Evidence

• Publication year: 2017
• Author: by Professor Chris Chambers Goodman

Evidence

by Professor Chris Chambers Goodman

Fed Up! California Pushes Back on Federal Policy with Notable Rules and Rulings on Cannabis, Domestic Violence, and Immigration

In 2017, the California Legislature enacted clarifications and expansions of several statutes, including additional protections for subordinated groups. The courts addressed the scope of the confrontation clause, specifically the standard for determining whether evidence is used for the truth of the matter asserted or for another purpose. There were two notable United States Supreme Court cases involving the impact of racial or ethnic bias on jurors. The California Supreme Court also addressed several aspects of the Evidence Code in death penalty cases. For civil litigators, there were few changes except for several expert witness, privilege, and Evidence Code section 352 issues that can apply more broadly.

Part One of this article describes the notable amendments and additions to the Evidence Code in 2017. Part Two summarizes two United States Supreme Court cases on evidentiary issues. Part Three summarizes California Supreme Court decisions impacting interpretations of the Evidence Code.

California Evidence Code Amendments

Several California Evidence Code sections were revised in 2017 with amendments taking effect on January 1, 2018. These revisions included responses to federal laws and policies, expansion of statutory privileges, enhanced protections for subordinated groups, and expanded use of evidence in family law matters. Each of these categories is discussed below.¹

Responses to Federal Policies

One notable amendment that responds to federal policy in light of recent changes in California law is the crime-fraud exception to the attorney-client privilege. California Evidence Code section 956, which states that there is no privilege where the purpose of the consultation was to assist in a crime or fraud, was amended to clarify that it no longer applies when the attorney services are "rendered in compliance with state and local laws on medicinal cannabis or adult-use cannabis," so long as the attorney informs the client about conflicts with federal law.² Thus, consultations with and representation by attorneys who provide legal advice to those with cannabis businesses will not automatically lose the protection of the privilege under the crime-fraud exception. As long as the advice is provided in compliance with state and local laws, and even though it would be out of compliance with federal law, the consultation will not be deemed to be for purposes of assisting in a "crime" and thus will not destroy the attorney-client privilege on that basis.

Perhaps in response to federal education policy on college campuses, another amendment expands the definition of "domestic violence counselor" for purposes of the domestic violence victim-counselor privilege. California Evidence Code section 1037.1 defines a domestic violence counselor to include those who are employed by a "domestic violence victim service organization." The amendment extends the previous definition of that type of organization- a "nongovernmental organization or entity" such as domestic violence shelter based programs³-to now expressly include "[p]rograms on the campus of a public or private institution of higher education with the primary mission to provide support or advocacy services to victims of domestic violence."⁴ This amendment will provide more opportunities for victims to obtain confidential advice and support in college campus settings.

Pending legislation in California also appears to be a response to federal policy on immigration. Effective January 1, 2017, the California Legislature added Evidence Code section 351.2 to preclude discovery into or admission of evidence of a person's immigration status in any civil action for personal injury or wrongful death.⁵ In the 2017-18 session, a bill has been introduced to expand this protection to other civil and criminal cases by prohibiting disclosure of immigration status in open court unless the judge first determines in an in camera hearing that the evidence is "admissible."⁶

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Enhanced Protections for Subordinated and Disadvantaged Groups

Two new amendments involve human trafficking offenses and victims. Effective January 1, 2017, the Legislature enacted Evidence Code section 1107.5, which permits expert testimony about the effects of human trafficking on victims who are charged with crimes.⁷ That statute used the definition of a "human trafficking victim" as described in Penal Code section 236.1.⁸ Effective January 1, 2018, the Legislature amended the Evidence Code to clarify that a "human trafficking victim" is defined as "a victim of an offense" described in Penal Code section 236.1.⁹ This change will allow victims of all types of human trafficking to utilize expert evidence if they are charged with a crime.

California Evidence Code section 1108 permits specific character evidence of prior sexual misconduct when the criminal defendant is charged with a similar offense. An amendment, effective January 1, 2018, adds specific human trafficking sexual offenses to the list of prior sexual offenses that are admissible in these criminal cases.¹⁰

Changes to Evidence Code Regarding Family Law Matters

The Evidence Code protects statements made during mediation consultations or in the course of mediation from discovery or admission into evidence in other civil actions or proceedings.¹¹ However, Evidence Code section 1120 recognizes that otherwise discoverable or admissible evidence does not become inadmissible solely by reason of its use in mediation.¹²

When disclosure of assets and liabilities was required in marital dissolution and other family law proceedings, there was some uncertainty about whether these disclosures were protected under the general mediation exclusion. Such an exclusion might bar one spouse from using evidence of marital assets disclosed during the mediation process to later modify support or settlements. Effective in 2018, the Legislature amended the Evidence Code to clarify that these disclosures in family law matters do not become inadmissible or protected from disclosure solely by reason of their use in mediation.¹³ The intent behind this amendment was to codify the holding of a 2014 Court of Appeal ruling¹⁴ to permit the use of evidence of assets in later hearings to modify or set aside support agreements in divorce cases.

The United States Supreme Court Addresses Racial Bias Evidence

In 2017, the United States Supreme Court issued two notable decisions regarding the impact of racial bias; in one case, the defense expert expressed bias, and in another, a juror did so. In Buck v. Davis,¹⁵ the defendant was convicted of capital murder and sentenced to death. One basis for appeal was that defense counsel introduced evidence that race was one of several statistical factors that increased the probability of future dangerousness in an expert witness report.¹⁶ The United States Supreme Court held that "[n]o competent defense attorney would introduce such evidence about his own client," particularly when the jury was to deliberate over his future dangerousness in determining whether death was the appropriate penalty.¹⁷ Recognizing how the expert evidence "appealed to a powerful racial stereotype- that of black men as 'violence-prone,'" the Court noted that it "created something of a perfect storm."¹⁸ Exacerbating the prejudice was evidence that the expert was experienced (he had conducted about 70 evaluations of future dangerousness in other capital murder cases), and he had been appointed by the court (thus perhaps enhancing his credibility).¹⁹ The Court reasoned that when expert testimony "expressly makes a defendant's race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record."²⁰ This case was significant in recognizing how implicit bias can influence a jury verdict.

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In Pena-Rodriguez v. Colorado,²¹ the ethnic bias of a juror was at issue in post-verdict proceedings. The defendant was tried for unlawful sexual conduct and harassment. During deliberations, one juror made ethnically biased remarks as reported by other jurors, including the following statements: "I think he did it because he's Mexican and Mexican men take whatever they want"; "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls"; and the alibi witness was not credible because he was "an illegal."²² The Court explained that the no-impeachment rule, which bars the impeachment of a jury verdict using jury deliberations, is subject to an exception where a juror's statement itself, including its content, timing, and reliability, "tend[s] to show that racial animus was a significant motivating factor" in the decision to convict.²³ The United States Supreme Court held in these circumstances that the trial court can consider evidence of a juror's "clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant."²⁴

Recently, the United States Supreme Court blocked an execution and remanded a Georgia death row case to consider whether a certificate of appealability was warranted on the grounds that one of the white jurors was biased against the petitioner because he was black.²⁵ The court found that the evidence, including an affidavit signed by the juror, "presents a strong factual basis for the argument that [defendant] Tharpe's race affected [juror] Gattie's vote for a death verdict. At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination [that the vote to impose the death penalty was not based on race] was wrong."²⁶ This is a case to watch in the circuit courts.

California Supreme Court Cases

This section summarizes...