Hearsay, generally (including Confrontation)
Category > Hearsay, generally (including Confrontation)
Updated 3/6/2024Statements made six years after the incident were improperly admitted under the past recollection recorded hearsay exception in Evidence Code section 1237.The trial court erred in admitting certain out-of-court statements from a witness under the past recollection recorded exception to the hearsay rule. The statements were made six years after the events in question, and the prosecution failed to prove the witness’s recollection was fresh in her mind when she made the statements. However, the error was harmless in light of the other overwhelming evidence of defendant’s guilt.id: 26566
Updated 3/4/2024Improper admission of hearsay evidence of visibility required reversal of murder conviction. Defendant was convicted of murdering 10 women and one viable fetus. The viability of the fetus was established by a deputy medical examiner who had not autopsied the fetus herself, but related findings from the report that had been prepared by someone else. The witness’s recitation of the context of the unadmitted document was hearsay for which there was no exception. The error required reversal of the murder of the viable fetus.id: 27119
Updated 2/26/2024Defendant’s confrontation clause rights were violated where the court positioned a computer monitor between the witness and defendant without a proper showing of necessity for the accommodation.Defendant was charged with child molest involving multiple victims. He argued a confrontation clause violation where the court positioned a computer monitor so that the defendant could not see the witnesses and they could not see him. The accommodation relating to F.R. was not justified by the record where she (as a young adult) began crying when she entered the courtroom requiring a short recess to allow her to compose herself. The record fell short of establishing a necessity that would justify an accommodation. Regarding the two other alleged victims, defendant forfeited the confrontation clause claim by failing to object at the time as the monitor could have been repositioned or the parties could have made a record of the issue following a proper objection.id: 26585
The gang expert’s opinion that was based in part on police reports and FI cards prepared by others violated defendant’s confrontation clause rights under Crawford, but the error was harmless given the other evidence of gang membership.Defendant argued a confrontation clause violation under People v. Sanchez (2016) 63 Cal.4th 665, where the gang expert’s conclusion was based on testimonial hearsay. Some of the evidence relied on by the expert was case-specific hearsay including the FI cards memorializing previous interactions with the defendant, and arrest reports completed by other officers. However, the FI cards prepared by the witness were not barred by Sanchez because he was present at the time and subject to cross-examination. The admission of the improper evidence was harmless given the other evidence that overwhelmingly established defendant’s gang membership, including his own admission to the officer.id: 25043
The victim’s identification of James’s voice was inadmissible hearsay.The detective’s testimony that the victim identified James’ voice was inadmissible hearsay because it was offered for its truth, to show that the victim identified his voice as the man with the knife.id: 25069
Defendant was deprived of his right of confrontation where the young alleged child molest victim refused to answer hundreds of questions.Defendant was convicted of sexually molesting his four year-old daughter. However, he was denied his Sixth Amendment right to confront his accuser given the lack of an opportunity to cross-examine his daughter where she refused to answer hundreds of questions that sought information on important issues.id: 24594
The admission of a witness’s conditional exam violated defendant’s confrontation clause rights as the prosecution, after locating the witness, failed to secure her attendance at trial.The trial court’s admission of a robbery victim’s conditional examination testimony violated the confrontation clause of the Sixth Amendment. After locating the out-of-state witness, the prosecution failed to use the Uniform Act, a procedure to compel her attendance. The error was prejudicial where the testimony was key to the issue of identification, and it was a close case as demonstrated by the fact that it was a retrial following a hung jury.id: 24575
The trial court erred by admitting evidence from a website under the “published compilation” exception to the hearsay rule.Defendant was convicted of drug sales. She argued the trial court erred by admitting hearsay evidence that a website identified her as the owner of a cell phone used in the present transaction. The court erred by admitting the evidence from the website under the “published compilation” hearsay exception (Evidence Code section 1340) because a website’s database is not a “published compilation” for purposes of section 1340. Moreover, there was no showing that the website was “generally used and relied upon as accurate in the course of business” for purposes of the hearsay exception.id: 22956
Admission of alleged molest victim's mother's testimony under section 1360 was improper for lack of notice and unavailability, and absent a showing of reliability, it violated the confrontation clause.Evidence Code section 1360 creates a hearsay exception for statements made by certain child victims of abuse or neglect, providing that various requirements are met. Among other things, if the child does not testify at the proceeding the statement is admissible only if he or she is unavailable as a witness. Additionally, the proponent of the evidence must inform the adverse party of his or her intention to admit the child's statement sufficiently in advance of the proceeding to provide a fair opportunity to prepare to defend against it. Because neither the notice nor unavailability requirements were met in the present case, the challenged statements were not properly admitted under section 1360. Moreover, because there was an insufficient showing the statements were reliable, their admission violated defendant's rights under the confrontation clause of the federal constitution.id: 16582
The admission of evidence of statements made by other witnesses violated hearsay principles but not the confrontation clause. The trial court may have erred in admitting testimony of a witness that she and other witnesses believed defendant was a “pervert.” The question called for hearsay since it relied on statements other witnesses made to the witness. There was no hearsay exception that would have allowed the evidence. However, the hearsay violation did not amount to a confrontation clause violation since the statement made by the other witnesses were not “testimonial” for Crawford purposes. The hearsay violation was not prejudicial in light of the overwhelming evidence of guilt.id: 20550
Voluntary manslaughter conviction was reversed where the court erroneously admitted seven week old statements under the "physical injury" hearsay exception. The trial court erred in admitting evidence of a declarant's statements to her doctor and a police officer that the defendant had caused her neck injury seven weeks earlier, pursuant to the
"physical injury" exception to the hearsay rule set forth in Evidence Code section 1370, subds.(a)(3). The statements were not made at or near the time of the injury and were not made
under circumstances indicating their trustworthiness. Because of the ruling, the court did not reach the Crawford v. Washington claim.id: 19851
Three year-old sex victim's statements could not be used at the preliminary hearing to prove the corpus delicti where there was no confession.Penal Code section 1228 allows testimony from a victim that would otherwise be inadmissible to be admitted in child sex crime cases, but solely for the purpose of establishing the corpus delicti. In the instant case the three year-old victim testified at the preliminary hearing that defendant molested her. However, section 1228 comes into play to prove the corpus delicti only if the People had a confe7ssion to introduce. While the officer testified that defendant confessed, a transcript of his statements to police showed he admitted touching the victim's vagina while bathing her but he had no lewd intent in doing so. This statement did not qualify as a confession. Therefore, section 1228 did not permit the otherwise incompetent statements of the victim to prove the corpus delicti.id: 10007
Supreme Court finds admission of child's hearsay accusation of sex abuse lacks indicia of reliability.In a criminal case, admitting hearsay that does not fall within a firmly rooted exception to the hearsay rule violates the confrontation clause unless the hearsay possesses particularized guarantees of trustworthiness indicating its reliability. At defendant's trial on sex abuse charges, a pediatrician testified about incriminating statements that defendant's daughter had made about defendant. Justice O'Connor wrote that the residual hearsay exception under which the state court had admitted the hearsay did not qualify as a firmly rooted hearsay exception. The Court also concluded that the hearsay lacked the particularized guarantees of trustworthiness that would make it admissible. Rejecting the argument that other evidence against defendant helped establish the hearsay's trustworthiness, the Court held that the assessment must be based only on the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. The Court rejected the state supreme court's view that the lack of procedural safeguards at the pediatrician's interview precluded admission. Justice Kennedy, Chief Justice Rehnquist, and Justices White and Blackmun dissented.id: 13062
Victim's statement to his brother that he was being hurt was not a spontaneous statement where it was not made contemporaneously with the event.The trial court erred in admitting as a spontaneous statement the victim's statement to his brother that he was being hurt. The court believed that at the time of the statement the victim may have been held against his will. The findings established that the court engaged in speculation as to the event, the time of the event and whether the victim was under the effect of the event at the time of the phone call. Since the statements were not made contemporaneously with the shooting or kidnapping, the statement was improperly admitted. Moreover, the statement was not admissible under the state of mind exception because the court specifically rejected admitting the statement for that purpose. Finally, the error was prejudicial because the People's theory that the killing occurred during a kidnapping centered around the victim's phone call to his brother asking for money and telling him he had been hurt.id: 13065
Hearsay statements were not properly admitted under the state of mind exception where the victim's state of mind was not an issue in the case.Defendant argued the trial court erred in admitting into evidence hearsay statements of the murder victim in which she expressed both fear and dislike amounting to hatred of defendant. The People argued the statements were admissible under the state of mind exception authorized in Evidence Code section 1250, subd. (a)(1). However, the victim's state of mind was not an issue in the action as the thrust of the defense case went to the identity of the killer and defendant's abili that he was attending a party miles away from the crime scene. The error was harmless as the statements added little to a substantial case pointing to defendant's guilt.id: 13055
Court erred in admitting evidence that defendant's wife had been convicted of being an accessory after the murder of the same victim.At defendant's murder trial, the trial court erred in admitting evidence that defendant's wife had been tried and convicted of being an accessory after the murder of the same victim. The evidence was not relevant to any issue, and if it was introduced as evidence of defendant's guilt, it was inadmissible hearsay.id: 12907
Supreme Court rejects accomplice's hearsay declarations against penal interest implicating defendant.Petitioner's accomplice took the Fifth when he was called as a witness to petitioner's trial. The trial court then admitted his statements to the police as declarations of an unavailable witness against penal interest, overruling petitioner's objections that the statements did not qualify because they shifted responsibility for the crimes to petitioner. In an opinion written by Justice Stevens, the Supreme Court reversed, holding that the admission of the accomplice's untested confession violated the Confrontation Clause. The case was remanded to the Virginia courts to consider whether the violation was "harmless beyond a reasonable doubt." Justices Stevens, Souter, Ginsburg and Breyer argued that <i>all</i> accomplice confessions that inculpate a criminal defendant must be excluded as not within a firmly rooted exception to the hearsay rule under <i>Ohio v. Roberts</i>, 448 U.S. 56 (1980). Justices Scalia and Thomas did not reach this issue. Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy concurred in the judgment, but disagreed with the plurality's exclusion of all accomplice confessions that inculpate a defendant.id: 15147
Admission of spontaneous statement regarding an injury or threat under section 1370 violated confrontation clause where the statement was over one day old and bore no indicia of trustworthiness.The victim made two statements to police about who shot him. Immediately after being shot he identified "Mad Ball." A day or so later, he picked defendant out of photographic lineup. The second statement was the only incriminating evidence used at trial. Because the victim was unavailable to testify, both statements were admitted under Evidence Code section 1370 which applies to spontaneous statements regarding the infliction or threat to inflict injury. However, the second statement to police was not made under circumstances which bore adequate indicia of reliability. It was made up to two days after the shooting when the victim had time to collect himself and come up with a story. The lack of a motive or bias was not a sufficient indica of trustworthiness. The convictions were reversed.id: 17331
New provision allowing hearsay statements of elder abuse victims does not violate confrontation clause, but the present court's finding that the defendant was competent to testify did not sufficiently establish trustworthiness.Evidence Code section 1380 was adopted in 1999 to facilitate the introduction of hearsay statements by the victims of various forms of elder abuse. While the provision meets constitutional standards, the prosecution failed to lay an adequate foundation for the admission of videotaped testimony of one of the victims that was received under its authority. Although the trial court properly found the elderly declarant was competent to testify at the time he gave his statement, competency is not a sufficient indication of trustworthiness to justify admission of the statement.
id: 17659
Admitting evidence of a recorded statement by a codefendant to his cellmate inculpating defendant violated the confrontation clause. The trial court erred in admitting recorded statements codefendant Schmauss made to his cellmate that he (Schmauss), Glenn, and "another guy" killed Hampton. Schmauss never testified. The evidence violated defendant's confrontation clause rights and was not admissible under the hearsay law. However, the error in admitting the evidence was harmless as it was cumulative of Glenn's express identification of defendant. Glenn's testimony was corroborated by defendant's palm print in the victim's cell.id: 17396
The trial court erred in admitting as a spontaneous declaration, a statement made by a dependent adult to a social worker two days after saying said she needed to speak with her about an urgent matter.Defendant was convicted of embezzlement by a caretaker from a dependent adult under Penal Code section 368, subd.(e). The victim told a social worker that she feared defendant had stolen from her. The statement was later admitted as a spontaneous declaration at trial as the victim died shortly after making the statement. At the time she initially talked to the social worker, the victim was tearful and shaken by the news that she was to be evicted from her care facility. But two days elapsed before the substantive discussion. The court erred in admitting the statement where the circumstances surrounding it showed ample opportunity for deliberation and reflection.id: 17948
Defendant's alleged death threats reported in an application for a restraining order were inadmissible under section 1370 since they were translated and transcribed, and lacked reliability.Defendant was convicted of the murder of his girlfriend. In proving its case, the prosecution relied largely on a declaration by the victim included in a restraining order that was filed several days before she was killed. In the declaration, she stated that defendant threatened to kill her. However, the declaration was inadmissible under Evidence Code section 1370 as there was no assurance that the alleged death threat was accurately translated and transcribed, and no assurance they were defendant's words rather than something included at the suggestion of another person present when the declaration was written. Because the evidence was inadmissible under section 1370, the court did not address the alternative contention that the evidence violated defendant's confrontation clause rights under Crawford.id: 18091
Updated 3/6/2024The trial court did not improperly limit the scope of defense counsel’s cross-examination of the prosecution’s expert on the issue of another witness’s demands where there was no admissible evidence regarding that fact.The trial court did not violate defendant’s confrontation clause rights by prohibiting the defense from cross-examining the prosecution’s sex trafficking expert about a witness’s demand for $15,000 and immunity for her testimony. There was no admissible evidence regarding this fact at the time of the court’s ruling. While a defense witness later testified to the other witness’s demands, the defense never sought to recall the expert to address the issue.id: 26567
Updated 3/4/2024Order that all witnesses wear masks during the pandemic did not violate defendant’s right of confrontation. The trial court’s order requiring testifying witnesses to wear face coverings during the COVID-19 pandemic did not violate defendant’s right to confront witnesses. The masking order satisfied an important public policy and retained essential safeguards of reliability as the jurors would see significant parts of the witnesses’ faces and all witnesses were subjected to vigorous cross-examination. id: 27792
Updated 2/26/2024The trial court prejudicially erred by admitting evidence of a book and documents found in defendant’s car relating to the burdens of a criminal record to show his state of mind.Defendant was charged with several robberies and the issue at trial was identity. The trial court admitted a book and documents found in defendant’s car that related to disappearance to avoid apprehension following a crime. The relevance of the materials to the instant charges was marginal and the references to “ex-cons” and the burdens of a criminal record could lead the jury to infer defendant was a person of bad character. The trial court erred in admitting the evidence to show defendant’s state of mind - his intent to avoid detection.id: 26369
Updated 2/24/2024The hearsay exception described in Evidence Code section 1360 regarding statements of child/sexual abuse does not require certain charges be filed before it can be used. Defendant was charged with torture and misdemeanor child abuse counts. He argued the trial court erred in admitting the victim’s social worker interviews under Evidence Code section 1360, which allows hearsay statements from children describing acts of child or sexual abuse. Defendant argued the provision can only be used to admit evidence when one of the offenses enumerated in subdivision (c) of that section is charged. However, no language in the statute requires that any specific charges be filed in order for it to apply.id: 26709
Updated 2/24/2024Hearsay exception for statements made by a child abuse victim seeking medical treatment is not limited to cases where a specific child abuse provision is charged.Defendant was convicted of torture and mayhem with respect to Jane Doe 1. The trial court admitted the forensic pediatrician’s testimony under Evidence Code section 1253, which provides a hearsay exception for child abuse victims seeking medical treatment. Contrary to defendant’s claim, section 1253 is not limited to cases where a child abuse provision is charged.id: 26710
Updated 2/24/2024Improper admission of double hearsay was harmless given the admission of defendant’s threats to kill his in-laws that was already before the jury. The trial court erred in admitting evidence that Diao told Zhang of defendant’s threat to kill Diao, a threat that Zhang told Li, which Li related in her testimony at trial. The statement was not admissible under the Evidence Code section 1250 hearsay exception for a declarant’s state of mind , or as nonhearsay circumstantial evidence of Li’s state of mind. However, the error was harmless given the evidence of defendant’s threats to kill his in-laws that was already before the jury.id: 26713
Updated 2/23/2024Forfeiture by wrongdoing doctrine allowed the victim’s out-of-court statements where defendant had called her twice urging her to stop lying.Defendant was convicted of inflicting corporal injury on a girlfriend. He argued the trial court violated his confrontation clause rights by the allowing the girlfriend’s out-of-court testimonial statements to be admitted into evidence. However, the argument was precluded by the forfeiture by wrongdoing doctrine where defendant had called the alleged victim twice in four months urging her stop lying and reveal false reports previously given.id: 26892
Updated 2/3/2024Requiring trial witnesses to wear masks did not violate defendant’s right of confrontation. The trial court did not violate defendant’s right of confrontation by denying his pretrial motion to allow witnesses to testify without a face mask during trial. The mask requirement was necessary to ensure everyone’s safety during the pandemic and did not meaningfully diminish the face-to-face nature of the witness testimony. id: 27798
Updated 1/31/2024The defendant’s cellmate’s statement about the deputy’s statement that defendant possessed shanks in jail was inadmissible hearsay.The trial court erred when allowing defendant’s cellmate to relate a statement from a sheriff’s deputy that defendant had possessed shanks in jail. The statement was hearsay, irrelevant and subject to exclusion under Evidence Code section 352. However, the error was harmless where the jury had been given proper limiting instructions, and there was considerable evidence of guilt at trial.id: 28034
Prosecutor’s comment during closing argument that he thought defendant was a murderer was based on evidence, and did not constitute improper vouching.During closing argument the prosecutor said “Carl Powell is a cold-blooded murderer. That’s what he is and that’s what I think he is.” The comment did not amount to improper vouching because it was made in passing while discussing what the evidence showed. id: 25868
The trial court did not violate defendant’s confrontation clause rights by allowing a computer monitor to be raised so that the witnesses would not have to see the defendant.Defendant was convicted of committing sex offenses against four young girls. He argued that his Sixth Amendment right to face-to-face confrontation was violated when the trial court allowed a computer monitor on the witness stand to be raised by several inches to allow the girls to testify without having to see defendant. However, there was no confrontation clause violation. The reliability of the girls’ testimony was established by the cross-examination and the jury’s unobstructed view of the witnesses while testifying. The use of the computer monitor was necessary to protect the victims from serious emotional trauma while testifying, and to ensure complete and accurate testimony.id: 25313
The computer generated report of GPS data was not a statement by a person, and was therefore not hearsay. Defendant was convicted of leaving the county without permission, and challenged the admission of a report of GPS data transmitted by his electronic ankle monitor. The computer generated report of the GPS data generated by the ankle monitor was not a statement of a person as defined by the Evidence Code, and therefore did not constitute hearsay evidence.id: 25389
Criminalist’s use of the Ident-A-Drug website to identify pills did not violate hearsay rule or the confrontation clause under Sanchez.Defendant was convicted of possessing a controlled substance for sale. The prosecution’s criminalist used the Ident-A-Drug website to presumptively identify the pills as controlled substances. Defendant argued the criminalist’s testimony regarding the website was inadmissible hearsay and violated the confrontation clause under People v. Sanchez (2016) 63 Cal.4th 665. However, the Ident-A-Drug website comes within the “published compilation” exception to the hearsay rule, and there was no confrontation-clause violation where the challenged hearsay was not testimonial.id: 25367
The murder victim’s statement regarding her fear of defendant was admissible even though the defense didn’t plan to challenge that issue and offered to stipulate.Defendant argued the victim’s statements regarding her fear of him were not admissible as state of mind evidence since defendant indicated he would not be challenging that point. However, a fact is disputed when raised by a not guilty plea and remains disputed until it’s resolved. The fact that defendant offered to stipulate to the fact did not constitute a concession of the fear element, and in any event, the prosecution refused the stipulation.id: 25177
Codefendants notes suggesting there were not enough dead people were not hearsay as they were offered to show defendant’s state of mind.Defendant argued the trial court erred by admitting into evidence notes written by a codefendant as he prepared for a gang meeting defendant attended, where he emphasized there were not enough “dead muthuphuckers.” The notes were not hearsay because they were not offered to prove that there actually were not enough dead people, but rather to explain defendant’s state of mind when he shot the officers.id: 24452
Evidence that the victim asked someone to bring a knife to the meeting was not hearsay as it was offered to prove the words were said, not that they were true. The prosecution sought to exclude evidence that a victim asked a woman to find a knife to bring to a meeting with defendant. The trial court erred in finding the statement was hearsay because the request did not assert the truth of any fact and was not offered for its truth. However, the evidence had little probative value where the victim did not have a knife, but he brought along Rainville who did carry a knife. Any error in excluding it was therefore harmless.id: 24626
Inmates’ hearsay statements may have been against their penal interest but they were properly excluded because they were unreliable.Defendant was an inmate charged with the murder of a San Quentin guard. He argued the trial court erred by failing to admit the statements of two other inmates who asserted the Fifth Amendment rights. Defendant claimed the earlier statements were admissible as statements against the witnesses penal interests. While that may have been true, the statements were inadmissible because they were unreliable.id: 24551
The court did not err in allowing the prosecutor to question a witness about defendant’s reputation in the neighborhood after the defense placed his reputation in issue.Defendant argued the trial court erred in admitting a hearsay statement made prior to the murder to the effect that defendant wanted to “shoot up the block”. He claimed the statement rendered the trial unfair because it allowed the jury to find premeditation based on inadmissible hearsay. However, the question was not one that elicited hearsay because it concerned whether the witness had heard something at odds with his earlier statement about defendant’s reputation for nonaggression. id: 21152
Defendants were not entitled to the murder victim’s social media content as part of pretrial discovery.Defendants facing murder and gang charges served a subpoena duces tecum on Facebook, Instagram and Twitter seeking public and private content from the user accounts of the victim and a witness. The social media sites objected under the federal Stored Communications Act - 18 USC 2701 et seq. Defendant argued the information was necessary to properly prepare the defense. The subpoenas were quashed after the court found the defendants had no right to the information as part of pretrial discovery, although they might be given access later. Denying access did not violate the confrontation, compulsory process, or due process clauses. While the prosecution might access the data through the warrant procedure, defendants were not entitled to simply request it through pretrial discovery.id: 24281
Supreme Court says unavailable witness's testimonial statements are inadmissible unless defendant had opportunity to cross-examine.At defendant's assault trial, defendant's wife, who witnessed the assault, invoked the marital privilege and refused to testify. The state then introduced a statement that the wife gave to police officers shortly after the alleged assault. The state courts admitted the statement under Ohio v. Roberts,(1980) 448 U.S. 56, which held that the Confrontation Clause does not bar the admission of hearsay against a criminal defendant if the statement bears adequate indicia of reliability. The Supreme Court overruled Roberts in part and reversed. The Court held that when the prosecution seeks to introduce a "testimonial" hearsay statement, it must show both that the witness is unavailable and that the defendant had a prior opportunity for cross-examination. Although the Court did not give a comprehensive definition of "testimonial," it held that the term includes at least "prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations."id: 20128
The trial court properly admitted the testimony of the identifying declarant’s widow to support her husband’s credibility.At the preliminary hearing, Les Ballow identified defendant. Defense counsel then challenged Ballow’s credibility. Bellow died before trial, but the trial court allowed his wife to testify about consistent statements Les had made to her. The trial court properly admitted the wife’s testimony to support her husband’s credibility under Evidence Code sections 1202 and 791, subd.(b). id: 24074
A witness’s 1984 statement was properly admitted as a past recollection recorded even where there was a time lapse between the recording and the events recorded.A witness’s 1984 statement was properly admitted under Evidence Code section 1237 - as a past recollection recorded. He did not recall the subject of his earlier statements when testifying at trial. Moreover, the lapse in time between the events recorded and the time of the recording did not render the statements inadmissible under section 1237. And defendant repeatedly testified he told the detective the truth to the best of his ability. Contrary to defendant’s claim, it did not matter that the judge ruling on the section 1237 issue was not the judge who originally ruled on the reliability of the witness’s claim that he was truthful with police. id: 21747
The trial court erred by admitting against defendant during rebuttal evidence of the codefendant’s state of mind.The trial court erred when it admitted against defendant, evidence of his codefendant’s state of mind on the night of the murder. This was improper rebuttal because defendant had not placed his codefendant’s state of mind at issue. However, the error was harmless where the testimony was fleeting and the other evidence of defendant’s guilt was strong.id: 23250
The trial court did not violate defendant’s confrontation clause rights by admitting a conditional examination of the victim taken at the prelim via a two-way video. Defendant was convicted of torture and other offenses in an incident where he broke his girlfriend’s spine during a sexual assault rendering her a quadriplegic. He argued the trial court erred by admitting into evidence a conditional exam of the victim during the preliminary hearing via two way video. She was unable to testify at trial for medical reasons. Contrary to defendant’s claim, there was no confrontation clause violation where the two way camera equipment was not set up to show defendant to the victim but focused instead on defense counsel. Defendant forfeited the issue by failing to raise it at trial. Moreover, contrary to defendant’s claim, his motive and interest in cross-examining the victim at the conditional exam was similar to that at trial. id: 23172
A non-victim child witness may testify remotely without violating defendant’s right to confront witnesses.In Maryland v. Craig (1990) 497 U.S. 836, the court held that a child abuse victim could testify by closed circuit television under certain circumstances without violating the criminal defendant’s confrontation clause rights. The same rule applies to a child witness who is not a victim. California courts have the inherent authority to order remote testimony in these circumstances.id: 23001
The trial court did not err by limiting disclosure of the identity of certain prosecution witnesses until shortly before trial.In an effort to protect certain prosecution witnesses from gang retaliation, the trial court issued protective orders delaying and limiting disclosure of the identities of the witnesses. The order did not violate due process or confrontation clause rights. It did not authorize permanent nondisclosure and most witnesses identified themselves during their testimony. The record shows the defense learned the identity of the witnesses a couple of days before trial and therefore had the opportunity to investigate their backgrounds. The court also ordered the prosecution to make the witnesses available for interviews (with the prosecution present) and to provide criminal backgrounds. Prohibiting counsel from discussing matters that might identify the witnesses did not interfere with the attorney-client relationship or prevent the development of a viable defense theory.id: 22850
Testimony on the accuracy and reliability of red light cameras was not required to admit the evidence and the photos and video were not hearsay. Defendant was convicted of failing to stop at a red light intersection in violation of Vehicle Code section 21453, subd.(a) She challenged the admission of the computer generated photographs and a video of the traffic violation. Testimony on the accuracy and reliability of computer hardware and software is not required as a prerequisite to the admission of computer records. Moreover, the photographs and video were not hearsay and no hearsay exception was required to admit the evidence. Finally, substantial evidence supported the finding that the yellow light interval conformed to the statutory requirement.id: 22625
The trial court did not err by introducing drawings of the murder scene prepared by a police artist. Defendant argued the trial court erred by admitting 10 drawings done at the scene by a police artist following interviews. The drawings were not inadmissible hearsay because they were not offered for their truth but rather to illustrate the witness’s testimony. Defendant claimed they were nevertheless inaccurate but the prosecution showed they were accurate in relevant aspects and defense counsel was able to highlight the inaccuracies during cross-examination.id: 22639
Defendant’s father’s statement recounting defendant’s confession was admissible as a party statement and a spontaneous utterance.The trial court did not err by admitting evidence that defendant had confessed guilt to his father who had died by the time of trial. The statement came within the hearsay exception for the statements of a party (Evidence Code section 1220) where, after the call, defendant’s father repeated the substance of defendant’s statement. It was also admissible as a spontaneous statement even though the father did not repeat the claim for several minutes and repeated the comments after being asked because he was still under the stress of the excitement at the time.id: 22795
The trial court did not err by admitting the victim’s statements concerning her fear of defendant. The trial court did not violate Evidence Code section 1250 or the confrontation clause by admitting the murder victim’s statements concerning her fear of defendant. The evidence was relevant to prove defendant’s motive where there was independent evidence that he was aware of her fear before the crime and may have been motivated by it. The trustworthiness of the evidence was established by the fact that she made the statements to family members seeking help and she had no motive to lie. Finally, absent a request from the defense, the trial court was not required to give a limiting instruction concerning some of the victim’s statements that described defendant’s conduct.id: 22794
There was no confrontation clause violation where the child witnesses did not have to face defendant at the preliminary hearing. At the preliminary hearing, child witnesses were seated facing away from the defendant although counsel had eye contact with the witnesses while standing at the podium. The seating arrangement did not violate defendant’s confrontation clause rights, and those rights were not violated when the videotape was introduced at trial.id: 22840
The trial court did not err by excluding evidence of the child molest suspect’s conduct after a confrontation where he sought to claim he was being falsely accused. Defendant, a doctor and director of a medical research laboratory, was convicted of sexually molesting the daughter of an employee from the time she was in fourth grade until the ninth grade. He was convicted of three acts of committing a lewd act in violation of Penal Code section 288, subd.(a) and one count of continuous sexual abuse in violation of section 288.5. After the victim reported the incident the police set up a meeting at the library which she recorded. Defendant argued the trial court erred by excluding evidence of conduct after the meeting including a letter to the police chief and emails where he reported false allegations by the victim, possible drug abuse and extortion. The letter to the police chief was properly excluded as hearsay. Defendant’s state of mind was only marginally relevant and the court did not prevent him from testifying about his perceptions of the victim’s behavior during the library confrontation. That defendant testified did not change the result. Moreover, the court’s ruling did not infringe on defendant’s right to present a defense where the excluded evidence was not critical but marginal. Finally, the evidence was not admissible where the letter and conduct after the library confrontation were not made in response to the victim’s accusation.id: 22810
There was no Aranda/Bruton violation where the court allowed a witness to refer to codefendant’s statement suggesting more than one person was involved.Defendant argued the trial court committed an Aranda/Bruton confrontation clause violation by allowing a witness to refer to the codefendant’s statement. Although the statement did not mention defendant’s name it referred to the codefendant and another person as being responsible. However, there was no error as the trial court admonished the jurors to disregard any reference to another person. The statement was only admitted to address why the witness changed his mind about testifying, and nothing in the statement established an overly incriminating confession.id: 22210
There was no confrontation clause violation where the codefendant’s prearrest statements were designed to further the conspiracy.Defendant and his codefendant, Hansen, were tried in a joint trial with separate juries. Defendant argued the trial court erred by allowing his jury to hear Hansen’s prearrest statements to police that were not admissible under any hearsay exception and violated his confrontation clause rights. The statements gave the false impression that the victim was killed during a home invasion robbery. The conspiracy between the defendants encompassed the killing of the stepfather and making it appear the killing occurred during the robbery. The statements were admissible under the coconspirator hearsay exception. Unlike the statements to the 911 operator, those taken at the station were “testimonial” for Crawford purposes. However there was no confrontation clause violation where the prearrest statements were designed to further the conspiracy.id: 22115
The juvenile court properly admitted the child victim's hearsay statements under section 1228 because the minor's admission of lewd intent constituted a confession under that provision. The juvenile court did not err by admitting the hearsay statements of the three year-old victim in finding the minor committed the charged sex acts. Evidence Code section 1228 allows, as a hearsay exception in cases involving sex crimes against children, the victim's statements to establish the corpus delicti before introducing the defendant's statements. Here, the minor's statement that he pulled the victim's pants down and kissed her genitals was an admission of lewd intent and constituted a confession within the meaning of section 1228.id: 22439
Rumor that a killing was gang related was properly admitted for the nonhearsay purpose of showing defendant had heard about it. Defendant had argued that there was no adequate foundation, beyond inadmissible hearsay, for the premise that the victim was a Crip who had been killed by a Blood. The information was apparently based on rumor and gossip. But it was properly admissible for the relevant nonhearsay purpose of showing defendant had heard information about the killing and its gang implications on the street.id: 22416
The trial court did not err by admitting printouts of defendant’s password protected MySpace page which the gang expert used to support his conclusion that defendant was a gang member. Defendant argued that the trial court erred by admitting printouts of his MySpace social media internet page, which the prosecution’s gang expert relied on in forming his opinion that defendant was an active gang member. Defendant argued the evidence was not properly authenticated. However, a reasonable jury could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him, especially since there was a password requirement for posting and deleting content. Moreover, the evidence was not inadmissible hearsay where it was not admitted for its truth and the jury was properly instructed that it could only be considered for the limited purposes stated.id: 22529
Admission of nontestimonial statements of nontestifying codefendants did not violate confrontation clause under Bruton/Aranda.Defendant argued the admission of testimony from witnesses who recounted inculpatory statements by Mejorando (tried before another jury in this case) and another codefendant who was tried separately, violated his 6th Amendment right of confrontation. He claimed the testimony consisted of hearsay statements of nontestifying codefendants which was inadmissible under the Bruton/Aranda rule. However, the confrontation clause does not apply to out-of-court nontestimonial statements, even those by codefendants. Even if the Bruton rule did apply, a codefendant’s hearsay statement is admissible if it falls within a firmly rooted hearsay exception and is reliable. The statements of one nontestifying codefendant were admissible as statements against penal interest and those of another were admissible as furthering a conspiracy.id: 22179
The trial court did not err by admitting generic threat evidence in the form of defendant’s 10 year-old statements suggesting women deserved to be shot.Defendant was convicted of implied malice murder in the killing of a woman who refused his sexual advances. He argued the trial court erred by admitting generic threat evidence under Evidence Code section 1250 (state of mind). The evidence was the testimony of a security guard from a party 10 years earlier where defendant was asked to leave and repeatedly used a disparaging term regarding women and said they all deserved to be shot. He also commented that he should put a bullet in the head of one particular woman. Contrary to defendant’s claim, his statement was not meaningless hyperbole but rather showed a long history of violent conduct towards women. The specific threat against the identified woman was not generic but was otherwise admissible. That the statements were 10 years old did not make them too remote. Finally, the surrounding details gave meaning to the threats. id: 22171
Defendant’s self-serving statements written after the offense were not admissible to establish his state of mind under section 1250 where there was no showing of reliability.Defendant argued the trial court erred by excluding, as hearsay, two statements he had handwritten after the offense, including a will and various notes. Evidence can be admissible under Evidence Code section 1250, on the issue of the declarant’s state of mind, but such evidence must be reliable. Here, the writings were made at a time when the police were outside of his door and he felt trapped. There was ample ground to suspect his motives and sincerity when he wrote the self-serving documents.id: 21312
Written agreements executed by people named in dismissed counts of the Ponzi scheme were authenticated by circumstantial evidence as they were intermingled with similar agreements in charged counts and were not inadmissible hearsay.Defendant was charged in a 118 count information with several offenses relating to the sale of unregistered securities. Counts one through 99 contained the names of 33 victims. Only eight testified at trial. The court later dismissed the counts involving the other 25. The court admitted as nonhearsay the 150 agreements executed by the 25 people named in the dismissed counts and allowed the prosecutor to refer to those documents in closing arguments. Defendant argued the documents were not properly authenticated and were inadmissible hearsay. However, the documents were authenticated by their content and circumstantial evidence as they were found in defendant’s office intermingled with the agreements and enrollment forms authenticated by the testifying victims. The documents were also not inadmissible hearsay as they were probative of defendant’s intent and helped explain how a Ponzi scheme works. id: 21276
The trial court did not err by admitting two threatening notes written by defendant’s cellmate to potential witnesses where evidence showed he authorized the first note, and the second which contained implied hearsay did not violate the confrontation clause. Defendant argued the trial court erred by admitting two notes written by his cellmate (an associate of the Mexican Mafia prison gang suggesting he had the ability to reach the potential witnesses and their families) to prove defendant attempted to intimidate the witnesses. The first note was relevant for the nonhearsay purposes of showing why two witnesses were afraid to testify. The evidence showed more than mere opportunity on defendant’s part to authorize the note. The second note may have contained inadmissible “implied hearsay” suggesting the first note was written as a favor to defendant and done at his request. However, there was no Sixth Amendment violation because the statements were not testimonial under Crawford and the error under state hearsay law was harmless.id: 20693
Hearsay evidence was admissible to support the gang conditions at the dispositional hearing.The juvenile court did not err by imposing gang conditions at the dispositional hearings that were based on hearsay statements of a probation officer that would have been inadmissible at the jurisdiction hearing.id: 20302
The trial court did not err in failing to give a limiting instruction as to the victim’s fresh complaint.Defendant argued the trial court erred in failing to give a limiting instruction as to the victim’s fresh complaint. However, the court had no duty to give such an instruction absent a request from the defense. Moreover, any error in failing to give the instruction was harmless where the victim testified at trial and the jury did not have to rely on her statements to other people, but was able to hear her directly and judge her credibility.id: 20458
Court did not err in excluding statement that the victim feared another individual where the evidence was offered to suggest a factual basis for her state of mind.Defendant argued the trial court erred in excluding evidence of prior statements the victim made to her mother regarding the victim's fear of an individual other than defendant. However, the statements were admissible under Evidence Code section 1251 only if the victim's state of mind or emotional state itself was an issue in the action and the statements were not offered to prove any fact other than her state of mind or emotion. However, it was clear the defense sought to introduce the statements not solely to prove the victim's state of mind but to suggest a factual basis for that state of mind.id: 13049
Codefendant's statement to police suggesting they may not find the gun could be considered an implied assertion that defendant tossed the gun and its admission may have amounted to Aranda/Bruton error.Police investigating a shooting stopped the car in which the two defendants were riding. The prosecution's theory of the case was that defendant fired a gun at the crime scene but dumped the gun before being stopped. When police asked a question, the codefendant said "Hey, if you don't find the gun you're going to let us go." This could be considered an implied assertion that defendant just dumped the gun, and therefore its admission was Aranda/Bruton error. However, any error was harmless in light of the overwhelming evidence of defendant's guilt.id: 20060
Since the statements regarding earlier allegations by the murder victim were admissible for a nonhearsay purpose (defendant's state of mind) their admission did not violate Crawford.The admission of defendant's wife's testimony regarding the murder victim's accusation that defendant had molested her did not violate the hearsay rule because the statements were admitted for the nonhearsay purpose of showing defendant's state of mind - anger following the accusation. There was also no Crawford v. Washington violation since the Sixth Amendment is not implicated by nonhearsay statements. Finally, admitting the inflammatory statements did not violate Evidence Code section 352 as any prejudice was limited by the trial court's instructions.id: 19981
Murder victim's tape recorded statements to police were admissible under the Evidence Code section 1350 hearsay exception.The murder victim had earlier spoken with police about his conversation with defendant who discussed earlier assaults and
asked the victim's help to establish an alibi. The tape recording of the conversation was admissible under Evidence Code section 1350 as a reliable statement to an officer who thereafter
became unavailable because of some action by defendant. The evidence did not violate the Confrontation Clause under Crawford because of the doctrine of forfeiture by wrongdoing.id: 19805
Prosecution was diligent in attempting to produce a witness from Canada (before introducing his preliminary hearing testimony) and a treaty with Canada did not compel his production.Defendant argued the trial court violated his confrontation clause rights by allowing the reading of a witness's preliminary hearing testimony. Defendant claimed the prosecution did not exercise due diligence in producing the witness because the witness was in Canada and the U.S. has a treaty with Canada which provides for cooperation in such matters. However, the treaty did not cover this specific situation and the prosecution made reasonable efforts by contacting the FBI, Homeland Security, Customs, the Canadian Consulate in Los Angeles and Canadian immigration authorities in attempting to secure the witness for trial.id: 19815
The trial court did not err in excluding as unreliable hearsay, the exonerating declaration of a terminally ill codefendant who had nothing to lose. The trial court did not err in excluding as unreliable a hearsay declaration by the codefendant purporting to exonerate defendant. The declaration was not spontaneous but was obtained by defendant's investigator after the two had conferred, and it was unreliable because the codefendant had a motive to lie as it was probable that he would be convicted and defendant faced a much longer term in light of his strike priors. The codefendant was also terminally ill and believed he had nothing to lose.id: 19777
Deceased's statements that he feared defendant were admissible under the state of mind hearsay exception where defendant argued self-defense.Defendant was convicted of involuntary manslaughter suggesting the jury accepted the defense that the victim, defendant's lover, initiated the violent quarrel and that defendant thereafter "lost it" and stabbed defendant six times. The trial court did not err in admitting statements attributed to the victim by a third party. In light of the defendant's claim of self-defense, the victim's fear of defendant was relevant and the statements were admissible under Evidence Code section 1250. Moreover, introduction of the victim's statements did not violate Crawford v. Washington since a defendant who kills a hearsay declarant forfeits the right to raise a confrontation clause objection.id: 19529
There was no confrontation clause violation where the court refused to order the reluctant witness to remove her sunglasses and scarf.Defendant argued the fact that a reluctant witness wore dark sunglasses and a scarf during her testimony denied him his
Sixth Amendment right to confront his accuser. However, the court, jury and defendant were able to hear the witness's testimony and responses to cross-examination while observing her
facial expressions and body language to a degree that no constitutional violation occurred. Moreover, any error was harmless in light of the overwhelming evidence of guilt.id: 19372
Whether or not a hearsay exception for critical and reliable evidence in a capital trial deserves recognition, the evidence at issue was neither critical nor reliable.Defendant argued the court erred in excluding hearsay evidence that he had recently paid his rent, which would have tended to show he did not steal from the victim. However, the trial court
properly failed to recognize a nonstatutory hearsay exception for critical and reliable evidence in a capital trial. Whether or not such an exception deserves recognition in a capital case, the evidence at issue was neither critical nor reliable.id: 19147
Witness' statements that she was afraid of defendant and napping when he entered the house were probative of her lack of consent to the intercourse and fell within the state-of-mind hearing exception.Powell's statements that she believed defendant entered her house as she napped and that she was afraid of him were clearly probative of her lack of consent to sexual intercourse in the attempted rape. Therefore, her state of mind was relevant to prove the attempted-rape felony murder and the special circumstance, and fell within the state of mind hearsay exception.
id: 18957
The exclusion of a single piece of inadmissible hearsay evidence -a third party's confession to a retired police officer who died before trial - did not result in the denial of a fair trial.The defense sought to admit the statement of a deceased former police officer that a third party had confessed the crime to her. Conceding the statement was hearsay with no recognized exception, defendant argued that exclusion of the exculpatory evidence violated his right to due process. However, based on the facts provided, the statement lacked reliability even though the declarant was a retired police officer talking to an investigating officer. Moreover, the evidence was cumulative of other evidence implicating the third party.id: 18828
Caller's statement looking to buy drugs when officer answered defendant's phone was an implied assertion, and although hearsay, was admissible because of its reliability.While officers were executing a search warrant for evidence of possession of a controlled substance for sale, an officer answered the phone and heard the caller ask to buy drugs. The caller's questions were hearsay, but under the case law, recognized and accepted when the Evidence Code was adopted and continuing thereafter, they fell under a hearsay exception for this type of reliable evidence.id: 18312
Victim's statement that if she was not heard from in two weeks, "send the police" was admissible under section 1250(a)(2) to explain her conduct where the defense argued she disappeared on her own accord. Defendant argued a witness's testimony that the murder victim (Nancy) told her "If you don't hear from me in two weeks, send the police," was inadmissible hearsay and unduly prejudicial under Evidence Code section 352. However, the statement was admissible under section 1250, subd.(a)(2) to explain Nancy's conduct. Moreover, because the testimony was probative on whether Nancy's disappearance was of her own volition, its evidentiary value was not outweighed by the danger of undue prejudice under section 352.id: 17547
A murder victim's expressed fear of the person charged with the murder is inadmissible when offered to prove the killer's identity.The trial court erred in admitting evidence of the victim's statements that he feared defendant was going to kill him. A murder victim's expressed fear of the person charged with the murder is inadmissible when the purpose is to prove the killer's identity.id: 17373
Evidence that the victim feared defendant was admissible to show she would not have voluntarily entered his car.The prosecutor's theory was that defendant drove the victim to the murder scene in his vehicle. Evidence that the victim feared defendant was admissible to show she would not have voluntarily entered his car and thus he may have forced her into his vehicle the night she disappeared.id: 17381
Defendant's tape-recorded statements with his wife were properly excluded at the penalty phase as they were made to placate his wife rather than show remorse.Following defendant's confession, he spoke with his wife twice and both conversations were recorded. He sought to admit the recordings at the penalty phase to show remorse under the state of mind hearsay exception. However, the statements were properly excluded as the circumstances under which they were made showed a lack of trustworthiness. The court reasonably found the statements were made to placate defendant's wife rather than show true remorse.id: 17341
Videotaped statement of the elder abuse victim was properly admitted under Evidence Code section 1380.Defendant argued the trial court erred in admitting the videotaped statement of the deceased victim pursuant to the Elder and Dependant Adults exception to Hearsay Rule set forth in Evidence Code section 1380. The victim died of natural causes before trial. Pursuant to section 1380, the court admitted a videotaped interview of the victim conducted by the district attorney's investigator. The interview was conducted about a month after the attack while the victim was in a nursing home. There was no evidence suggesting the victim would lie or had a motive to lie. While the witness was forgetful, he was competent. The hearsay statements were both trustworthy and reliable, and properly admitted under section 1380.id: 17319
Hearsay statements made in a joint interview with police were properly admitted as adoptive admissions.Three defendants were questioned in a joint interview. The court properly admitted the hearsay statements against each defendant in a joint trial. The statements fell under two firmly established hearsay exceptions - statements of a party, and adoptive admissions. The former allows the statements to be admitted against the speaker. The latter allows hearsay to be admitted against a party when he or she has adopted or agreed to someone else's statement. Contrary to defendant's claim, the adoptive admission analysis applies in a custodial setting. This was especially true here where the defendants were not silent in the face of accusations but each affirmatively indicated he agreed with the statements of the others.id: 17320
Report of director of rehab center was admissible at the hearing to determine the deferred entry of judgment program.Defendant argued he should not have been found to be in violation of the deferred entry of judgment program because the finding was based on inadmissible hearsay. The evidence in question was a single page report from the program manager of a drug rehab center. The report said he was terminated for attending none of the 20 sessions. However, the report was prepared in response to a referral from the court and was sufficiently reliable to admit. Moreover, any error in admitting the report was harmless in light of defendant's earlier admission that he had not undergone counseling due to financial and transportation difficulties.id: 17278
Four year-old sodomy victim's statement to the examining doctor identifying the defendant was admissible under section 1253.The minor baby sat for his four- year old nephew. The younger child later reported that he was sodomized by the minor. The boy was taken to the hospital and told the examining doctor that "Danny put his pee pee in his butt too hard." The doctor then examined the victim and found signs corroborating his statement. The statement was admissible under Evidence Code section 1253 since it was made for purposes of medical diagnosis relating to an act of child abuse. Moreover, since proper treatment must include emotional and psychological treatment, a hearsay statement which identifies the abuser as a member of the household is admissible under section 1253. Finally, the statements to the treating doctor and nurse were trustworthy, as they were made shortly after the incident with no reason for the boy to lie.id: 17206
Statement that the victim should "take it like a man" was not hearsay since it was offered for the truth of the matter implied rather than the truth of the matter stated.The witness's statement may have implied that because the victim did not "take it like a man" (presumably by informing the police that defendant attacked him), there would be retribution. However, statements are not hearsay evidence when offered for the truth of the matters implied, but only when offered for the matters actually stated. The trial court did not err in admitting the statement without a limiting instruction.id: 17122
Program coordinator for drug court who conducted and supervised urine testing could testify as to test results at the revocation hearing.Defendant, at a probation revocation hearing argued a witness' testimony about the drug results was inadmissible hearsay and denied her due process of law. However, the witness was the program coordinator for the drug court. His job involved conducting and supervising urine testing. The witness was qualified to testify about the test results at the revocation hearing.id: 16676
Court did not abuse its discretion in admitting evidence of victim's recent statements evidencing fear of defendant where defendant placed the victim's state of mind in issue.Defendant was convicted of murdering his wife. He argued the trial court abused its discretion by allowing a rebuttal witness to testify about statements the victim made three weeks before her death, regarding her desire to leave defendant and his threats to kill her if she did. However, defendant placed the victim's state of mind in issue when he testified to her provocative actions leading up to the killing. Thereafter, the statements were admissible under the state of mind exception to the hearsay rule codified in Evidence Code section 1250, subd.(a).id: 16041
Evidence Code sections permitting hearsay statements of child abuse victims do not violate due process by shifting the "balance of forces" to the prosecution.Defendant was convicted of molesting a nine year-old girl. He argued the trial court erred in admitting hearsay evidence under recently enacted Evidence Code sections 1360 and 1253. Those sections permit the court to admit a child abuse victim's hearsay statements under certain specified conditions. Defendant argued sections 1360 and 1253 violate due process because they unfairly shift the "balance of forces" to the prosecution. However, while the provisions may favor the prosecution they do not violate due process. They may even help the defense in certain cases. Moreover, in light of the specialized nature of the exception there is nothing fundamentally unfair in failing to provide a similar exception favoring the defense.id: 16042
Hearsay exception which allows for the admission of the victim's statements does not violate the confrontation clause.Evidence Code section 1370 permits the admission of an out of court statement by a victim who is unavailable as a witness at trial if the statement was made to a police officer under circumstances which indicate its trustworthiness. Defendant argued section 1370 violates the confrontation clause because the statements are admitted without the opportunity for cross-examination. However, statements with a sufficient indicia of reliability may be admitted without violating the confrontation clause. Moreover, statements admitted under a firmly rooted hearsay exception do not violate the confrontation clause. Finally, the trial court did not abuse its discretion in admitting statements under section 1370 in light of the circumstances demonstrating the trustworthiness of the statements.id: 16043
Statements made by a codefendant to a friend before codefendant knew he was a suspect were trustworthy and their admission did not violate defendant's confrontation clause rights.Within hours of committing the crimes, and before he was a suspect, a codefendant voluntarily and spontaneously made statements to a friend. He initially asserted that he was involved alone. He then implicated defendant. Defendant argued the admission of the statements at trial would violate the confrontation clause. However, the declarant had no motive to lie, and did not attempt to shift blame or deny his involvement in the crimes. Therefore, the trial court properly concluded the residual trustworthiness test had been met. Moreover, the court instructed the jury it could consider the fact that defendant was not able to cross-examine the non-testifying declarant about his statements in assessing the statements. There was no confrontation clause violation in admitting the statements.id: 16044
Telephone number on defendant's pager was nonassertive conduct and not hearsay.Defendant argued the testimony concerning a telephone number appearing on the pager in his possession was inadmissible hearsay. However, defendant's possession of a pager which displayed the number for the telephone in the parking lot adjacent to the gas station utilized by the drug dealer is nonassertive conduct admissible either because it is evidence of a relationship or indicative of the purpose for which it was used. Moreover, the detective's testimony concerning a two digit code on the pager was not inadmissible. The detective was an experienced narcotics investigator and his opinion was limited to an explanation as to the number on the pager.id: 16045
Testimony regarding victim's suspicion of defendant's prior theft was admissible for the nonhearsay purpose of showing the victim's state of mind.Defendant argued the trial court erred in admitting testimony of a third party that the murder victim previously suspected that defendant had stolen a welder from her property. However, the evidence was admissible for the nonhearsay purpose of showing the victim's state of mind concerning defendant.id: 16046
Officer may relate the confession of a nontestifying codefendant implicating defendant at a preliminary hearing without violating hearsay or confrontation clause principles.At a joint preliminary examination of multiple defendants charged with murder and other crimes, the prosecutor sought to admit, as against the defendant and a co-defendant, the testimony of an investigating officer relating the confession of a nontestifying codefendant, implicating defendant and the codefendant in the crimes. The officer's testimony, which probably would have been inadmissible at the defendant's trial (under <i>Bruton/Aranda</i> principles) was nonetheless admissible against defendant for the limited purpose of establishing probable cause to hold defendant for trial.id: 15757
Murder victim's statements regarding fear of defendant were relevant to prove lack of consent to burglary and robbery, and were admissible under the state-of-mind exception.The trial court did not err in allowing the testimony of three witnesses regarding the victim's statements declaring her fear of defendant. The statements were relevant to prove the lack of consent to the burglary and robbery related to her murder. Moreover, the statements were admissible under the state-of-mind exception to the hearsay rule where they were reliable and offered to prove lack of consent in the burglary and robbery.id: 15417
New hearsay exceptions allowing statements of child abuse victims can be applied to offenses occurring before their effective date without violating ex post facto provisions.Evidence Code sections 1360 and 1253 permit the court to admit a child abuse victim's hearsay statement. The provisions became effective in January 1996, which was after the conduct which was the subject of defendant's prosecution. However, since the provisions do not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate ex post facto principles to apply them to offenses which occurred before their effective date.id: 15284
A defendant who elects not to testify is not unavailable under Evidence Code section 1251.After the shooting, defendant recorded certain thoughts in a notebook. After the arrest he was interviewed at length and the interview was tape recorded. At the trial, he sought to admit into evidence both the notebook and the taped interview without testifying himself. He argued the court erroneously sustained the prosecutor's hearsay objection because the statements were admissible as statements of mental or physical state under either Evidence Code section 1250 or 1251. The statement was not admissible under section 1251 which requires a declarant's unavailability. A person who invokes the privilege not to testify is not legally unavailable. Moreover, the evidence was insufficient to establish an abuse of the court's discretion in finding the statements trustworthy, which precluded his claim under section 1250.id: 13042
A witness may refer to hearsay to refresh his recollection but before doing so, he must testify he cannot remember the fact sought to be elicited.Attempting to impeach a prosecution witness' earlier statement, counsel asked defense witness whether he had been with defendant at the time in question. Witness stated he checked the ship's log and determined he had the duty that day. The court sustained the prosecutor's hearsay objection. A witness may refer to hearsay to refresh his recollection but before doing so, he must testify he cannot remember the fact sought to be elicited. The witness here did not so testify. Moreover, when a writing is used to refresh recollection only the adverse party can introduce portions of the document into evidence, not the examining party.id: 13043
Any error in sustaining the People's hearsay objections where defendant sought to show the prosecution was attempting to manufacture inmate testimony was harmless.The case against defendant was based largely on inmate informant evidence. To attack this evidence defendant attempted to show the inmates that testified against him falsified their accounts after being supplied with information about defendant's crime from police officers and representatives from the prosecutor's office. When defense counsel asked the inmates what they had been told by police and prosecutors presenting the information, the prosecutor successfully objected on hearsay grounds. Defendant argued the information was not hearsay because it was sought to show the prosecutor was attempting to manufacture testimony. He also argued the ruling denied him his due process right to present a defense. As to the latter point, application of the ordinary rules of evidence does not impair an accused's right to present a defense. Assuming defendant was correct and defense counsel's questions did not call for hearsay, any error was harmless where one of the witnesses testified without objection that police and members of the D.A.'s office approached him and attempted to persuade him to act as an informant in defendant's case after giving him written materials. The clear implication of this is that the prosecution may have attempted to manufacture the inmate testimony.id: 13044
Calls answered by officers in defendant's garage were admissible as circumstantial evidence to prove the contraband was commercial rather than personal.While executing a search warrant in defendant's garage, deputies answered several phone calls where the callers asked for George and discussed the purchase of narcotics. Defendant argued that the conversations were inadmissible hearsay in that they were offered to prove the truth of the matter stated <197> that defendant was the occupier of the garage and the possessor of the commercial contraband therein. However, the phone conversations were admissible as circumstantial evidence to prove that the contraband within the room was commercial rather than personal contraband.id: 13045
Child molest victim's complaint two months after the last act was admissible under the fresh complaint doctrine even though disclosure was elicited by questioning from an adult who witnessed the child's strange behavior.Defendant lived with his girlfriend and her minor daughter. After the cohabitation stopped the minor disclosed the fact that defendant had molested her on several occasions. The victim's complaint that acts of molestation had occurred was admissible under the fresh complaint doctrine even though the disclosure was elicited by questioning from an adult who observed the victim to be withdrawn and crying and asked what was wrong. Moreover, even though the complaint was made two months after the last act of molestation, it was fresh for purposes of the fresh complaint doctrine because the victim's delay in disclosing the molestation was reasonable under the circumstances.id: 13046
Child's statement regarding her father's attack on her mother two days after the event was properly admitted as an excited utterance.Defendant was convicted of the murder of his live-in girlfriend. Defendant and the victim had two children including Ashley who was two and one-half years old at the time the mother was killed. Two days after the killing, Ashley purportedly described the event to the victim's sister. Defendant argued this statement was not admissible as a spontaneous declaration under Evidence Code section 1240 given the time lapse. However, the statement was properly admitted under that provision as the declarant was in a mental state of extreme agitation and excitement when she described the assault. While the time period between the incident and the statements was appreciable, it was the appearance of the victim's sister that triggered the utterance.id: 13047
Codefendant's out-of-court statements were not hearsay and were relevant to the issue of who actually shot the victims.Defendant argued the court erred in permitting a jailhouse informant to testify regarding codefendant's statements in a conversation with defendant during which defendant admitted shooting both victims. Defendant claimed codefendant's statements were hearsay. However, an out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. Codefendant's identification of the location of the robberies and murders at the airport gave context to defendant's statements and were not hearsay. They were also relevant to the issue of who actually shot the victims.id: 13048
Court erred in ruling as a matter of law that an identification made 25 days after the crime was not fresh in the witness' memory.The trial court ruled that evidence of the witness' out-of-court photographic identification of defendant was inadmissible hearsay because the identification was made at a time when the crime was not fresh in the witness' memory as required by Evidence Code section 1238. The court erred in finding that, as a matter of law, an identification 25 days after the crime is not fresh in the witness' memory. The freshness of the victim's memory must be resolved by way of a factual hearing.id: 13050
Defendant's girlfriend's testimony that the arson victim made statements that angered the defendant was not hearsay.Defendant was charged with arson of the garage of his girlfriend's godmother with whom his girlfriend lived. The girlfriend testified she told defendant her godmother stated that defendant was not welcome in their house. The communication which was offered to prove motive was not hearsay.id: 13051
Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party.The court incorrectly determined appellant's statements at the crime scene, as related by the officers, were inadmissible hearsay. First, appellant did not object to the statements. Second, the statements were admissible under Evidence Code section 1220 because the prosecution offered the statements in question against appellant on the issue of guilt on the possession counts.id: 13052
Evidence of the telephone callers' requests for cocaine were nonhearsay circumstantial evidence of defendant's guilt.While being booked on drug charges defendant's pager audibly signalled on at least 20 occasions that it had received messages. When the officer returned the calls, several persons who answered requested the delivery of rock cocaine. The testimony was not improper hearsay evidence because it was not being offered for the truth of the matter asserted but rather, it constituted not hearsay circumstantial evidence tending to show that defendant was selling cocaine.id: 13053
Excited utterance was properly admitted notwithstanding the declarant's possible involvement in the crime.The People's witness testified that Francis emerged from the back room of the warehouse and exclaimed that defendant had smashed the victim's face with a sledgehammer. Defendant argued the statement was self-serving and unreliable because the declarant was also involved in the crime. However, the statement was properly admitted as an excited utterance. There was a shocking event, genuine emotional distress and actual physical illness on the declarant's part as shown by his vomiting into a wastebasket, a simple observation, and no apparent opportunity to reflect or falsify. Moreover, this statement by the accomplice was not testimony within the meaning of Penal Code section 1111 and therefore did to require corroboration.id: 13054
Issue of admissibility of defendant's statements of remorse under the state-of-mind hearsay exception could not be raised for the first time on appeal.Defendant argued the trial court erred in sustaining the People's objections to answers given by defense witnesses regarding defendant's stated remorse. For the first time on appeal he claimed the evidence was admissible under the state-of-mind exception to the hearsay rule. However, if the issue had been raised at trial, the court would have had discretion to find a lack of trustworthiness in the claims of remorse, and thus to exclude the evidence if asked to rule on the question. Since the court was never asked to rule on the question, it was not preserved for appeal.id: 13056
Officer's testimony was not inadmissible hearsay where he testified as to translations made by defendant's interpreter.When a declarant makes an out of court statement through an interpreter, and that statement is otherwise admissible, the hearsay rule, does not bar a percipient witness other than the interpreter from testifying to the content of the out-of-court statement, even through the witness testifies to the words uttered by the interpreter, not the declarant. The court based its holding on a theory of agency whereby the interpreter's statements are regarded as the statements of the declarant who willingly used the services of the interpreter.id: 13057
Passenger's out-of-court identification of a third party as the assailant was properly excluded as hearsay where there was no indicia of reliability for the statement.The trial court did not err in excluding as hearsay evidence the identification of a third party as the shooter by a passenger in the victim's car. The record contained no indicia of reliability for the statement and defendant proffered virtually no evidence of a specific third party's culpability but instead simply denied his own involvement.id: 13058
Pay-owe ledgers were properly admitted for a non-hearsay use as circumstantial evidence of cocaine sales and a cocaine conspiracy.Defendants who were charged with trafficking in cocaine argued the admission of the pay-owe ledgers constituted improper hearsay evidence and violated the confrontation clause of both the state and federal constitutions. However, the confrontation clause cannot be violated when evidence is received for a non-hearsay purpose. The instant ledgers were properly admitted for a non-hearsay use as circumstantial evidence of cocaine sales and a cocaine conspiracy.id: 13059
Question regarding defendant's 1974 assault was properly admitted to prove his state of mind.Question regarding defendant's 1974 assault where he almost killed someone was properly admitted to prove his state of mind<197>that he did not feel intimidated by his accomplice<197>rather than his conduct on a specific occasion.id: 13060
Statements made by defendant in the hospital were relevant to his claim of amnesia and were properly offered to establish he had a memory of the shooting.Defendant argued the court erred in admitting his questions during an interview asking whether he was being charged with killing a policeman and whether such killing had been committed with a shotgun. Prior to the statements the officers had mentioned neither the victim nor the weapon. The evidence was relevant to show defendant's state of mind following the homicide, since the prosecution correctly anticipated the defense claims of unconsciousness due to drugs and amnesia. Moreover, the statement was not inadmissible hearsay since it was offered as circumstantial evidence of the fact that defendant had a memory of the shooting.id: 13061
The trial court properly admitted hearsay statement of rape victim as circumstantial evidence of consent.Defendant argued that the trial court erroneously admitted the statements of a rape victim to her counselor when the counselor testified as to rape trauma syndrome. Such statements were not hearsay. They were relevant circumstantial evidence on the question of whether the defendant had a reasonable good faith belief that the victim had consented.id: 13063
Trial court properly admitted statements by the deceased victim to show her state of mind.Defendant, who had lived with his aunt and uncle, was convicted of the murder of his aunt. Prior to the killing the aunt told several people that defendant had attempted to sexually assault and rape her. The trial court precluded admission of the victim's statements regarding the attempted rape under Evidence Code section 352 but allowed the other statements to show the victim's state of mind. Defendant argued admission of the victim's statements violated <i>People v. Hamilton</i> (1961) 55 Cal.2d 881. However <i>Hamilton</i> was abrogated by the adoption of the Evidence Code and constitutional amendment. The statements were properly admitted to show the victim's state of mind, not to prove whether the acts actually happened.id: 13064
Witness' statement 21 days after the shooting regarding preshooting statements of a defendant was properly admitted as past recollection recorded despite the witness' subsequent failure to remember mentioning defendant's name.Defendants were convicted of conspiracy to commit murder, and accessory after the fact, respectively, in an incident involving shots fired at police officers on November 1, 1993. On November 22, 1993, in an interview with officers, a witness told officers that weeks prior to the shooting she overheard defendant Hunter talking to other gang members about shooting police officers. While testifying at trial the witness recalled the conversation with the investigating officer but denied that she had mentioned defendant Hunter's name. Her statements regarding Hunter were admitted under Evidence Code section 1237 as past recollection recorded. The lapse in time between the witness' hearing the statement and telling the officer did not render the the statement inadmissible under section 1237. Moreover, the witness stated she told the officer the truth at the November 22 interview despite her inability to recall mentioning Hunter's name. Because defendant cross-examined her there was no violation of the right to confront or cross-examine.id: 13066
Young victim's reporting of the rape to appellant's wife the following morning qualified as a fresh complaint.Eleven year old victim was a friend of appellant's stepson and was staying at appellant's house. Victim testified that she fell asleep for the night on the couch and when she awakened she reported to appellant's wife that appellant had raped her the previous night. Appellant argued the statement was not made soon enough to qualify as a fresh complaint. However, the gap in time between the victim's return to the apartment on the night in question and her statement to appellant's wife the next morning was compatible with the fresh complaint doctrine. Moreover, since the young victim and appellant's wife were friends it was entirely reasonable that the victim would have chosen to confide in appellant's wife and waited for her return.id: 13067
Content of telephone drug orders was admissible as circumstantial evidence tending to show the drugs were possessed for purposes of sale.Subject to Evidence Code section 352, and appropriate editing, when a police officer participates in a telephone conversation where he is lawfully executing a search warrant and hears a third person offer to purchase a controlled substance, testimony thereon is not made inadmissible by the hearsay rule and may be received as circumstantial evidence tending to show the controlled substance seized at that location was possessed for purposes of sale.id: 12891
Court properly excluded defense investigator's testimony regarding an interview with defense witnesses who invoked the privilege against self-incrimination and due process did not require the application of a hearsay exception.Two defense witnesses invoked their privilege against self-incrimination prior to testifying about their ingestion of drugs with defendant prior to the killings. Defendant argued the court erred in denying the request to call the defense investigator to testify as to what the witnesses had told him. Contrary to defendant's claim due process did not require the application of an exception to the hearsay rule. Moreover, defendant's claim the testimony was admissible as statements against penal interest was waived for the failure to raise it earlier. Counsel was not ineffective for failing to raise the issue as the record did not show he would have prevailed since nothing established the trustworthiness of the statements and defendant failed to show the loss of evidence prejudicial to his guilt trial.id: 12743
Officer's statement relying on another officer's report was sufficient to establish defendant was the driver of the car for purposes of license suspension proceedings.The trial court erred in finding that an officer's sworn statement incorporating the sworn report of another officer was sufficient to establish that defendant was the driver of the car for purposes of the license suspension proceedings. The statement was admissible under Evidence Code section 1280, the public employee records exception to the hearsay rule.id: 10607
Fresh-complaint doctrine has been revised and under generally applicable evidentiary rules, the freshness of a complaint and volunteered nature are no longer prerequisites to admissibility.Under the fresh-complaint doctrine, evidence that the alleged victim of a sex offense disclosed the incident to another person shortly after its occurrence is admissible to establish such complaint was made. The Supreme Court found the historic premise of the doctrine - that it is natural for a victim to disclose the offense - is outdated. However, the limited, non-hearsay evidence that in the past has been admitted under the fresh-complaint doctrine nonetheless is, in general, properly admissible at trial under generally applicable evidentiary standards. Under such standards the timing of the complaint and the circumstances under which it was made are not necessarily determinative of the admissibility of evidence of a complaint. The freshness or volunteered nature of the complaint are not essential prerequisites to its admissibility.id: 9961
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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.
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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