Chapter 5 - §4. Procedure for excluding evidence

• Jurisdiction: United States

§4. Procedure for excluding evidence

When challenging the admissibility of evidence on the ground of involuntariness, counsel should consider (1) the available procedural mechanisms for such a challenge and (2) the associated burden of proof.

§4.1. Procedural mechanisms. To exclude an involuntary statement or any evidence derived from that statement, the defendant must take affirmative action. Such action can be taken by a "common law" pretrial motion, by a motion in limine (made either before or during trial), or by an objection based on lack of foundation during trial. See Evid. C. §§402, 405; In re Avena (1996) 12 Cal.4th 694, 729 & n.6; People v. Stansbury (1993) 4 Cal.4th 1017, 1049, rev'd on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318; People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds, People v. Stansbury (1995) 9 Cal.4th 824.

Practice Tip

A motion in limine (instead of an objection) is often the preferable means for a defendant to seek the exclusion of his statement because it will ordinarily allow defense counsel to receive a ruling on the issue at the outset, which can enhance trial efficiency, promote settlement, and minimize sidebars and disruptions during trial. See Morris, 53 Cal.3d at 188. Practitioners should remember, however, that the court may defer ruling on the motion until later in the trial. See Fatica v. Superior Ct. (4th Dist.2002) 99 Cal.App.4th 350, 352. Also, defense counsel should consider the importance of the statement to the prosecution's case when determining when to raise the issue of exclusion. If the prosecution's case relies heavily on the statement, waiting to raise the issue until trial has begun and jeopardy attaches will be highly beneficial to the defense, while a ruling before trial will allow the prosecution to gather more evidence or alter its strategy. A ruling before jeopardy attaches also allows the prosecution to dismiss felony charges and refile at a later time after discovery of new evidence. See Levenson, Levenson on California Criminal Procedure §33:4 (The Rutter Group). Refiling of misdemeanor charges, however, is generally barred by statute. See Pen. C. §1387.

1. Pretrial motions.

(1) Deadline to serve & file. A pretrial motion to exclude evidence must be served and filed at least ten court days before the hearing. CRC 4.111(a). Any motion or other papers in opposition must be filed at least five court days before the hearing, and any reply must be filed at least two days before the hearing. Id. Proof of service must be filed at least five court days before the hearing. Id.

(2) Specificity. Generally, a pretrial motion should...