October 2020 Update
Summarized below are some of the more important developments included in this update since publication of the October 2019 Update.
Certain procedures and deadlines may be affected by the California Rules of Court Emergency Rules Related to COVID-19, such as Rule 3 (“Use of Technology for Remote Appearances”) and Rule 5 (“Personal Appearance Waivers of Defendants During Health Emergency”). The latest version of the Emergency Rules can be viewed at https://www.courts.ca.gov/43820.htm.
Some expert modification of video recordings was allowed in People v Tran (2020) 50 CA5th 171, where a video presentation was assembled and synchronized from multiple sources with quality and pixel enhancement. See §11.2.
Declarations Against Interest
In People v Quintanilla (2020) 45 CA5th 1039, 1058, the court held that the forfeiture-by-wrongdoing exception to the testimonial hearsay bar required the existence of legal proceedings against the defendant and the defendant’s threats that the victim not speak with authorities. See §20.20C.
In People v Hoyt (2020) 8 C5th 892, 938, an anxiety-induced amnesia expert failed to establish a foundation that the defendant did not remember making a confession. In San Francisco Print Media Co. v The Hearst Corp. (2020) 44 CA5th 952, 963, a cost analyst had no understanding of cost categories used and failed to determine how categories should be allocated. See §24.3.
In People v Perez (2020) 9 C5th 1, 9, the supreme court held that an expert cannot use case-specific hearsay to explain the basis for an opinion unless a hearsay exception applies or facts are independently proven. The court also held in People v Veamatahau (2020) 9 C5th 16, 27, that information derived from a pill identification database is not case-specific hearsay but background information relied on by experts. See §24.25.
In People v Thompkins (2020) 50 CA5th 365, the first district deemed expert testimony as to a gang’s primary activities to be background information as it came from many sources and was not case-specific hearsay, but the court also recognized a split as to whether predicate offenses are background or case-specific hearsay. See §24.25.
In People v Hughes (2020) 50 CA5th 257, a criminal conviction was reversed for failure to disclose the substance of expert testimony before trial. See §24.29.
In Waller v FCA US LLC (2020) 48 CA5th 888, an expert opinion was ruled speculative for merely showing possibilities as to causation. See §24.30.
Former testimony of unavailable declarant was not permitted in People v Torres (2020) 48 CA5th 731, where the prosecution failed to take steps to prevent the witness’s deportation. See §28.4.
In Hart v Keenan Props., Inc. (2020) 9 C5th 442, a company name and logo on invoices were not hearsay because they were not offered to prove any statement they contained but were circumstantial evidence as to source of goods. See §35.1A.
Privileges and Confidential Communications
Newly-enacted Evid C §1047(b) allows discovery of certain supervisorial police officer personnel records. See §43.3.
Waiver may occur when compliance with statutory requirements requires disclosure to third parties with no obligation to maintain confidentiality. In Amgen v Health Care Servs. (2020) 47 CA5th 716, a drug price was denied trade secret status after disclosure to registered purchasers in compliance with a Health and Safety Code statute. See §43.7.
Effective January 1, 2021, a new statute (Pen C §1203.425) prohibits disclosure of arrest or conviction information for cases eligible for relief from such disclosure, identified annually by the Department of Justice. See §43.11.
Statements of State of Mind, Emotion, or Physical Sensation
In People v Wang (2020) 46 CA5th 1055, 1079, when offered to prove conduct of accused, it was error to admit wife’s hearsay statement about her fears of, or threats against her by, the accused; it was also error to admit wife’s statement as nonhearsay circumstantial evidence of wife’s fear of the accused because the wife was not the declarant. See §50.4.
Electronic and Social Media Evidence
In People v Cruz (2020) 46 CA5th 715, circumstantial evidence, coupled with the contents of various text messages from the defendant, constituted a prima facie showing that the defendant sent disputed Facebook messages. See §54.21.