SELECT NEW DEVELOPMENTS IN THE 2018 EDITION
Evidence Code Section 956. Effective Jan. 1, 2018, the exception from the attorney-client privilege for situations in which the lawyer's services were sought to help commit a crime does not apply to legal services that comply with state or local laws on medicinal or adult-use cannabis.
Evidence Code Section 1120. Effective Jan. 1, 2018, declarations of disclosure served in marital nullity, dissolution, and legal separation matters are admissible as evidence even if they are prepared for a mediation or mediation consultation.
Federal Rules of Evidence 902. Effective Dec. 1, 2017, the federal rules provide for self-authentication of electronic records. See Evid C §§1271, 1401.
Presumption affecting burden of producing evidence. Presumption under Privette v Superior Court (1993) 5 C4th 689, that an independent contractor's hirer delegates to that contractor its duty to provide a safe workplace, affects the burden of producing evidence because it "operates solely to facilitate the resolution of particular disputes, not to further any other public policy." Alvarez v Seaside Transp. Servs. LLC (2017) 13 CA5th 635, 643. See Evid C §603.
Qualification as expert witness. In a medical malpractice case, the court held that a physician licensed to practice medicine in Mexico was qualified to provide an opinion on the standard of care to which the defendant was held. Borrayo v Avery (2016) 2 CA5th 304, 310. See Evid C §720.
Psychotherapist-patient privilege. The psychotherapist-patient privilege does not protect from disclosure the subpoenaed records of a psychiatrist who is being investigated by the Medical Board for improper prescribing of controlled substances. Cross v Superior Court (2017) 11 CA5th 305, 316. See Evid C §1014.
Disclosures by patients in a psychotherapy relationship that they have viewed illegal child pornography is not protected by the psychotherapist-patient privilege. Matthews v Becerra (review granted May 10, 2017, S240156; opinion at 7 CA5th 334, 354 to remain published and citable until further order). See Evid C §1014.
Attorney-client privilege. In determining whether an inadvertent disclosure waived the attorney-client privilege, the court must examine the "subjective intent of the privilege holder and any manifestation of the holder's intent to disclose the information." McDermott Will & Emery LLP v Superior Court (2017) 10 CA5th 1083, 1102. See Evid C §912.
Attorney-client privilege does not categorically protect everything in attorney's billing invoice from disclosure, but it does protect confidentiality of invoices for work in pending and active legal matters. Los Angeles County Bd. of Supervisors v Superior Court (2017) 2 C5th 282. See Evid C §§952, 954.
The attorney-client privilege did not extend to communications among the attorney, client, and a public relations consultant, because those communications were not reasonably necessary for legal representation in the lawsuit. Behunin v Superior Court (2017) 9 CA5th 833, 843. See Evid C §912.
Refreshing recollection. Document used to refresh witness's recollection was not required to have been disclosed in discovery or included in a trial exhibit list, and it need not be admissible. Evans v Hood (2017) 5 CA5th 1022, 1041. See Evid C §771.
Past recollection recorded. Juror's 2009 declaration was not admissible as past recollection recorded, because it was neither made at or near the time of trial (1993) nor did it describe an event that was fresh in her memory. In re Bell (2017) 2 C5th 1300, 1307. See Evid C §1237.
Privilege for official information. The trial court did not abuse its discretion in rejecting disclosure of the records related to the officer's retirement from the Department of Corrections. People v Landry (2016) 2 C5th 52, 74. See Evid C §1040.
Character evidence to prove conduct. Evidence of the defendant's prior financial misdeeds was admissible to prove her motive for killing her husband to collect on his life insurance policies. People v Thompson (2016) 1 C5th 1043, 1112. See Evid C §1101.
Evidence of defendant's prior possession of ammunition was valid to impeach his testimony, and it was "not especially inflammatory" for purposes of Evid C §352. People v Turner (2017) 13 CA5th 397, 408. See Evid C §1101.
Admissibility based on expert opinion. New cases applying the supreme court's decision in People v Sanchez (2016) 63 C4th 665 include: People v Roa (2017) 11 CA5th 428, 446 (limitation on expert testimony imposed by Sanchez did not apply because case-specific facts testified to by expert were independently proven); People v Meraz (review granted March 22, 2017, S226665; opinion at 6 CA5th 1162, to remain published and precedential until further order) (police officer was properly permitted to testify to non-case-specific background information about gang, its rivalry with another gang, its primary activities, and its pattern of criminal activity); People v Burroughs (2016) 6 CA5th 378 (experts improperly relied on inadmissible hearsay to support their testimony on defendant's unrelated convictions and unproven allegations that he committed other acts of sexual violence). See Evid C §1200.