Articles Posted in Evidentiary Issues

Last month, a state appellate court issued a written opinion in a California drug-dealing case in which the defendant claimed that the testimony of the prosecution’s expert witness was impermissibly based on the defendant’s race and national origin. Ultimately, the court concluded that, regardless of the impropriety of the expert’s testimony, the defendant failed to preserve the issue for appeal because there was no objection made at the time the expert testified.

According to the court’s opinion, the defendant was arrested after an officer observed the defendant hand a middle-aged Cuban man an unknown object. Officers were able to see that the object the defendant handed the man contained off-white solids that resembled cocaine base.

The officers arrested the defendant, and after searching him, found a baggie with 41 small, individually wrapped “bindles” containing what was later determined to be crack cocaine. The defendant did not have any money on him when he was arrested.

In a recent California criminal case before a California court of appeals, the court had to decide whether a prosecutor’s office could subpoena and use an alleged sexually violent predator’s confidential medical records in a proceeding under the Sexually Violent Predator Act.

According to the court’s opinion, back in the 1980s, a jury found the defendant guilty of child sex offenses and sentenced him to a total of 23 years in prison. Before he was released, the Orange County District Attorney’s Office filed a sexually violent predator (SVP) petition. In 2009, a jury found the defendant was a sexually violent predator and ordered him to be civilly committed to a state hospital. The defendant filed a petition for unconditional discharge or for conditional release. The district attorney’s office subsequently served a subpoena on the hospital to obtain the defendant’s medical records. The defendant filed a motion to quash the subpoena, arguing that the prosecutor’s office could not subpoena his confidential medical records.

The Sexually Violent Predator Act (SVPA) allows an individual to be civilly committed for an indefinite term if a jury finds the individual to be a sexually violent predator beyond a reasonable doubt. Under section 6600 of the Act, a SVP is defined as a person who has been convicted of a sexually violent offense against at least one person and who has been diagnosed with a mental disorder “that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” An alleged SVP has the right to a jury trial, to the representation of counsel, to retain experts, and to access relevant medical records and reports. Under section 6603(j), a medical evaluator must include a statement of all records the evaluator reviewed, and the parties can request a copy of those records.

Criminal cases are supposed to be about the pursuit of truth. However, over the years, courts have routinely caught prosecutors trying to hide evidence from defendants. Most often, this is evidence that is favorable to the defense and would have been harmful to the prosecution’s case had the defense been provided the evidence.

Discovery is the process by which the parties exchange evidence that they plan to use at trial. Given the concerns mentioned above, in a 1964 case, the United States Supreme Court created some basic rules requiring the prosecution to provide certain discovery to the defense in all criminal cases. These rules have been embodied in the current version of the California Penal Code. For example, under California Penal Code section 1054.1, the prosecution must disclose:

  • the names and address of all witnesses it plans to call at trial;
  • all statements made by the defendant;
  • all relevant real evidence;
  • whether any material witness for the prosecution has a felony conviction; and
  • the written or recorded statements of witness the prosecution plans to use at trial.

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When someone is arrested for a California DUI offense, the arresting officer will likely ask them if they will consent to a chemical test of the driver’s blood, breath, or urine. Under California law, when a motorist is arrested for suspicion of driving under the influence of drugs or alcohol “is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood.” There is a similar provision for the suspicion of driving under the influence of drugs. Collectively, these are referred to as California’s implied-consent statute.

At its most basic, an implied-consent statute gives law enforcement the ability to test a person’s blood or breath after they have been arrested for suspicion of impaired driving. Of course, police officers are not entitled to physically force a motorist to provide a sample, so the importance of the implied-consent statute is that motorists who refuse testing can be subject to administrative and, in some cases, additional criminal penalties.

Before police are able to rely on the implied-consent statute, it must be established that the motorist was “lawfully arrested” for suspicion of impaired driving. Additionally, the motorist must be provided with certain warnings. If a motorist’s arrest is not lawful, or the police officers involved in the case fail to follow the proper protocol, any evidence or test results obtained may be suppressible.

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Witness credibility is essential in any California criminal case. If a witness is found not to be credible, their testimony comes into question, which can create doubt in the minds of the jurors. Thus, in cases involving the testimony of a police officer, defendants can attack an officer’s credibility just like any other witness.

One way a defendant can attack the credibility of a police officer is by showing the jury that the officer has been engaged in past misconduct. Under California case law, when a defendant can show good cause, he “is entitled to discovery of relevant documents or information contained within the confidential personnel records of peace officers accused of misconduct against the defendant.” Before ordering that any evidence of misconduct be provided to the defense, the trial must review the material at issue to determine its potential relevance. This is called a Pitchess motion hearing, named after the case that first announced the rule. A recent case illustrates how a Pitchess motion should be conducted, and the consequences if the proper procedures are not followed.

The Facts of the Case

According to the court’s opinion, the defendant dropped a can of spray paint as police officers approached him. Evidently, when police asked, the defendant admitted to having recently tagged something. The officers located fresh graffiti nearby and arrested the defendant.

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One of the most misunderstood rules in California criminal law is the law preventing hearsay testimony. Under California statutory law, hearsay is defined as “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Most often, hearsay testimony arises in the context of a witness testifying to what someone else said.

There are several concerns about hearsay evidence. Generally, hearsay evidence is less reliable because, by its nature, it is coming from a party other than the one who made the statement. Thus, a statement could easily have been misunderstood or misinterpreted by the witness. Perhaps more importantly, allowing a non-present party to present evidence against a criminal defendant deprives the defendant of their right to confront their witnesses which is guaranteed under the United States Constitution.

What Makes Hearsay So Confusing for Many People?

Perhaps the most complicated aspect of the hearsay concept is not the definition of what constitutes hearsay, but the numerous exceptions that allow evidence which would seemingly be precluded under the rule. For example, certain statements against one’s interest are not inadmissible under the hearsay rule. Specifically, a defendant’s statements are never considered hearsay and statements made by a co-conspirator are not inadmissible if they are made before or during the conspiracy.

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The issue of consent arises very frequently in California sexual assault cases. However, under the California Rape Shield Law, a defendant who is charged with sexual assault may have a difficult time establishing that his encounter with the complaining witness was consensual.

What Is a Rape Shield Law?

Rape shield laws refer to a series of rules of evidence that prevent defendants charged with certain crimes from bringing up evidence of the alleged victim’s sexual past. In California, the rape shield law is contained in California Evidence Code 1103, and applies to the following cases:

  • Penal Code 261: Rape
  • Penal Code 262: Spousal/marital rape
  • Penal Code 264.1: Rape in concert
  • Penal Code 286: Sodomy
  • Penal Code 288(a): Oral copulation by force; and
  • Penal Code 289: Forcible penetration by a foreign object.

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