Evidence, generally
Category > Evidence, generally
Trial court erred in considering trustworthiness of the proffered evidence as a criterion in ruling on the admissibility of the prior sexual conduct of a sexual assault victim.While strictly precluding admission of the victim's past sexual conduct to prove consent, Evidence Code section 1103, subdivision (c)(4), allows the admission of evidence of prior sexual history relevant to the credibility of the victim utilizing the appropriate in-camera hearing procedure. Defendant made an offer of proof identifying five people who could testify the victim regularly traded sex for drugs. The trial court improperly excluded testimony of two of the witnesses based on the sole criterion that they were unbelievable. The law does not permit the judge to make a credibility determination at the in-camera hearing. Instead, the evidence must be evaluated under Evidence Code section 352. The error was harmless where it did not likely affect the verdict.id: 10010
Trial court erred by refusing to allow defendant to testify after the prosecutor was permitted to reopen rebuttal.Defendant was charged with selling unregistered securities. The trial court allowed the prosecutor to reopen and offer rebuttal evidence in the middle of closing argument. Thereafter, the court erred by refusing to allow defendant to testify on surrebuttal. The combined effect of this error and another error requiring defendant to testify out of turn, violated his right to a fair trial and the convictions were overturned.id: 16757
Under the rule of completeness, the trial court properly refused to redact the letter detailing the witness’s cooperation.The trial court granted the defense request to admit a letter written by a prosecutor implying the state’s witness may have received consideration for his testimony. The court did not thereafter err by refusing to redact the letter to omit details of the defendant’s involvement in the charged offenses. the court properly found the entire letter was admissible under the rule of completeness.id: 24726
Defense counsel opened the door to the entire pornography collections misleadingly suggesting the prosecutor could only find a few questionable images.The trial court originally limited the number of still images and video child pornography the prosecution could present. The court did not later err by finding defense counsel opened the door to most all of the rest of the pornography collection. Defense counsel misleadingly suggested that out of the 8-10,000 pornographic images in defendant’s collection, the prosecution could only find the 20 questionable images it showed the jury. The defense knew this was not true.id: 26071
The trial court did not err by admitting the contents of a letter after a witness’s claim that the letter contained a threat.A defense witness testified that he had been threatened by the codefendant and had a letter to prove it. The trial court did not err by allowing the jury to hear the full content of the letter, which also made reference to defendant’s guilt. The evidence was admissible under the rule of completeness provided in Evidence Code section 356.id: 25009
The rule of completeness did not require the prosecution to play defendant’s entire statement to the police where the portion played was not misleading and the prosecutor never argued defendant fired the fatal shot.Defendant argued the trial court prejudicially erred by allowing one of the detectives to convey a misleading portion of his police statement rather than require the prosecution to play the entire statement for the jury. However, the testimony did not suggest who threw the gun and the prosecutor never argued that defendant fired the fatal shot. Neither did not prosecutor argue (as defendant claimed) that his throwing of the gun showed a consciousness of guilt. The trial court did not err by ruling that Evidence Code section 356 did not require admission of defendant’s entire statement to the officer. id: 24725
Evidence Code section 356 only allowed defendant to add portions of his police interview that explained his admissions of gang membership.Part of the basis for the gang expert’s opinion that defendant committed a crime to benefit his gang was that he had told police in a post-arrest interview that he had been a member of the gang. Defendant argued that, pursuant to Evidence Code section 356, he was entitled to introduce another statement made during the interview denying the carjacking. However, section 356 allows additional parts of the conversation only if needed to explain the statement in evidence. The statements defendant sought to introduce had nothing to do with his admission of gang membership.id: 21965
Evidence of the victim’s fear was admissible to rebut defendant’s claim that she acted in a manner inconsistent with fear. The trial court did not err by admitting out-of-court statements by the victim where she expressed her fear of defendant. Such a statement is not inadmissible simply because it also contains a reason for the fear. The victim’s fear was relevant because the prosecutor’s theory was that she was unhappy in the marriage and her fear caused her to leave him and take their kids. Also, defendant claimed the victim committed suicide or simply abandoned him because she was troubled even though she loved him. The evidence of her fear was properly admitted to rebut the claim that she behaved in a manner inconsistent with fear.id: 22520
Where the inculpatory and exculpatory statements were not part of the same conversation defendant had with his girlfriend the latter did not qualify for admission under section 356.Defendant argued the trial court erred by not admitting into evidence pursuant to Evidence Code section 356 an exculpatory statement he made to a girlfriend because the court did admit inculpatory statements he made to her. However, the inculpatory and the exculpatory statements were not part of the same conversation and so the latter did not qualify for admission under section 356.id: 21906
Evidence supported the first degree burglary conviction where there was no evidence the victim intended to abandon the fire damaged apartment defendant burglarized.Residents of the victim’s apartment building were temporarily relocated to a hotel because a fire had damaged the building. When the tenants were escorted back to retrieve personal belongings, the victim found defendant inside his apartment using his things, and preparing to remove other belongings. Defendant was later convicted of first degree burglary but argued the evidence was insufficient to show the apartment was inhabited within the meaning of Penal Code section 459. However, the issue of habitability is viewed through the eyes of the victim and there was no evidence showing the victim had permanently moved out or abandoned the apartment. Moreover, the court did not err by excluding evidence from the city building inspector suggesting the building was uninhabitable because that evidence was not relevant to the issue of whether the victim intended to return.id: 21392
Letters presented by the prosecutor were independently comprehensible and the additional letters defendant sought to admit were not necessary under section 356 to provide context.Defendant was obsessed with Black, a female coemployee, and one day he shot and killed several people at his workplace. He had written approximately 200 letters to Black. The prosecution admitted 20 of the letters during the direct examination of Black. During cross-examination, defendant attempted to admit 11 other letters arguing they were necessary to understand his state of mind and to show context under Evidence Code section 356. However, the court did not err in finding the 11 letters were not necessary and the letters the prosecutor introduced were independently comprehensible. Section 356 did not provide a basis to admit the 11 letters.id: 21213
Prosecutor’s cross-examination was not limited to areas addressed by defense counsel’s questions where jurors may have been left with the idea that defendant did not frighten the victim. Defendant argued the prosecutor’s cross-examination of a public safety officer exceeded the scope of the direct testimony which was limited to the victim’s decision on whether to get a restraining order against defendant. However, cross-examination is not confined to a mere categorical review of defense counsel’s questions. That testimony may have left the jury with the impression that the victim was not frightened by defendant. The prosecutor was properly allowed to question the officer regarding other statements made by the victim showing her fear of defendant.id: 21212
There was no violation of defendant’s right to counsel where the court required that if the defense tested a small blood sample it had to reveal the results to the prosecutor.Defendant argues that trial court erred when it denied his request to conduct a confidential DNA test on what remained of a bloodstain found at the murder scene. Because the sample was only large enough for one test, the court did not err by requiring that the test results be revealed to the prosecution if the test was not performed by a neutral expert.id: 20311
The trial court did not err in precluding evidence that the victim had previously left the same bar with other men.The defense sought to introduce evidence showing the rape/murder victim left the bar with other men prior to the date of the murder. The court ruled that to the extent the defense sought to imply that the victim had a history of consenting to sex with men after leaving the bar, the proffered evidence violated Evidence Code section 1103, subd.(c)(1). Defendant argued the ruling violated his right to present a defense. However, in addition to the prohibition set forth in section 1103, subd.(c)(1), the defense inference was speculative and the evidence inadmissible.id: 18449
The trial court did not err in admitting evidence of defendant's post-arrest conduct to show consciousness of guilt.Defendant argued the trial court erred by admitting evidence that he was uncooperative when he was being transferred from one police car to another. However, the evidence was admissible to show consciousness of guilt. Moreover, precluding evidence that he was uncooperative only after being held for several hours and told eyewitnesses had not identified him was not improper since it would have been presented through the officer's inadmissible hearsay.id: 19998
The court did not err in admitting evidence of a hamper used to recreate the crime scene despite the lack of proof that it was similar to the original.Defendant argued the court improperly admitted in rebuttal a hamper that was used in the prosecution's recreation of the crime scene without establishing that it met foundational requirements. Specifically, there was no showing the hamper was made of the same material as the one used in the crime. However, because the original was never recovered, its design and construction could not be established at trial. There was ample evidence for the jury to determine whether the substitute hamper resembled the original.id: 18959
Exclusion of entire taped conversation after the detective's testimony did not violate the best evidence rule or the rule of completeness.A detective testified about a recorded prearrest conversation between defendant and Bernstein. Defendant argued the failure to play the entire taped conversation to the jury violated the best evidence rule. However, since the detective was just testifying to what he saw and heard, his testimony was primary evidence even though the same matter may have been available in the tape recording. Moreover, the court's ruling did not violate the "rule of completeness" under Evidence Code section 356 which applies only to the portion of the statement originally introduced.id: 18626
Evidence that the victim's plane may have had a carbon monoxide leak was highly speculative and not relevant to prove an issue in dispute.Defendant's meth lab started a fire in the woods which resulted in the deaths of two pilots whose planes collided while attempting to fight the fire. Defendant, attempting to show that certain actions by a pilot constituted a superseding cause of the deaths, argued the court erred in excluding evidence that one of the planes was negligently maintained. Defendant offered as evidence the fact that the engine had failed a week earlier, and that a pilot in a similar plane suffered the effects of a carbon monoxide leak. However, there was no evidence to show the engine failed and any connections to the carbon monoxide leak was highly speculative. The court has no discretion to admit irrelevant evidence, and Evidence Code section 210 requires that to be relevant the evidence must have a tendency in reason to prove or disprove a disputed fact.id: 18585
Psychologist's testimony regarding sadistic pedophiles was not improper profile evidence where defendant had already admitted guilt and the evidence was presented as an alternative to defendant's claim of retardation.A prosecution expert testified at the penalty phase that crimes such as the one in question were usually committed by sadistic pedophiles. He did not testify defendant was a sadistic pedophile. Defendant argued the expert testimony amounted to the improper use of "profile evidence." However, profile evidence is improper when the conduct that fits the profile is consistent with innocence as well as guilt. The problem did not exist here where defendant had pled guilty to the offense. Where defendant emphasized his mental retardation, the evidence offered an alternative explanation why he may have sodomized and killed an eight year old boy.id: 18418
That the ballistics evidence was inconclusive did not make it irrelevant.Defendant argued the court erred in allowing the criminalist to testify that he compared the bullets found on the scene with the gun barrel found on defendant's property, and testing showed the bullets could have been fired by that gun though he could not say for sure. The fact that the scientific evidence was inconclusive did not make it irrelevant. Neither was the evidence unduly prejudicial as the jury could easily understand the bullets might have been fired by that gun, but the criminalist could not be sure. Excluding the evidence would have prejudiced the prosecution as the jurors would have wondered if the bullets and gun barrel had been tested.id: 18275
Manuscripts describing prostitution operation that were taken from defendant's residence and hotel room were properly authenticated by reference to the author as "Sasha" - one of defendant's aliases.Defendant was charged with pimping and pandering in the running of a call-girl service. Police recovered manuscripts from her hotel room and home that were written in the first person and described the operation of a prostitution service. The manuscripts were properly authenticated by their reference to defendant's alias, "Sasha," and the lack of evidence that they belonged to anyone else.id: 16442
Defendant waived the issue of precluding testimony about a gun defendant showed the witness which could not have been the murder weapon.Defendant argued the court should not have admitted evidence regarding the larger gun defendant showed the witness because it could not have been the murder weapon. However, defendant did not object to the testimony about the larger gun. The record showed defendant may have had a tactical reason in not objecting. Once the court admitted the evidence of a gun similar to the murder weapon the witness' recollection of two different guns may have helped the defense by casting doubt on her credibility.id: 15988
Recantation by the state's witness did not constitute improper rebuttal evidence.Defendant argued that under state law, the recantation by a key prosecution witness constituted improper rebuttal evidence. However, a witness' repudiation of his own testimony in respect to its evidentiary effect and importance is the ideal rebuttal.id: 15989
Character evidence in the form of testimony of women defendant dated and who observed defendant with their daughters was admissible at defendant's child molestation trial.Defendant was charged with sexually molesting his girlfriend's daughter. He sought to introduce the testimony of three people - two women he had dated as well as a male friend - that he was not a sexual deviant. The testimony was properly disallowed to the extent that it was not based on observations of the defendant with children. However, to the extent the testimony of the two women was based on observation of defendant's conduct with their daughters it was a proper subject of lay testimony and relevant to the charge of child molestation. The proffered testimony was intended to prove the relevant character trait not by specific acts of nonmolestation but by the witnesses' opinion of that trait based on their long-term observation of defendant's course of consistently normal behavior with their children. The testimony should have been allowed.id: 12853
Defendant's offer to pay some of victim's medical expenses was not inadmissible under Evidence Code section 1152.Under Evidence Code section 1152, evidence that a person has offered to furnish money to another who has sustained loss, is inadmissible to prove his or her liability for the loss or damage or any part of it. Defendant argued that his offer to pay for some of the victim's medical expenses was inadmissible under that provision. However, section 1152 does not apply to criminal cases.id: 12854
Length of deliberations did not suggest the case was so closely balanced that the court erred in excluding the testimony of the apartment manager.Defendant argued the jury's deliberations suggested the case was so closely balanced that the court erred in excluding the testimony of the manager of the robbery victim's apartment complex. Although the total time for deliberation was roughly six and one-half hours, while the total time for presentation of evidence was two and one-half hours the lengthy deliberation was not cause for concluding the court erred in excluding the testimony. Part of the time was spent listening to a readback of the testimony of three witnesses and part of the time was likely spent going over the instructions. The length of deliberations could as easily been reconciled with the jury's conscientious performance of its civic duty, rather than its difficulty in reaching a decision.id: 12855
Rebuttal evidence was admissible upon a point put into dispute by defendant's testimony.During rebuttal witness testified that as he and defendant were leaving the bar, defendant pointed to the victim and said he was going to get that girl. The testimony was admissible as rebuttal evidence since defendant had testified earlier that his intention was just to give the girl a line or two, and that the idea of sex or romance did not come up until victim asked for drugs the next day.id: 12856
Court did not err in admitting sexually explicit sketches in the child molest prosecution where the sketches corroborated the victims' testimony that appellant had them play Indians.Appellant was convicted of multiple counts of child molest. He argued the court erred in admitting into evidence 23 sketches found in his apartment as they were admitted to show he had a predisposition for sex with young boys, which is impermissible character evidence. However, the victims all described a peculiar embellishment of the molestations - appellant had them play Indians. To the extent the sketches showed young boys dressed like Indians, they corroborated the boys' testimony and were probative of victim credibility.id: 9932
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245