How the defense excludes statements at trial – Miranda violations

Jay Leiderman
By: Jay Leiderman
May 09 2016


Any and all statements made by THE DEFENDANT are incompetent, hearsay and prejudicial (pursuant to Evidence Code § 352) and made in the absence of a Miranda admonition when THE DEFENDANT was arrested and in police custody. (Miranda v. Arizona, (1966) 384 U.S. 436; Oregon v. Mathiason, (1977) 429 U.S. 492 (admonishment required only when there has been such a restriction to render the person in custody); California v. Beheler, (1983) 463 U.S. 1121, 1125 ([T]he ultimate inquiry is simply whether there is a formal arrest or restraint of freedom of movement of the degree associated with a formal arrest); Berkemer v. McCarty, (1984) 468 U.S. 420, 437, 442 (The safeguards in Miranda were designed to ensure that the police do not coerce or trick a suspect into confessing); People v. Bellomo, (1992) 10 Cal.App.4th 195, 198-200 (As established by Berkemer, the focus of an official investigation is irrelevant to custody unless it is somehow communicated to the defendant. Accusatory questioning is one obvious way of making manifest the investigation’s focus); People v. Arnold, (1967) 66 Cal.2d 438, 448 (suspect’s state of mind, and what the suspect believed is critical in this inquiry); and  People v. Blouin, (1978) 80 Cal.App.3d 269, 283 (Test is whether the suspect was deprived of freedom of movement in any significant way.)

The prosecution, as the proponent of the evidence, must establish a basis for the admission of a defendant’s statements.  The prosecution must show how each statement that it proposes to play or recount for the jury is both relevant and meets a particular hearsay exception.  (See Cal. Evid. Code §§ 110, 210, 350, 403(a), 405(a), 550, 1200(b), and 1201.)

The proponent of proffered evidence must show both its relevance and the applicability of a hearsay exception.  If the proponent fails to make both those showings, the trial court must exclude that evidence. (People v. Morrison (2004) 34 Cal.4th 698, 724; People v. Ramos (1997) 15 Cal.4th 1133, 1177-1178; People v. Livaditis (1992) 2 Cal.4th 759, 778; People v. Adams (1983) 149 Cal.App.3d 1190, 1194; and People v. Rodriguez (1969) 274 Cal.App.2d 770, 777.)

In Adams, the court said, “The proponent of the evidence generally has the burden of showing relevance, and relevance is essential to admissibility. (Cal. Evid. Code §§ 350, 403).”  (Id. at 1194.)  The California Supreme Court has applied the same rule to hearsay: “The proponent of hearsay has to alert the court to the exception relied upon and has the burden of laying the proper foundation.”  (People v. Livaditis (1992) 2 Cal.4th 759, 778.)

In People v. Rodriguez (1969) 274 Cal.App.2d 770, cited by the California Supreme Court on this point with approval in People v. Morrison (2004) 34 Cal.4th 698, 724, the Court said, “Under Evidence Code sections 403 and 405, if a hearsay objection is properly made, the burden shifts to the party offering the hearsay to lay a proper foundation for its admissibility under an exception to the hearsay rule.”  (Id. at 777.)



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

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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:

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