whether the
elements of subdivision (a) have been met.
(4) In deciding whether or not to admit the statement, the judge
may take into account whether it is trustworthy and reliable.
(c) This section shall apply to any civil, criminal, or juvenile
case or proceeding initiated or pending as of January 1, 2011.
(d) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date. If this section is repealed, the fact that it is repealed
should it occur, shall not be deemed to give rise to any ground for
an appeal or a postverdict challenge based on its use in a criminal
or juvenile case or proceeding before January 1, 2016.