Overview of California Evidence Law
Evidence law governs what can be used to prove or disprove facts in a court of law, making it a critical component of the legal process. With its own unique set of rules, California evidence law seeks to ensure all parties receive a fair trial by determining the admissibility of evidence. As such, it’s crucial to understand these rules in order to navigate the courtroom successfully.
In the realm of legal proceedings, evidence comes in a variety of forms, such as witness testimony, documents, photographs , and physical objects. Each type of evidence has its own set of rules for admissibility, and improper use can result in a jury not being allowed to consider it, or worse, a mistrial altogether.
With California being a state that adheres to the "Frye standard," requiring strict scrutiny over the admissibility of scientific evidence and expert testimony, understanding these rules on admissibility is especially important. While other states may allow more leeway in allowing some types of witnesses, California’s rules are designed to protect against hearsay, unreliable sources, and bias.
Hearsay: Rules and Its General Exceptions
Like its federal counterpart, the California Rules of Evidence defines hearsay as an out of court statement offered "to prove the truth of the matter asserted." However, it is important to keep in mind that more than mere "statements" of a witness fall within Rule. As the California Supreme Court observed in People v. Lewis (2001) 25 Cal.4th 610, statements include any "set of assertions" or "circumstances which have a tendency in the mind of the jury to prove or disprove the fact that is in issue." This means that "circumstantial evidence may include witnesses’ testimony regarding actions, conduct, or statements made other than for the truth of what they assert[.]"
As a general rule, hearsay is inadmissible in California courts. The California Legislature has set forth several exceptions to this rule in which hearsay is considered reliable and therefore admissible:
This is not an all-inclusive list of hearsay exceptions, but rather represents the exceptions most frequently encountered by practitioners. The party introducing the evidence bears the burden of establishing that the proffered evidence qualifies for one of these exceptions.
It is important to note that prior evidence or testimony which includes multiple layers of hearsay must be analyzed individually and separately at each layer to determine whether the first layer qualifies for an exception – and then whether the second layer does as well – and if so, the third, and so on. The test is the same at each layer: whether the evidence or testimony provided actually falls within one of the hearsay exceptions.
Relevance: Admissibility of Evidence
Relevance is a foundational concept in evidence law, governing so much of our perception of and approach to evidence as lawyers. A fact is relevant if it can be used to help prove or disprove the point you’re trying to make. Relevance is the first gate for admissibility of any type of evidence, and it’s an important one. The court will generally only consider pieces of evidence that prove something relevant for weighing purposes. But just because evidence is deemed relevant doesn’t mean it will be admitted. Once evidence passes the rule of relevance, it must also pass through all other evidentiary gates before it is actually admitted (see below).
In California, evidence is considered relevant when it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The focus is on whether the evidence in question is of consequence to the litigation (see also below).
Every piece of evidence must be relevant to what you’re trying to prove. The various types of evidence we have considered here won’t be applicable if they are not in any way related to the fact you’re trying to prove. When in doubt, ask yourself if you really have a purpose in bringing the evidence. If so, what is it? Is it worth going through the time and expense of attempting to get this evidence passed through the other gates to see if it can be admitted.
Evidence has to be of consequence as well. In other words, it has to have some bearing on the case. Evidence can be damaging to a party but still not relevant that will likely be the case for past bad acts. For example:
A court will never find that bad acts are relevant to a case in order to exclude them as evidence so in many cases, a ruling on their relevance can also serve to exclude them.
Privileges and Their Application
Among the most often cited exceptions to the California evidence law are the privileges, which result in testimony being inadmissible, regardless of the relevance of that evidence. These privileges serve a critical purpose; they protect confidential communications among certain categories of persons and entities from being disclosed during litigation. Unless the privilege is waived, even a court cannot compel disclosure of the privileged information. The most commonly known privileges are the attorney-client, doctor-patient, spousal and clergy-penitent privileges. The most important privilege for the civil litigator in California is the attorney-client privilege, as criminal litigators understand too well. Pursuant to Evidence Code Section 954, the elements of the privilege are "(a) A client and his or her lawyer . . . (b) A confidential communication between client and lawyer, which is (1) Made in the course of that relationship and (2) In the course of that relationship and in confidence (3) For the purpose of legal services for the client." The statute goes on to delineate exceptions to the privilege, including a complete waiver of the privilege when the client sui generis puts the privileged communication in issue.
Authentication of Evidence
Authenticating evidence is a preliminary question that must be resolved by the court. It is essential to getting most evidence admitted. It requires testimony or an affidavit establishing that the evidence is what it is claimed to be. In most instances a witness who is familiar with the writing, photographs or other tangible things may authenticate them. That witness must provide testimony about how he came to know that the document is genuine. In other words, the witness must lay a foundation. For photographs, the witness must show how the photographs were taken, explain whether they changed in any important way from the time they were taken until the present, and whether there has been any change in the surroundings depicted in the photographs. The same foundation is required to authenticate audio recordings. Rule 2.800, which governs the admissibility of electronically-generated documents like e-mail, requires authentication by an affidavit or testimony. If the proponent is unable to authenticate such a document, the trier of fact has discretion to consider the document even if it was not authenticated. Rule 2.805 applies to photographs, including video, audio recordings and computer-generated records.
Best Evidence Rule
In California, the Best Evidence Rule is codified in Evidence Code Sections 1501-1540 and applies when a party seeks to introduce in a trial or legal proceeding a written, recorded, or photographed statement, image, or information that is also available in a document or record, provided that the document or record has not been destroyed or lost in good faith, was produced at or near the time of the writing, recording, or photograph, and was made by a person with knowledge of the matter to be proved. The rule sometimes also requires the proponent for such documentary evidence to account for its unavailability.
The purpose of the Best Evidence Rule is to protect against the risk of alteration or misrepresentation of the content of the document , recording, or photograph by limiting trial testimony or documents to the original or a duplicate.
When a party seeks to introduce a writing, recording, or photograph into evidence, the judge may ask that party to authenticate an unaltered copy of the writing (or a printout of the recorded or photographed information) before it may be considered for admission. If the proponent of the evidence provides a copy, the judge will generally rule that the proponent has satisfied the purpose of the rule and will therefore allow the evidence to be admitted, unless the other party can credibly establish that has been altered.
Rules for Character Evidence
Character evidence is generally inadmissible to prove a person acted in conformity therewith. California Rule of Evidence 1101 says that character evidence and habit evidence is generally not permitted "to prove the person acted in conformity with the character, or a habit or custom, on a particular occasion." There are certain exceptions to this general rule. One; character evidence may be used when it is an essential element of a charge, claim, or defense.
The rationale behind this rule is because character evidence can be prejudicial especially if the evidence is being offered merely to prove that a person acted in conformity with a bad character on a particular occasion. If evidence goes to the jury only on the basis of character they might use that evidence for an improper purpose.
However, under certain circumstances, character evidence is admissible. One circumstance under California Rule of Evidence 1101(b)(2) is where character is an issue in the case. People v. Zepeda (2008) 165 Cal.App.4th 151, 166. In this circumstance, the character evidence is generally of the conduct of the victim so as to show the believability of the victim or, in self-defense cases, the conduct of the victim toward the defendant prior to the incident that gave rise to the self-defense claim.
Another circumstance is when the evidence is offered to prove a character element of the defendant. People v. Olguin (1994) 31 Cal.App.4th 1355, 1387.
Character evidence is admissible if a person has put their character in issue. People v. Bullard (2010) 180 Cal.App.4th 1070, 1081-1083.
In limited circumstances, evidence may be admissible to show a character trait of the victim for the purposes of determining if the defendant had a reasonable belief in the need to use force in self-defense or defense of another. Under California Rule of Evidence 1103(b), in determining whether the defendant had a reasonable belief as to his or others’ safety, California allows the admission of character evidence of the victim of "a violent disposition." People v. Huet (2009) 21 Cal.4th 548.
In a criminal case, the prosecution can present evidence of a defendant’s prior sexual behavior as relevant to consent issues. Under California Evidence Code Section 1103, the defendant’s sexual behavior is admissible to prove that the behavior in the present case was consensual. Also, California Evidence Code Section 783 permits the prosecutor to present evidence of the defendant’s sexual conduct to impeach the defendant in a sexual assault prosecution.
Judicial Notice and its Effects
There’s a shortcut—Judicial Notice—that enables a court to recognize a fact without requiring the introduction of evidence. When a party invokes judicial notice, they simply ask that the court acknowledge that certain facts may be relied upon. In California, the parties request judicial notice by making a formal request to the court.
A court must take judicial notice of "court records." "Court records" includes "any appeals, orders, findings, papers, or records in a case of the superior court or of any other court of record of this state or of the United States." (Evid. Code § 452(a) ("E.C.").) For appeals, whether it be a notice of appeal, notice designating the record, or even a response to a notice designating the record, the court need not review the record or the pleadings at all. All the court needs do is recognize that an appeal was filed.
Some appeals are granted, reversed or dismissed. Notice of a judgment of reversal or dismissal may be judicially noticed. (E.g., People v. Valdez (2012) 209 Cal.App.4th 1154 [grant of habeas corpus reversed]; People v. Levy (2008) 164 Cal.App.4th 392 [dismissal of appeal].) Neither parties’ briefs nor the record itself is of concern to the reviewing court. The court does not consider the merits of the argument that led to the reversal.
Likewise, if the final brief in the Ninth Circuit did not raise an argument, it may be considered waived and may not be raised on further review or even during a petition for rehearing.
The court will take judicial notice of California decisions, as well as federal decisions. A party need not even provide the court with the text of the decision, but only make the court aware that a decision (California or Federal) regarding the issue exists.
Notice to the court may also be requested that a case is pending in the Supreme Court of California. In addition, the court might take judicial notice of the resolution, including the vote, of any proposed amendment to the California Constitution. (E.C. §§ 452(b)(c).)
Even if the language in California is different from that of the Federal Rules of Evidence, the concepts are ultimately the same. For example, California does not have a equivalent to FRE 201 (Request to Take Judicial Notice). See Compare E.C. § 451 (Judicial notice limited to facts that are "capable of immediate and accurate determination without the exercise of discretion," and must be either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Consequently, the court is limited to taking judicial notice of records and orders in actions arising in the same case or in the same county. (E.C. § 451 and 452, respectively.)
While the concept is not entirely clear, it would appear that "the court cannot take judicial notice of a document the contents of which are in dispute between the parties." (Wells Fargo Bank v. Waller (1998) 66 Cal.App.4th 1287, 1296; Contra Costa School Dist. Pub. Employees Ass’n v. Superior Court (1994) 29 Cal.App.4th 673, 678.) Note, however, that the Federal Rules of Evidence allow notice of "adjudicative facts" (FRE 201(a)).
Such items made be noticed in California without request, however, in California or elsewhere, when such information becomes official in the normal course of affairs.
Final Takeaways for Legal Professionals
The California Rules of Evidence provide a well-established framework for the admissibility and assessment of evidence in courtrooms across the state. By familiarizing themselves with these rules and applying them diligently, legal practitioners can effectively navigate the complexities of evidentiary issues at trial. Some key takeaways that can assist legal practitioners in California when working with the rules of evidence include: Understanding and applying California case law and statutes related to the rules of evidence is critical when seeking to effectively represent clients in evidentiary matters. Engaging in pre-trial preparation can reduce or eliminate surprise objections and help lawyers pre-emptively address evidentiary issues . Litigants should be prepared to handle evidence challenges that arise before they go to trial through skilful application of the rules of evidence and effective advocacy. Legal practitioners should stay informed about updates and changes to the California Rules of Evidence and relevant case law. The rules of evidence are not static and the landscape continues to evolve as technology and practices change and broaden the scope of what constitutes relevant evidence in a courtroom. Preparation and familiarity with the California Rules of Evidence are key to building a strong case and effectively advocating on behalf of a client.