The attorney-client privilege is absolute, and in the criminal context can take precedence even over a criminal defendant’s trial rights. For example, in People v Bell (2019) 7 C5th 70, a criminal defendant’s right to due process did not entitle him to invade the attorney-client privilege of another. See §34.1.
In Dickinson v Cosby (2019) 37 CA5th 1138, revealing that a particular communication did not occur would not necessarily result in a waiver of the attorney-client privilege. See §34.9.
In People v Rhoades (2019) 8 C5th 393, a client who communicated loudly with his attorney near a deputy who was openly and permissibly present 10–15 feet away waived his attorney-client privilege. See §34.10.
In Orozco v WPV San Jose, LLC (2019) 36 CA5th 375, 397, the court held that the defendant waived its objection to the expert’s qualifications to testify on lost profits by failing to object, but the trial court did not abuse its discretion in allowing the expert to testify. See §20.6.
In People v Polk (2019) 36 CA5th 340, 354, the court held that the expert properly relied on his training, which included discussions with other prison officers on the usable amount of methamphetamine. See §20.8.
Testimony regarding derogatory comments was not hearsay because it was not offered for truth of matter asserted, but rather to show discriminatory animus. Ortiz v Dameron Hosp. Ass’n (2019) 37 CA5th 568. See §19.4.
In People v McDaniel (2019) 38 CA5th 986, the court held that the fact that the defendant did not text his mother back to deny her indirect accusation that he had committed robberies was not sufficient to show that he had adopted his mother’s statement for purposes of hearsay exception in Evid C §1221. See §19.14.
In People v Calhoun (2019) 38 CA5th 275, 317, statements made during a police interview were properly admitted for their truth under the hearsay exception for prior consistent statements in Evid C §1236. See §19.20.
Even “contradictory statements” are admissible under the adoptive admission rule in Evid C §1221. See People v Mendez (2019) 7 C5th 680. If a reasonable jury could take the conversation as showing that defendant adopted his codefendant’s accusation that he shot victim, it does not make the adoptive admission inadmissible just because defendant also denied shooting victim at other points in this conversation. See §19.14.
The trial court abused its discretion in determining that a confession was insufficiently trustworthy to be admitted under Evid C §1230 in People v Reyes (2019) 35 CA5th 538. See §19.18.
It was error to admit statements as a past recollection recorded as they were made 6 years after the events in question and the prosecution did not establish that the witness’s recollection was fresh when the statements were recorded. People v Royal (2019) 43 CA5th 121. See §19.21.
For a recent case decided under Evid C §1323, see McDermott Ranch, LLC v Connolly Ranch, Inc. (2019) 43 CA5th 549, which found that statements made in ordinary conversation and before a boundary dispute arose by a deceased declarant regarding fence lines were trustworthy and admissible. See §19.34.
Human Trafficking Counselor-Victim Privilege
Legislation effective January 1, 2020, amends Evid C §1038 and adds Evid C §1038.3, expanding the scope of the human trafficking counselor-victim privilege such that a human trafficking victim’s current caseworker may claim the human trafficking counselor-victim privilege even if that caseworker was not the victim’s caseworker at the time the confidential communication was made. Stats 2019, ch 197. See chap 39A.
In Valentine v Plum Healthcare Group, LLC (2019) 37 CA5th 1076, the court held that defendants laid no foundation to support admission of a document because
[t]here is no authentication of the signatures or the handwritten note, no eyewitness testimony of the document’s execution or modification, no description of how the document came into counsel’s possession, and no evidence the document was seen, possessed, or relied upon by defendants. Counsel does not testify she had personal knowledge of the subject matter, nor does she make any attempt to prove what the document purports to be.
Journalist’s Immunity From Contempt
The court may weigh the interests sought to be protected by the journalist’s shield law; however, the defendant must first make the threshold showing that there is a reasonable possibility that the information will materially assist the defendant’s defense. People v Frederickson (2020) 8 C5th 963. See §48.14.
Privileges Held by Professionals
An attorney representing a dependent child has the authority to invoke the physician-patient privilege on behalf of that child. In re Charlotte C. (2019) 33 CA5th 404. See §36.5. Psychotherapists and clergy may do so as well. See §§37.5, 50.6.
Privilege for Official Information
A law enforcement agency does not violate Pen C §832.7(a) by sharing with prosecutors the fact that a peace officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in his or her confidential personnel file. Association for Los Angeles Deputy Sheriffs v Superior Court (2019) 8 C5th 28. See §43.8.
Effective January 1, 2020, legislation amends Evid C §§1043 and 1047, related to the discovery or disclosure of peace or custodial officer personnel records in civil and criminal actions. Stats 2019, ch 585.
Privilege Against Self-Incrimination
Asking a DUI suspect to perform physical tests is not an “interrogation” requiring a Miranda warning. People v Cooper (2019) 37 CA5th 642. See §46.6.
In People v Capers (2019) 7 C5th 989, the supreme court held that the trial court did not deny due process to a defendant, and properly granted the Fifth Amendment privilege to a witness consistent with Evid C §404. See §46.20.
To qualify for the psychotherapist-patient privilege, the therapist must be acting as a therapist when the statements are made. See In re A.C. (2019) 37 CA5th 262. See §37.2.
A defendant charged with DUI crimes did not waive his psychotherapist-patient privilege by disclosing that the psychotherapist had prescribed medications because this information was not a significant part of defendant’s communications with the psychotherapist. Fish v Superior Court (2019) 42 CA5th 811. See §37.17.
Similar Acts or Occurrences
For purposes of considering whether to overturn a default taken against defendant attorney in a legal malpractice action, the trial court erroneously admitted the attorney’s two previous instances of discipline for not having properly communicated with clients; the fact that the attorney “had failed to comply with standards of professional conduct in the past should not have colored the determination of whether she deserved an extension in this case.” Lasalle v Vogel (2019) 36 CA5th 127. See §32.7.
Trade Secrets Privilege
In Global Protein Prods., Inc. v Le (2019) 42 CA5th 352, the court held that a trade secret is extinguished once publicly disclosed in a patent and information is placed in public domain. See §45.5.
Unduly Prejudicial Evidence
The California Supreme Court in People v Caro (2019) 7 C5th 463 held that the trial court did not abuse its discretion in finding that the prejudice arising from graphic autopsy photos did not substantially outweigh their probative value; photos provided context for understanding how the expert reached her conclusions on the nature of the shootings. The court also found that the trial court properly admitted computer animation illustrating the expert’s opinion that blowback of blood from the gunshot to the victim’s head was consistent with the bloodstain patterns on the defendant’s clothes because the prejudice was substantially outweighed by the animation’s probative value. See §31.2.
In Hernandez v First Student, Inc. (2019) 37 CA5th 270, the court of appeal found that, although evidence of plaintiff’s use of crystal meth had the potential to be prejudicial, it was relevant to her wrongful death damages claim and thus the trial court did not err in admitting it for the limited purpose of determining the plaintiff’s relationship with her deceased son. See §31.2.
The trial court in D.Z. v Los Angeles Unified Sch. Dist. (2019) 35 CA5th 210 erroneously excluded evidence that was relevant to prove an issue in a case involving sexual abuse by a teacher. There was no support for any countervailing considerations under Evid C §352 of undue prejudice, confusion, or undue consumption of time. See §31.2.
Effective January 1, 2020, legislation amends CCP §203, revising a portion of the Trial Jury Selection and Management Act related to eligibility for service as jurors by those who have been convicted of a felony. Stats 2019, ch 591. See §6.18.
Work Product Doctrine
The qualified work product privilege applies in habeas corpus proceedings following an order to show cause if the discovery sought exceeds the scope of the criminal discovery scheme. Jimenez v Superior Court (2019) 40 CA5th 824. See §35.4.