Trial court erred in permitting the prosecution to display a 20-foot timeline of child molestation incidents, which was created by the victim and her therapist, as a demonstrative exhibit. Vasquez was charged with various sex offenses involving two minors. The first trial resulted in a hung jury. At the retrial, defense counsel highlighted several inconsistencies in minor P.C.’s testimony during her cross-examination. On redirect, over defense objection, the trial court allowed the prosecution to use a 20-foot timeline created by P.C. and her therapist, which detailed P.C.’s recollection of the sexual interaction between Vasquez and P.C., as “a demonstrative piece of evidence.” The jury was allowed to view the timeline. The prosecutor asked P.C. a number of questions concerning statements written on the timeline and repeatedly referred to it during his closing argument, urging the jury to rely on the timeline in rejecting Vasquez’s contentions of inconsistencies. The jury convicted Vasquez of all charges. Vasquez appealed. Held: Reversed. Demonstrative evidence is not offered as substantive evidence, but rather as a tool to aid the jury in understanding the substantive evidence. While a chart summarizing a witness’ testimony might constitute a proper demonstrative exhibit, the timeline in this case did not resemble such a chart. Most fundamentally, the timeline was based on out-of-court statements by P.C. to her therapist, not on her in-court testimony. The prosecutor argued that the jury should accord the timeline substantive effective in proving the charged offenses, which is an impermissible use of demonstrative evidence. The prosecutor also argued that the timeline was relevant to determining P.C.’s credibility. The Court of Appeal was not aware of any “authority that would permit the jury to rely on a demonstrative exhibit in such a fashion in determining the credibility of a witness. The trial court erred in permitting the People to display the timeline as demonstrative evidence.

The timeline could not be displayed to the jury as a writing to refresh the witness’ recollection. At trial, the prosecutor also argued that the timeline would refresh P.C.’s recollection. During P.C.’s testimony on redirect, the prosecutor and P.C. read statements directly from the timeline into evidence and the jury was allowed to view the statements written on the timeline. This was also error. Although a writing may be used to refresh a witness’ recollection, it is well established that a party refreshing a witness’ recollection may not treat the writing as evidence by showing it to the jury. (Estate of Packer (1913) 164 Cal.525, 530.) The writing used to refresh the witness’ recollection has no independent evidentiary value and is not admissible evidence. Notwithstanding this well-established law, on appeal the People argued that, due to the large size of the timeline, “it was not practical to show P.C. the timeline and then take it away after her memory was refreshed,” citing no authority to support this exception. The Court of Appeal held that the fundamental prohibition against displaying inadmissible evidence to the jury may not be circumvented merely because it would not be practicable. The court also rejected the People’s argument that Vasquez’s claim related to reading statements from the timeline into evidence was forfeited. Defense counsel argued that it is improper for the jury to see what a witness is refreshing her recollection from and further objections would have futile in light of the trial court’s ruling permitting the prosecutor to display the timeline. The Court of Appeal concluded that the trial court’s error in permitting the prosecutor and to display the timeline and allowing P.C. to testify as to statements on the timeline required reversal. The strength of the remaining evidence of Vasquez’s guilt was not so overwhelming that the court could conclude that this was a harmless error under Watson. [Editor’s Note: The court noted that, if similar evidence regarding the molestation incidents is presented at a retrial as was presented in this case, the trial court should instruct the jury pursuant to the unanimity instruction contained in CALCRIM No. 3501, rather than CALCRIM No. 3500.]

Appellant’s claim of discriminatory prosecution in his motion for a new trial was properly denied. After the jury reached a guilty verdict in this case, Vasquez moved for a new trial, alleging the district attorney’s office had a conflict of interest requiring its recusal because various staff members in the office had personal relationships with P.C. and her family. A motion to recuse the district attorney’s office may be granted “whenever the circumstances of a case evidence a reasonable possibility that the office may not exercise its discretionary function in an evenhanded manner.” (Packer v. Superior Court (2014) 60 Cal.4th 695, 709.) Vasquez did not identify any evidence in the record demonstrating that these staff members had any role in prosecuting this case, so his claim was properly denied. The court did not find anything in the record on appeal that would preclude Vasquez’s prosecution by the district attorney’s office on remand.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069298A.PDF