Evidence

• Publication year: 2018
• Author: By Professor Chris Chambers Goodman & Caleb A. Miller

Evidence

By Professor Chris Chambers Goodman & Caleb A. Miller

Take Another Look! California Edits Existing Evidence Codes and Expands Parameters in Case Law.

In 2018, the California Legislature enacted clarifications and expansions to statutes with a focus on sexual assault. The courts addressed what could be irrelevant, and took a slice out of Sanchez, expanding Expert Testimony reliance. Notable California Supreme Court cases clarified Witt errors, and noted additional distinctions between the guilt and penalty phase admissibility of evidence. We took another look at crimes involving moral turpitude, improper vouching, hearsay exceptions, non-truth purposes, non-propensity purposes of character evidence, and certification.

Part One of this article describes the notable amendments and additions to the California Evidence Code in 2018. Part Two addresses some Ninth Circuit evidence cases. There were no United States Supreme Court evidence rulings in 2018. Part Three summarizes California Supreme Court decisions on evidentiary issues. Part Four highlights selected Court of Appeal decisions.

California Evidence Code Amendments

Several California Evidence Code sections were revised in 2018, with amendments taking effect January 1, 2019. The revisions took a focus on defining sexual assault, a dependent person, who else is a sexual assault counselor, prior inconsistent statements, privileges, mediation requirements, and burdens of proof.

Sexual Assault

California amended multiple statutes by substituting the language of former section 288a of the Penal code¹ with 287. Penal Code 287 addresses the crime of oral copulation of minors, in largely the same way its predecessor did.² Other statutes that previously cited 288a, have all been updated to now cite 287.³

Privilege

The Legislature made findings and declarations regarding § 1035.2,⁴ a statute that defines in great detail all who qualify as a sexual assault counselor, that there is "uncertainty among practicing sexual assault counselors as to whether this privilege extends to counselors who proved these services and support to students on college campuses. . . . The intent of this act is to remove that uncertainty, and declare that this privilege extends to sexual assault counselors who practice at college campuses and has done so since the creation of the privilege." This wording highlights beyond dispute that the same privilege applies to college sexual assault counselors as it does to other professional counselors. The Legislature asks that college campuses "take all the necessary steps to ensure that communications claimed as privileged under section 1035.8⁵ of the Evidence Code remain confidential."

Section 1010(f)⁶ has been amended to include "a licensed professional clinical counselor," and expands licensed physician and surgeon certified in psychiatry to qualifications defined in Business and Professions Code Sections 4999.42-4999.48.

Section 953⁷ has been updated to exclude guardians and conservators: "If the guardian or conservator has an actual or apparent conflict of interest with the client, then the guardian or conservator does not hold the privilege."⁸

Section 1122⁹ updates an attorney work-product doctrine regarding "for the purpose of, or in the course of, or pursuant to, a mediation, or mediation consultation." An amendment¹⁰ adds to the Code that the work-product "may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129."¹¹

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Mandatory Mediation Form

Sure to largely affect family law, the Evidence Code has added section 1129, requiring an attorney representing a client in a mediation to print a new disclosure agreement, to be acknowledged and signed by the client. The statute defines the font size, length, attachment restrictions, and names to be included in the form. The form expresses to the client the nature of the confidentiality of mediation and clearly lays out the expected privilege. The form itself states that all communications made are to remain confidential, "even if you later decide to sue your attorney for malpractice because of something that happens during the mediation."

Updates to 2017 Evidence of Immigration Bill

In last year's article, we discussed a bill that appeared to be a response to a federal policy on immigration. The Legislature added Evidence Codes 351.3¹² and 351.4¹³ to supplement 351.2, by prohibiting disclosure of immigration status in open court unless the judge first determines in an in-camera hearing that the evidence is "admissible." These sections are set to expire on January 1, 2022.

Dependent Person

Section 177 has been amended to include the language "regardless of whether the person lives independently." This is useful for section 1109¹⁴ cases, which involve character evidence of abuse of an "elder or dependent person." This amendment will expand the definition of a dependent person, and in turn, the admissibility of crimes committed towards them.

Prior Inconsistent Statements

The Legislature also expanded Section 1294,¹⁵ on prior inconsistent statements by unavailable witnesses, to include statements of a witness admitted in a "conditional examination."¹⁶

The Ninth Circuit

Hearsay

In United States v. Kootswatewa,¹⁷ a nurse practitioner testified at trial as to everything that was said during her examination and the court found that the actual declarant need not testify at all under this hearsay exception¹⁸ and that the statements by the medical examiner about what was said during the examination were admissible.¹⁹

Expert Witnesses

In United States v. Espinoza-Valdez²⁰ the defendant appealed convictions for conspiracy to import and conspiracy to distribute marijuana.²¹ The prosecution primarily relied on expert drug profile testimony describing the defendant's profile as one that would distribute marijuana, without establishing that the defendant did, or intended to distribute marijuana.²² The court ruled that, "The government may not rely on expert testimony of drug courier profiles alone to establish guilt . . . [and] that profile was the crux of the government's case."²³

Rule 30(b)(6)²⁴

In Snapp v. United Transportation Union,²⁵ the plaintiff brought an action against the defendant for failure to accommodate under the Americans with Disabilities Act (ADA).²⁶ The plaintiff deposed the United Transportations Rule 30(b)(6) representative, and sought to have his statements accepted as judicial admissions of the corporation.²⁷ The Ninth Circuit accepted the Tenth Circuit's ruling²⁸ on Rule 30(b)(6) statements made by corporate employer's designated representative in his "deposition testimony were not in [the] nature of legal or judicial admissions . . . [and to] treat the testimony of a Rule 30(b)(6) representative as merely an evidentiary admission, and do not give the testimony conclusive effect."²⁹

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The California Supreme Court

Confrontation Clause

In People v. Penunuri,³⁰ the Supreme Court rejected the Attorney General's contention that the defendant forfeited his Confrontation Clause claims by not specifically objecting on this ground, when he objected as hearsay to statements recorded by the police and offered against him trial.³¹ The Court held that, because his trial was in 2000, before the Crawford pronouncements about testimonial hearsay, he had not forfeited any claim by failing to make an objection on those grounds at that time.³²

Witt Error

The Supreme Court in People v. Spencer³³ clarified what constitutes a Witt error,³⁴ and multiple 352 balancing issues.

While interviewing a juror as to whether he could vote for the death penalty, the juror gave multiple ambiguous answers that did not really state whether he could or could not vote in favor of the death penalty, but that he was opposed to the death penalty in most circumstances.³⁵ The prosecutor struck the juror and the defense objected, stating the juror gave no indication he could not perform the juror's role with integrity.³⁶ The Supreme Court found that "The proper inquiry in determining whether a Witt error occurred is not whether some evidence exists that the prospective juror could vote for the death penalty. The standard is instead whether substantial evidence existed to support the trial judge's determination that the juror was substantially impaired in terms of his ability to do so."³⁷

Juror's Mental Processes

In re Albellino Manriquez,³⁸ the Supreme Court upheld a referee's determination to strike a juror's response under Section 1150 to a question in a post-verdict proceeding that impermissibly inquired about her mental processes.³⁹ The question posed to the juror was whether hearing about the abuse the defendant had suffered when working on a farm reminded her of the abuse she had suffered while working on a farm.⁴⁰ The Court explained that this question was not directed at her state of mind during the voir dire process but rather at how the mitigation evidence impact might have influenced her decision-making process.⁴¹

352 Balancing

The court in Spencer looked at multiple 352 issues. First, the defense objected to seven witness impact statements as being excessive, and particularly three witnesses who gave statements concerning the wife of the victim, who was also a witness.⁴² The Court ruled that "As long as the events relayed are not otherwise unduly prejudicial, they may include anecdotes culled from a lifetime of shared experiences between the victim and those he left behind."⁴³

The defense also objected when the prosecutor showed the jury pictures of the victim with his fam-ily.⁴⁴ The court ruled that "The jury may be shown pictures of the victim in happier times when it considers testimonies about the devastation brought by his death."⁴⁵

The defense then contended that, during the penalty phase of trial, the prosecution's display of a mannequin with the victim's bloodied shirt, and an expert witness describing how much he suffered, was unduly prejudicial.⁴⁶ The...