Motion to exclude defendant’s criminal convictions at trial

Jay Leiderman
By: Jay Leiderman
May 03 2016


  1. Misdemeanor conduct 

Any act of misdemeanor misconduct that does not involve moral turpitude must be excluded as irrelevant.  The California Supreme Court has found that California Constitution Article I, Section 28(d) permits the introduction of relevant misdemeanor misconduct involving moral turpitude for the sole purpose of impeachment in criminal proceedings (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 9, 14 Cal.Rptr.2d 418, 841 P.2d 938.)  Even so, the introduction of even those convictions is subject to limitation.

“Not all past conduct has a tendency in reason to prove or disprove a witness’s honesty and veracity.” (Id. at 295.)  First, the conduct must constitute “moral turpitude” within the meaning of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111. As the court in Wheeler stated: “Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Id. at 296.)

Even if the past misconduct involves moral turpitude, the trial court must still exercise its discretion pursuant to Evidence Code section 352.

On proper motion by the defense, the trial court must exercise discretion and exclude impeachment evidence involving moral turpitude when its probative value is outweighed by its prejudicial effect. (People v. Castro supra. at 316.)

Beyond this, the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nit-picking wars of attrition over collateral credibility issues. By expressly preserving this authority, section 28(d) of Proposition 115 makes clear the voters’ determination to prevent such consequences. “When exercising its discretion under California Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area.” (Citations omitted.) But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor – or any other conduct not amounting to a felony – is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler supra. at 296, 297.)

The California Supreme Court concluded, “section 28(d) [of Prop. 115] expressly leaves California trial courts free to exclude evidence which is irrelevant, or whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause.” (Id. at 295.)


The fact of a misdemeanor conviction constitutes inadmissible hearsay.  The California Supreme Court has concluded that the fact that a witness has suffered a misdemeanor conviction is hearsay and is not admissible over objection.

Indeed, misdemeanor convictions are subject to a hearsay objection when offered to prove the witness committed the underlying crimes. Thus, impeaching misconduct now may, and sometimes must, be proven by direct evidence of the acts committed (People v. Wheeler supra. at 297, fn.7.)

2. Even relevant evidence may be excluded under Evidence Code section 352.

The court in its discretion may exclude potentially relevant evidence if the probative value of the evidence is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice.  Evidence Code section 352 provides:


“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 the appellate court observed in Kessler v Gray (1978, 2nd Dist.) 77 Cal. App.3d 284, 291, 143 Cal Rptr 496:

“Evidence Code section 352 vests discretion in the trial judge to exclude evidence where its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of prejudice, of confusion of issues, or of misleading a jury.


Reasonable exercise of trial court discretion pursuant to Evidence Code section 352 requires that the trial judge balance the probative value of the offered evidence against its potential of prejudice, undue consumption of time, and confusion. [Citation omitted.] That balancing process 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 or only a collateral issue, and the necessity of the evidence to the proponent’s case as well as the reasons recited in section 352 for exclusion. [Citation omitted.] The more substantial the probative value of the evidence, the greater the danger of the presence of one of the excluding factors that must be present to support an exercise of trial court discretion excluding the evidence.”


Undue prejudice under Evidence Code section 352 means that the evidence will have an effect on the jury unrelated to the issue for which it was admitted.  The prejudice that section 352 is designed to avoid “is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. Rather, the statute uses the word in [the] sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” (People v. Zapien (1993) 4 Cal .4th 929, 958, 17 Cal Rptr 2d 122, 846 P2d 704.)

Accordingly, the danger of undue prejudice means that the evidence is likely to arouse the emotions of the jurors or be used in some manner unrelated to the issue on which it was admissible (People v. Cudjo (1993) 6 Cal.4th 585, 610, 25 Cal Rptr 2d 390, 863 P2d 635.)

“Substantial danger of undue prejudice” within the meaning of Evidence Code section 352 thus refers to a situation where the evidence may be misused by the jury for a purpose other than that for which it was admitted (People v. Filson (1994) 22 Cal.App. 4th 1841, 28 Cal Rptr 2d 335.)

Here, the defense moves for an order to exclude any reference to the prior misdemeanor conviction from the trial.




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

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.

computer crime fraud identity theft hacker hackers
Hacktivist’s Advocate Jay Leiderman speaks about the Hacker Wars on a Panel at South By Southwest (SXSW) in Austin TX. Jay lectures around Ventura County, around California and around the nation.

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:

9 thoughts on “Motion to exclude defendant’s criminal convictions at trial

  1. Let’s say you discover a great manufactured goods you intend to take up a business to
    showcase it with. If you do have a plan that
    may be relaxing in the mind asking you to do simply
    WORK IT. The health care industry continues to grow in a lot recently, which helps play into customers’ needs for your latest in personalized health care.

  2. I see your website needs some unique & fresh content.
    Writing manually is time consuming, there is tool for this task.
    Just search in gogle for; fejlando’s content tool

  3. Hey would you mind letting me know which hosting company
    you’re working with? I’ve loaded your blog in 3
    completely different browsers and I must say this
    blog loads a lot faster then most. Can you recommend a good internet hosting provider at a
    fair price? Thanks a lot, I appreciate it!

  4. First, Wells Fargo is similar to any company for the reason that they’re basically trying to collect the amount of money that they could have lent to you. Try not to steer clear of the selection calls or even to ignore the collection characters from Wells Fargo. Contact Wells Fargo immediately or if they have sold off your financial troubles to a different agency, call that collection agency. This is the first step to restoring your credit rating by removing unfavorable accounts. Actually, based on how late your Wells Fargo collection account is whether it be a 30 day late, 60 day late, 90-day late, or 120 day late consideration; Wells Fargo could be prepared to decrease the quantity you borrowed from. If nothing else, Wells Fargo maybe ready to extend the maturity of your mortgage (or charge card payment or company point payment or whatsoever credit selection obligation that you may have using them). Here is the first step to restoring your credit history when you have a Wells Fargo series fee.

Leave a Reply

Your email address will not be published. Required fields are marked *