California Evidence Code Section 1231

This research paper discusses the provisions of California Evidence Code section 1231, the reasons for its adoption and opposition to it. Section 1231 is a narrowly crafted exception to the hearsay rule in California pursuant to which certain in vivo statements made by witnesses are admissible in criminal trials involving prosecutions for gang-related crimes even though the witnesses themselves are no longer alive. The provision, which was enacted into law by the legislature in 1997, has not yet been tested in the courts, but it appears to be a reasonable legislative response to the threat posed by gangland's code of silence and its propensity to silence hostile witnesses. This law is, however, only a partial solution to the problem it addresses.

Subject to certain conditions which are designed to ensure the trustworthiness of the testimony and to protect the rights of criminal defendants affected by it, which are discussed below, section 1231 permits the prior out of court statements of witnesses who are no longer alive to be admissible in criminal trials, provided such statements relate to gang-related activity, which is defined in subsection (a) as "acts or events relevant to a criminal prosecution under provisions of the California Street Terrorism Enforcement and Prevention Act" (Cal. Penal Code sec. 186.20 et seq.). Sec. 186.22 of that Act makes it a felony to actively participate in any criminal s

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rnia courts have fairly strictly applied the hearsay evidence exclusionary rules in gang-related criminal cases and that, therefore, the only way to ensure that the testimony of witnesses killed by criminal gangs is admissible in criminal court is through the adoption of a special statute such as sec. 1231. There are at least three reasons for refusing to admit hearsay evidence: (1) it is not given under oath; (2) it is not given before the trier of fact, judge or jury, who is thereby deprived of the opportunity of weighing the credibility of the person uttering the statement; and (3) the opposing side is deprived of the right of cross-examining and thereby impeaching the credibility of the author of the statement or otherwise drawing into question its veracity. Hearsay evidence, therefore, is less trustworthy than direct testimony. To the extent it consists of rumor or innuendo, it may be highly prejudicial, while at the same time being of lesser probative value, factors the court must weigh in deciding on its admissibility under Sec. 352 of the Evidence Code quite apart from whether it fits within an exception to the hearsay rule. Finally, constitutional issues may be presented by the inability of the opposing party to cross
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