October 2019 Update
Summarized below are some of the more important developments included in this update since publication of the October 2018 Update.
In Mackey v Board of Trustees of Cal. State Univ. (2019) 31 CA5th 640, 660, the investigator authenticated her report and could testify as to her findings. See §11.2.
In People v Lopez (2018) 5 C5th 339, 360, the supreme court reiterated that evidence that witness is afraid to testify or fears retaliation is relevant to credibility. See §19.2.
Declarations Against Interest
Applying Evid C §1230, the supreme court in People v Dalton (2019) 7 C5th 166, 207, found that the trial court could reasonably have concluded that the statement to a cellmate describing a crime so far subjected the speaker to the risk of criminal liability that he would not have made it unless he believed it to be true. In People v Johnson (2019) 32 CA5th 26, 60, the court admitted rap lyrics as declarations against penal interest; acknowledging that the lyrics were subject to interpretation, the court found that this “goes to the weight, not the admissibility.” See §§20.3, 20.18.
Electronic and Social Media Evidence
In People v Pride (2019) 31 CA5th 133, 141, the motion to suppress was denied because defendant granted access to his social media account by “friends,” one of whom was an undercover profile account for a police detective, and then posted video with incriminating evidence. See §54.13.
In Conservatorship of S.A. (2018) 25 CA5th 438, 448, the court held that the expert’s testimony on the contents of medical records did not violate the conservatee’s constitutional rights because the expert related only case-specific facts that were admissible under the business records exception to the hearsay rule. See §24.25.
In Property Cal. SCLW One Corp. v Leamy (2018) 25 CA5th 1155, 1163, the trial court properly excluded the expert’s declaration on summary judgment for lack of foundation; the expert failed to review relevant documents and to seek further information. See §24.3.
In Knutson v Foster (2018) 25 CA5th 1075, 1097, the court found that the emotional distress to which plaintiff testified was not beyond the common experience of the jurors, thus expert testimony was unnecessary. See §24.3.
In People v Anthony (2019) 32 CA5th 1102, 1131, the court held that the expert’s testimony was admissible to the extent it related to his own background or to generalized information acquired through his training and experience, or represented his expert opinion about facts established through evidence that was admitted at trial independent of his testimony. See §24.25.
Because courts may take judicial notice of scientific facts, judicial notice of the safety and effectiveness of vaccinations is proper. See Brown v Smith (2018) 24 CA5th 1135, 1142, discussed in §31.4.
In Cheveldave v Tri Palms Unified Owners Ass’n (2018) 27 CA5th 1202, 1215, by granting the request for judicial notice of a property deed, the court noticed the deed exists but not the truth of its contents. See §31.3.
The court in California Dep’t of Indus. Relations v AC Transit (2018) 26 CA5th 93, 107 n7, took judicial notice of a California Code of Regulations current section and its earlier version. See §31.13.
In People v Anderson (2018) 5 C5th 372, 405, the nonhearsay purpose of testimony was relevant to counter other testimony. See §35.2.
In Meeks v AutoZone, Inc. (2018) 24 CA5th 855, 864, the witness should have been able to testify to the substance of lost text messages under Evid C §1523(b). See §48.6.
In Copenbarger v Morris Cerullo World Evangelism, Inc. (2018) 29 CA5th 1, 14, the court held that Evid C §1523 was inapplicable because the invoices at issue were not lost or destroyed; plaintiff had them but chose not to bring them to trial. See §48.10.
Privileges and Confidential Communications
In Lofton v Wells Fargo Home Mortgage (2018) 27 CA5th 1001, 1021, the defendant claimed it could not defend itself without disclosing attorney-client privileged information, thus the case should have been dismissed. The court of appeal rejected this argument in part because there was no showing that waiver of the privilege was sought and refused. See §43.7.
In People v Powell (2018) 5 C5th 921, 961, the supreme court found that evidence of defendant’s tattoos and racial gang membership was relevant to explain the motivation for and savagery of his attack on the victim. See §45.10.
In People v Johnson (2019) 32 CA5th 26, 62, the appellate court affirmed the trial court’s ruling that the rap lyrics were relevant to the prosecution’s theory of the case, particularly to the defendants’ motive. See §45.10.