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AB-2833 Evidence: restorative justice communications.(2023-2024)

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Date Published: 05/02/2024 09:00 PM
AB2833:v96#DOCUMENT

Amended  IN  Assembly  May 02, 2024
Amended  IN  Assembly  April 23, 2024
Amended  IN  Assembly  April 04, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2833

Introduced by Assembly Member McKinnor
(Coauthors: Assembly Members Alanis, Bryan, and Lackey)

February 15, 2024

An act to add Section 1155.5 to the Evidence Code, relating to evidence.


LEGISLATIVE COUNSEL'S DIGEST


AB 2833, as amended, McKinnor. Evidence: restorative justice communications.
Existing law provides for the inadmissibility of certain evidence as a matter of public policy.
This bill would provide that participation in and communications made during a restorative justice process are inadmissible and not subject to discovery in civil, criminal, juvenile, administrative, or other proceedings, except as specified.
The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
This bill would prohibit communications made during a restorative justice process from being used in a criminal proceeding, thereby requiring a 2/3 vote.
Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) According to the National Association of Community and Restorative Justice, “restorative justice” refers to a broad umbrella of practices that, at their core, are centered on victims, survivors, and accountability. Restorative justice processes are community based, nonpunitive, and voluntary. Using a restorative justice approach encourages accountability, healing, and repair amongst participants. While there are a wide variety of definitions for restorative justice, these core elements are present in restorative justice processes.
(b) As practiced by organizations like the California Conference for Equality and Justice, restorative justice processes progress through a series of skillfully facilitated meetings. Each process is approached intentionally, tailored to the individuals in the process, and seeks to avoid additional harm from being caused while empowering the participants to engage in collective problem solving. Thus, facilitators take their time building trust and relationships with all participants in order to create the safest environment possible for healing and accountability to occur.
(c) The Legislature has previously acknowledged the importance of a restorative approach when harm has occurred. See, e.g., Section 17.2 of the Penal Code. These processes provide extraordinary benefits to participants. They have resulted in lowering rates of future harm, often termed “recidivism,” and high rates of victim or survivor satisfaction.
(d) According to Robert Yazzie, Chief Justice Emeritus of the Navajo Nation, an integral part of restorative justice processes is for all participants to reflect, speak, and share freely. Survivors or victims can experience healing and restoration from hearing a person who caused harm share freely about what they did, the reasons for their actions, and what they are going to do to make things right. The benefits of restorative justice may be negated if participants are concerned that their statements may be used against them in a future court action.

SEC. 2.

 Section 1155.5 is added to the Evidence Code, to read:

1155.5.
 (a) For purposes of this section, the following terms have the following meanings:
(1) “Communication” means any communication or writing, as defined in Section 250, that is made or prepared for the purpose of, in the course of, or pursuant to, any phase of a restorative justice process.
(2) “Facilitator” means a person who facilitates a restorative justice process.
(3) “Participant” means a person who participates in a restorative justice process, and may include a facilitator, a person accused of or responsible for causing harm, a person who has been harmed, or any participating community members.
(4) “Restorative justice process” means a facilitated, community-based process in which parties who have caused harm or who have been harmed and in which community members may collectively gather to identify and repair harm to the extent possible. Restorative justice processes focus on accountability, healing, and safety and on the harms, needs, and obligations of all parties involved through a participatory process and may or may not include a dialogue between participants.
(A) “Restorative justice process” includes, but is not limited to, restorative justice processes described in Section 48900.5 of the Education Code, Section 679.02 of the Penal Code, and Section 742 of the Welfare and Institutions Code.
(B) This definition encompasses all phases of the process, including, but not limited to, referral, preparation, preenrollment, enrollment, postenrollment, a facilitated dialogue, and post-dialogue phases of the process.
(C) This definition is not intended to include general restorative justice programming that is primarily focused on teaching and practicing restorative justice principles.
(b) Except as provided in this section, an individual’s participation or nonparticipation in a restorative justice process and any restorative justice communication within a restorative justice process are not admissible or subject to discovery, and disclosure shall not be compelled, in any arbitration, administrative adjudication, civil action, criminal action, juvenile action, or other proceeding regardless of completion or outcome of the process.
(c) A communication made during within the restorative justice process is not made inadmissible by this section if any of the following has occurred:
(1) All participants in the restorative justice process have provided written consent that all communication during the restorative justice process may be disclosed, or that a specific statement may be disclosed, provided that such consent was knowing, intelligent, free of coercion, and voluntary. Where participants consent to a limited part of the communication, only that specific communication is subject to disclosure. Where a participant is deceased or cannot be located after reasonable efforts, their written consent is deemed to have been knowing, intelligent, free of coercion, and voluntary.
(2) The communication discloses information that a participant, including, but not limited to, a mandated reporter, is otherwise required by law to disclose.
(3) During the restorative justice process, a participant engages in any conduct that involves the use of force or the threat of force, including, but not limited to, conduct described in subdivision (d) of Section 243 or Section 422 of the Penal Code, against another participant, and the restorative justice process ends as a result of this conduct. In such a case, only communication relevant to that conduct is admissible.
(d) Evidence that is obtained independently from the restorative justice process does not become inadmissible or protected from discovery solely because it was discussed or used in a restorative justice process.
(e) The determination of whether a process qualifies as a restorative justice process pursuant to this section, if challenged in any arbitration, administrative adjudication, civil action, criminal action, juvenile action, or other proceeding, shall be determined by the court or finder of fact. In a hearing conducted pursuant to this subdivision, the judge court or finder of fact may consider information that would otherwise be inadmissible to the extent that the information is probative of the issue.
(f) This section applies to all communications that take place during a restorative justice process, including those that occur prior or subsequent to enactment of this section, where the arbitration, administrative adjudication, civil action, criminal action, juvenile action, or other proceeding at which admission is sought occurs after the effective date of this section.