BILL ANALYSIS {u AB 353 u} Page 1 Date of Hearing: March 16, 1999 Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Mike Honda, Chair AB 353 (McClintock) - As Introduced: February 11, 1999 {u SUMMARY u} : Provides that a plea of nolo contendere in a misdemeanor criminal matter may be used as evidence in a subsequent civil action involving an allegation of wrongful or false arrest to rebut allegations made by the party who entered the plea. {u EXISTING LAW u} : 1)Provides that there are various pleas in a criminal case, including, but not limited to, guilty, not guilty, and with the approval of the court, nolo contendere (no contest). (Penal Code Section 1016.) 2)Provides that the legal effect of a plea of nolo contendere to a crime punishable as a felony is the same as a plea of guilty for all purposes. (Penal Code Section 1016 (a).) 3)Provides that a plea of nolo contendere in a misdemeanor criminal action may not be used against the defendant as an admission in any civil suit arising from the act upon which the misdemeanor prosecution is based. (Penal Code Section 1016 (a).) 4)Prohibits the admissibility of hearsay evidence, which is a statement that was made other than by a witness while testifying at the hearing. (Evidence Code Section 1200.) 5)Provides that evidence of a judgment of a felony conviction is not made inadmissible by the hearsay rule when offered in a civil action to prove any fact essential to the judgment whether or not the judgment was based on a plea of nolo contendere. (Evidence Code Section 1300.) 6)Provides that a nolo contendere plea may not be used against a peace officer in an administrative disciplinary proceeding. ( {u County of Los Angeles v. Civil Service Commission u} (1995) 39 {u AB 353 u} Page 2 Cal. App. 4th 620.) {u FISCAL EFFECT u} : None {u COMMENTS u} : {u 1)Author's Statement u} . According to the author, "Under current law, the plea of nolo contendere for a non-felony criminal case may not be used against a defendant as an admission in any subsequent civil proceeding. The scenario poses a substantial problem for peace officers who must defend themselves in civil cases from criminals who have pled nolo contendere. Since the nolo contendere plea may not be used during the civil proceedings, the criminal may sue the peace officer whose defense is limited by the inadmissibility of the nolo contendere in the civil case. "Peace officers make arrests on a daily basis in the best interest of providing public safety. They need to be protected from criminals who have found a loophole in the law who are guilty of the offense for which they were arrested. AB 353 corrects this scenario by allowing the plea of nolo contendere be used as an admission in civil cases." {u 2)Inadmissible Hearsay u} . A judgment or finding of guilty in any criminal matter is hearsay evidence and is inadmissible in any subsequent civil action under Evidence Code Section 1200 provisions. However, in 1965, the Legislature enacted certain exceptions to the hearsay rule for felony convictions and adopted Evidence Code Section 1300 which permits a crime punishable as a felony to be introduced in a subsequent civil action to prove any fact essential to the judgment. No similar statutory scheme exists for the use of misdemeanor convictions. In {u People v. Wheeler u} (1992) 4 Cal. 4th 284, the California Supreme Court held that a misdemeanor conviction is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility. Notwithstanding Evidence Code Section 1200 provisions, this bill allows a plea of nolo contendere in a misdemeanor criminal proceeding to be used in a subsequent civil action involving an allegation of wrongful or false arrest. {u 3)Reliability of Nolo Contendere Plea u} . A conviction is {u AB 353 u} Page 3 significant in that it is a reliable indicator of actual guilt. When the conviction rests on the verdict or finding of the trier of fact after trial, it means that guilt has been established beyond a reasonable doubt; and when the conviction rests on a plea of guilty, it means the defendant has voluntarily admitted guilt for all purposes. If a conviction is based on a nolo contendere plea, its reliability as an indicator of guilt is substantially reduced because of: (a) the defendant's reluctance to admit guilt for all purposes and (2) the myriad of reasons which prompt a person to enter such a plea. In addition, the district attorney must agree to, and the court must approve of, a nolo contendere plea, and this would tend to indicate weakness in the available proof of guilt. Should this type of evidence be admissible in a subsequent civil action to rebut allegations of wrongful conduct? {u 4)Demonstrated Need for Change u} ? Have this bill's proponents demonstrated a sufficient basis to eliminate a traditional legal principle? It should be noted that even without introducing evidence of a no contest plea, an officer may present evidence of an arrestee's conduct to rebut a claim of false arrest. Even if evidence of a plea of nolo contendere is admitted in a subsequent civil action, the person who entered the plea remains free to explain the reasons why he or she entered the plea and can contest the truth of the matter asserted by the plea. The admission of a plea of nolo contendere does not have a collateral estoppel effect, does not prevent a civil suit, nor necessarily establish that the peace officer would prevail in the suit. {u 5)Related Legislation u} . AB 565 (McClintock), of the 1997-98 Legislative Session, was identical to this bill in that AB 565 allowed a nolo contendere plea in a misdemeanor to be used as evidence in a civil action to rebut an allegation of wrongful arrest. AB 565 failed passage in the Senate Public Safety Committee. {u 6)Arguments in Opposition u} . The American Civil Liberties Union states, "Where the defendant knows that his or her 'no contest' plea to a misdemeanor will have a debilitating effect in a subsequent civil trial, he or she will feel compelled to fight the charges slowing down the court processes. Furthermore, singling out civil cases that involve allegations of wrongful or false arrest disadvantages possible victims of {u AB 353 u} Page 4 police misconduct." {u REGISTERED SUPPORT / OPPOSITION u} : {u Support u} Los Angeles Count Sheriff's Department (Sponsor) Association for Los Angeles Deputy Sheriffs California Peace Officers' Association California Police Chiefs' Association {u Opposition u} California Attorneys for Criminal Justice American Civil Liberties Union {u Analysis Prepared by u} : Gregory Pagan / apubs / 916-319-3744