CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 939Introduced by Assembly Member CervantesFebruary 17, 2021 An act to amend Section 240 of the Evidence Code, relating to evidence. LEGISLATIVE COUNSEL'S DIGESTAB 939, as introduced, Cervantes. Evidence: unavailability of witness.Existing law defines unavailable as a witness, for purposes of the Evidence Code, to mean that the declarant is exempted or precluded on the ground of privilege, disqualified, dead or unable to testify because of illness or infirmity, absent for a specified reason, or persistent in refusing to testify despite having been found in contempt for refusal to testify. Existing law provides additional limitations on establishing the unavailability of a witness.This bill would make nonsubstantive changes to this provision.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 240 of the Evidence Code is amended to read:240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 939Introduced by Assembly Member CervantesFebruary 17, 2021 An act to amend Section 240 of the Evidence Code, relating to evidence. LEGISLATIVE COUNSEL'S DIGESTAB 939, as introduced, Cervantes. Evidence: unavailability of witness.Existing law defines unavailable as a witness, for purposes of the Evidence Code, to mean that the declarant is exempted or precluded on the ground of privilege, disqualified, dead or unable to testify because of illness or infirmity, absent for a specified reason, or persistent in refusing to testify despite having been found in contempt for refusal to testify. Existing law provides additional limitations on establishing the unavailability of a witness.This bill would make nonsubstantive changes to this provision.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION
Assembly Bill
No. 939
Introduced by Assembly Member CervantesFebruary 17, 2021
Introduced by Assembly Member Cervantes
February 17, 2021
An act to amend Section 240 of the Evidence Code, relating to evidence.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
AB 939, as introduced, Cervantes. Evidence: unavailability of witness.
Existing law defines unavailable as a witness, for purposes of the Evidence Code, to mean that the declarant is exempted or precluded on the ground of privilege, disqualified, dead or unable to testify because of illness or infirmity, absent for a specified reason, or persistent in refusing to testify despite having been found in contempt for refusal to testify. Existing law provides additional limitations on establishing the unavailability of a witness.This bill would make nonsubstantive changes to this provision.
Existing law defines unavailable as a witness, for purposes of the Evidence Code, to mean that the declarant is exempted or precluded on the ground of privilege, disqualified, dead or unable to testify because of illness or infirmity, absent for a specified reason, or persistent in refusing to testify despite having been found in contempt for refusal to testify. Existing law provides additional limitations on establishing the unavailability of a witness.
This bill would make nonsubstantive changes to this provision.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. Section 240 of the Evidence Code is amended to read:240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. Section 240 of the Evidence Code is amended to read:240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
SECTION 1. Section 240 of the Evidence Code is amended to read:
### SECTION 1.
240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.(2) Disqualified from testifying to the matter.(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.The(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
240. (a) Except as otherwise provided in subdivision (b), unavailable as a witness means that the declarant is any of the following:
(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her the declarants statement is relevant.
(2) Disqualified from testifying to the matter.
(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.
(4) Absent from the hearing and the court is unable to compel his or her the declarants attendance by its process.
(5) Absent from the hearing and the proponent of his or her the declarants statement has exercised reasonable diligence but has been unable to procure his or her the declarants attendance by the courts process.
(6) Persistent in refusing to testify concerning the subject matter of the declarants statement despite having been found in contempt for refusal to testify.
(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her the declarants statement for the purpose of preventing the declarant from attending or testifying.
(c) (1) Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term expert means a physician and surgeon, including a psychiatrist, or any a person described by subdivision (b), (c), or (e) of Section 1010.
The
(2) The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.