13.1 Litigation Support: Civil and Criminal Procedure, Trial Exhibits & Evidence Tampering
Key Takeaways
- Know the two procedural tracks: a civil action runs complaint, answer, discovery, motions, trial, and judgment, while a criminal case runs complaint, arraignment, preliminary hearing, information, pretrial motions, trial, and sentencing — the investigator's tasks differ at each stage.
- In a felony case the preliminary hearing under Penal Code § 872 requires only probable cause, and Proposition 115 permits qualified officers to testify to hearsay, which is why defence investigators focus on locating percipient witnesses early.
- Exhibits must be prepared to be authenticated: Evidence Code § 1400 requires proof that the writing is what its proponent claims, and Evidence Code § 1401 makes authentication a precondition to admission.
- Penal Code § 134 makes preparing false documentary evidence a felony, and Penal Code § 141 makes knowingly altering, planting, or concealing physical evidence with intent to cause a person to be charged a crime — an investigator's absolute limits.
- California recognises no independent tort of spoliation, so the remedies for destroyed evidence are CCP § 2023.030 sanctions and the adverse inference of Evidence Code § 413 and CACI 204.
Litigation Support: Civil and Criminal Procedure, Trial Exhibits & Evidence Tampering
Core Practice Standard: Content Area 3, Managing Trial Preparation and Court Proceedings, carries 10% of the examination, split evenly between subarea 3A, Litigation Support, and subarea 3B, Participation in Court Proceedings. This section covers 3A: knowing the procedures associated with criminal and civil proceedings, establishing the facts of an investigation in court, admissibility requirements, methods for providing support, preparing materials for use at trial, and the law on destruction of or tampering with evidence.
1. The Two Procedural Tracks
An investigator who does not know where a case sits cannot know what is useful.
Civil
Complaint filed -> Service (CCP § 583.210: 3 years to serve)
-> Answer / demurrer -> Discovery (written, depositions, subpoenas)
-> Discovery cutoff: 30 days before initial trial date (CCP § 2024.020)
-> Motions heard: no later than 15 days before trial
-> Mandatory settlement conference -> Trial -> Judgment -> Enforcement
The investigator's tasks by stage: locate and serve defendants at filing; locate and interview witnesses and gather records during discovery; prepare exhibits and assist with deposition preparation before cutoff; serve trial subpoenas; and after judgment, run the asset and enforcement work covered in Chapter 11.
Criminal
Arrest or citation -> Complaint filed -> Arraignment (PC § 976 et seq.)
-> [Felony] Preliminary hearing (PC § 872: probable cause standard)
-> Information filed -> Pretrial motions (PC § 995 dismissal;
PC § 1538.5 suppression) -> Trial -> Verdict -> Sentencing
The preliminary hearing is where defence investigators earn their keep. Penal Code § 872 requires only a showing of probable cause to hold the defendant to answer, and since Proposition 115 (1990) a qualified law enforcement officer may relate hearsay statements, so the prosecution rarely calls its percipient witnesses. The defence's independent picture of what those witnesses will say comes from the investigator, not from the transcript.
Two other criminal-side realities: the prosecution's disclosure duty under Penal Code § 1054.1 and Brady v. Maryland runs to material in the prosecution team's possession, so defence-side gaps are the defence investigator's to fill; and reciprocal defence disclosure under Penal Code § 1054.3 means the investigator's witness list and statements may themselves become disclosable — which is a reason to work through counsel and to understand the work-product boundaries in Chapter 5.
2. Building Exhibits That Survive Objection
An exhibit is only useful if it comes in. Work backwards from the rules.
| Requirement | Authority | What the investigator must supply |
|---|---|---|
| Relevance | Evidence Code §§ 210, 350 | A tendency in reason to prove or disprove a disputed material fact |
| Authentication | Evidence Code §§ 1400, 1401 | Proof that the writing is what the proponent claims; authentication is a precondition to admission |
| Secondary evidence | Evidence Code §§ 1521, 1523 | Copies are generally admissible; oral testimony about a document's content is restricted |
| Hearsay | Evidence Code §§ 1200, 1271, 1280 | A business or official records foundation where the exhibit is an out-of-court statement offered for its truth |
| Prejudice | Evidence Code § 352 | Exclusion where probative value is substantially outweighed by undue prejudice, confusion, or time |
Preparing the Set
- Bates number everything in a continuous sequence across the production; it is how counsel, the witness, and the court refer to a page under pressure.
- Build an exhibit index giving the number, description, source, date obtained, and the sponsoring witness who can authenticate it.
- Identify a sponsoring witness for every exhibit. If nobody can say what it is and where it came from, it does not come in.
- Prepare demonstratives separately. Timelines, scene diagrams, and link charts are illustrative aids, not substantive evidence; label them so, and be able to explain every underlying source.
- Preserve native files for digital exhibits with their metadata intact, and produce a printed version alongside. The metadata is often the authentication.
- Prepare the surveillance package as a unit: the raw unedited footage, the log, the still frames used at trial, the equipment description, and a declaration under CCP § 2015.5 covering custody and non-alteration.
- Redact under the rules, and produce an unredacted copy for in-camera review where required, rather than editing silently.
The most common exhibit failure is a video reel of "highlights" with no unedited original available. Once the original is gone or was never kept, the defence argument that the edit is misleading has no answer. Keep the original; offer the compilation as a demonstrative.
3. Deposition and Trial Support
- Witness location and service. Personal service of a civil trial subpoena, with witness fees tendered on demand.
- Deposition preparation packets for counsel: prior statements, a chronology, contradictions with documents, and the impeachment exhibits with Bates references.
- Real-time support at deposition or trial — an investigator seated with counsel who can locate a document, identify a face, or point out an inconsistency between testimony and a surveillance log is worth a great deal, and none of it requires the investigator to testify.
- Jury-related work is tightly limited. Investigating jurors during trial is dangerous ground, and any contact with a sitting juror risks Penal Code § 95 (corruptly influencing a juror) and contempt. The provisions to know are Penal Code § 95, which reaches corruptly attempting to influence a juror, and Penal Code § 96, which reaches a juror who promises a verdict. Do nothing in this area without express direction from counsel and, where required, the court.
4. The Absolute Limits: Tampering and Destruction (K91)
These are the statutes that end careers.
| Statute | Conduct | Level |
|---|---|---|
| Penal Code § 132 | Offering in evidence, as genuine, any forged or fraudulently altered document | Felony |
| Penal Code § 134 | Preparing any false or antedated book, paper, record, instrument, or other matter with intent to produce it as genuine in a proceeding | Felony |
| Penal Code § 135 | Wilfully destroying or concealing evidence about to be produced, with intent to prevent its production | Misdemeanour |
| Penal Code § 141 | Knowingly altering, modifying, planting, placing, manufacturing, concealing, or moving physical matter with specific intent that it be wrongfully produced as genuine or true | Felony where committed by a peace officer or prosecutor; misdemeanour generally |
| BPC § 7539(b) | Knowingly making a false report to the employer or client | Prohibited act; discipline under BPC § 7561.1 |
Editing surveillance footage to remove exculpatory activity is not a grey area: it prepares false evidence for a proceeding under § 134 and is a knowingly false report under § 7539(b).
Spoliation — The California Position
Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 held there is no independent tort for intentional first-party spoliation of evidence, and Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464 extended that to third-party spoliation. The remedies are therefore procedural and evidentiary:
- CCP § 2023.030 discovery sanctions — monetary, issue, evidence, or terminating;
- Evidence Code § 413, permitting the trier of fact to consider a party's wilful suppression of evidence, and the corresponding instruction at CACI 204;
- Criminal liability under Penal Code §§ 135 and 141 where the elements are met.
The operational consequence, as in Chapter 11: identify the evidence, document it in place, and send a written preservation demand with proof of delivery. That letter is what converts a later destruction into sanctionable conduct.
Case Example: The Highlight Reel
Scenario: Over four surveillance days an investigator records 22 hours of footage. Counsel asks for "the good parts." The investigator produces a nine-minute compilation, deletes the source files to free storage, and delivers the compilation with a declaration describing it as "surveillance of the claimant."
What goes wrong at trial. Opposing counsel asks for the original. There is none. Every editing decision becomes an inference against the client: what was in the deleted 21 hours and 51 minutes? The compilation's authentication under Evidence Code § 1400 is now contested, Evidence Code § 352 exclusion becomes realistic, and the destruction supports CCP § 2023.030 sanctions and the Evidence Code § 413 and CACI 204 adverse inference. The declaration describing the edit as "surveillance of the claimant" without disclosing that it is a compilation is, at best, a knowingly incomplete report under BPC § 7539(b).
What should have happened. Preserve all 22 hours with hash values. Produce the compilation clearly labelled as a demonstrative derived from identified time ranges within the original. Attach the surveillance log and a CCP § 2015.5 declaration covering the equipment, the custody chain, and the absence of alteration to the original. The compilation is then a tool, not a target.
Why do California defence investigators prioritise locating percipient witnesses before the preliminary hearing in a felony case?
An investigator produces a nine-minute compilation from 22 hours of surveillance and deletes the source files. What is the consequence?
Which statute does an investigator violate by creating an antedated witness statement for use in a pending civil action?
What must an investigator supply so that a documentary exhibit can be admitted?