Evidence Update 2022

• Publication year: 2022
• Author: Written by Professor Chris Chambers Goodman, Esq.

EVIDENCE UPDATE 2022

Written by Professor Chris Chambers Goodman, Esq.^*

SCOTUS ISSUES TWO EVIDENCE DECISIONS!

The United States Supreme Court decided two cases and granted certiorari on two other cases involving evidentiary issues in 2022. One of these was argued, and then dismissed, and the other had not yet been set for argument at the time of this publication. The case awaiting argument is Samia v. United States,¹ which addresses the Confrontation Clause, and specifically whether admitting redacted versions of a codefendant's hearsay statements that indirectly inculpate the accused violate it.²

In January, 2023, the Court heard oral argument in In Re Grand Jury,³ which presented the issue of "whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication."⁴ Petitioners identified a three-way split in authorities and questioned the Ninth Circuit decision, which applied the primary purpose test to weigh the significance of the legal and nonlegal communications.⁵ In oral argument, the justices inquired about the percentage of information for the purpose of legal advice that is necessary to deem a communication privileged, and when and whether any insignificant percentage focused on obtaining legal counsel or advice would be enough to render the entire communication privileged.⁶ The debate was over the whether the primary purpose test should be the standard or the significant purpose test should be the standard. On January 23, 2023, the court dismissed the writ as "improvidently granted,"⁷ and thus the apparent split remains.

In Hemphill v. New York,⁸ the U.S. Supreme Court reversed the defendant's conviction on the grounds that admitting a third party's plea allocation violated his right to Confrontation. The nation's highest court rejected New York's highest court decision in People v. Reid,⁹ which allowed the prosecution to introduce evidence that would otherwise violate the Confrontation Clause if the criminal defendant opened the door by presenting evidence that created a misleading impression.¹⁰

The U.S. Supreme Court held that by admitting "unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably

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necessary to correct," the trial court violated the principles of the Confrontation Clause.¹¹ The court further explained that it was not the judge's role to question the credibility of the defendant's proffered evidence but rather to "ensure that the Constitution's procedures for testing the reliability of that evidence are followed."¹² In rejecting New York's Reid rule, the Court reminded the lower court of the scope of the constitutional right of the accused, "'to be confronted with the witnesses against him...'. It admits no exception for cases in which the trial judge believes unconfronted testimonial hearsay might be reasonably necessary to correct a misleading impression. Courts may not overlook its command, no matter how noble the motive."¹³

The Hemphill court briefly addressed the completeness doctrine under Federal Rule of Evidence, rule 106,¹⁴ which is triggered when one party offers only portions of a transcript or recording, that then result in a misleading impression. The trigger was not activated in this case, because the third party's plea allocation was not part of any statement that the defendant had introduced.¹⁵ It is useful to note that a similar outcome would result under the California statute in this circumstance, even though California Evidence Code section356¹⁶ is broader than the federal rule.

In United States v. Zubaydah,¹⁷ a divided U.S. Supreme Court held that the state secrets privilege protects information about the existence or nonexistence of a Central Intelligence Agency ("CIA") detention facility in the nation of Poland.¹⁸ The opinion of the court focused on the specific discovery requests and how any responses to those requests as phrased would either confirm or deny the existence of the detention site.¹⁹ The government had asserted a national security interest in refusing to respond to the inquiries, and the petitioner had not demonstrated significant necessity for the information, and therefore the government interest outweighed that of the petitioner.²⁰

The existence of the CIA detention faculty had been reported in the media prior to the court's decision; however, the court rejected the assertion that because the information had already been revealed by nongovernment sources, the government's privilege would no longer apply.²¹ Explaining that admissions by those not authorized to make those admissions does not pose the same risks as "official confirmation of sensitive information," the public disclosure of facts about the facility did not override the government interest in refusing to provide official confirmation or denial of the existence of the detention facility.²² Thus, the court made clear that disclosures made by those other than the privilege holder will not impact the holder exercising the state secrets privilege.

FOUR NEW EVIDENCE CODE SECTIONS ADDRESS IMPLICIT BIAS

There were only four additions to the California Evidence Code in the 2022 year, and all four have implications for addressing implicit bias in legal proceedings. The new sections that applied in 2022 are: (1) Evidence of Immigration Status; Disclosure in Open Court;²³ and (2) Evidence of Immigration Status: Criminal Actions.²⁴ Both were made effective as of August 22, 2022. The first governs civil actions and states that "evidence of a person's immigration status shall not be disclosed in open court by a party or their attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person's immigration status."²⁵ The statute specifically excludes cases where the status is necessary to prove an element of a claim or defense, and explains that it is not designed to impact otherwise applicable laws "governing the relevance of immigration status to liability" or standards in discovery proceedings, as well as when a person or their attorney wants to voluntarily reveal the person's immigration status.²⁶

The same rule applies in criminal cases, with similar limitations—when it is necessary to prove in elementary or defense, or a party volunteers the information—and it is not intended to limit discovery in criminal cases.²⁷

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Two additional statutes were enacted in 2022, which did not take effect until January 1, 2023. The first one is entitled, Artists' Creative Expression as Evidence in Criminal Proceedings: Admissibility.²⁸ This statute adds additional factors to those of Evidence Code section 352 in determining whether or not the probative value of the evidence is substantially outweighed by the substantial danger of undue prejudice. The additional factors include that the probative value for its "literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to" those crimes, or "includes factual detail not otherwise publicly available."²⁹ This limitation on the trial court's discretion in determining the level of probative value will have significant consequences. For instance, the statute also instructs the judge as to what constitutes additional relevant evidence, including credible testimony about "social or cultural context, rules, conventions, and artistic techniques of the expression;" experimental or social science research demonstrating" how that admitting evidence of that type of expression "explicitly or implicitly introduces racial bias into the proceedings," as well as "evidence to rebut any of the above research or testimony."³⁰

In addition, the trial court must consider that undue prejudice also includes the "possibility that the trier of fact will, in violation of section 1101, treat the expression as evidence of the defendant's propensity for violence or general criminal disposition," and must also consider "the possibility that the evidence will explicitly or implicitly injected racial bias into the proceedings."³¹ This reference to explicit and implicit bias will be important for promoting fairness and equity in the judicial system, as recognition of the negative ramifications enhances efforts to combat them.

One other statute was added under the credibility listings of the Evidence...