Chapter 6 - §2. Balancing test

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§2. Balancing test

§2.1. Generally. Under Evid. C. §352, the court may exclude otherwise admissible evidence only when its probative value is substantially outweighed by one of the countervailing factors in Evid. C. §352. People v. Buenrostro (2018) 6 Cal.5th 367, 395; People v. Cudjo (1993) 6 Cal.4th 585, 609. Thus, if a countervailing factor weighs the same as the evidence's probative value or only slightly more, the evidence should not be excluded. The balancing test under Evid. C. §352 can be thought of as a sliding scale that tips favorably in the direction of admissibility. As the probative value of the evidence increases, the burden to show that a countervailing factor favors its exclusion rises even more. See Kessler v. Gray (2d Dist.1978) 77 Cal.App.3d 284, 291. Unless the dangers of undue prejudice, confusion, or time consumption "substantially outweigh" the probative value of relevant evidence, an objection under Evid. C. §352 should fail. People v. Bell (2019) 7 Cal.5th 70, 105.

§2.2. Weighing the factors. The probative value and prejudicial effect of evidence are not subject to quantitative measurement. People v. Schader (1969) 71 Cal.2d 761, 774. Instead, the weighing process under Evid. C. §352 depends on the unique facts and issues of each case rather than on any mechanical rule. People v. Lapenias (4th Dist.2021) 67 Cal.App.5th 162, 174; People v. Ardoin (1st Dist.2011) 196 Cal.App.4th 102, 121, disapproved on other grounds, People v. Dalton (2019) 7 Cal.5th 166. Even so, courts have identified some general guidelines for performing the balancing test under Evid. C. §352. Schader, 71 Cal.2d at 774.

1. Probative value. The probative value of evidence depends on its relevance, materiality, and necessity. Schader, 71 Cal.2d at 774. The more that these factors are prevalent, the greater the evidence's probative value. This consideration includes an evaluation of how strongly the evidence tends to prove the material fact at issue. People v. Winkler (3d Dist.2020) 56 Cal.App.5th 1102, 1155.

(1) Relevance. Relevance refers to the degree in which the evidence tends to prove an issue by logic and reasonable inference. People v. Thompson (1980) 27 Cal.3d 303, 318 n.20, disapproved on other grounds, People v. Williams (1998) 44 Cal.3d 883. If the connection between the evidence and the issue is strong, the evidence's probative value will be high.

(2) Materiality. Materiality refers to the importance of the issue to be proved by the evidence. Thompson, 27 Cal.3d at 318 n.20. If the evidence is material to proving a primary issue in the case—such as an element of an offense or defense—then the evidence will have a higher probative value than if it related only to a collateral issue.

(3) Necessity. Necessity refers to the availability of other evidence to prove the issue in question. See People v. Allen (1986) 42 Cal.3d 1222, 1257. If the evidence is the only evidence available to prove the issue, the necessity of the evidence weighs heavily in favor of admissibility. If the evidence is simply cumulative of other available evidence, the evidence will have less probative value. See, e.g., id. at 1257-58 (photographs had limited probative value because testimony they were offered to corroborate was itself detailed and essentially uncontested and other evidence was already used to clarify and illustrate testimony).


The probative value of evidence under Evid. C. §352 is not affected by a stipulation. See People v. Holford (3d Dist.2012) 203 Cal.App.4th 155, 178.

2. Countervailing factors.

(1) Undue consumption of time. Under Evid. C. §352, a court may exclude probative evidence that would result in undue consumption of time. People v. Lavergne (1971) 4 Cal.3d 735, 742-44. In assessing this factor, courts have looked at the time it will take to present the evidence in trial, including any necessary rebuttal evidence, and the time lost by giving one case more time than necessary and thus prejudicing other cases on the docket. People v. Vargas (6th Dist.2001) 91 Cal.App.4th 506, 544; see, e.g., People v. Calhoun (4th Dist.2019) 38 Cal.App.5th 275, 301 (permitting evidence of victim's subsequent commercial sex acts would lead to time-consuming "mini-trial" on circumstances surrounding her conduct and would mislead jury into believing she was on trial rather than D); Holford, 203 Cal. App.4th at 164 (playing 25-minute video in trial estimated to last four days was not unduly time-consuming); People v. Espinoza (6th Dist.2002) 95 Cal.App.4th 1287, 1309 (permitting expert to testify and prosecution to rebut testimony would be unduly time-consuming based on testimony's weak probative value). The most common situations where undue consumption of time has been raised as an objection are the following:

(a) Evidence on collateral issue. Undue consumption of time is commonly raised as an objection to evidence that is collateral to the main issues in the case. See 1 Witkin, California Evidence (5th ed.), Circumstantial Evidence §24; see, e.g., People v. Homick (2012) 55 Cal.4th 816, 866 (court properly held that evidence on collateral issue would lead to undue consumption of time). An objection is generally successful in this situation because evidence on a collateral issue has very low probative value. See, e.g., People v. Robinson (2d Dist.2020) 47 Cal.App.5th 1027, 1032 (repeated questions about how often victim had been drunk on other nights were "wasteful of time" and created derogatory image of...

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