Evidence

• Publication year: 2019
• Author: By Chris Chambers Goodman

Evidence

By Chris Chambers Goodman

Introduction

There has been notable activity in several areas of California evidence law in 2019. The Legislature added and revised a handful of sections of the California Evidence Code, and the California Supreme Court interpreted more than a dozen sections. Two significant trends emerge: (1) narrowing interpretations of policy exclusions and expanding the scope of hearsay exceptions to permit broader admissibility in many areas, while (2) continuing to enhance protections in specific areas such as for human trafficking victims and therapy patients.

The United States Supreme Court issued only one significant evidence decision, Biestek v. Berryhill,¹ where the Court held that a vocational expert's refusal to provide underlying data to support her market analysis did not categorically mean that the opinion was not supported by substantial evidence.² The court recognized that the substantial evidence analysis must be done on a case-by-case basis. Justices Sotomayor, Gorsuch and Ginsburg dissented, reasoning that the expert had not offered information about the basis for her testimony,³ and thus the government failed to satisfy its burden of producing substantial evidence.⁴

Biestak resolves conflicting opinions in lower courts.

Legislative Activity

The California Legislature expanded protections for sex workers and human trafficking victims, and narrowed protection for police disciplinary records. First, section 782.1 added "condom possession" to the restrictions on evidence about the sexual conduct of a complaining witness.⁵

Second, section 1162, which excludes evidence of engaging in prostitution at or around the time the person was a victim of or witness to crimes of extortion, stalking or a "violent felony," expanded the crimes to include "serious" felonies, assault, human trafficking, and sexual battery.⁶

Third, revisions to sections 1038, 1038.1, 1038.2 and 1038.3 broadened the scope of the human trafficking-caseworker privilege by expanding the definition of "confidential communications" to those made "orally, in writing or otherwise conveyed"⁷ and to include the "facts and circumstances" of human trafficking, information about the victim's children and any relationship of those children with the alleged trafficker.⁸ In addition, the revisions added the present caseworker as a proper party to the privileged communication (where former law applied only to the caseworker at the time the communication was made).⁹ New section 1038.3 affirms the legislative intent that the privilege will not curtail mandated child abuse reports.¹⁰

The other significant changes to the Evidence Code expand the admissibility of law enforcement disciplinary and personnel files. Section 1043 now provides accelerated deadlines (at least ten court days for notice, five for opposition, and two for reply) when seeking disclosure in criminal cases¹¹ and requires the government agency to notify the person whose records are sought.¹² An exception to section 1047, which prohibits disclosing the records of officers who were not present at arrest, or had no contact from arrest to booking or were not present if the incident occurred in a jail facility, now permits disclosure of records of supervisors who had "direct oversight" and "issued command directives," or "had command influence" over the situation at issue if they were present at arrest, or had contact during the pertinent time. Under prior law, supervisors could avoid disclosure of their own files if they were not present at arrest, but were present between arrest and booking, or if they were present at arrest, but not between arrest and booking. Now, if the supervisor was present at either time, the records are subject to disclosure.

The California Supreme Court

Policy Exclusions of Relevant Evidence

In People v. Amezcua,¹³ the California Supreme Court ("CSC") determined that negotiations to reduce the amount of the defendants' minimum restitution fine did not constitute plea negotiations, and therefore statements made in the course of those negotiations (admitting to other crimes) were not excluded by section 1153. Negotiations over restitution did not include an offer to plead to an offense and thus did not implicate the section 1153 exclusion rule.¹⁴

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People v. Young,¹⁵ addressed admitting character evidence in the form of defendant's racist beliefs. The CSC found that while admitting the evidence during the guilt phase of the trial was not improper, admitting the evidence during the penalty phase violated the First Amendment and was not harmless beyond a reasonable doubt. The specific evidence included tattoos with racial slurs and wearing red shoelaces (which was a Skinhead symbol for having shed blood of a nonwhite victim). The tattoos were clearly relevant to prove the defendant's identity, the color of the shoe laces was relevant to establish consciousness of guilt, and the court found "no reasonable probability that the jurors' negative reaction to the defendant's racist tattoos, associations, and beliefs would have affected their evaluation of this evidence."¹⁶

In People v. Rhoades,¹⁷ the CSC analyzed whether evidence of intent offered under section 1101, subdivision (b) can include the intent of a person other than the defendant. The defendant in Rhoades was charged with sexual offenses and sought to admit evidence of the witness's prior sexual offense conviction to establish that the witness committed the crime for which defendant was on trial. The court found the intent of the witness was not at issue in the trial and that the evidence was not admissible to prove identity because there was "virtually no resemblance between the crimes," and thus it did not support the defendant's argument that the witness committed the charged crime.¹⁸

People v. Guzman,¹⁹ addressed the impact of the "Right to Truth-in-Evidence" provision of the California Constitution²⁰ (Prop. 8) and held that a telephone conversation recorded without consent (and thus in violation of Penal Code section 632) was admissible under Prop. 8. The CSC analyzed the revisions to Penal Code section 632 since Prop. 8 and determined that it "remains abrogated" by Prop. 8, despite having been reenacted in 1985, 1990, 1992, 1994 and 2006. Thus, the court concluded that "the exclusionary provision of section 632 posed no bar to the admission of the recording at defendant's criminal trial."²¹

In Association for Los Angeles Deputy Sheriffs v. Superior Court,²² the CSC reversed the court of appeal and determined that the sheriff's department was not prohibited from disclosing to prosecutors that a deputy sheriff witness may have relevant impeachment or exonerating material. Examining whether the sheriff department's Brady list²³ was confidential, the court recognized that portions of the list may be confidential and other portions may not, and concluded that limited disclosure to prosecutors in this particular case was not forbidden by existing law.²⁴ The court declined to address whether a prosecutor sharing the alert with the defense team would violate confidentiality. Importantly, the court specifically rejected the argument that the Brady duty to disclose only applies to information obtained during an investigation about a criminal matter and instead said "what matters for Brady purposes is what the prosecution team knows, not how the prosecution team knows it."²⁵

People v. Bell,²⁶ concerned witness credibility character evidence in the form of a mother's opinion testimony that her son was sometimes truthful and sometimes not, and that his reputation among his family was that he was not truthful.²⁷ The defendant objected to a lack of foundation. Evidence showed that the mother had raised her son for 13 years and then had infrequent contact with him. The court found there was no error in admitting the mother's opinion because she was aware of her son's reputation within the family, and knowing someone for a "reasonable length of time" is sufficient to qualify a witness to testify as to another witness's character for honesty or veracity.²⁸

In People v. Dalton,²⁹ the CSC addressed the issue of specific instance evidence, and held Prop. 8 abrogated section 787 (prohibiting use of evidence of the circumstances underlying a conviction to impeach credibility).³⁰ Recognizing that trial courts retain discretion to exclude such evidence under section 352, and that in the present case the trial court might not have been aware that it could admit the circumstances underlying the convictions, the court found no evidence that the case would have come out differently if the excluded questions had been presented.³¹

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Hearsay Exceptions

People v. Armstrong,³² held that silence constituted an adoption of a co-perpetrators' statement within the meaning of section 1221. There, the defendant, accomplice, and the witness saw a report about the murder on television one evening. The witness said, "I know who did that," after which the defendant whispered to his accomplice, "how did he know?" The accomplice then explained the details of the crime to the witness while the defendant, still present in the room, said nothing. At trial, the prosecution argued that by listening and saying nothing the defendant had adopted the statement of his accomplice. The court explained existing precedent states that unless it was clear that the defendant was relying on his Fifth Amendment privilege, these statements are admissible as adoptive admissions.³³

The trial court in People v. Westerfield,³⁴ excluded the defendant's evidence that the mother of the kidnap/murder victim received a telephone tip from an anonymous caller. Defendant argued the caller's statement was admissible hearsay under the declaration against interest exception of section 1230. The trial court found the anonymous caller's statements lacked reliability as the caller's name and telephone number were not identified and the call could have been a prank.³...