Chapter 6 - §4. Raising objection under §352

• Jurisdiction: United States

§4. Raising objection under §352

§4.1. Method.

1. By party. A party can raise an objection under Evid. C. §352 by filing a motion in limine or stating an objection at trial. The application of Evid. C. §352 is not limited to parties on opposing sides; a codefendant can raise an objection to evidence offered by another defendant. People v. Homick (2012) 55 Cal.4th 816, 865. See "Codefendants," ch. 6, §2.2.3(2).

2. By court's own motion. A court can raise an objection under Evid. C. §352 on its own motion. See People v. Zambrano (2007) 41 Cal.4th 1082, 1150 (noting that trial court on its own motion excluded 10 of 15 murder-scene photographs as being cumulative), disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390; Robinson v. U-Haul Co. of Cal. (1st Dist.2016) 4 Cal.App.5th 304, 323 (noting that party's failure to raise specific Evid. C. §352 objection does not preclude court from excluding evidence on that ground).

§4.2. Timing. An objection under Evid. C. §352 must be timely made to preserve the objection for appellate review or it is waived. See People v. Jones (2012) 54 Cal.4th 1, 61. Generally, an objection is timely if it is made when the evidence is offered. People v. Harrison (2005) 35 Cal.4th 208, 231. Thus, even when an objection is raised preliminarily by a motion in limine, the objection must typically be renewed when the evidence is actually offered to preserve the issue for appeal. People v. Brown (2003) 31 Cal.4th 518, 547; see, e.g., People v. Winn (6th Dist.2020) 44 Cal.App.5th 859, 867-68 (D forfeited Evid. C. §352 and due-process claims by failing to lodge objections in trial court). The reason for this rule is that until the evidence is actually offered—and the court is aware of its relevance in context, its probative value, and its potential for prejudice—the court cannot intelligently rule on admissibility. People v. Jennings (1988) 46 Cal.3d 963, 975 n.3. Renewing the objection is not required, however, when the parties stipulate on the record that the in limine ruling will be binding or when the motion is sufficient to meet the requirements of Evid. C. §353. People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds, People v. Stansbury (1995) 9 Cal.4th 824; see Brown, 31 Cal.4th at 547 (renewal of objection may not be required when there is a definite and express ruling on motion); see, e.g., People v. Cowan (2010) 50 Cal.4th 401, 477 (party was required to renew objection as each item was marked and...