How California criminal defense lawyers use Evidence Code section 352

Jay Leiderman
By: Jay Leiderman
May 28 2016


While the purpose of Evidence Code section 352 is to protect the defendant, the defense recognizes that the prosecution may be accorded some protection under Evidence Code section 352 from the use of prejudicial evidence with little probative fact:  “the purported prejudice to the prosecution cannot be based on mere speculation and conjecture.”  (People v. Wright, 39 Cal. 3d 576, 585.)  Moreover, “evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely because the trial would be simpler without it.”  (People v. McDonald (1984) 37 Cal. 3d 351, 372 (overruled on other grounds by, People v. Mendoza (2000) 23 Cal. 4th 896.)

If the trial court must err, it should err on the side of admission of defense evidence.  As the Supreme Court of California observed in People v. Wright, supra., at 584-585:

We first reiterate, from a unanimous opinion of this court, the wise advice for trial judges in criminal cases (and for prosecuting attorneys) [that] was articulated long ago: ‘Questions as to the admissibility of evidence frequently arise, and in the hurry of a trial the best Judge may err… [Whenever] the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in, since, in nine cases out of ten, a single equivocal fact, of doubtful bearing upon the case, would have no effect upon the judgment of the jurors, who are usually disposed to pass… upon the general merits’.  In other words, trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.


Evidence Code section 352 reads: the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will a) necessitate undue consumption of time or b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

As defined by Evidence Code section 210, “relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

Furthermore, it is a constitutional command that “all relevant evidence is admissible.”  (Art. I, § 28 (d) Cal. Const.[evidence code section 352])  In addition, the defense has a federal constitutional right to compulsory process and to put on a defense.  (Washington v. Texas (1967) 388 U.S. 14; Holmes v. South Carolina (2006) 126 S. Ct. 1727.)  These protections are violated when relevant defense evidence is excluded.  Evidence Code section 352 “must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.”  (People v. Reeder (1978) 82 Cal. App. 3d 543, 553; People v. Cunningham (2001) 25 Cal.4th 926, 999; See also Fowler v. Sacramento County Sheriff’s Department (9th Cir. 2005) 421 F.3d 1027 [granting federal habeas for misuse of 352 to denying confrontation evidence against complaining witness].)

The balancing under Evidence Code section 352 “is particularly delicate and critical where what is at stake is a criminal defendant’s liberty.”  (People v. Wright, supra., at 584-588 [excluding evidence of drugs in the victim’s system erroneously prevented the defendant from supporting his perception of the victim’s irrational state of mind].  In sum, the trial court’s exercise of discretion under section 352 “should favor the defendant in cases of doubt.”  (People v. De Larco (1983) 142 Cal. App. 3d 294, 306.)  Assuming the court is determined to engage in the weighing process and consider exclusion, the court must make a finding supported by the record (People v. Clair (1992) 2 Cal. 4th 629, 660) that the value of the evidence is substantially outweighed by the “a” and “b” factors discussed next.  Notice the phrasing in 352 is only if substantially outweighed, which instructs the court that only a lopsided outweighing warrants exclusion.  Anything close goes to the Defendant.

Concerning factor (a) of Evidence Code Section 352, the production of all evidence takes time so the focus has to be on “undue” consumption of time.  For example, in Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, the trial judge was reversed for disallowing prior bad acts evidence of a law enforcement officer in a suit by a prisoner concerning his manhandling while in custody.  The trial judge would not allow the other acts of misconduct to be introduced because it would require time-consuming “mini-trials” on those issues.  The Appellate Court reversed because “the fact that the jury must resolve conflicting versions cannot justify the exclusion of all such evidence on this [352] ground alone.”  (Id. at 947.)

A common argument for excluding evidence under section 352 for taking too much time is that it is cumulative evidence.  However, there is a reason for putting on some cumulative evidence.  Evidence that corroborates is necessary and thus cannot be excluded as merely cumulative.  (People v Brown (1995) 35 Cal. App.4th 1585, 1595-1597.)  Additional evidence may be of more probative value than previous versions.  “Evidence that is identical in subject matter to other evidence should not be excluded as ‘cumulative’ when it has greater evidentiary weight or probative value.”  (People v. Mattson (1990) 50 Cal.3d 826, 871.[Evidence Code section 352])  See also People v Minife (1996) 13 Cal.4th 1055, 1065 [“A person claiming self-defense is required to “prove his own frame of mind” and in doing so is “entitled to corroborate his testimony that he was in fear of his life.`” quoting People v. Davis (1965) 63 Cal.2d 648, 656]; People v. Carmichael (1926) 198 Cal. 534, 548 [“It might be that the jury would hesitate to accept the uncorroborated evidence of a defendant in a case, when, if his testimony were supported by the evidence of a disinterested witness, they might take an entirely different attitude toward it.” – overruled on other grounds.]

Concerning factor (b) of Evidence Code section 352, evidence can only be excluded if it creates substantial danger of undue prejudice.  Prejudice does not mean damaging.  Here, the best evidence is prejudicial to the prosecution. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1679 [the evidence “was prejudicial only in the sense that it cast doubt on the prosecution’s case against defendant.”].)  Undue prejudice means that the evidence has very little relevance and a great potential for unfairly prejudicing the other side.  “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against one party as an individual and which has very little effect on the issues.  (People v. Karis (1988) 46 Cal. 3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.)

Thus, the balancing process mandated by Evidence Code section 352 requires consideration of the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main issue, or only a collateral one, and the necessity of the evidence to the proponent’s case.  (People v. Wright, supra., at 585.)  To warrant exclusion on that ground, the weighing process requires a finding of lopsidedness such that relevance is minimal and unique prejudice to the State is maximal.  That is not the case here.

Here, as to the evidence confusing the issues, or misleading the jury, it is difficult to conceive that the relevant evidence is minimally relevant while being so potent it would substantially confuse the issues or mislead a jury.  (People v. Mayfield (1972) 23 Cal.App.3d. 236 [reversing for exclusion of testimony by a superior officer concerning the credibility of a deceased undercover cop on this basis; held an abuse of discretion that resulted in a denial of due process].)



At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: or his homepage

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jay leiderman muder trials jury federal court EVIDENCE CODE SECTION 352
Jay Leiderman makes a TV appearance discussing a case that was recently sentenced. He was explaining why the sentence was unjust.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website:

6 thoughts on “How California criminal defense lawyers use Evidence Code section 352

  1. Can yu contact me to help me? I am representing myself in a case in Orange County and I think th cops are hiding evidence and they are trying to frame me. I need this motion but more.

  2. Came on this in a google search. I’m going to show it to my lawyer. She hasn’t filed any motions.

  3. I had evidence that my neighbor was taking things off my balcony when I was at work. Our balconies are next to each other and I put up a camera and to see her steal but the judge didn’t let it ion my trial and she got to say that I punched her but she stole my stuff. Can you help me get a new trial with a judge that isnt bias?

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