Admitting & Excluding Evidence
California Evidence Code, Division 3, Chapter 4, Article 1 & Article 2
Cal. Evid. Code §§ 350–356; 400–406
Article 1. General Provisions
§
350.
No evidence is admissible except relevant evidence.
§
351.
Except as otherwise provided by statute, all relevant evidence
is admissible.
§
351.1.
- Notwithstanding any other provision of law, the results
of a polygraph examination, the opinion of a polygraph examiner, or
any reference to an offer to take, failure to take, or taking of a
polygraph examination, shall not be admitted into evidence in any
criminal proceeding, including pretrial and post conviction motions
and hearings, or in any trial or hearing of a juvenile for a criminal
offense, whether heard in juvenile or adult court, unless all
parties stipulate to the admission of such results.
- Nothing in this section is intended to exclude from evidence
statements made during a polygraph examination which are otherwise
admissible.
§
352.
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.
§
352.1.
In any criminal proceeding under Section 261, 262, or 264.1,
subdivision (d) of Section 286, or subdivision (d) of Section 288a
of the Penal Code, or in any criminal proceeding under subdivision
(c) of Section 286 or subdivision (c) of Section 288a of the Penal
Code in which the defendant is alleged to have compelled the
participation of the victim by force, violence, duress, menace, or
threat of great bodily harm, the district attorney may, upon written
motion with notice to the defendant or the defendant's attorney, if
he or she is represented by an attorney, within a reasonable time
prior to any hearing, move to exclude from evidence the current
address and telephone number of any victim at the hearing.
The court may order that evidence of the victim's current address
and telephone number be excluded from any hearings conducted pursuant
to the criminal proceeding if the court finds that the probative
value of the evidence is outweighed by the creation of substantial
danger to the victim.
Nothing in this section shall abridge or limit the defendant's
right to discover or investigate the information.
§
353.
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:
- 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
- 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.
§
354.
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:
- 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;
- The rulings of the court made compliance with subdivision (a)
futile; or
- The evidence was sought by questions asked during
cross-examination or recross-examination.
§
355.
When evidence is admissible as to one party or for one purpose
and is inadmissible as to another party or for another purpose, the
court upon request shall restrict the evidence to its proper scope
and instruct the jury accordingly.
§
356.
Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may
also be given in evidence.
Article 2. Preliminary Determinations on Admissibility of Evidence
§
400.
As used in this article, "preliminary fact" means a fact upon
the existence or nonexistence of which depends the admissibility or
inadmissibility of evidence. The phrase "the admissibility or
inadmissibility of evidence" includes the qualification or
disqualification of a person to be a witness and the existence or
nonexistence of a privilege.
§
401.
As used in this article, "proffered evidence" means evidence,
the admissibility or inadmissibility of which is dependent upon the
existence or nonexistence of a preliminary fact.
§
402.
- When the existence of a preliminary fact is disputed, its
existence or nonexistence shall be determined as provided in this
article.
- 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.
- 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.
§
403.
- The proponent of the proffered evidence has the burden of
producing evidence as to the existence of the preliminary fact, and
the proffered evidence is inadmissible unless the court finds that
there is evidence sufficient to sustain a finding of the existence of
the preliminary fact, when:
- The relevance of the proffered evidence depends on the
existence of the preliminary fact;
- The preliminary fact is the personal knowledge of a witness
concerning the subject matter of his testimony;
- The preliminary fact is the authenticity of a writing; or
- The proffered evidence is of a statement or other conduct of a
particular person and the preliminary fact is whether that person
made the statement or so conducted himself.
- Subject to Section 702, the court may admit conditionally the
proffered evidence under this section, subject to evidence of the
preliminary fact being supplied later in the course of the trial.
- If the court admits the proffered evidence under this section,
the court:
- May, and on request shall, instruct the jury to determine
whether the preliminary fact exists and to disregard the proffered
evidence unless the jury finds that the preliminary fact does exist.
- Shall instruct the jury to disregard the proffered evidence if
the court subsequently determines that a jury could not reasonably
find that the preliminary fact exists.
§
404.
Whenever the proffered evidence is claimed to be privileged
under Section 940, the person claiming the privilege has the burden
of showing that the proffered evidence might tend to incriminate him;
and the proffered evidence is inadmissible unless it clearly appears
to the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.
§
405.
With respect to preliminary fact determinations not governed
by Section 403 or 404:
- When the existence of a preliminary fact is disputed, the
court shall indicate which party has the burden of producing evidence
and the burden of proof on the issue as implied by the rule of law
under which the question arises. The court shall determine the
existence or nonexistence of the preliminary fact and shall admit or
exclude the proffered evidence as required by the rule of law under
which the question arises.
- If a preliminary fact is also a fact in issue in the action:
- The jury shall not be informed of the court's determination as
to the existence or nonexistence of the preliminary fact.
- If the proffered evidence is admitted, the jury shall not be
instructed to disregard the evidence if its determination of the fact
differs from the court's determination of the preliminary fact.
§
406.
This article does not limit the right of a party to introduce
before the trier of fact evidence relevant to weight or credibility.