Rules of Evidence in California Criminal Cases

The California Evidence Code sets out rules about what kind of evidence may be introduced in a California criminal jury trial. The most important California criminal evidence rules include:

  1. The rule that all evidence introduced at trial must be relevanspoust,1
  2. The rule that all evidence have “foundation”—that is, that it be reliable,2
  3. Rules about who is competent to serve as a witness,3
  4. Rules and procedures about how lawyers question (examine and cross-examine) witnesses,4
  5. The hearsay evidence rule,5
  6. The rule against character evidence in California trials,6
  7. California evidentiary privileges,7 and
  8. The rule against evidence that may create undue prejudice, confuse the issues, or mislead the jury.8
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If the other side violates a California rule of evidence at your criminal trial, your attorney may get the evidence excluded by objecting to it. And if the judge does not strike the evidence, then you may be able to appeal your California criminal conviction on the grounds that the evidence was improperly admitted.9

In order to help you better understand California evidence rules, our California criminal defense attorneys10 will address the following:

1. California Evidence Rules on Relevance and Foundation

2. California Evidence Rules on Witnesses

2.1. Witness competence
2.2. Examination of witnesses
2.3. Impeachment of witnesses

3. The California Hearsay Evidence Rule

4. The California Character Evidence Rule

5. California Evidentiary Privileges

6. Prejudicial, Confusing, or Misleading Evidence (Evidence Code 352 EC)

7. Objections to Violations of California Evidence Rules

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. California Evidence Rules on Relevance and Foundation

The most basic California evidence rules are the rules that all evidence must

  1. Be relevant to the issues being tried in the case,11 and
  2. Have something called “foundation”—that is, the side introducing the evidence (called the “proponent” of the evidence) must provide some proof that the evidence is reliable.12
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“Relevant” evidence is defined as evidence that has any reasonable tendency to prove or disprove any fact that

  1. Is disputed, and
  2. Matters to the ultimate outcome of the case.13

Example: Joey is charged with Penal Code 187 PC murder for beating his girlfriend's child to death. His defense is that the child actually died from injuries she got from falling down the stairs. The prosecution introduces witness testimony that Joey had hit the child in the past.

This testimony is relevant evidence. It matters to the outcome of the case because it tends to show that Joey had a pattern of violent behavior toward the victim—and thus makes it more believable that he killed her by beating her.14

Foundation is a complicated subject. The kind of foundation that works to establish that certain evidence is trustworthy varies with the kind of evidence.

Here are some examples:

Example: Bruce is on trial for Penal Code 487 PC grand theft for stealing a painting from a museum. The painting was found in the possession of an art dealer who claims he purchased it from Bruce.

The prosecution introduces the actual painting as evidence. In order to establish a “foundation” for that evidence, it has a museum employee testify that the painting shown in court is actually the one that was stolen from the museum.

Example: Grace is on trial for violating California embezzlement laws by stealing funds from her employer. The prosecution introduces into evidence a number of the company's financial records. In order to establish their reliability, the prosecution has the owner of the company testify that these are actually the company's records and that they are accurate.

2. California Evidence Rules on Witnesses

Witness testimony is obviously an important form of evidence in California criminal trials. As such, witness testimony is governed by several important California evidence rules.

Testimony_oath
2.1. Witness competence

A person may not serve as a witness in a California criminal trial if s/he is either

  1. Incapable of expressing him/herself so as to be understandable by the jury, or
  2. Incapable of understanding the duty of a witness to tell the truth.15

Example: The prosecution in a criminal case calls as a witness a criminal associate of the defendant—who has successfully argued that he is not competent to stand trial in his own criminal case. The defendant's criminal defense lawyer objects to the admission of this witness's testimony, arguing that he is not capable of understanding his duty to tell the truth.

Lay witnesses

In addition, under California evidence rules, a witness must be qualified to testify about the matter on which s/he will be testifying.

For most witnesses—known as “lay witnesses”—this means that s/he must have personal knowledge of the matter.16

Lay witnesses typically testify about facts. If a lay witness issues an opinion on something in the case, that opinion is admissible California evidence only if it is:

  1. Rationally based on his/her perceptions, and
  2. Helpful to a clear understanding of his/her testimony.17

Expert witnesses

In addition to lay witnesses, the parties in a California criminal trial often call so-called “expert witnesses” to testify. Expert witnesses are people who have special knowledge, skills, experience, or education that enables them to offer their opinion on matters related to the case.18

Caduceus-optimized
It is common for medical professionals to testify as expert witnesses in California criminal trials

Under the California evidence rules, expert witnesses can offer their opinion only on subjects that are far enough beyond common experience that an expert opinion would be helpful to the jury members.19

Example: Crystal is on trial for Penal Code 192(a) PC voluntary manslaughter for killing her husband. She and her criminal defense attorney are asserting the legal defense of self-defense.

Crystal's self-defense argument rests in part on the theory that she was afraid of her abusive husband and she suffered from the psychological condition known as “battered woman's syndrome.”

Because most members of the jury probably do not understand the scientific basis of battered woman's syndrome, Crystal and her attorney call a psychologist as an expert witness to explain the syndrome, and testify that he believes Crystal suffered from it.

2.2. Examination of witnesses

Witnesses in a criminal jury trial will be examined by the attorneys for both sides in a particular order set out in the California evidence rules.20

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First, every witness called by a side will be questioned by the lawyer for that side. This is what is known as “direct examination.”21

Second, the other side will then question that same witness. This is what is known as “cross-examination.” The cross-examination may only be about matters that were touched upon in the direct examination.22

Third, the side that called and initially examined the witness may examine him/her again in what is known as a “redirect examination.”23 Finally, the other side can question the witness a final time in a “recross-examination.”24

Example: Let's return to the example of Crystal from above. Her defense team calls a psychologist named Dr. Brown to testify about what battered woman's syndrome is and to offer his opinion that Crystal suffers from it.

When Dr. Brown first takes the stand, he is questioned by Crystal's defense lawyer; this is the “direct examination” of Dr. Brown. Next, the prosecutor will conduct the “cross-examination” of Dr. Brown. The prosecutor may only ask questions relating to the matters Dr. Brown testified about under direct examination.

After that, Crystal's attorney takes over once again for the redirect examination. Finally, the prosecutor is able to question Dr. Brown a final time in the recross-examination.

On direct and redirect examination of witnesses, the lawyer is not allowed to ask what are known as “leading questions.”25 A “leading question” is a question that suggests to the witness the answer that the party asking the question wants to hear.26

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However, leading questions are permitted on cross-examination and recross-examination.27

Example: In his direct examination of Dr. Brown, Crystal's lawyer asks him, “So you feel that Crystal suffers from battered woman's syndrome?”

This is a leading question. The prosecutor objects. Crystal's lawyer then has to rephrase the question as, “Do you think Crystal suffers from battered woman's syndrome?”

Then, on cross-examination, the prosecutor asks Dr. Brown, “It sounds as if Crystal does not display some of the classic symptoms of battered woman's syndrome. Is that correct?” This is a leading question—but it is permitted because it is asked on cross-examination.

2.3. Impeachment of witnesses

It is common in California criminal trials for one side to challenge the credibility of the witnesses for the other side. This is known as “impeachment of witnesses,” and there are particular California evidence rules that govern it.28

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Some of the factors that can be used to impeach a witness's credibility are:

  • His/her demeanor while testifying,
  • His/her capacity to perceive or recollect what s/he is testifying about,
  • His/her character for honesty or dishonesty,
  • Any bias, interest, or other motive s/he may have connected to the outcome of the case, and
  • Prior statements s/he made that are inconsistent with his/her testimony.29

In addition, if the witness has a prior conviction for a felony, that fact may be used to impeach his/her testimony.30

But factors that may not be used to impeach a witness's credibility include:

  • His/her religious belief or lack thereof,31and
  • Evidence about aspects of his/her character other than honesty or dishonesty.32

3. The California Hearsay Evidence Rule

As a general rule, so-called “hearsay evidence” is not allowed in California criminal trials under Evidence Code 1200 EC.33 Hearsay evidence is defined as

  • any statement that is not made by a witness testifying at the trial,
  • that is offered for the truth of its content.34

Example: Shane is a college student on trial for California petty theft. He is accused of shoplifting hundreds of dollars' worth of textbooks from the college bookstore.

The prosecution calls as a witness Terry, a woman who lives in Shane's dorm. Terry testifies that she knows Shane stole textbooks because her roommate, Ann, told her that she (Ann) saw him do so. Ann is not a witness at Shane's trial.

Terry's testimony about what Ann said is hearsay evidence, and it is not admissible.

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But the hearsay evidence rule is riddled with exceptions. For example, in spite of that California evidence rule, evidence is admissible if it is:

  1. An out-of-court statement not offered for the truth of its content (this is considered non-hearsay),35
  2. An admission of a party to the case,36
  3. A statement that works against the speaker's self-interest,37
  4. Written statements by a witness regarding events that were fresh in his/her mind at the time the statement was made but that s/he has forgotten by the time of the trial,38
  5. Previous eyewitness identifications by a witness that were made when the crime or other event was fresh in his/her memory,39
  6. Spontaneous statements made in the excitement of the moment,40
  7. Statements made to explain the speaker's actions, while s/he was performing those actions,41
  8. Statements made by a dying person about the causes or circumstances of his/her death,42
  9. Certain statements about the speaker's mental or physical state that are offered to prove that s/he experienced such mental or physical state,43
  10. Certain business or public records,44
  11. Former testimony that was given in an earlier court or official proceeding,45 and
  12. Certain statements about family history, community history, or a person's reputation in the community.46

4. The California Character Evidence Rule

Another important California evidence rule is the “character evidence rule.” This rule says that so-called “character evidence” is not admissible in a California trial to show that a person acted in accordance with his/her character on a particular occasion.47

Blind_justice-optimized

What this usually means for a criminal defendant is that the prosecutor may not introduce evidence of bad acts you committed in the past—criminal or otherwise—in order to show that you committed the crime with which you are being charged.48

Example: Judy is on trial for California robbery. During her cross-examination, the prosecutor gets her to admit that she lost custody of her child in a divorce. He also gets her to admit that she has committed welfare fraud.

These issues are not relevant to Judy's guilt or innocence in the current case—except to the extent that they suggest to the jury that she is a bad person. Thus, they are character evidence and should not have been admitted in her trial.49

But it is important to understand what this California evidence rule does not cover.

For example, so-called “habit evidence” is admissible to show that a defendant acted in accordance with his/her habits on a particular occasion.50

And prosecutors may introduce evidence of your past bad acts in order to show that you had the motive, intent, or opportunity to commit the crime.51

5. California Evidentiary Privileges

Another important sent of California evidence rules concerns California evidentiary privileges.

An “evidentiary privilege” is the right to

  1. Refuse to testify in court or disclose certain information in a court case, or
  2. Prevent someone else from testifying against you or disclosing certain information.52

Some of the most important evidentiary privileges in California are

Psychotherapy
The psychotherapist-patient privilege is one of several important privileges in California criminal evidence law.

6. Prejudicial, Confusing, or Misleading Evidence (Evidence Code 352 EC)

Evidence Code 352 EC sets out one of the most important California rules of evidence. This statute provides that the judge may decide to exclude any evidence if its value is substantially outweighed by the likelihood that it will either

  1. Take up too much time at trial,
  2. Create undue prejudice,
  3. Confuse the issues, or
  4. Mislead the jury.57

Example: Harry is charged with Penal Code 288 PC lewd acts on a minor for allegedly molesting Melissa. In her testimony at Harry's trial, Melissa claims that her grades suffered because of the molestation.

So Harry tries to introduce Melissa's school records to show that Melissa is lying about this—and so may not be a credible witness.

But the judge decides to exclude the school records under Evidence Code 352 EC. The reasoning is that the records are lengthy and complex and will take up too much jury time to prove a point that is not closely related to the main issues in the case.58

According to San Bernardino criminal defense lawyer Michael Scafiddi59:

“Note that Evidence Code section 352 is what's called a “balancing test”—the judge must weigh the value of the evidence in proving something important against the risk that it will have one of these undesirable outcomes. This test often comes into play when we're dealing with circumstantial evidence, which is usually of less value in proving that someone is guilty.”

7. Objections to Violations of California Evidence Rules

If the prosecution at your trial introduces evidence that violates one of these California evidence rules, your criminal defense attorney should “object” to the evidence.

Judge's_gavel

The judge then will either

  • “sustain” the objection, and exclude the evidence from trial, or
  • “overrule” the objection, and allow the evidence in.

If the objection is overruled and the evidence is admitted, then you may be able to appeal your criminal conviction on the grounds that

  1. the evidence should have been excluded, and
  2. the fact that it was admitted resulted in a “miscarriage of justice.”60

But it is essential that your lawyer have objected to the evidence at trial—otherwise, you may not appeal on this basis.61 If your lawyer failed to object and should have, you may be able to challenge your conviction based on ineffective assistance of counsel.

And if you feel that evidence for your case was wrongly excluded at your trial, you may appeal your conviction on these grounds as long as the exclusion resulted in a miscarriage of justice, AND one of the following is true:

  1. Your attorney let the court know the substance, purpose, and relevance of the excluded evidence,
  2. Rulings of the court made your attorney unable to do so, OR
  3. The evidence was sought by questions your attorney asked during cross-examination or recross-examination.62

Call us for help…

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If you or loved one is in need of help with evidence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:



1 Evidence Code 210 EC – Relevant evidence [California evidence rule]. (““Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”)

2 Evidence Code 402 EC – Procedure for determining foundational and other preliminary facts [California evidence rule]. (“(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.”)

Black's Law Dictionary (9th ed. 2009), foundation. (“The basis on which something is supported; esp., evidence or testimony that establishes the admissibility of other evidence < laying the foundation>.”)

3 Evidence Code 700 EC – General rule as to competency [of witness to provide evidence]. (“Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.”)

Evidence Code 701 EC – Disqualification of witness [California evidence rule]. (“(a) A person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) Incapable of understanding the duty of a witness to tell the truth. (b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.”)

4 Evidence Code 760 EC – Direct examination [of a witness at a criminal jury trial]. (““Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.”)

Evidence Code 761 EC – Cross-examination [of a witness at a criminal jury trial]. (““Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.”)

5 Evidence Code 1200 EC – The hearsay rule [California evidence rule]. (“(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.”)

6 Evidence Code 1101 EC – Evidence of character to prove conduct [California evidence rule]. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)

7 Black's Law Dictionary (9th ed. 2009), privilege. (“3. An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship.”)

8 Evidence Code 352 EC – Discretion of court to exclude [character] evidence [California evidence rule]. (“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”)

9 Evidence Code 353 EC – Erroneous admission of evidence [violation of California evidence rules]; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”)

10 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

11 Evidence Code 210 EC – Relevant evidence, endnote 1, above.

12 Black's Law Dictionary (9th ed. 2009), foundation, endnote 2, above.

See also Evidence Code 1400 EC – Authentication [of written evidence]. (“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”)

13 Evidence Code 210 EC – Relevant evidence, endnote 1, above.

14 Based on People v. Lint (1960) 182 Cal.App.2d 402.

15 Evidence Code 701 EC – Disqualification of witness, endnote 3, above.

16 Evidence Code 702 EC – Personal knowledge of witness [in California criminal trial]. (“(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (b) A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.”)

17 Evidence Code 800 EC – Lay witnesses; opinion testimony. (“If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony.”)

18 Evidence Code 720 EC – Qualification as an expert witness [in a California criminal trial]. (“(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.”)

19 Evidence Code 801 EC – Expert witnesses; opinion testimony [California evidence rule]. (“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”)

20 Evidence Code 772 EC – Order of examination [of witnesses in a California criminal trial]. (“(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination. (b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins. (c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness. (d) If the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party.”)

21 See same. See also Evidence Code 760 EC – Direct examination [of witnesses in a California criminal trial]. (““Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.”)

22 Evidence Code 761 EC – Cross-examination [of witnesses in a California criminal trial]. (““Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.”)

23 Evidence Code 762 EC – Redirect examination [of California witnesses]. (““Redirect examination” is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.”)

24 Evidence Code 763 EC – Recross-examination [of California witnesses]. (““Recross-examination” is an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness.”)

25 Evidence Code 767 EC – Leading questions [under California evidence rules]. (“(a) Except under special circumstances where the interests of justice otherwise require: (1) A leading question may not be asked of a witness on direct or redirect examination. (2) A leading question may be asked of a witness on cross-examination or recross-examination. (b) The court may, in the interests of justice permit a leading question to be asked of a child under 10 years of age or a dependent person with a substantial cognitive impairment in a case involving a prosecution under Section 273a, 273d, 288.5, 368, or any of the acts described in Section 11165.1 or11165.2 of the Penal Code.”)

26 Evidence Code 764 EC – Leading question [in California evidence law]. (“A “leading question” is a question that suggests to the witness the answer that the examining party desires.”)

27 Evidence Code 767 EC – Leading questions [under California evidence rules], endnote 25, above.

28 Evidence Code 780 EC – Testimony; proof of truthfulness; considerations [concerning witnesses under California evidence law]. (“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. (b) The character of his testimony. (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. (d) The extent of his opportunity to perceive any matter about which he testifies. (e) His character for honesty or veracity or their opposites. (f) The existence or nonexistence of a bias, interest, or other motive. (g) A statement previously made by him that is consistent with his testimony at the hearing. (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. (i) The existence or nonexistence of any fact testified to by him. (j) His attitude toward the action in which he testifies or toward the giving of testimony. (k) His admission of untruthfulness.”)

Evidence Code 785 EC – Parties may attack or support credibility. (“The credibility of a witness may be attacked or supported by any party, including the party calling him.”)

29 See same.

30 Evidence Code 788 EC – Prior felony conviction [for a witness in a California trial]. (“For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted. (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”)

31 Evidence Code 789 EC – Religious belief. (“Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness [under California evidence rules].”)

32 Evidence Code 786 EC – Character evidence generally. (“Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness [under California evidence law].”)

33 Evidence Code 1200 EC – The hearsay rule [California evidence rule], endnote 5, above.

34 See same.

35 See same.

36 Evidence Code 1220 EC – Admission of party [exception to California evidence rule about hearsay]. (“Evidence of a statement is not made inadmissible by the hearsay rule [California evidence rule] when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.”)

37 Evidence Code 1230 EC – Declarations against interest [exception to California evidence rule about hearsay]. (“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule [California evidence rule] if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”)

38 Evidence Code 1237 EC – Past recollection recorded [exception to California evidence rule about hearsay]. (“(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory; (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made; (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and (4) Is offered after the writing is authenticated as an accurate record of the statement. (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.”)

39 Evidence Code 1238 EC – Prior identification [exception to California evidence rule about hearsay]. (“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”)

40 Evidence Code 1240 EC – Spontaneous statement [exception to California evidence rule about hearsay]. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”)

41 Evidence Code 1241 EC – Contemporaneous statement [exception to California evidence rule about hearsay]. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct.”)

42 Evidence Code 1242 EC – Dying declaration [exception to California evidence rule about hearsay]. (“Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.”)

43 Evidence Code 1250 EC – Statement of declarant's then existing mental or physical state [exception to California evidence rule about hearsay]. (“(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The 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; or (2) The evidence is offered to prove or explain acts or conduct of the declarant. (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”)

Evidence Code 1251 EC – Statement of declarant's previously existing mental or physical state [exception to California evidence rule about hearsay]. (“Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.”)

44 Evidence Code 1271 EC – Admissible writings [exception to California evidence rule about hearsay]. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)

Evidence Code 1280 EC – Record by a public employee [exception to California evidence rule about hearsay]. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)

45 Evidence Code 1291 EC – Former testimony offered against party to former proceeding [exception to California evidence rule about hearsay]. (“(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”)

46 Evidence Code 1310 EC – Statement concerning declarant's own family history [exception to California evidence rule about hearsay]. (“(a) Subject to subdivision (b), evidence of a statement by a declarant who is unavailable as a witness concerning his own birth, marriage, divorce, a parent and child relationship, relationship by blood or marriage, race, ancestry, or other similar fact of his family history is not made inadmissible by the hearsay rule, even though the declarant had no means of acquiring personal knowledge of the matter declared. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)

Evidence Code 1311 EC – Statement concerning family history of another [exception to California evidence rule about hearsay]. (“(a) Subject to subdivision (b), evidence of a statement concerning the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a person other than the declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: (1) The declarant was related to the other by blood or marriage; or (2) The declarant was otherwise so intimately associated with the other's family as to be likely to have had accurate information concerning the matter declared and made the statement (i) upon information received from the other or from a person related by blood or marriage to the other or (ii) upon repute in the other's family. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)

Evidence Code 1320 EC – Reputation concerning community history [exception to California evidence rule about hearsay]. (“Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns an event of general history of the community or of the state or nation of which the community is a part and the event was of importance to the community.”)

Evidence Code 1324 EC – Reputation concerning character [exception to California evidence rule about hearsay]. (“Evidence of a person's general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.”)

47 Evidence Code 1101 EC – Evidence of character to prove conduct [California evidence rule], endnote 6, above

48 See same.

49 Based on the facts of People v. Terry (1970) 2 Cal.3d 362, 400.

50 Evidence Code 1105 EC – Habit or custom to prove specific behavior [California evidence rule]. (“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”)

51 Evidence Code 1101 EC – Evidence of character to prove conduct [California evidence rule], endnote 6, above. (“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”)

52 Black's Law Dictionary (9th ed. 2009), privilege, endnote 7, above.

53 Evidence Code 954 EC – Lawyer-client privilege [California evidence rule]. (“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a[n evidentiary] privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”)

Evidence Code 955 EC – When lawyer required to claim privilege. (“The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.”)

54 Evidence Code 970 EC – Spouse's privilege not to testify against spouse [California evidence rule]. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”)

Evidence Code 980 EC – Confidential marital communication privilege [California evidence rule]. (“Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”)

55 Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities [California evidence rule]. (“Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a[n evidentiary] privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.”)

Evidence Code 1015 EC – When psychotherapist required to claim privilege. (“The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.”)

56 Evidence Code 1033 EC – [Evidentiary] privilege of penitent [California evidence rule]. (“Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.”)

Evidence Code 1034 EC – [Evidentiary] privilege of clergy. (“Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.”)

57 Evidence Code 352 EC – Discretion of court to exclude [character] evidence [California evidence rule], endnote 8, above.

58 Loosely based on People v. Pelayo (1999) 69 Cal.App.4th 115.

59 San Bernardino criminal defense lawyer Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to child abuse to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm Springs,Hemet, Riverside, Barstow and Victorville.

60 Evidence Code 353 EC – Erroneous admission of evidence [in violation of California evidence rules]; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”)

61 See same.

62 Evidence Code 354 EC – Erroneous exclusion of evidence [in violation of California evidence rules]; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; (b) The rulings of the court made compliance with subdivision (a) futile; or (c) The evidence was sought by questions asked during cross-examination or recross-examination.”)

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