November 2017 Update
Summarized below are some of the more important developments included in this update since publication of the November 2016 Update.
In People v Landry (2016) 2 C5th 52, cited in §11.2, photocopies of jailhouse letters were properly authenticated by testimony on the protocol for monitoring and copying such letters and by the documents themselves.
In U.S. v Browne (3d Cir 2016) 834 F3d 403, 411, circumstantial evidence was sufficient to authenticate Facebook chat sessions. See §54.31.
Character: Specific Acts Evidence
Four new cases in which evidence of other crimes was properly admitted include People v Thompson (2016) 1 C5th 1043, 1113 (evidence of defendant’s prior incidents of financial fraud properly admitted as evidence of motive in trial on conspiracy to commit murder); People v Sanchez (2016) 63 C4th 411, 453 (evidence that defendant used stun gun in prior robbery properly admitted to show identity in later case involving robbery using stun gun); Butler v LeBouef (2016) 248 CA4th 198, 205 (evidence that attorney befriended two elderly persons and drafted trusts that benefited himself or his associates admissible to show common plan or scheme); and People v Fruits (2016) 247 CA4th 188, 203 (evidence of prior threats made to victim were probative on specific elements of crime of making criminal threats such as defendant’s intent and victim’s sustained and reasonable fear). By contrast, the court in People v Williams (2017) 7 CA5th 644, 677, held that the evidence of uncharged robberies was improperly admitted when no evidence showed defendant was the perpetrator (but the error was harmless). See §16.17.
In People v Cortez (2016) 63 C4th 101, cited in §32.11, the court of appeal erred in concluding that the hearsay declarant lacked personal knowledge about whether defendant knew of and went along with the plan to shoot the victims; given the evidence at trial, personal knowledge was an issue for the jury.
Declarations Against Interest
The court is required to examine the entire statement’s context to determine whether it disserves the declarant’s interest. People v Grimes (2016) 1 C5th 698 (trial court erred in parsing statements of actual killer to exclude statements that defendant was not involved in murder and appeared surprised). See §20.19.
In People v Cortez (2016) 63 C4th 101, 126, cited in §20.19, the court held that, viewed in context, the codefendant’s statement identifying the defendant by name as the person who accompanied him at the shooting disserved codefendant’s penal interest.
Electronic and Social Media Evidence
The court in State of New Jersey v Hannah (NJ Super 2016) 151 A3d 99 found sufficient substantial evidence that defendant posted the tweet at issue. See §§54.13, 54.18. See also People v Evensen (2016) 4 CA5th 1020, 1026 (motion to suppress denied when police used software tools that identified Internet Protocol address as site that downloaded child pornography using peer-to-peer network; defendant had no reasonable expectation of privacy in shared folder), in §54.13.
In David v Hernandez (2017) 13 CA5th 692, the trial court granted a motion in limine excluding expert testimony that defendant’s ability to drive was impaired by marijuana use. See §23.18.
In lawsuit alleging negligent treatment by an ambulance crew, plaintiff’s expert’s declarations failed to demonstrate that opinions were based on matters experts reasonably relied on in forming opinions and made assumptions of fact without evidentiary support. See Sanchez v Kern Emergency Med. Transp. Corp. (2017) 8 CA5th 146 in §24.25.
The California Supreme Court has held that when the time to exchange expert witness information has expired before a summary judgment motion is made and a party objects to a declaration from an undisclosed expert, admissibility of the expert’s opinion “can and must be determined before the summary judgment motion is resolved.” See Perry v Bakewell Hawthorne, LLC (2017) 2 C5th 536, 543, in §24.16.
In People v Stamps (2016) 3 CA5th 988, the court reversed a drug possession conviction when the expert’s opinion was based solely on inadmissible hearsay in the form of pictures from the Ident-A-Drug website. See §§24.25, 54.28.
California Rules of Court 3.1306(c) was amended to allow counsel requesting judicial notice of material in a file from the same court in which the matter will be heard to either arrange with the clerk to have the file in the courtroom at the hearing or to confirm with the clerk that the file is electronically accessible to the court. See chap 31.
Limited Purpose Evidence
In Seibert v City of San Jose (2016) 247 CA4th 1027, 1061 n15, the court noted that, although a request under Evid C §355 apparently may be made at any time before the matter is submitted to the trier of fact, “the party seeking to limit the evidence is usually best served by having the fact finder immediately apprised that the evidence has a limited purpose.” See §7.5.
Privileges and Confidential Communications
On the issue of who holds the privilege in a federal investigation of a former governor, the Ninth Circuit has held that the State of Oregon, not the former governor, holds the privilege for the former governor’s communications with government attorneys on potential conflicts of interest. See Grand Jury Subpoena v Kitzhaber (9th Cir 2016) 828 F3d 1083, 1092, in §43.6.
In N.S. v Superior Court (2017) 7 CA5th 713, the court held that a nonminor, juvenile court dependent did not tender the issue of mental condition that would waive privilege by asserting mental illness as the basis for continued jurisdiction. See §43.7.
In Moore v Mercer (2016) 4 CA5th 424, the court excluded otherwise relevant evidence of the amount the medical finance company paid for medical liens because it would involve undue time to try collateral issues. See §45.12.
Rule of Completeness
The California Supreme Court reinforced its “broad approach to the admissibility of the remainder of a conversation” under Evid C §356 (the rule of completeness) by holding that after the witness was cross-examined using the transcript of an interview, the recordings of the entire conversation were properly admitted. See People v Clark (2016) 63 C4th 522, 599, in §46.8.