Chapter 5 - §6. Procedure for excluding evidence

JurisdictionUnited States

§6. Procedure for excluding evidence

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

§6.1. Procedural mechanisms. To exclude evidence based on a violation of the Confrontation Clause, the defendant must take affirmative action or risk waiving the issue. See People v. D'Arcy (2010) 48 Cal.4th 257, 289-90. The methods for seeking exclusion based on a Confrontation Clause violation are procedurally identical to the methods for seeking exclusion of an involuntary statement (i.e., common-law pretrial motion, motion in limine, or objection). See, e.g., People v. Lopez (2013) 56 Cal.4th 1028, 1052-53 (D brought Bruton-Aranda motion to sever case or redact any reference to D from codefendant's out-of-court statement), overruled on other grounds, People v. Rangel (2016) 62 Cal.4th 1192; People v. Osorio (4th Dist.2008) 165 Cal.App.4th 603, 613 (D brought motion in limine). See "Procedural mechanisms," ch. 5-B, §4.1. When specifying the legal grounds for exclusion, practitioners should, at the very least, specify that the objection is based on confrontation grounds or risk waiver. See, e.g., People v. Riccardi (2012) 54 Cal.4th 758, 801 (D waived violation when he objected purely on state-law grounds and did not mention Confrontation Clause), overruled on other grounds, People v. Rangel (2016) 62 Cal.4th 1192; People v. Skiles (2011) 51 Cal.4th 1178, 1189 (D waived violation when he objected only on "foundational grounds"); see also People v. Gutierrez (2009) 45 Cal.4th 789, 809 (discussing circumstances under which a D may not forfeit federal constitutional claims on appeal by failing to object on those grounds at trial). An objection on hearsay grounds will not be sufficient to preserve an objection under the Confrontation Clause. People v. Catlin (2001) 26 Cal.4th 81, 137-38 n.14. However, in a case tried before Crawford was issued, a Crawford challenge is not forfeited by failing to raise a Confrontation Clause objection at trial. People v. Rhoades (2019) 8 Cal.5th 393, 408; People v. Gomez (2018) 6 Cal.5th 243, 297; People v. Rangel (2016) 62 Cal.4th 1192, 1215; see also People v. Perez (2020) 9 Cal.5th 1, 14 (commenting that "[i]f objection would be futile under current precedent, counsel is not obligated to object on pain of forfeiture simply because a future change in the law might be...

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