October 2022 Update
Summarized below are some of the more important developments included in this update since publication of the October 2021 Update.
Character: Specific Acts Evidence
Effective January 1, 2022, the California Legislature amended Evid C §1103(c)(2) to remove judicial discretion to admit evidence on the manner of victim’s dress as a defense. Previously, such evidence was allowed upon defense counsel meeting a sufficient offer of proof and relevancy threshold. See Stats 2021, ch 626 (AB 1171). See also §16.4.
Commercial Lists and the Like
Under the published compilation exception to the hearsay rule, a trial court admitted a detective’s testimony as to the estimated value of a car from the Kelly Blue Book website for purposes of establishing that the car was worth more than $950. People v Jenkins (2021) 70 CA5th 175. See also §17.3.
The exclusionary principle prohibiting the admission of opinion testimony at trial that goes beyond an expert’s pretrial deposition does not apply to an expert’s declaration submitted in opposition to summary judgment. See Harris v Thomas Dee Eng’g Co. (2021) 68 CA5th 594, 602 (citing Sweetwater Union High Sch. Dist. v Gilbane Bldg. Co. (2019) 6 C5th 931, 945). See §24.3.
An expert cannot relate hearsay facts of predicate offenses without personal knowledge in a case involving gang participation and gang enhancements. People v Valencia (2021) 11 C5th 818 (gang predicate offenses require independently admissible evidence). Looking to the core rationales underlying Sanchez, the court found that unlike facts about a gang’s behavior, history, name, or symbols, which could be admitted through the testimony of an expert who is knowledgeable about the gangs, particularized facts concerning the predicate offenses charged are case-specific and must be proven by independently admissible evidence in a STEP Act prosecution involving gang membership and acting with an intent to benefit the gang in committing the crimes charged. 11 C5th at 836. See §24.25.
An expert may still rely on background hearsay material properly, as long as it is not being admitted for the truth and is generally relied on by experts in the field. Strobel v Johnson & Johnson (2021) 70 CA5th 796, 821 (analyzing expert’s causation testimony based on published materials, articles, data, and testing results and noting why it was not case-specific hearsay). See §24.25.
Pure legal opinions by experts are not permissible. In North Am. Title Co. v Gugasyan (2021) 73 CA5th 380, 392, the court rejected expert opinion on industry custom as relevant to statutory interpretation. See §24.30.
In Berroteran v Superior Court (2022) 12 C5th 867, the court noted that trial testimony and deposition testimony are treated differently under Evid C §1291(a)(2) (Comment 4), and determination of similarity of interest and motive in cross-examination should be based on practical considerations and not merely on the similarity of the party’s position in two cases. Accordingly, the court held that former testimony taken for discovery purposes in a different action should be excluded from the present case. See §28.2.
Lay Witnesses: Competence and Qualification
In People v Bharth (2021) 68 CA5th 801, the defendant’s rights under the Confrontation Clause were not violated when the trial court allowed a rape victim to turn her chair and face the jury; the victim was physically present in courtroom, testified under oath, and no physical barrier or screen blocked the jury or the defendant from viewing and seeing her demeanor. These factors were considered by the court in light of the intense traumatic effect of victim directly facing defendant. See People v Dryden (2021) 60 CA5th 1007, 1018. See also §32.17.
Lay Witnesses: Opinion Testimony
In the case of People v Phillips (2022) 75 CA5th 643, a police investigator was properly allowed to offer a lay opinion that a stain on the defendant’s clothing appeared to be blood. See §33.14.
For a recent case involving admission of evidence as nonhearsay, see Bowser v Ford Motor Co. (2022) 78 CA5th 587, 617, where documents were deemed admissible as nonhearsay evidence that employees had knowledge of problems discussed therein. See §35.2.
Prior Consistent Statement
The California Supreme Court explained that the prior consistent statement exception to the hearsay rule requires that the statement have been made before the circumstances of bias or motive for fabrication had arisen. See People v Navarro (2021) 12 C5th 285, 325. See §40.2.
Privileges and Confidential Communications
In a new case, the California Supreme Court applied the four-factor Delaney test used to determine the availability of a reporter’s shield: Once a threshold showing is made that there is a reasonable possibility that the requested information will materially assist the defense, the court determines “(1) whether the unpublished information is confidential or sensitive; (2) whether the interests sought to be protected by the shield law will be thwarted by disclosure; (3) the importance of the information to the defendant; and (4) whether there is an alternative source for the information” People v Parker (2022) 13 C5th 1, 34, citing Delaney v Superior Court (2015) 50 C3d 785. See §43.4
Attorney Work Product Protection
In a postconviction appeal, the court deemed attorney work product protection waived and ordered a prosecutor’s jury selection notes discovered to the defense because the prosecutor had referred to them as part of his system for justifying peremptory challenges. People v Jones (2021) 12 C5th 348. See 43.4.
Electronic and Social Media Evidence
In Lozano v City of Los Angeles (2021) 73 CA5th 711, the court held that use of digital in-car video system recording (DICVS) to prove police officers were playing Pokemon Go while on duty was not a violation of Pen C §632 (intentional recording of a confidential communication). See §54.16.