This classic resource—relied on and kept current by attorneys and judges, and widely quoted for more than four decades—is the best way to research evidence issues before a deposition, mediation, hearing, or trial. Published jointly with the California Judges Association.
"I learned evidence by reading this book. It covers every rule in detail with case law examples. Hands-down the best book on California evidence ever written. This is one book every litigator should have."Christopher C. Melcher, Walzer & Melcher LLP, Woodland Hills
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Hon. Barrett J. Foerster
Hon. Laurie D. Zelon
Hon. Holly J. Fujie
Stephen G. Blitch
Hon. William F. McDonald (Ret.)
Hon. Ken M. Kawaichi (Ret.)
Christopher R. Aitken
Wylie A. Aitken
Barbara A. Caulfield
John W. Downing
Peter E. Root
Hon. Brenda F. Harbin-Forte
Hon. Martin J. Jenkins
Hon. Arthur Gilbert
Christopher R. Aitken, Esq. is a partner in the Santa Ana firm of Aitken Aitken Cohn. Mr. Aitken represents plaintiffs in major civil jury trial litigation involving personal injury, insurance bad faith, wrongful death, and general business litigation. He has been a frequent continuing education speaker at Orange County Bar Association and Hispanic Bar Association seminars, and is an active member of the California Trial Lawyers Association and the Orange County Trial Lawyers Association. He earned his law degree from the University of Southern California School of Law.
Wylie A. Aitken, Esq. is a founding partner in the Santa Ana firm of Aitken Aitken Cohn. Mr. Aitken is a plaintiff’s trial attorney and former President of the California Trial Lawyers Association (now the Consumer Attorneys of California). He was the Orange County Trial Lawyer of the Year in 1996, was named as a “2004 Southern California Super Lawyer,” and has been featured in Best Lawyers in America. He is a graduate of Marquette University Law School.
Stephen G. Blitch, Esq. serves as a neutral mediator with ADR Services, Inc., San Francisco. He formerly was a partner in the Oakland office of Reed Smith, LLP, specializing in civil trial practice, with an emphasis on business litigation, including business torts, products liability, class actions, construction, real estate, financial services, and environmental litigation. He frequently lectures on trial evidence and trial practice and has taught at the National Institute for Trial Advocacy. He is listed in Best Lawyers in America and is a fellow of the American College of Trial Lawyers. Mr. Blitch is a contributing author of California Trial Objections (Cal CEB Annual). He is a graduate of the University of California, Berkeley, School of Law.
The late Barbara A. Caulfield, Esq. most recently was a partner at Kaye Scholer, LLP. She formerly was the managing partner of the Silicon Valley office of Dewey & LeBoeuf, and co-chair of its intellectual property litigation group. Ms. Caulfield had extensive experience in complex intellectual property litigation for pharmaceutical and biotechnology companies. She also had formerly been executive vice president and general counsel of Affymetrix, Inc., a Santa Clara biotechnology company. Before that, she was a partner at a major international law firm, and was a former United States District Judge. Ms. Caulfield had taught trial advocacy and related topics at Stanford and Harvard Law Schools. She was a graduate of Northwestern University School of Law.
John W. Downing, Esq. maintains a solo law practice that centers on intellectual property litigation and technical cases. He has particular expertise in technology related to semiconductors and computer software, as well as matters involving biotechnology, pharmaceuticals, and medical devices. He has represented clients in state and federal court, as well as before the International Trade Commission. He earned his law degree from the University of Arizona College of Law.
The late Hon. Barrett J. Foerster was a judge of the Imperial County Superior Court. He began his judicial service in November 2003, after serving as a Probate Referee and Inheritance Tax Referee. In 2004, he was recognized for outstanding service as a Family Law Specialist and Superior Court Judge by the State Bar. In addition to his work on this publication, Judge Foerster was a contributing author to California Child and Spousal Support: Establishing, Modifying, and Enforcing (Cal CEB) and Family Law Financial Discovery (Cal CEB). Judge Foerster earned a J.D. degree from the University of California, Los Angeles, School of Law, and an LL.M. degree in labor and employment law from the University of San Diego School of Law. Judge Foerster died in 2010.
Hon. Holly J. Fujie is a judge of the Los Angeles County Superior Court. Before becoming a judicial officer, she was a litigation shareholder of Buchalter Nemer, PC, in Los Angeles, specializing in complex civil litigation and serving as chair of the firm’s insurance group. She formerly was a member of the California State Bar’s Board of Governors, and was elected President of the State Bar for 2008–2009. She is a contributing author of Effective Introduction of Evidence in California (2d ed Cal CEB). Judge Fujie earned her law degree from the University of California, Berkeley, School of Law.
Hon. Arthur Gilbert has been the Presiding Justice of the Second District Court of Appeal, Division Six since November 1999, and was elevated to the Court of Appeal in 1982. He served as a Judge in Los Angeles County from 1975–1982. Before becoming a judge, he was in private practice for 10 years, and also served as a Los Angeles Deputy City Attorney. He has been involved in judicial education, written and lectured, and has served in many capacities with professional organizations. He has twice been named “Appellate Justice of the Year,” and received the Bernard S. Jefferson Award from the California Judges Association in 1987. Justice Gilbert is a graduate of the University of California, Berkeley, School of Law.
Hon. Thomas E. Hollenhorst has been an Associate Justice of the Court of Appeal, Fourth Appellate District, since 1988. He previously served as a Judge in Riverside County, and also worked for the county as an acting, assistant, and deputy district attorney. He is the former chair of the Center for Judicial Education and Research’s Governing Committee, and also has served as Chair of Judicial Education for the Appellate Judge Conference of the American Bar Association. He is a past recipient of the Jefferson Award from the California Judges Association. He received his J.D. degree from the University of California, Hastings College of the Law, and an LL.M. degree from the University of Virginia School of Law.
Hon. Ken M. Kawaichi (Judge, Ret.) is a private neutral with Judicial Arbitration and Mediation Services. He served for some 28 years as a Judge in Alameda County before becoming a neutral. He has been a frequent speaker on evidence for the California Judges Association and the Center for Judicial Education and Research, and early in his career was an Assistant Professor at the University of California, Berkeley. Judge Kawaichi received the 2003 Benjamin Aranda III Access to Justice Award, and has chaired or otherwise been an outstanding member of numerous professional associations. He is a graduate of the University of California, Berkeley, School of Law.
Hon. William F. McDonald (Judge, Ret.) is a private neutral with Judicial Arbitration and Mediation Services, with particular expertise in complex commercial cases. Before becoming a neutral, he was the supervising judge of the Orange County Superior Court’s Complex Civil Litigation Panel, having been appointed to the bench in 1981. While in practice, Judge McDonald had specialized in intellectual property law as a registered patent attorney and in business litigation for some 15 years. He is a certified member of the World Intellectual Property Law Organization panel of Arbitrators and Mediators, and has been the recipient of numerous awards as Judge of the Year from professional associations. Judge McDonald is a graduate of Georgetown University Law Center.
Peter E. Root, Esq. is a partner in the Silicon Valley office of Dewey & LeBoeuf, specializing in complex business and commercial litigation with an emphasis on intellectual property and technology matters, securities and corporate governance litigation, and claims involving mergers and acquisitions. He previously was an associate general counsel at Affymetrix, Inc., a biotech company, and earlier was a partner at a major international law firm. Mr. Root earlier served as a Special Assistant District Attorney for the San Francisco District Attorney’s Office and as a judicial clerk for the Ninth Circuit Court of Appeals. He is a graduate of the University of California, Berkeley, School of Law.
Hon. Laurie D. Zelon is an Associate Justice of the California Court of Appeal, Second District, Division 7. She became an Associate Justice in 2003. Justice Zelon was appointed to the Los Angeles County Superior Court in 2000. Before her elevation to the bench, Justice Zelon was in private practice for some 23 years handling litigation involving scientific and technical issues, fiduciary obligations, and other complex commercial disputes. She is a past President of the Los Angeles County Bar Association, a former Chair of the California Commission on Access to Justice, and has received numerous awards for pro bono service. She is a graduate of Harvard Law School.
Hon. Arthur Gilbert. See the About the Authors section for full biographical information.
Hon. Brenda F. Harbin-Forte is a judge of the Alameda County Superior Court. She was first appointed to the Municipal Court bench in 1992 and was elevated to the Superior Court in 1998. Before becoming a bench officer, Judge Harbin-Forte was a private attorney with Harris, Alexander & Burris, where she handled civil and criminal cases, and later was a partner with Thelen, Marrin, Johnson & Bridges, specializing in complex civil litigation matters. She has received numerous awards for judicial excellence and has been at the forefront of efforts to improve diversity in the judiciary. She received her undergraduate degree from the University of California, Berkeley, and her law degree from the University of California, Berkeley, School of Law.
Hon. Martin J. Jenkins is an associate Justice of the California Court of Appeal, First Appellate District, Division Three. Before being elevated to the court of appeal in 2008, Justice Jenkins served as a judge of the United States District Court for the Northern District of California, as well as having previously served as a judge of the Alameda County Superior Court. Before becoming a judicial officer, Justice Jenkins served as a trial attorney with the Alameda County District Attorney’s Office and later with the United States Department of Justice, as well as working in the private sector as a civil litigator. He received his undergraduate degree from Santa Clara University and his law degree from the University of San Francisco.
Hon. Ken M. Kawaichi (Judge, Ret.). See the About the Authors section for full biographical information.
Hon. Laurie D. Zelon. See the About the Authors section for full biographical information.
February 2018 Update
The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2017 update.
Hearsay’s lack of trustworthiness comes from the fact that veracity and accuracy cannot be tested through (a) the presence of the declarant under oath, where the current trier of fact can observe the declarant’s demeanor, or (b) cross-examination of the declarant by the adverse party. See People v Williams (2017) 7 CA5th 644, 678 (detective’s testimony that victim identified defendant’s voice on recording was hearsay and only unequivocal identification of defendant, requiring reversal of conviction), in §1.6.
Recent cases construing the meaning of “testimonial” hearsay are People v Lara (2017) 9 CA5th 296, 337 (expert testimony that included details from police reports of completed crimes that identified defendants as gang members was testimonial hearsay), and People v Ochoa (2017) 7 CA5th 575, 584 (when defendant failed to object to expert’s testimony at trial, record was undeveloped and appellate court could not determine whether expert related testimonial hearsay). See §2.19.
Recent cases finding that a statement is primarily nontestimonial are People v Mooring (2017) 15 CA5th 928, 942 (website containing generic data about pharmaceutical pills was nontestimonial since “primary purpose of collecting and compiling this content ... was not to gather or preserve evidence for a criminal prosecution”), and People v Smith (2017) 12 CA5th 766, 787 (statements made to acquaintances, not to police officers and not during interrogation, were nontestimonial). See §2.20.
In People v Winbush (2017) 2 C5th 402, 453, the trial court reasonably resolved conflicting evidence to conclude there was no coercion through express or implied promises of leniency and that the interrogation was not unduly protracted. See §3.8.
On the application of the Aranda/Bruton rule to nontestimonial statements, see People v Washington (2017) 15 CA5th 19, 28 (Crawford’s narrowing reach of confrontation clause had effect of narrowing reach of Aranda/Bruton doctrine), in §3.42.
The trial court did not abuse its discretion by admitting co-conspirator’s statement before there was any evidence of a conspiracy. See People v Vega-Robles (2017) 9 CA5th 382, 433, in §3.44.
In U.S. v Fryberg (9th Cir 2017) 854 F3d 1126, 1132, the court held that the law enforcement exception did not apply to a return of service of a notice of hearing executed by a tribal police officer. The return of service was admissible as a public record under Fed R Evid 803(8)(A)(ii) because it recorded the completion of a largely ministerial task of serving the defendant with notice of a hearing. Because the primary purpose of the return was to inform the tribal court that the defendant had been served and it was not prepared for use in a criminal prosecution, there was no confrontation clause violation. 854 F3d at 1136. See §5.7.
Two recent cases discussing the threshold requirements of trustworthiness are People v Smith (2017) 12 CA5th 766, 793 (statements deemed trustworthy because they were informal and made in presence of friends “in setting in which there was no apparent reason to dissemble or exaggerate”), and People v Smith (2017) 10 CA5th 297, 304 (statement by defendant’s girlfriend 9 months after accident that she was driving car, contradicting earlier statement at scene, excluded as untrustworthy). See §6.9.
Under Evid C §1237(a)(1), the writing must have been made at the time the fact recorded occurred, or at a subsequent time while the fact recorded was still fresh in the witness’s memory. See In re Bell (2017) 2 C5th 1300, 1308 (“lapse of 16 years that occurred in this case [between 1993 event and 2009 declaration purporting to record event] makes showing the witness’s memory was fresh extremely difficult”), in §11.3.
Evidence Code §1252 requires that a hearsay statement that otherwise qualifies for the state-of-mind exception be excluded if it was made under circumstances that indicate its lack of trustworthiness. See People v Brooks (2017) 3 C5th 1, 40 (record did not contradict trial court’s finding that murder victim’s statements—that she feared defendant—were trustworthy), in §14.8.
A subscription-based, login-controlled Internet website used to identify pills and whose information was derived from the federal Food and Drug Administration and prescription pill manufacturers came within the published compilation exception. See People v Mooring (2017) 15 CA5th 928, 939, in §18.14.
For recent cases involving the admission of crime scene photographs, see People v Winbush (2017) 2 C5th 402, 458 (crime scene photos depicted location of body in room and blood-soaked clothing, and corroborated testimony of how victim was found; partial nudity was not potentially misleading and autopsy photos were not impermissibly cumulative), and People v Brooks (2017) 3 C5th 1, 54 (autopsy and crime scene photos relevant to issues including whether fire was started with accelerant and if victim was alive when fire started and to support prosecution’s theories of premeditation and torture), in §22.15.
Evidence Code §310 provides that all questions of law, including the admissibility of evidence, are to be decided by the court in accordance with Evid C §§400–406. See Shaw v Superior Court (2017) 2 C5th 983, 993 (noting that even in cases in which right to jury trial exists, jury determines only issues of fact, and court determines issues of law under Evid C §310), in §24.4.
The court in David v Hernandez (2017) 13 CA5th 692, 699, held that the trial court properly excluded a physician’s testimony that plaintiff had marijuana in his system at time of the traffic accident when the testimony was based on a preliminary test that showed only the presence of THC in the plaintiff’s urine but not when the plaintiff last used marijuana or whether the amount was sufficient to impair his ability to drive. See §30.42.
The court in Sanchez v Kern Emergency Med. Transp. (2017) 8 CA5th 146, 156, held that a neurosurgeon’s declaration failed to demonstrate that his opinions were based on matters that experts reasonably rely on in forming such opinions and failed to include a reasoned explanation connecting the factual predicates to the ultimate conclusion. See §30.42.
Sanchez applies to cases involving commitments of mentally disordered offenders. See People v Lin (2017) 15 CA5th 984, 990, in §30.45.
The court in Iqbal v Ziadeh (2017) 10 CA5th 1, 12, held that a declaration by an attorney who represented former defendants stating he intended release to include current defendant was not admissible as extrinsic evidence because counsel’s undisclosed, subjective intent was irrelevant to objectively interpreting release’s language. See §34.19.
The court in People v Williams (2017) 7 CA5th 644, 677, held that the trial court erred in admitting evidence of uncharged robberies involving elements typical of a large number of robberies and failed to show any link between defendant and uncharged crimes, although the admission of that evidence was not prejudicial. See §35.24.
The court in People v Nicolas (2017) 8 CA5th 1165, 1179, held that it was reversible error to give CALCRIM 375 regarding the defendant’s use of a cell phone before the fatal collision when text messages and phone calls were an indivisible part of the offense charged and the instruction effectively lowered prosecution’s burden of proof. See §35.36.
Evidence that the defendant and a woman engaged in sexual relations one or two times was insufficient to support the conclusion that his shooting of the woman was the result of domestic violence and was thus admissible under Evid C §1109. See People v Shorts (2017) 9 CA5th 350, 360, in §35.56.
Attorney-client privilege was inapplicable to communications with a public relations consultant because the communication was not reasonably necessary to accomplish the purpose for which the attorney was consulted. See Behunin v Superior Court (2017) 9 CA5th 833, 849, in §37.4.
The physician-patient privilege does not bar the disclosure of records in connection with a disciplinary investigation under the Medical Practice Act (Bus & P C §§2000–2525.5). See Cross v Superior Court (2017) 11 CA5th 305, 320, in §39.29A.
The California Supreme Court has granted review in Mathews v Harris (review granted May 10, 2017, S240156; opinion at 7 CA5th 334 to remain published and citable until further order) to determine whether the Child Abuse and Neglect Reporting Act violates a patient’s rights under the California Constitution by compelling disclosure of communications demonstrating “sexual exploitation,” which includes, among other things, downloading, streaming, and accessing through any electronic or digital media a depiction of a child engaged in an act of obscene sexual conduct. See §40.36.
The psychotherapist-patient privilege does not bar the disclosure of records in connection with a disciplinary investigation under the Medical Practice Act (Bus & P C §§2000–2525.5). See Cross v Superior Court (2017) 11 CA5th 305, 320, in §40.37A.
No privilege attached when communications with a public relations consultant were not reasonably necessary to assist the attorney in advising the client or litigating the case. See Behunin v Superior Court (2017) 9 CA5th 833, 849, in §42.22.
For a recent case discussing when the receipt of inadvertently disclosed privileged documents triggers a duty to return the documents, see McDermott Will & Emery LLP v Superior Court (2017) 10 CA5th 1083, in §42.27B.
Under Evid C §451(a), a court must take judicial notice of the provisions of a city or county charter adopted by the vote of electors under Cal Const art XI, §3, §4, or §5. See Morgado v City & County of San Francisco (2017) 13 CA5th 1, 13 n8 (judicial notice of provisions of Los Angeles City Charter), in §49.15.
Reports and findings of legislative and administrative committees and commissions are subject to discretionary judicial notice under Evid C §452(c). See Kao v Joy Holiday (2017) 12 CA5th 947, 959 n4 (judicial notice of Department of Labor Standards Enforcement) opinion letters), in §49.25.
Under Evid C §459(a)(1), a reviewing court may take judicial notice of any matter specified in Evid C §452. See San Diego County Water Auth. v Metropolitan Water Dist. (2017) 12 CA5th 1124, 1153 n19 (granting request to take judicial notice documents filed in connection with request to depublish court of appeal opinion), in §49.52.
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