14 Cal.App.5th 1019
Cal. Ct. App.2017Background
- Defendant Michael Vasquez was convicted (after a second jury) of eight counts of lewd and lascivious acts on two daughters; a prior trial had ended in a mistrial.
- During redirect of victim P.C., prosecution displayed an approximately 20-foot timeline created by P.C. with her therapist; timeline contained dated, detailed descriptions of alleged abuse and photos, and was shown to the jury though not formally admitted.
- The prosecutor questioned P.C. about statements on the timeline and displayed it in closing argument, urging the jury to rely on it as corroboration of the victims’ testimony.
- Defense objected that the timeline was hearsay, not proper demonstrative evidence, and that showing it effectively introduced inadmissible prior statements to bolster the witness.
- The Court of Appeal held the trial court committed reversible error by permitting the timeline to be published to the jury and allowing P.C. and the prosecutor to read its statements into the record, and reversed for a new trial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Vasquez) | Held |
|---|---|---|---|
| Whether the therapist-created timeline could be shown to the jury as a writing used to refresh recollection | Timeline legitimately refreshed P.C.’s memory and could be used as a demonstrative aid; impractical to show then remove because of size | Refreshing writings may not be shown to the jury; displaying it would improperly admit out-of-court statements | Not allowed: writings used to refresh memory may not be displayed to jury; showing timeline as refreshment was improper |
| Whether the timeline qualified as demonstrative evidence | Timeline is a demonstrative chronology that helps jurors visualize testimony (analogous to charts/maps) | Timeline is based on out-of-court statements and functions as substantive hearsay, not a neutral demonstrative chart | Not demonstrative: timeline contained hearsay and was used substantively to bolster credibility; publishing it was error |
| Whether permitting P.C. and prosecutor to read statements from timeline constituted admissible testimony | Questioning to explain what the jury saw was permissible once published as demonstrative | Reading the timeline put inadmissible hearsay into evidence and improperly rehabilitated witness after cross-examination | Error: statements read/published were hearsay and not admissible under refreshment, past recollection recorded, or prior-consistent-statement rules |
| Prejudice and remedy: whether the error was harmless | Timeline was cumulative; victim had testified to most facts; any error harmless given credibility of witnesses | Timeline was inflammatory, used heavily in closing, prior trial without timeline resulted in hung jury; error likely affected outcome | Reversal required: under Watson standard, reasonably probable verdict would be more favorable to defendant without the timeline; remand for new trial |
Key Cases Cited
- People v. Duenas, 55 Cal.4th 1 (2012) (distinguishing demonstrative evidence from substantive evidence)
- People v. Mills, 48 Cal.4th 158 (2010) (demonstrative exhibits like charts/maps illustrate witness testimony)
- People v. Parks, 4 Cal.3d 955 (1971) (writings used to refresh memory should not be read aloud before the jury)
- Estate of Packer, 164 Cal. 525 (1913) (longstanding rule: writings used to refresh cannot be shown to jury as evidence)
- People v. Watson, 46 Cal.2d 818 (1956) (standard for reversal: reasonably probable more favorable result absent error)