Chapter 6 - §3. Application to specific evidence

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§3. Application to specific evidence

Some of the common situations where the balancing test under Evid. C. §352 has been applied include the following:

§3.1. Testimony.

1. Cumulative. Witness testimony—lay and expert—can be objected to as being cumulative of other testimony. See Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 (expert testimony); People v. Cavanaugh (1968) 69 Cal.2d 262, 270 (lay testimony). When multiple witnesses testify to the same event, however, some cumulative testimony is to be expected. People v. Brady (2010) 50 Cal.4th 547, 576. Similarly, the testimony of multiple witnesses should not be considered cumulative when it is essential for corroboration (e.g., eyewitness testimony) or when the weight of one witness's testimony is greater than that of another (e.g., testimony from an accomplice versus testimony of a third-party bystander). See Horn, 17 Cal.3d at 371. When more than one expert is requested to testify on a party's behalf, the primary question is whether the additional testimony is so unique as to enhance or make the body of evidence more understandable to the trier of fact. If not, the court may exclude the other expert's testimony as cumulative. See id.; Scalere v. Stenson (2d Dist.1989) 211 Cal.App.3d 1446, 1454.

2. Undue consumption of time. Witness testimony can be objected to if it would result in an undue consumption of time. See People v. Veamatahau (2020) 9 Cal.5th 16, 34; People v. Anderson (2018) 5 Cal.5th 372, 406-07; People v. Garcia (4th Dist.2018) 28 Cal.App.5th 961, 970. See "Undue consumption of time," ch. 6, §2.2.2(1).

3. Unduly prejudicial. Witness testimony can be objected to as being unduly prejudicial. See People v. Case (2018) 5 Cal.5th 1, 33; People v. Brooks (2017) 3 Cal.5th 1, 36; see, e.g., People v. Covarrubias (4th Dist.2011) 202 Cal. App.4th 1, 16 (expert testimony on drug-trafficking organizations was unduly prejudicial when there was no evidence associating D with those organizations). A claim that testimony is unduly prejudicial, however, cannot be based on an allegation that the witness lacks credibility. People v. Chandler (1st Dist.1997) 56 Cal.App.4th 703, 711. A witness's credibility is generally the exclusive province of the jury; it is not a proper reason to exclude evidence under Evid. C. §352. Vorse v. Sarasy (1st Dist.1997) 53 Cal.App.4th 998, 1012-13 (only in rare instances of demonstrable falsity may court exclude witness's testimony).

§3.2. Impeachment evidence.

1. Undue consumption of time. Impeachment evidence can be objected to if it would result in an undue consumption of time. See People v. Suff (2014) 58 Cal.4th 1013, 1066. Undue consumption of time can occur when the impeachment evidence is difficult and time-consuming to establish and when there is other evidence corroborating the witness's testimony. See, e.g., id. (court did not abuse its discretion in excluding evidence that testifying officer was indicted on criminal charges; proving criminal charges against officer was complicated because percipient witness to crimes had died and value of impeachment evidence was low because officer's testimony could be corroborated by others). Impeachment evidence can also result in an undue consumption of time when it is cumulative of other evidence that already establishes a witness's lack of credibility. People v. Burgener (1986) 41 Cal.3d 505, 525, disapproved on other grounds, People v. Reyes (1998) 19 Cal.4th 743; see People v. Price (1991) 1 Cal.4th 324, 412; see also People v. Carpenter (1999) 21 Cal.4th 1016, 1051 (unless D can show that prohibited cross-examination would have produced significantly different impression of witnesses' credibility, court's exercise of discretion to limit examination does not violate D's Sixth Amendment right of confrontation).

2. Unduly prejudicial. Impeachment evidence can be objected to as being unduly prejudicial. See People v. Mora (2018) 5 Cal.5th 442, 479-80; see, e.g., People v. Lopez (2018) 5 Cal.5th 339, 358-60 (evidence that D had broken witness's leg and threatened to kill her was probative to explain why she initially lied about her injury and feared testifying against D; any prejudice was mitigated by limiting instruction); People v. Villa (4th Dist.2020) 55 Cal.App.5th 1042, 1054 (probative value of domestic violence victim applying for U visa with help of prosecution significantly outweighed by risks of prejudice to the victim, jury confusion, and consumption of time where victim's testimony was same before and after learning of program). For a discussion of how evidence of a defendant's prior bad acts (i.e., prior convictions and uncharged conduct) is analyzed under Evid. C. §352 when used for impeachment purposes, see "Character trait of dishonesty or truthfulness," ch. 4-B, §3.5.

3. Confusing. Impeachment evidence on collateral matters can be objected to as being confusing to the jury. See People v. Lavergne (1971) 4 Cal.3d 735, 742-43; People v. Hall (1st Dist.2018) 23 Cal.App.5th 576, 590-91.

§3.3. Demonstrative evidence. Because the purpose of demonstrative evidence is to aid the jury in understanding other evidence, it is generally not proper to object to such evidence as being cumulative of other nondemonstrative evidence. E.g., People v. Duenas (2012) 55 Cal.4th 1, 25 (animation was not cumulative of witness testimony; as demonstrative evidence, it was appropriate for animation to correspond to other evidence); see, e.g., People v. Caro (2019) 7 Cal.5th 463, 510 (animation used to illustrate expert testimony on pattern of blowback of blood from gunshot was not cumulative); People v. Pollock (2004) 32 Cal.4th 1153, 1170-71 (videotape and photographic evidence assisting jury in evaluating testimony was not cumulative); People v. Rivera (1st Dist.2011) 201 Cal.App.4th 353, 364 (use of mannequins as illustrative evidence to assist jury in understanding testimony or to clarify circumstances of crime was not cumulative). But demonstrative evidence can be objected to under Evid. C. §352 as being cumulative of other demonstrative evidence, misleading, unduly time-consuming, confusing, or unduly prejudicial. See, e.g., People v. Tran (4th Dist.2020) 50 Cal.App.5th 171, 190 (although expert's work may have involved sophisticated software, technical jargon, and years of experience, admission of enhanced videos created no risk that jurors would be left...

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