Because the attorney-client privilege vests in the office of the trustee, rather than in any particular person, a trust provision permitting the trustee to withhold documents from a successor trustee violates public policy and is unenforceable. Morgan v Superior Court (2018) 23 CA5th 1026. See §34.11.
A trial court properly excluded an expert’s declaration on summary judgment in a attorney fee dispute case for lack of foundation, finding “startling gaps” in the expert’s opinion because the expert relied on inadmissible materials, failed to review the firm’s invoices, and offered a legal conclusion that the billing was excessive. Property Cal. SCLW One Corp. v Leamy (2018) 25 CA5th 1155. See §20.8.
For several cases applying the rule from People v Sanchez (2016) 63 C4th 665 that experts cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception,” see People v Yates (2018) 25 CA5th 474, People v McVey (2018) 24 CA5th 405, and People v Veamatahau (review granted Sept. 12, 2018, S249872; superseded opinion at 24 CA5th 68) at §20.9.
A defendant’s statements admitting prior criminal conduct were party admissions under Evid C §1220 but were admitted with limiting instruction that statements were not admitted for truth but rather for effect on hearer to explain her subsequent conduct. People v Case (2018) 5 C5th 1. See §19.13.
An anonymous telephone caller’s claim of knowledge regarding a missing child lacked the reliability necessary for admission as an exception to the hearsay rule, as communication could have been made from a number unassociated with the caller and there was a real possibility that it was a crank call. People v Westerfield (2019) 6 C5th 632. See §19.18.
A witness’s statement to her brother near the scene of a murder that the defendant “didn’t have to kill him” was inconsistent with her trial testimony and admissible to establish the truth of the matter asserted. People v Johnson (2018) 6 C5th 541. See §19.19.
The statement of a witness who had had a gun pointed at him less than an hour before was properly admitted as an excited utterance. People v Penunuri (2018) 5 C5th 126. See §19.23.
A subscription-based, login-controlled Internet website used to identify pills and the information on which was derived from federal Food and Drug Administration and prescription pill manufacturers came within the published compilation exception to the hearsay rule set forth in Evid C §1340. People v Espinoza (2018) 23 CA5th 317. See §19.36.
Illegally Obtained Evidence
The partially enclosed portion of a driveway constitutes curtilage for purposes of the Fourth Amendment. The automobile exception to the Fourth Amendment does not permit a police officer without a warrant to enter the curtilage of a home to search a vehicle parked therein. Collins v Virginia (2018) 584 US ___, 138 S Ct 1663. See §28.2.
The court permitted a 4-year-old child to testify in a murder trial after questioning him about his ability to distinguish between truth and lies and the consequences of lying. Evidence supported a finding that the child witnesses had personal knowledge of the victim’s abuse because they shared a bedroom and their testimony was corroborated by the doctor’s testimony on the victim’s injuries People v Lopez (2018) 5 C5th 339. See §§18.9, 18.22.
A witness’s statements regarding her location at the time of a shooting were vague and inconsistent, but other witnesses placed her at the crime scene. A reasonable juror could have credited the testimony tending to show that the witness had observed the murders. People v Johnson (2018) 6 C5th 541. See §21.5.
The statements of defendant, a shareholder in a cell phone business, were admissible as parol evidence to prove that the plaintiffs had an entirely different understanding of the shareholder agreement based on fraudulent misrepresentations. IIG Wireless, Inc. v Yi (2018) 22 CA5th 630. See §§22.8, 25.5.
Policy Exclusions of Evidence
The trial court did not abuse its discretion in admitting evidence of prior acts of sexual assault under Evid C §1108 in a capital murder trial after weighing the probative value against the danger of undue prejudice. People v Daveggio & Michaud (2018) 4 C5th 790. See §32.7.
The court rejected a “broad ‘domestic violence’” theory that would allow any prior assault against any family member to be admitted in a subsequent prosecution for an assault against another family member. People v Williams (2018) 23 CA5th 396. See §32.7.
Privilege of Criminal Defendant to Not Be Called and Not to Testify
There was no Fifth Amendment violation when the court conducted an Evid C §402 hearing via live video feed purporting to be in front of the jury to determine whether the defendant could control his behavior if he were allowed to testify. People v Johnson (2018) 6 C5th 541. See §47.2.
Privilege for Official Information
Legislation effective January 1, 2019, revised Pen C §§832.7–832.8, increasing access to previously confidential information about police shootings, uses of force resulting in great bodily harm, and sustained complaints of sexual assault and dishonesty against police officers under the Public Records Act. Stats 2018, ch 988. See discussion in §46.3.
Privilege Against Self-Incrimination
There was no Griffin error when defense counsel indicated that the defendant would testify, the prosecutor recited the expected testimony in the opening statement without any objection, and the defendant subsequently declined to testify. People v Powell (2018) 6 C5th 136. See §§46.12, 47.6.
A trustee’s testimony regarding attorney fee invoices violated the secondary evidence rule, and Evid C §1523 did not apply, because the invoices were not lost or destroyed. Rather, plaintiff had possession of them but chose not to bring them to trial. Copenbarger v Morris Cerullo World Evangelism, Inc. (2018) 29 CA5th 1. See §24.4.
Unduly Inflammatory Evidence
A photograph of a gunshot wound to the head revealing powder burns to the victim’s temple was properly admitted as relevant to demonstrate the manner of the shooting. People v Powell (2018) 6 C5th 136. See §30.2.
Unduly Prejudicial Evidence
The trial court did not err in excluding “overly speculative” evidence that another man had the possible opportunity to molest the murder victim. People v Ghobrial (2018) 5 C5th 250. See §31.2.
The trial court did not err in excluding the plaintiff’s testimony of another employee’s experience following a sexual harassment complaint because the probative value was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and risk, confusing the issues. Meeks v AutoZone, Inc. (2018) 24 CA5th 855. See §31.3.
The creation of a plan to escape from prison necessarily involves moral turpitude, suggesting a willingness to lie. People v Anderson (2018) 5 C5th 372. See §31.4.
Evidence of defendant’s drug use in hours before an accident was directly connected to the offenses committed and was not unduly prejudicial. People v Ho (2018) 26 CA5th 408. See §31.4.
Multiple prior uncharged acts of domestic violence by defendant were highly probative. People v Kerley (2018) 23 CA5th 513. See §31.4.
Tapes of defendant’s interviews with police were relevant to the key witness’s credibility, and the trial court was reasonable in admitting them. People v Mora & Rangel (2018) 5 C5th 442. See §31.16.
A prospective juror’s failure to answer portions of a death penalty questionnaire should have led to voir dire; the juror’s erroneous excusal for cause based on her views concerning the death penalty automatically required reversal of the penalty phase. People v Buenrostro (2018) 6 C5th 367. See §6.19.