California Evidence

• Publication year: 2021
• Author: Chris Chambers Goodman

CALIFORNIA EVIDENCE

AUTHORS^*

Chris Chambers Goodman

Kaitlyn Rubcich

INTRODUCTION

This article highlights legislative changes and court decisions impacting the California Evidence Code and its interpretation by Courts of Appeal and the California Supreme Court, as well as a few federal district and circuit cases that applied California law during the 2021 calendar year.

LEGISLATIVE REVISIONS MAKE POLICE MISCONDUCT EVIDENCE MORE READILY AVAILABLE AND IMPOSE ADDITIONAL REPORTING REQUIREMENTS

There were no significant modifications to the California Evidence Code this year, however, the California Legislature expanded the categories of police personnel records that are subject to disclosure under the California Public Records Act and modified existing provisions regarding the release of records subject to disclosure. While the statutory changes are to the Penal Code sections 832.5, et seq., they have resonance for Evidence Code Section 1043 (on peace officer personnel records) because under these amendments, more evidence of police misconduct must be preserved and made available to the public. Moreover, obtaining such records will now be faster and less expensive. Practitioners in this arena should take note of these changes.

First, California Penal Code section 832.5, which requires California departments and agencies employing peace officers establish procedures to investigate complaints against officers, expanded to require these departments and agencies to not only preserve reports of complaints going forward, but to preserve all such reports currently in their possession for a minimum of five years where no misconduct was found and for fifteen years where there was a sustained finding of misconduct. This amendment also provides that a record shall not be destroyed while a request relating to that record is being processed or is subject to release in litigation.¹

Second, section 832.7² was amended to require law enforcement agencies to preserve records of a "sustained finding involving a complaint that alleges unreasonable or excessive force," and of a "sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive."³

Section 832.7 was further altered to require law enforcement agencies maintain records where "a sustained finding was made that" an officer

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engaged in racist or discriminatory conduct, and that such records are subject to disclosure to the public.⁴

The Legislature also added provisions to section 837 that limit fees for disclosure of records to exclude "the costs of searching for, editing, or redacting the records."⁵ Further, records must now be disclosed no later than 45 days from the date of request for disclosure,⁶ and the lawyer-client privilege does not prohibit the disclosure of factual information discovered in an investigation and provided to the public entity's attorney.⁷

Section 832.12⁸ was expanded to require agencies to screen officers before hiring them. The newly enacted subsection (b) provides that "[p]rior to employing any peace officer, each department or agency in this state that employs peace officers shall request, and the hiring department or agency shall review, any records made available."

Finally, the Legislature enacted section 832.13,⁹ providing that "[e]very person employed as a peace officer shall immediately report all uses of force by the officer to the officer's department or agency." This additional reporting requirement represents an expansion of the Legislature's efforts to increase transparency in law enforcement agencies across California through the California Public Records Act.¹⁰

HEARSAY ADMISSIBLE AT PROBATION VIOLATION HEARING NOTWITHSTANDING UNAVAILABILITY

It is well established that under the Sixth Amendment's Confrontation Clause, statements that would otherwise be admissible hearsay are inadmissible at trial when the witness is unavailable under section 240.¹¹ But are those statements admissible at a probation violation hearing? According to the Court of Appeal, yes. In People v. Gray,¹² the court held that a statement made by the defendant's girlfriend to officers reporting that the defendant "beat her up," was an excited utterance admissible at a probation hearing, although the girlfriend was unavailable, because "[t]he right to cross-examination at a probation violation hearing is governed—not by the Confrontation Clause-but by due process."¹³ The girlfriend's statement was presented in a bodycam video, and the court noted that California courts are split on whether "the admissibility of the bodycam video under the excited utterance exception satisf[ies] the minimum requirements of due process at probation violation hearings."¹⁴ The court ultimately rejected People v. Liggins,¹⁵ where bodycam footage was deemed insufficient, and sided with People v. Stanphill,¹⁶ holding that the footage does, in fact, satisfy due process at a probation violation hearing This decision may have implications in civil cases alleging denial of due process in curtailing or rejecting disability benefits based on video evidence.

"WRITINGS" INCLUDE RECORDS CONVERTED TO SPREADSHEETS

The court in Zuniga v. Alexandria Care Center, LLC,¹⁷ found that timekeeping and payroll records converted to PDF "computer-readable [Excel] spreadsheets" are "writings" within the meaning of section 250.¹⁸ Testimony by the former employee's expert witness, however, failed to provide the necessary foundation to authenticate the spreadsheets made by the company and used by the expert for analysis because the expert had no supervisory or hands-on involvement in converting the documents into spreadsheets. Nor did he have any substantive conversations with those who prepared the spreadsheets, and he did not validate the results of the conversion. Consequently, he lacked the requisite personal knowledge to authenticate the spreadsheets.¹⁹

RELEVANCE TO AN ANTICIPATED ISSUE IN DISPUTE

The California Supreme Court established that evidence is relevant when presented to preemptively address an issue the party believes their adversary will raise. In People v. Wright,²⁰ the admission of allegedly irrelevant guilt-phase testimony about the absence of fingerprint evidence that was

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presented in the prosecution's case-in-chief did not render a capital murder trial fundamentally unfair in violation of due process Further, the court held that the lack of fingerprint evidence was relevant within the meaning of section 350²¹ even though the defense had not yet raised the issue, because it was a "'standard and proper litigation technique' to anticipate the opposing party's argument and forestall it with one's own presentation."²²

JUDICIAL NOTICE

The Court of Appeal was called upon to decide whether the judicial notice provisions of section 451, subdivision (a) apply to memos from legislators,²³ litigant's own insurance contracts,²⁴ and emergency COVID orders.²⁵ Ultimately, the court determined that memoranda from an individual legislator to the Governor are not properly subject to judicial notice,²⁶ granted and denied requests as to litigants' own insurance contracts,²⁷ and granted judicial notice of government orders restricting movement and business operations during the pandemic.²⁸

WITNESS FOUNDATIONS

California state courts addressed several cases in 2021 involving the foundation for witness testimony, competency, and personal knowledge. In People v. Potter,²⁹ the Court of Appeal determined that a child who testifies on cross that they do not know the difference between a truth and a lie is not necessarily disqualified as a witness. The defense counsel did not object on competency after these responses, nor request a voir dire on competency. The court held, however, that where prior interviews and responses to other questions indicate that the child is capable of understanding the duty of a witness to tell the truth, the child's testimony can be deemed competent. And here, the court found that while interviewing the child prior to trial, police officers spent "some time talking about the difference between truth and lies and what happens if you tell a lie . . . to determine whether or not the child was competent."³⁰

On the other hand, judges who remember the rationales for their rulings in prior proceedings are not competent to use that memory as evidence in ruling on a subsequent malicious prosecution hearing. In Area 55, LLC v. Nicholas & Tomasevic, LLP,³¹ the Court of Appeal held that the trial judge may not rely on their memory of undisclosed reasons for a ruling in a prior proceeding as evidence in a current one. The court explained that a judge would not be competent to testify about a ruling in a subsequent proceeding,³² and therefore cannot use that memory as "evidence" in ruling on the current motion. The court reasoned, "[i]n relying on his memory rather than the evidence presented by the parties, the trial judge did not apply the proper standard."³³ Rather than "consider[ ] whether [Appellants] produced sufficient admissible evidence to establish the probability of prevailing on the merits on every cause of action asserted," the trial court instead "considered matters outside of what the parties presented and ruled on a ground that neither party had considered or had a chance to dispute—i e , the court's memory."³⁴ Consequently, the court excluded the judge's recollection of prior proceedings in analyzing the appellant's claim.

On the issue of personal knowledge, the boilerplate language we are all so familiar with from declarations and affidavits may no longer provide a sufficient foundation. In Gamboa v. Northeast Community Clinic,³⁵ the Court of Appeal found that the boilerplate sentence, "If called as a witness I could and would competently testify under oath to the above facts which are personally known to me," is not sufficient to establish personal knowledge.³⁶ Thus, the evidence was properly excluded. Going forward...