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EVIDENCE LAW
Evidence Expert Witness Law Case Summaries
 

■ People v. Curl, No. S034072

3.   Claims of Evidentiary Error

                              a.  Expert Witness

Defendant contends that the trial court abused its discretion when it denied his request to call Raymond Stevens, a private investigator, as an “expert to explain how an inmate informant can obtain information used to concoct a confession that was never made.”  Defendant contends that this testimony would have been relevant to show how David DeSoto “could assemble information about the accusations against [defendant] in order to create a fictitious confession . . . .” Defendant specifically disavows any claim that he sought to have Stevens’s testimony introduced to have Stevens render an opinion about DeSoto’s credibility under Evidence Code section 801.  Rather, he argues the evidence was admissible under Evidence Code section 720, which defines the qualifications of an expert witness.  Defendant contends that the latter statute would have permitted Stevens to testify to “the procedure [in the Los Angeles County jail] whereby inmates can gain information about cases which the inmate believes the prosecutors would be willing to offer to the inmate . . . and that the procedures are such that the inmate can find out the foundational information without in fact having a conversation with a particular individual” and from which the informant can cobble together a fictitious confession.  After an extended colloquy, the trial court denied the request “on grounds of relevancy, speculation, Evidence Code section 801.  It invades the province of the jury under Evidence Code section 780.  It calls for inadmissible lay opinion testimony.”[14]  We find no abuse of discretion.

At trial, defendant sought to admit the testimony of Raymond Stevens.  Stevens was a 24½‑year veteran of the Ventura County Sheriff’s Department before becoming a private investigator who worked on contract with the State Public Defender’s Office.  After the trial court sustained prosecution objections to questions about whether Stevens had dealt with inmate informants, a hearing was held outside the presence of the jury in which the defense made an offer of proof as to Stevens’ testimony.  Characterizing DeSoto as an “inmate informant,” defense counsel stated that Stevens had “qualified as an expert to render testimony about inmate informants, the process, the methods of selecting, evaluating and determining the truthfulness of their representations” and would render “his opinion regarding the validity of Mr. DeSoto in his role of an inmate informant.”  In this connection, defense counsel argued that sections of the Penal Code that singled out inmate informants recognized them “as a special breed of persons and witness [sic].”  Initially, the defense cited Evidence Code section 801 — permitting expert opinion testimony — as the basis of its request.

The prosecution objected on the grounds that there was insufficient foundation for the characterization of DeSoto as a long term inmate informant, that there was insufficient foundation that the subject of inmate informants was a matter for expert testimony, that the proposed testimony was neither material nor relevant, and that the proposed testimony would invade the jury’s province as the sole evaluator of witness credibility.  The trial court agreed that there was no support for permitting expert testimony on the subject of a witness’s credibility.  At that point, the defense backed away from its offer of proof, claiming it was not offering Stevens as an expert on whether DeSoto was being truthful, “but about the processes that were operative in L.A. County [jail] which would have been operative in the utilization of Mr. DeSoto as an inmate informant in this case . . . .”

Pressed by the court for specifics, the defense said that Stevens would testify “that there’s a regular flow of information in and about the area, how they gather it without talking with the person.  The only prerequisite that a person who wants to be an inmate informant really has is to be able to show at some point . . . being in the physical presence of another person.”  According to the defense, the inmate informant “gets that information by the flow of prisoners in and out of his environment, the use of the media, discussions with other people, phone calls to law enforcement officers,” and that law enforcement should use “safeguards” to avoid false testimony by inmate informants.  Asked by the court whether Stevens’s testimony was, in effect, “ a criticism of the law enforcement conduct in interviewing and accepting Mr. DeSoto’s statements” without applying such safeguards, defense counsel said, “That’s part of it.”

The trial court replied that whether police applied such standards or procedures was irrelevant when the only issue was DeSoto’s credibility, which was a matter for the jury to decide.  The court referred to section 1127a, which sets forth the special instruction to be given for the jury to assess the testimony of an in-custody informant.[15]  The court rejected the notion that, because the Legislature had adopted this statute, “there is a newly recognized field of expertise concerning inmate-informants . . . . [¶]  The relevant part of Mr. DeSoto’s testimony is what he had to say, whether there is any evidence of motive, bias, et cetera, which would have to be based on facts.  And it is simply a matter of assessing the veracity of a witness.  Whether some inmate-informants lie and some don’t is a truism . . . . [¶]  I think it comes back to the defense wanting this witness to give speculative information as to why this jury should conclude that this witness is not telling the truth.  You haven’t given me any specific offer of proof as to evidence that would rebut Mr. DeSoto’s testimony that the sole source of [his] information was [defendant], other than saying there is a methodology and it is something that occurs in detention facilities where inmate-informants have access to other information, and sometimes or frequently use that information as a basis for snitching and then claim that another inmate gave him that information and confessed, when it wasn’t the case.  That strikes me as pure speculation, something that I can’t let this jury do.”

In assessing defendant’s claim that the trial court erroneously excluded Stevens’s testimony, we apply the deferential abuse of discretion standard.  (People v. Jablonski (2006) 37 Cal.4th 774, 805 [“ ‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence . . . .’ ”].)  We find no abuse here.  We agree with the trial court that, to the extent the purpose or effect of Stevens’s testimony was to render an opinion about DeSoto’s credibility, the testimony was inadmissible.  (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 [“The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s testimony would assist the trier or fact; in other words, the jury generally is as well equipped as the expert to discern whether the witness is being truthful”].)  To the extent the purpose of the testimony was to demonstrate how inmate informants confabulate testimony, the trial court did not abuse its discretion in excluding the evidence on grounds of insufficient foundation in the absence of evidence either that DeSoto was a repeat inmate informant or of evidence contradicting his testimony that defendant was the sole source of his information.  Therefore, we reject defendant’s claim that the trial court erred when it excluded Stevens’s testimony.[16]

■ HELD:

Conviction for first degree murder and sentence of death is affirmed where: 1) the court's prior-murder special-circumstance finding was proper, as defendant does not have a right to a jury trial on the constitutional validity of his prior conviction and bears the burden of proving the invalidity by a preponderance of the evidence standard; 2) the record does not support defendant's claim of prosecutorial misconduct and trial court misconduct; 3) the trial court did not abuse its discretion in excluding impeachment evidence and limiting cross examination of a prosecution witness; and 4) the death penalty statute is not unconstitutional.
People v. Curl 5/18/09 -S034072-SC
People v. Curl 5/18/09 -S034072-SC  

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