Tag Archives: Proceedings

Proceedings

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Proceedings in California

Transnational Proceedings

Welcome to the California legal encyclopedia's introductory part covering the transnational proceedings laws of California, with explanations of the various implications of transnational proceedings in California and the statutes enforced in California in connexion with transnational proceedings. This introductory section covers case law related to transnational proceedings in California, the legal approach on transnational proceedings in the United States and related topics. The information below provides an California-specific general overview of the legal regime of transnational proceedings in California.

Transnational Proceedings in relation to Bankruptcy Law

This section analizes the legal issue of transnational proceedings in this context.

Pretrial Proceedings and Preliminary Matters

Welcome to the California legal encyclopedia's introductory part covering the pretrial proceedings and preliminary matters laws of California, with explanations of the various implications of pretrial proceedings and preliminary matters in California and the statutes enforced in California in connexion with pretrial proceedings and preliminary matters. This introductory section covers case law related to pretrial proceedings and preliminary matters in California, the legal approach on pretrial proceedings and preliminary matters in the United States and related topics. The information below provides an California-specific general overview of the legal regime of pretrial proceedings and preliminary matters in California.

Pretrial Proceedings and Preliminary Matters in relation to Criminal Law & Procedure

This section analizes the legal issue of pretrial proceedings and preliminary matters in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters.

Proceedings

Welcome to the California legal encyclopedia's introductory part covering the proceedings laws of California, with explanations of the various implications of proceedings in California and the statutes enforced in California in connexion with proceedings. This introductory section covers case law related to proceedings in California, the legal approach on proceedings in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings in California.

Proceedings in relation to Probate, Estates and Trusts

This section analizes the legal issue of proceedings in this context, and provides information on its relation with Administration of Estates.

Declaratory Judgments and Related Proceedings in California: General Overview

This entry offers readers with practical insight to the subject of declaratory judgments and related proceedings in California, a general introduction to the legal issues relating to declaratory judgments and related proceedings under California law and practice.

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Jurisdiction

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Jurisdiction in California

Jurisdiction

Welcome to the California legal encyclopedia's introductory part covering the jurisdiction laws of California, with explanations of the various implications of jurisdiction in California and the statutes enforced in California in connexion with jurisdiction. This introductory section covers case law related to jurisdiction in California, the legal approach on jurisdiction in the United States and related topics. The information below provides an California-specific general overview of the legal regime of jurisdiction in California.

Jurisdiction in relation to Criminal Law & Procedure

This section analizes the legal issue of jurisdiction in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters.

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Bail

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Bail

California Bail

This section covers California-specific basic information on bail and related topics. Many of California's laws on bail are similar to those of other U.S. states, with some differences (in some cases, minor differences). California bail laws on bail are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on bail, which is a basic matter in California law.

Bail and Recognizance

Welcome to the California legal encyclopedia's introductory part covering the bail and recognizance laws of California, with explanations of the various implications of bail and recognizance in California and the statutes enforced in California in connexion with bail and recognizance. This introductory section covers case law related to bail and recognizance in California, the legal approach on bail and recognizance in the United States and related topics. The information below provides an California-specific general overview of the legal regime of bail and recognizance in California.

Bail and Recognizance in relation to Criminal Law & Procedure

This section analizes the legal issue of bail and recognizance in this context, and provides information on its relation with Proceedings Before Prosecution.

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Grand Jury

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Grand Jury

California Grand Jury

This section covers California-specific basic information on grand jury and related topics. Many of California's laws on grand jury are similar to those of other U.S. states, with some differences (in some cases, minor differences). California grand jury laws on grand jury are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on grand jury, which is a basic matter in California law.

Grand Jury in relation to Criminal Law & Procedure

This section analizes the legal issue of grand jury in this context, and provides information on its relation with Proceedings to Commence Prosecution

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Venue

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Venue

California Venue

This section covers California-specific basic information on venue and related topics. Many of California's laws on venue are similar to those of other U.S. states, with some differences (in some cases, minor differences). California venue laws on venue are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on venue, which is a basic matter in California law.

California Venue

This section covers California-specific basic information on venue and related topics. Many of California's laws on venue are similar to those of other U.S. states, with some differences (in some cases, minor differences). California venue laws on venue are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on venue, which is a basic matter in California law.

Venue in relation to Criminal Law & Procedure

This section analizes the legal issue of venue in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters

Venue in California: General Overview

This entry offers readers with practical insight to the subject of venue in California, a general introduction to the legal issues relating to venue under California law and practice.

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Examination

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Examination in California

Preliminary Examination

Welcome to the California legal encyclopedia's introductory part covering the preliminary examination laws of California, with explanations of the various implications of preliminary examination in California and the statutes enforced in California in connexion with preliminary examination. This introductory section covers case law related to preliminary examination in California, the legal approach on preliminary examination in the United States and related topics. The information below provides an California-specific general overview of the legal regime of preliminary examination in California.

Preliminary Examination in relation to Criminal Law & Procedure

This section analizes the legal issue of preliminary examination in this context, and provides information on its relation with Proceedings to Commence Prosecution.

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Arraignment

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Arraignment in California

Arraignment and Pleas

Welcome to the California legal encyclopedia's introductory part covering the arraignment and pleas laws of California, with explanations of the various implications of arraignment and pleas in California and the statutes enforced in California in connexion with arraignment and pleas. This introductory section covers case law related to arraignment and pleas in California, the legal approach on arraignment and pleas in the United States and related topics. The information below provides an California-specific general overview of the legal regime of arraignment and pleas in California.

Arraignment and Pleas in relation to Criminal Law & Procedure

This section analizes the legal issue of arraignment and pleas in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters.

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Prosecution

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Prosecution in California

For California Attorneys: Malicious Prosecution

( August 2000 ) After rejoicing over a civil verdict for the defense, defense lawyers often hear their clients ask, “Now, can we sue them for malicious prosecution?” Despite the impulse of the successful defendant to sue a perceived persecutor, malicious prosecution lawsuits do not immediately follow every defense verdict, because meeting the burden of proof on the elements of malicious prosecution is very difficult.

Malicious prosecution continues to be a disfavored cause of action. Crowley v Katleman (1994) 8 C4th 666, 680; Babb v Superior Court (1971) 3 C3d 841, 847. Although most litigators are generally familiar with the concept of malicious prosecution, recent case law continues to define — and sometimes limit — the elements of the tort.

The Parties

In malicious prosecution cases, the players are often confusing because the plaintiff in the first case becomes the defendant in the second case and vice versa. The first suit is referred to as the underlying case (UC), in which the UC plaintiff unsuccessfully sued the UC defendant, who then brings the suit for malicious prosecution (MP). Thus, the UC plaintiff and the MP defendant are the same, the UC defendant and the MP plaintiff are the same, and the UC plaintiff’s attorney and the MP attorney-defendant are the same.

The Elements

The elements of malicious prosecution arising out of a civil case are as follows: (1) The MP defendant initiated or was actively instrumental in the commencement or maintenance of a civil proceeding against the MP plaintiff, (2) The civil proceeding against the MP plaintiff terminated in the MP plaintiff’s favor, (3) The MP defendant acted without probable cause in commencing or maintaining the civil proceeding, (4) The MP defendant acted with malice, and (5) The malicious actions of the MP defendant caused the MP plaintiff to suffer injury, damage, loss, or harm. California Jury Instructions-Civil (BAJI) 7.30 (West Pub., 1995); see also, Judicial Council of California Civil Jury Instructions (CACI) 1501 (West Pub., 2003). The elements of favorable termination, lack of probable cause, and malice are the focal points of most published opinions on malicious prosecution.

Probable Cause

To obtain summary adjudication on a cause of action, or summary judgment if only one cause of action is alleged, a defendant need only defeat one element of the claim. CCP §437c(o)(2). Because probable cause is to be determined by the court based on an objective standard rather than a subjective standard, Sheldon Appel Co. v Albert & Oliker (1989) 47 C3d 863, 885, a summary judgment motion on probable cause often is the MP defendant’s first line of attack. The probable cause standard is whether any reasonable attorney would have thought the claim tenable, or not frivolous. A claim is frivolous only if any reasonable attorney would agree that it is totally and completely without merit. Sheldon Appel, 47 C3d at 885-886.

Unlike a defendant, a plaintiff cannot seek summary adjudication on an element of a cause of action, because such a motion must be directed to an entire cause of action, an affirmative defense, or an issue of duty. CCP §437c(f), (o)(1). Hence, an MP defendant’s summary judgment motion on the issue of probable cause should not risk a countermotion being granted for the MP plaintiff by the trial court on the same issue.

The UC plaintiff’s loss of the underlying case does not automatically establish a lack of probable cause, nor does it raise such an inference. Nicholson v Lucas (1994) 21 CA4th 1657, 1670; Klein v Oakland Raiders, Ltd. (1989) 211 CA3d 67, 82 n7. Nevertheless, rulings in the underlying case can establish the existence of probable cause for the MP case. For example, a victory at trial, even if reversed on appeal, will establish probable cause unless it was procured by fraud. Cowles v Carter (1981) 115 CA3d 350, 355-59. Similarly, denial of the UC defendant’s motion for summary judgment in an earlier case normally establishes there was probable cause to sue, thus barring a later malicious prosecution suit, unless, for example, the summary judgment motion was denied because of materially false evidence. Roberts v Sentry Life Ins. (1999) 76 CA4th 375, 384; see also, Wilson v. Parker, Covert & Chidester, (2002) 28 C4th 811 (denial of anti-SLAPP motion on merits precludes later MP case).

Although the element of probable cause is an issue of law, it does have both a factual and a legal component. Leonardini v Shell Oil Co. (1989) 216 CA3d 547, 570 (facts were not disputed, case turned on legal question). A lack of probable cause may arise from an insufficiency in the facts or the law. Puryear v Golden Bear Ins. Co. (1998) 66 CA4th 1188, 1195.

When a plaintiff is put on notice that a fundamental element of its case is disputed, to avoid potential liability for malicious prosecution it should not proceed without sufficient evidence to support a favorable judgment on that element, or at least information supporting an inference that the evidence can be obtained. In one recent MP case the underlying case was based on a guarantee. However, the purported guarantor claimed his signature was a forgery and provided a reasonable explanation of who committed the forgery and how that person obtained his personal information. The underlying case was held to be untenable because the UC plaintiff had no objective evidence to establish otherwise. Arcaro v Silva and Silva Enterprises Corp. (1999) 77 CA4th 152, 158-159.

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Malice

The issue of malice is determined, in part, by evidence that the UC plaintiff wished to vex, annoy, or injure the UC defendant. It does not necessarily require that the UC plaintiff be angry or vindictive or bear any actual hostility or ill will toward the UC defendant. Instead, it means an attitude or state of mind that actuates the commission of an act for some improper or wrongful motive or purpose. BAJI 7.34; see also, CACI 1504. Although hatred or ill will by the UC plaintiff toward the UC defendant is unnecessary, it may be persuasive to prove motive.

Malice cannot be inferred from a lack of probable cause. Downey Venture v LMI Ins. Co. (1998) 66 CA4th 478, 498 and n29; Leonardini, 216 CA3d at 567. It is improper to instruct the jury that it may infer malice from a lack of probable cause, even if the judge in the MP case finds as a matter of law that there was no probable cause for the underlying case. The MP defendant may even be entitled to a specific jury instruction that the jury may not infer malice from a lack of probable cause.

Insurance Coverage

The Downey Venture case is also significant because the dispute over which it arose was whether insurance coverage for a malicious prosecution claim existed under a comprehensive general liability (CGL) policy. The insurance policy in question specifically covered personal injury, which was defined to include “malicious prosecution.” Nevertheless, the court held that under Insurance Code section 533, which precludes insurance coverage (or indemnification) for a willful act of the insured, there can be no indemnification for malicious prosecution liability, since it is a tort that constitutes a willful act. 66 CA4th at 506. Significantly, section 533 was held not to defeat the duty to defend. 66 CA4th at 509. Thus, an insurer that issues a CGL policy with this “personal injury” language must provide a defense to a malicious prosecution suit, even though it will not pay a judgment or be obligated to pay a settlement.

Favorable Termination

The termination of a prior civil proceeding must reflect on the merits of the UC plaintiff’s claim to constitute a favorable termination for purposes of a cause of action for malicious prosecution. For example, malicious prosecution does not lie for the termination of an action by a statute of limitations defense, which is technical or procedural. Lackner v La Croix (1979) 25 C3d 747, 750-51. Termination must reflect on the UC defendant’s innocence of the alleged wrongful conduct. BAJI 7.32. A favorable termination must apply to the entire UC lawsuit, although lack of probable cause can be found as to a single theory of liability. Crowley, 8 C4th at 686, or a portion of claimed damages, Citi-Wide Preferred Couriers v Golden Eagle Ins. Corp., 2003 Cal. App. LEXIS 1957 (2d Dist., 12/30/03).

Nevertheless, a favorable termination may not give rise to a successful MP claim in certain types of civil proceedings that are not qualifying “prior actions.” For example, it may have been a subsidiary piece of ongoing litigation rather than an independent action. Merlet v Rizzo (1998) 64 CA4th 53, 59-60. Another court refused to allow an MP action based on the outcome of an arbitration because the private contractual arbitration was not a “prior action.” Sagonowsky v More (1998) 64 CA4th 122, 130, 134. However, a more recent holding clarifies that a private arbitration proceeding does not necessarily preclude an MP action. The critical inquiry is what the parties intended when they entered into the agreement providing for private arbitration. Brennan v Tremco, Inc. (2000) 78 CA4th 391, 395 (holding that triable issue of material fact existed on the issue of intent).

Development of Prosecution for Attorneys

The Advice of Counsel Defense

The MP defendants are aligned in their defense of most elements in a malicious prosecution case, but that alignment can diverge significantly when the MP defendant asserts the “advice of counsel” defense. This defense is an issue that may be ripe for new law, particularly with regard to the timing of raising the defense.

Under the advice of counsel defense, the UC plaintiff must have sought in good faith the advice of an attorney before commencing or maintaining the civil proceeding against the UC defendant. The UC plaintiff also must have made a full, fair, and complete disclosure to the attorney of all the pertinent and material facts of which the UC plaintiff had knowledge tending to prove or disprove the civil allegations and thereafter acted on the advice of the attorney and in the belief of the UC defendant’s civil liability for the alleged wrong. BAJI 7.36; see also, CACI 1505.

The most significant effect of the advice of counsel defense is that it necessarily waives the attorney-client privilege with regard to communications between the client and attorney on the advice given and relied on. Transamerica Title Ins. Co. v Superior Court (1987) 188 CA3d 1047, 1054. The advice of counsel defense goes to the element of probable cause and negates an essential allegation of the complaint. State Farm Mutual Auto. Ins. Co. v Superior Court (1991) 228 CA3d 721. Therefore an MP defendant strategically would prefer to raise the advice of counsel defense only after his or her summary judgment motion on the issue of probable cause is brought and denied. If the motion is successful, the advice of counsel defense becomes moot.

As a result of this strategic preference, the timing of raising the defense can create a discovery complication because much discovery typically is conducted before the probable cause summary judgment motion is filed. If the advice of counsel defense is asserted early, discovery will include attorney-client communications on the advice given and relied on. Discovery will not include attorney-client communications before the advice of counsel defense is asserted. When the defendant asserts it after a summary judgment motion on probable cause fails (or is successful but reversed on appeal), a new wave of discovery will be triggered, some of which may be repetitive.

In order to force the MP defendant to waive the attorney-client privilege early, the MP plaintiff may serve an interrogatory asking if the MP client-defendant is relying on the advice of counsel defense. On receiving a response such as “not at this time, but defendant reserves the right to do so,” the MP plaintiff may file a motion to compel the MP client-defendant to elect.

The MP plaintiff may lose that motion or elect not to press the issue in the first place. Then, after the summary judgment motion is denied and the MP defendant seeks to raise the defense, the MP plaintiff may argue that the advice of counsel defense is an affirmative defense that had to be raised in the answer or be waived. CCP §431.30; Bertero v Nat’l Gen’l Corp. (1974) 13 C3d 43, 53 (advice of counsel is affirmative defense); Walsh v West Valley Mission Comm. College Dist. (1998) 66 CA4th 1532, 1546 (matters not responsive to essential allegations of the complaint must be raised in the answer). See, Weil & Brown, California Practice Guide, 1 Civil Procedure Before Trial §6:430 (The Rutter Group, 1983 & Supp. 1999).

In contrast to the MP plaintiff’s argument, the MP client-defendant will maintain that the defense is raised by a general denial and can be reserved (usually in discovery responses) and asserted at any time before trial. Since an advice of counsel defense negates an element of plaintiff’s cause of action, it does not constitute new matter, need not be pleaded as an affirmative defense, and is raised by a general denial. State Farm, 228 CA3d at 725-27; Albertson v Raboff (1960) 185 CA2d 372, 386 (holding that the advice of counsel defense may be raised by a general denial in the answer); 1 Civil Procedure Before Trial §6:438.

As a practical matter, the issue may never reach the California Supreme Court. An MP plaintiff typically welcomes the assertion of the defense, even at a later date, because the concomitant waiver of the attorney-client privilege permits the MP plaintiff to obtain otherwise nondiscoverable communications.

Details

The Unclean Hands Defense

The defense of unclean hands, which precludes equitable remedies for a tainted plaintiff, applies quite broadly to MP cases. The MP plaintiff in a recent case argued that even if the defense of unclean hands applied, the only relevant misconduct was that which had affected the MP defendant’s decision to file the underlying case. The court of appeal rejected this argument and permitted broad evidence of any misconduct either in the particular transaction or connected to the subject matter of the litigation that affected the equitable relations between the litigants. Kendall-Jackson Winery Ltd. v Superior Court (2000) 76 CA4th 970, 974.

The unclean hands defense necessarily is fact-intensive, which may render it inappropriate at the summary judgment stage. Nevertheless, this recent opinion may have a dramatic effect on the unclean hands defense during discovery and at trial. Specifically, the MP plaintiff’s prior conduct can be put on trial so that the evidence of purported wrongdoing will not be one-sided. However, MP defendants must be cautious. By attacking the MP plaintiff they may bolster the MP plaintiff’s evidence of malice by suggesting to the jury that the MP defendant continues to attack the MP plaintiff, in addition to lacking probable cause in the MP defendant’s prior unwarranted attack on the MP plaintiff in the underlying case. To be strategically safe, the evidence of unclean hands would need to be sufficiently heinous that a jury would conclude that any animosity that exists between the parties was caused by the MP plaintiff and not by the MP defendant. Unfortunately, there is no formula by which to gauge the sufficiency of that evidence.

Proceedings Before Prosecution

Welcome to the California legal encyclopedia's introductory part covering the proceedings before prosecution laws of California, with explanations of the various implications of proceedings before prosecution in California and the statutes enforced in California in connexion with proceedings before prosecution. This introductory section covers case law related to proceedings before prosecution in California, the legal approach on proceedings before prosecution in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings before prosecution in California.

Proceedings Before Prosecution in relation to Criminal Law & Procedure

This section analizes the legal issue of proceedings before prosecution in this context, and provides information on its relation with Proceedings Before Prosecution.

Proceedings to Commence Prosecution

Welcome to the California legal encyclopedia's introductory part covering the proceedings to commence prosecution laws of California, with explanations of the various implications of proceedings to commence prosecution in California and the statutes enforced in California in connexion with proceedings to commence prosecution. This introductory section covers case law related to proceedings to commence prosecution in California, the legal approach on proceedings to commence prosecution in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings to commence prosecution in California.

Proceedings to Commence Prosecution in relation to Criminal Law & Procedure

This section analizes the legal issue of proceedings to commence prosecution in this context, and provides information on its relation with Proceedings to Commence Prosecution.

False Imprisonment and Malicious Prosecution in California: General Overview

This entry offers readers with practical insight to the subject of false imprisonment and malicious prosecution in California, a general introduction to the legal issues relating to false imprisonment and malicious prosecution under California law and practice.

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Trial

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Trial in California

For California Attorneys: Email at Trial

( August 2015 ) Email evidence has dramatically changed the way cases are tried. Not only do juries expect to hear from live witnesses, they also want to see the emails and text messages relating to the dispute. An email properly deployed at trial may well eclipse even live testimony. For example, if a key witness’s independent recollection of events (also a focal point at trial) is inconsistent with a contemporaneous email, the testimony may well be viewed as irrelevant—or worse, as indicating the witness is lying.

But be warned: Just because the communication is an email does not mean it’s admissible into evidence. Indeed, even more so than traditional documents, emails are ripe for challenges based on both authenticity and hearsay. For example, emails do not contain a handwritten signature, and often times they omit even an electronic signature. Furthermore, emails are highly susceptible to manipulation after the fact: An email forwarded to another recipient can be altered with ease and often without detection. Also, with long email chains there may be multiple layers of hearsay, not to mention the possibility of conflicting time stamps if senders and recipients reside in different time zones. But perhaps most problematic of all, email has become so ubiquitous that senders often do not apply much forethought or discretion when shooting off what they perceive to be a casual message. Such a message may be loaded with charged language or insensitive humor that is easily taken out of context.

Despite all the inherent challenges, email is here to stay. Therefore, it is essential for advocates to understand how to effectively use email communications at trial.

The approach a litigator takes to email will differ depending on whether the email in question is helpful or harmful to the client. The proponent of the email needs to know the rules to make sure to get it in front of the fact finder, and to use it effectively. At the same time, the opponent of the email needs to know the rules to try to keep it out, or at least how to deal with a harmful email that will be admitted into evidence.

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Hypothetical Case

Consider this hypothetical: Brian, the CEO of a large pharmaceutical company (Large Pharma, Inc.) faces criminal prosecution for agreeing with Alex, the CEO of a competing company (Rival Drug Co.), to divide up the world market for a new vitamin supplement. Their respective companies are the only significant players in the relevant market. Through discovery, the prosecutor has obtained a copy of an email exchange between Brian and his assistant, Charlie:

Authentication Dynamics

The prosecutor will seek admission of the email as evidence that Brian discussed with Alex an illegal scheme to “split up” the vitamin market and that Brian knew this was illegal, since he directed a subordinate (Charlie) to take the conversation offline.

The prosecutor will first need to authenticate the email. California law provides that authentication of a writing is required before it may be received into evidence. (See Cal. Evid. Code §§ 1401.) The parallel federal rules articulate the basic test: “[T]he proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” (Fed. R. Evid. 901(a).) And remember, if there is a chain of emails, authentication will be required for each “link” of the chain. (See SDS Korea Co., Ltd. v. SDS USA, Inc., 732 F. Supp. 2d 1062 (S.D. Cal. 2010))

The main authentication challenge to emails is authorship. How can you verify the true sender of an email? Even in the presence of an electronic signature or the sender’s name, it is conceivable that someone other than the purported sender logged into the author’s account and drafted and sent the email. Furthermore, there is an ever-present risk of manipulation, alteration, or corruption of the email after the fact.

In our hypothetical, let’s assume that Brian will not testify because in a criminal prosecution he has the right to remain silent under the Fifth Amendment. Therefore, the prosecutor will need to authenticate the email without relying on Brian’s testimony. There are several options to accomplish this:

The prosecutor can ask the defendant to stipulate to the authentication of emails. (See County of Alameda v. Risby 28 Cal. App. 4th 1425, 1430 (1994).) Because it is likely that Brian will have emails that he wants to use in his defense, the prosecutor may wish to offer a stipulation that allows for authentication of all emails produced from the company’s server. In federal court, this issue can be raised early on at the Rule 26 conference that precedes the onset of discovery.

The prosecutor could have Charlie authenticate the email through testimony.

The email may be self-authenticating. Under federal law, documents are self-authenticating when there is “[an] inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.” (Fed. R. Evid. 902(7).) Even if it is not truly self-authenticating, an email can be authenticated based on its distinguishing features, such as “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” (See Fed. R. Evid. 901(b)(4); United States v. Safavian, 435 F. Supp. 2d 36, 3940 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008))

In the civil context, a request for admissions may be used to authenticate email. (See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 553 (D. Md. 2007).)

Development of Trial for Attorneys

Keeping It Out

Understanding the negative implications the email may provoke—and the import juries ascribe to email communications in general—defense counsel will likely challenge the admissibility of the Brian-Charlie emails. To do so, defense counsel should consider a motion in limine. Such a motion will allow the opponent of the email to argue the admissibility issue outside the presence of the jury. If the opponent’s argument is successful, the jury could be precluded from even learning of the email’s existence.

In challenging authentication, defense counsel often argue that an email message should be excluded because it could have been altered or manipulated. It is certainly possible that Charlie—or someone else—altered the email to fabricate evidence. However, absent real evidence of affirmative manipulation, this argument is unlikely to be persuasive. Numerous courts have held that the existence of a mere possibility of manipulation does not automatically lead to exclusion of electronic evidence on authentication grounds. (See United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988); Safavian, 435 F. Supp. 2d at 3940 (“The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents).” (emphasis by the court)))

However, when there is concrete evidence of manipulation, opponents should vigorously seek exclusion on authentication grounds.

Is It Relevant?

An alternative challenge is to argue that the communication is not relevant. For evidence to be admissible, it must be relevant to the case without being unfairly prejudicial. (Fed. R. Evid. 402, 403; Cal. Evid. Code §§ 350, 352.) Going back to our hypothetical, defense counsel could argue that there is no evidence that Brian’s email occurred after Charlie’s email (because the time stamps may be off). And if Brian’s email came first, it could merely show a boss asking for a meeting with his assistant in an irrelevant exchange.

Defense counsel could also argue that any probative value from the email is outweighed by the time-consuming and prejudicial endeavor of determining what the word split means. In this regard, there would no doubt be a pitched battle over the term: Defense counsel would argue split refers to splitting the dinner bill; the prosecution would assert that it refers to criminal collusion to split the market. Defense counsel will argue that this skirmish would result in an unnecessary departure from the real issues, in effect amounting to a diversionary “trial within a trial.” (See People v. Hamilton, 45 Cal. 4th 863, 930 (2009) (finding that the trial court did not abuse its discretion under Cal. Evid. Code § 352 by excluding evidence that “would have required ‘a mini-trial.’ “))

A final means of excluding the email would be a motion in limine based on hearsay. All first-year law students (and many fans of television courtroom dramas) know that hearsay is presumptively inadmissible. (See Fed. R. Evid. 802; Cal. Evid. Code § 1200.) Email, like all evidence, is subject to the hearsay rule.

Defense counsel would likely argue that the email in question constitutes hearsay, and it certainly does meet the basic definition of that term: an out-of-court statement offered for the truth of the matter asserted.

Is It an Admission?

The first and simplest way to avoid the hearsay rule is to sidestep it entirely by arguing the email is not hearsay at all. Both the California Evidence Code and the Federal Rules provide that admissions by a party opponent do not constitute hearsay. (See Cal. Evid. Code § 1220; Fed. R. Evid. 801(d)(2).). In our hypothetical, the prosecution could argue there has been an adoptive admission because Brian did not deny “splitting” when he responded to Charlie.

Hearsay Exceptions

Even if an email qualifies as hearsay, numerous exceptions have been applied to email communications. In fact, the vast majority of corporate emails are introduced under the business-records exception. The standard for electronic business records is the same as for paper business records. For a document to be admissible as a business record, the following conditions must be satisfied: (1) the writing was made in the regular course of business, (2) it must have been made at or near the time of the act, condition, or event it describes, (3) a qualified witness testifies to the identity of the record and how it was prepared, and (4) the method and time of preparation of the record were such as to indicate its trustworthiness. (See Cal. Evid. Code § 1271; Fed. R. Evid. 803(6))

Courts have applied this exception to admit emails as business records. (See Pierre v. RBC Liberty Life Ins., No. 05-1042-C, 2007 WL 2071829, at *2 (M.D. La.) (finding that emails fell within Rule 803(6) because they “were prepared by … employees during the ordinary course of business.”).) Even so, application of the business-records exception is not automatic. Failure to establish that emails were actually prepared in the regular course of business can result in their exclusion. (See State of New York v. Microsoft Corp., 2002 WL 649951, at *2 (D.D.C.) (declining to admit emails under the business-records exception because there was a “complete lack of information regarding the practice of composition and maintenance of [the] e-mails.”); United States v. Ferber, 966 F. Supp. 90, 99 (D. Mass. 1997) (declining to admit emails as business-records because the author of the emails “was under no business duty to make and maintain” them.).)

Details

State of Mind

Our hypothetical email may also qualify under the state-of-mind exception to the hearsay rule. California law provides for the admissibility of out-of-court statements when “[t]he evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action.” (Cal. Evid. Code § 1250; see also Fed. R. Evid. 803(3).) Bear in mind that in this context the “immediacy” of the memorialization of events will be critical.

An email may also qualify as a “past recollection recorded.” However, in that instance the email itself may not actually come into evidence, but it can still be useful as a tool to refresh a witness’s faded memory. (See Cal. Evid. Code § 1237; Fed. R. Evid. 803(5))

Using the Email

Assuming that our hypothetical email has been admitted into evidence, how should counsel take advantage of it?

The prosecutor’s goal will be to establish that Brian’s “please see me” was a deliberate avoidance of Charlie’s question so as to avoid a paper trail of illegal conduct. To accomplish this, the prosecutor would likely call Charlie to testify. After authentication of the email, the prosecutor might enlarge an image of the email on a video screen and then question Charlie about the conversation that took place after the message was received.

In taking this approach, it is to the proponent’s benefit to introduce the email before the witness has an opportunity to give testimony that deviates from the email’s content, so that the witness is locked into the statements in the email and disinclined to tell another story. At this point, the prosecutor will want Charlie to confirm that Brian moved the conversation offline, as the text of the email suggests.

In response, defense counsel will likely have some cleaning up to do. The first step for dealing with a harmful email is to contextualize it. Defense counsel would be well served to introduce other situations in which Brian liked to have oral conversations about innocuous topics simply because it was more convenient than corresponding via email. Also helpful would be evidence showing that Charlie used the word split to refer to splitting the dinner tab as opposed to splitting up the market. Finally, evidence indicating that Charlie was not aware of any illegal scheme (and therefore could not be inquiring about illegal conduct) would be helpful. In any event, it is crucial to learn about Charlie’s view of the email in advance.

As the trial court recognized in Safavian, “[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world.” (435 F. Supp. 2d at 41.) Indeed, email evidence is a powerful tool that can bolster consistent testimony or undercut inconsistent evidence. For that reason, trial lawyers should devote considerable time to analyzing the admissibility issues surrounding email communications. Lawyers who master these points will be best equipped to deal nimbly with email in the midst of trial.

California Trial

This section covers California-specific basic information on trial and related topics. Many of California's laws on trial are similar to those of other U.S. states, with some differences (in some cases, minor differences). California trial laws on trial are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on trial, which is a basic matter in California law.

Fitness to Stand Trial or to Plead

Welcome to the California legal encyclopedia's introductory part covering the fitness to stand trial or to plead laws of California, with explanations of the various implications of fitness to stand trial or to plead in California and the statutes enforced in California in connexion with fitness to stand trial or to plead. This introductory section covers case law related to fitness to stand trial or to plead in California, the legal approach on fitness to stand trial or to plead in the United States and related topics. The information below provides an California-specific general overview of the legal regime of fitness to stand trial or to plead in California.

Fitness to Stand Trial or to Plead in relation to Criminal Law & Procedure

This section analizes the legal issue of fitness to stand trial or to plead in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters.

Fitness to Stand Trial or to Plead

Welcome to the California legal encyclopedia's introductory part covering the fitness to stand trial or to plead laws of California, with explanations of the various implications of fitness to stand trial or to plead in California and the statutes enforced in California in connexion with fitness to stand trial or to plead. This introductory section covers case law related to fitness to stand trial or to plead in California, the legal approach on fitness to stand trial or to plead in the United States and related topics. The information below provides an California-specific general overview of the legal regime of fitness to stand trial or to plead in California.

Fitness to Stand Trial or to Plead in relation to Criminal Law & Procedure

This section analizes the legal issue of fitness to stand trial or to plead in this context, and provides information on its relation with Pretrial Proceedings and Preliminary Matters.

Time, Mode and Conduct of Trial

Welcome to the California legal encyclopedia's introductory part covering the time, mode and conduct of trial laws of California, with explanations of the various implications of time, mode and conduct of trial in California and the statutes enforced in California in connexion with time, mode and conduct of trial. This introductory section covers case law related to time, mode and conduct of trial in California, the legal approach on time, mode and conduct of trial in the United States and related topics. The information below provides an California-specific general overview of the legal regime of time, mode and conduct of trial in California.

Time, Mode and Conduct of Trial in relation to Criminal Law & Procedure

This section analizes the legal issue of time, mode and conduct of trial in this context, and provides information on its relation with Trial.

Trial in relation to Criminal Law & Procedure

This section analizes the legal issue of trial in this context, and provides information on its relation with Trial

Trial in California: General Overview

This entry offers readers with practical insight to the subject of trial in California, a general introduction to the legal issues relating to trial under California law and practice.

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Searches

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Searches

California Searches

This section covers California-specific basic information on searches and related topics. Many of California's laws on searches are similar to those of other U.S. states, with some differences (in some cases, minor differences). California searches laws on searches are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on searches, which is a basic matter in California law.

Search and Seizure

Welcome to the California legal encyclopedia's introductory part covering the search and seizure laws of California, with explanations of the various implications of search and seizure in California and the statutes enforced in California in connexion with search and seizure. This introductory section covers case law related to search and seizure in California, the legal approach on search and seizure in the United States and related topics. The information below provides an California-specific general overview of the legal regime of search and seizure in California.

Search and Seizure in relation to Criminal Law & Procedure

This section analizes the legal issue of search and seizure in this context, and provides information on its relation with Proceedings Before Prosecution.

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