Elia V. Pirozzi
Mediator, Arbitrator, Referee/Special Master and Hearing Officer JAMS
Many objections to questions may be interposed during trials in both civil and criminal cases. This article will focus on questions asked in California trials which, although proper in form, call for answers that are inadmissible.
The objective of this article and self-study test is to review objections made to questions based on the substance of responses sought to be elicited. Readers will learn about objections to questions due to relevance, lack of foundation, hearsay, calling for unduly inflammatory/prejudicial answers, improper impeachment or rehabilitation, improper character evidence, cross-examination exceeding scope of direct, non-responsive answers, soliciting inadmissible lay opinions, writings not being authenticated, admissions during settlement discussions/plea bargaining, corpus delicti not having been proved, improper evidence of past sexual conduct, and misconduct of counsel.
Relevance
Only relevant evidence is admissible. (Evidence Code §§ 350, 351; all further statutory references are to this code unless otherwise specified.) The court lacks discretion to admit irrelevant evidence. (People v. Cowan, 50 Cal.4th 401 (2010).) Relevant evidence must have a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," including "evidence relevant to the credibility of a witness or hearsay declarant." (§ 210.) The trier of fact determines the weight to give to admissible evidence. (People v. Turner, 10 Cal.5th 786 (2020).)
When an objection is made on relevancy grounds, and it is not entirely clear as to the relevancy of the specific item of evidence, the trial judge has several alternatives: a) sustain the objection subject to an offer of proof substantiating relevancy by the proponent of the proffered evidence (presently or at a later time during the proceedings); b) informally request from the proffering attorney the basis for the relevancy of the evidence or c) overrule the objection at which time counsel objecting to the introduction of the evidence will often ask the court to reserve its ruling on a motion to strike if the basis for relevancy is to be furnished at a later time in the proceedings and counsel proposing the evidence fails to provide such conjoining evidence.
Insufficient Foundation
The admissibility of evidence will sometimes depend on the existence or nonexistence of facts. (§ 400.) The proponent of evidence has the burden to show the existence/nonexistence of the facts. (§§ 403, 405.) Under § 403, the judge determines only if a prima facie showing of a preliminary fact has been established but the jury makes the final decision on the existence of the preliminary fact. By contrast, under § 405, the judge exclusively makes the foundational determination. (See People v. Cottone, 57 Cal.4th 269 (2013) [comparing the two statutes].)
Hearsay
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200(a).) However, a statement that is offered for a relevant purpose other than to prove the truth of the matter stated is not hearsay. (People v. Wilson, 11 Cal.5th 259 (2021).) Hearsay is inadmissible unless it meets one of the numerous statutory exceptions to the hearsay rule. (§ 1200(b).) If a statement contains multiple hearsay, admissibility requires that each layer of hearsay satisfy the requirements of an exception to the hearsay rule. (§ 1201.)
Unduly Inflammatory/Prejudicial
Even when evidence is relevant, a court has the discretion to exclude it under specified circumstances. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . . (§ 352.) The statute also allows a court to exclude evidence when "its probative value is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time or . . . create substantial danger . . . of confusing the issues, or of misleading the jury." (§ 352.) The court has wide discretion in making this determination but must overrule a § 352 objection unless the dangers substantially outweigh the probative value of the evidence. (See People v. Rodrigues, 8 Cal.4th 1060 (1994); People v. Jenkins, 22 Cal.4th 900 (2000).)
Improper Impeachment
Under § 785, the credibility of a witness can be challenged by any party, including the party who initially called the witness. In criminal cases, there are scenarios where a defendant's statements can be used for impeachment although precluded in the prosecution's case-in-chief. Such situations include: a) where evidence is obtained in violation of the Fourth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) (Harris v. New York, 401 U.S. 222 (1971)); b) testimony by a probationer at a hearing on revocation of probation (People v. Coleman, 13 Cal.3d 867 (1975)); and c) the defendant's testimony at a Fourth Amendment suppression hearing (Simmons v. United States, 390 U.S. 377 (1968)). Additionally, where evidence exists that a particular witness may be fearful of testifying due to the prospect of retaliation by the defendant, such evidence is customarily considered relevant to witness credibility and to explain the witness' demeanor. (People v. Merriman, 60 Cal.4th 1 (2014); People v. Malone, 47 Cal.3d 1 (1988).)
Particular attention with regard to improper impeachment should be paid by the trial judge to specific instances of conduct to prove a character trait (§ 787), felony convictions (§ 788), evidence of a person's religious belief or lack of such belief (§ 789), and where evidence of good character is sought to be admitted and bad character was not previously raised to attack a witness's credibility (§ 790). Moreover, evidence of traits of character other than honesty and veracity is not admissible in civil cases to attack or support the credibility of a witness. (§ 786.) It is critical to note, however, that under Cal. Const., art. 1, §28 (f)(2), the Right to Truth-in-Evidence provision (Proposition 8), all relevant evidence in criminal matters is admissible (subject to specific statutory restrictions including, without limitation, those prescribed under §§ 352, 782 and 1103) unless the evidence is obtained in violation of the United States Constitution. (In re Lance W., 37 Cal.3d 873 (1985).) Therefore, courts have held since the passage of Proposition 8 that § 787 (People v. Dalton, 7 Cal.5th 166 (2019)), and § 790 (People v. Taylor, 180 Cal.App.3d 622 (1986)), have been nullified as they apply to criminal cases. Improper impeachment of a witness can also occur under the United States Constitution, for example, under circumstances in which the Fourth Amendment rights of a defense witness have been violated (People v. Cooks, 141 Cal.App.3d 224 (1983)), or statements were made involuntarily by a witness under the Fifth Amendment (People v. Douglas, 50 Cal.3d 468 (1990)).
Improper Rehabilitation
Under § 780, "the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove . . . the truthfulness of his testimony," and § 785 states "[t]he credibility of a witness may be . . . supported by any party." Restrictions include the bar to supporting (or attacking) the credibility of a witness with evidence of religious belief or a lack thereof (§ 789), and restrictions on the use of prior consistent statements (§ 791).
Improper Character Evidence
"Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility." (§ 790.) Furthermore, character evidence is inadmissible when offered to prove a party's conduct on a specified occasion. (§ 1101(a).) However, character evidence is admissible to show that a person committed a crime, civil wrong, or other act when relevant to prove some fact other than the person's disposition to commit the act, including motive, opportunity, intent, identity, preparation, common plan, knowledge, or absence of mistake or accident. (§ 1101(b).) To be admissible, the other act "must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence." (People v. Lenart, 32 Cal.4th 1107 (2004).)
Cross-Examination Exceeds Scope of Direct
Pursuant to § 761, the examination of a party on cross is confined to "a matter that is within the scope of the direct examination of the witness." (See also § 773.)
The breath of cross-examination is largely determined by the discretion of the trial judge. (See People v. McClellan, 71 Cal.2d 793 (1969).) Reasonable restrictions can be placed on cross-examination for the purpose of witness protection and safety as well as to ensure the relevance of the interrogation. Thus, when the prosecution is questioning the defendant on cross-examination, the parameters of the interrogation cannot expand beyond the scope of the direct examination (other than for challenges to witness credibility). (See §§ 761, 773(a).) However, it is important to note that, if the defendant testifies and denies committing the crime for which the defendant is charged, the scope of cross-examination of the defendant by the prosecution can become more expansive and the trial court may permit counsel significant latitude in his or her questioning of the witness; otherwise, inquiries can only be made as to matters explored on direct examination. (People v. Cooper, 53 Cal.3d 771 (1991).) To preserve the issue on appeal, counsel must object in the trial court that the questioning on cross-examination exceeded the scope of direct examination. (§ 353(a); People v. Green, 95 Cal.App.3d 991 (1979).)
Answer is Nonresponsive
"A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party." (§ 766.)
It is notable that trial judges will often evaluate the response made by a witness to determine if the statement is relevant to an issue in the case. If so, the court will often deny a motion to strike. If the response contains both responsive and nonresponsive elements, the trial judge should ordinarily strike the nonresponsive component of the statement. (See Rayii v Gatica, 218 Cal.App.4th 1402 (2013).) Responses to questions calling for a "yes" or "no" answer can be construed as nonresponsive if they provide an explanation beyond the specific inquiry. (See People v. Navarro, 12 Cal.5th 285 (2021).) However, the court may in its discretion permit the witness to expand upon a "yes" or "no" response if to do so will assist the jury to understand the testimony more clearly; or, the court may require the witness to provide the appending information on re-direct examination.
Solicits Inadmissible Lay Opinion
A witness, not testifying as an expert, who is providing testimony in form of an opinion, "is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [⁋] (a) Rationally based on the perception of the witness; and [⁋] (b) Helpful to a clear understanding of [the witness's] testimony." (§ 800.) Thus, a lay witness may render an opinion only if the testimony is based on personal knowledge, perception, or observation. (People v. Bell, 7 Cal.5th 70 (2019).) The court has the discretion to require the lay witness to be examined by counsel about the matter on which the opinion is based before testifying in the form of an opinion. (§ 802.)
Writing Not Properly Authenticated
"Authentication of a writing is required before it may be received in evidence." (§ 1401(a).) The disputed authenticity of a writing is governed by §§ 402 and 403, and the evidence must be sufficient for the trier of fact to find that the writing is genuine for the purpose for which it is offered. (See People v. Goldsmith, 59 Cal.4th 258 (2014).) The role of the trial judge is to simply determine whether there is sufficient evidence to permit the jury to find that the writing is authentic. (§ 1400.) The jury will determine the effect and value of the evidence proffered. "Nothing in [the Evidence Code] shall be construed to limit the means by which a writing may be authenticated or proved." (§ 1410.)
Admission Made During Settlement Discussions or Plea Bargains
Offers of compromise in a civil case are inadmissible unless used to enforce the settlement or in a case involving bad faith by a surety. (§ 1152.) In addition, § 1153 provides, "Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals." In this context, only admissions made in an attempt to persuade the court or the prosecutor to accept a specific offer are inadmissible. (People v. Magana, 17 Cal.App.4th 1371 (1993).)
Corpus Delicti Not Proved
"In requiring independent evidence of the corpus delicti, California has not distinguished between actual confessions or admissions on the one hand and preoffense statements of intent on the other. Thus, the rule in California has been that one cannot be convicted when there is no proof a crime occurred other than [a defendant's] own earlier utterances indicating a predisposition or purpose to commit it." (People v. Alvarez, 27 Cal.4th 1161 (2002).) As noted by Alvarez, the proof may be circumstantial and is satisfactory if it permits an inference of criminal conduct independent of a criminal defendant's out of court statements. Thus, before a confession may be introduced, slight corroborating facts must show independently that someone has committed a crime. (People v. Ochoa, 19 Cal.4th 353 (1998).) "The purpose of the corpus delicti rule is to assure that 'the accused is not admitting to a crime that never occurred.'" (People v. Jones, 17 Cal.4th 279 (1998).)
Improper Evidence of Past Sexual Conduct
This objection is typically made prior to the commencement of trial. Generally, a defendant in a sexual assault case may not introduce evidence of the victim's sexual conduct (via opinion, reputation, or specific instances) to prove the victim consented to the sexual act in question. (§ 1103(c)(1).) This evidence can only be employed to attack the credibility of the complaining witness if the defendant complies with the procedural requirements set out under § 782. (§ 1103(c)(5).) Although evidence of the witness' sexual conduct with the defendant is admissible, evidence of the witness' manner of dress at the time the offense was committed is not admissible when offered by either party on the issue of consent. (§§ 1103(c)(1), (3), 1103(c)(2)).
Misconduct of Counsel
Counsel will typically object to specific misconduct of opposing counsel, request a curative admonition from the trial judge as well as an order from the judge that counsel cease engaging in the misconduct. If the conduct is so egregious and prejudicial that a fair trial is not possible, the trial judge should be prepared for counsel to move for a mistrial. (See Bus. Prof. Code, §§ 6000-6206 [State Bar Act]; Cal. Rules of Prof. Conduct 5-200; see also People v. Avila, 38 Cal.4th 491 (2006) [mistrial may only be granted when a party's chance of receiving a fair trial is irreparably damaged]; Blumenthal v. Superior Court, 137 Cal.App.4th 672 (2006) [same in civil case].) If a party fails to timely object to misconduct of counsel, the objection will be forfeited and the issue may not be raised on appeal. (See People v. McDermott, 28 Cal.4th 946 (2002) [closing argument].)