[Attorney Name], SBN [ ]
City, State Zip
Attorney for Defendant
THE PEOPLE OF THE STATE OF CALIFORNIA
CASE NO. [CASE NUMBER]
MOTION TO EXCLUDE EVIDENCE OF DEFENDANT’S DRUG USE
Current Trial Date:
In Custody Since:
PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court for an order to exclude Defendant’s prior use of intoxicants.
The motion will be made on the following grounds of relevance and prejudice. Cal. Evid. Code §§ 352, 786. :
Attorney for Defendant
POINTS AND AUTHORITIES IN SUPPORT OF BAIL REDUCTION
Defendant is charged with:
Count 1: [INSERT CHARGES]
[INSERT FACTUIAL INFORMAITON]
Purpose of Motion in Limine
The central cases on in limine motions are Amtower v. Photon Dynamics, Inc., 158 Cal.App.4th 1582 (2008); Kelly v. New West Federal Savings, 49 Cal.App.4th 659 (1996); and R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327 (2006) (Rylaarsdam, Acting P .J., concurring).
The key function of these motions is to ensure juries do not hear inadmissible evidence,
and in particular inadmissible evidence which may prejudice the jury. “The advantage of such
motions is to avoid the obviously futile attempt to un-ring the bell in the event a motion to strike
is granted in the proceedings before the jury.” Amtower, 158 Cal.App.4th at 1593, quoting Hyatt
v. Sierra Boat Co., 79 Cal.App.3d 325, 337 (I 978). Secondly, in limine motions can help speed
the trial and allow for a more considered decision on difficult evidentiary issues. Kelly, 49
Cal.App.4th at 669-70.
Only relevant evidence is admissible at trial. Evidence Code § 350. “Relevant evidence” means testimony or physical objects, including evidence bearing on 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 an action. Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1. A court has no discretion to admit irrelevant evidence. People vs. Crittenden (1994) 9 Cal.4th 83, 132. Evidence which produces only speculative inferences is irrelevant evidence. People vs. De La Plane (1979) 88 Cal.App.3d 223, 242. Whether or not evidence is relevant is a decision within the trial court’s discretion. People vs. Von Villas (1992) 10 Cal.App.4th 201, 249. The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason. (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.1
“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.” Evidence Code § 352. “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against defendant” without regard to its relevance on material issues). People v. Kipp (2001) 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27, 33 P.3d 450.2
The balancing process requires consideration of the relationship between evidence and relevant inferences to be drawn from it, whether evidence is relevant to main or only a collateral issue, and necessity of evidence to proponent’s case as well as reasons recited in statute for exclusion. Kessler v. Gray (1978) 77 Cal. App. 3d 284, 143 Cal. Rptr. 496. Because evidence of other, uncharged offenses can be highly prejudicial, trial courts should use particular care in performing balancing analysis under Section 352. People v. Millwee (1998) 18 Cal. 4th 96, 74 Cal. Rptr. 2d 418, 954 P.2d 990, cert. denied.
For example, the trial court committed reversible error in rape and kidnapping trial by admitting uncharged act evidence that defendant put his finger in the mouth of previous attempted kidnapping victim; the jury could infer a sexual connotation to the prior offense, and the prejudicial effect of the evidence exceeded its comparatively low probative value. People v. Jandres (2014) 226 Cal. App. 4th 340, 171 Cal. Rptr. 3d 849. Similarly, in a prosecution for committing a forcible lewd act upon a child, where the key issue was whether the defendant had the intent to commit the act when he entered the victim’s house, the trial court erred in permitting the court-appointed interpreter to testify that she had seen defendant moving his hands near his groin during victim’s testimony; such testimony could confuse and inflame the jury. People v. Leon (2001) 91 Cal. App. 4th 812, 110 Cal. Rptr. 2d 776.
By enacting this section 352, the legislature gave courts the means to facilitate judicial economy. DePalma v. Westland Software House (1990) 225 Cal. App. 3d 1534, 276 Cal. Rptr. 214. The issue of judicial economy is served by the exclusion of adult on adult sexual contact because it would require Defendant to call rebuttal witnesses on collateral issues of scant relevance and possible enormous prejudice. See People v. Morrison (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26 (Contrary to the common law rule and popular belief, a trial court has substantial discretion to allow rebuttal witness to contradict testimony on direct examination, even though the rebuttal is impeachment on a collateral fact).
DEFENDANT’S PRIOR DRUG USE IS INADMISSIBLE
Generally, “[e]vidence of traits of…character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Cal. Evid. Code § 786. As noted above, Defendant’s recreational use of drugs ended years ago and is of no relevance currently (or even back then) to “honesty or veracity, or their opposites.”
Evidence Code § 1101(a) provides that evidence of a person’s character or trait is inadmissible when offered to prove his conduct on a specific occasion. Admissibility requires the act to be “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.” Evidence Code § 1101(b). Defendant’s prior drug use is not relevant to any of these issues.
In People v. Reid, 133 Cal. App. 3d 354, evidence of a defendant’s prior drug abuse was found to have been improperly admitted. “[T]he admissibility of other crimes evidence must be scrutinized with great care because of its highly inflammatory and prejudicial effect on the trier of fact. People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883]. Accordingly, when such evidence is proffered by the prosecution, its admissibility depends on three principal factors: ‘(1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and(3) the existence of any rule or policy requiring exclusion of relevant evidence.’ (Id., at p. 315.).” People v. Reid, 133 Cal. App. 3d 354, 361-62, 184 Cal. Rptr. 186, 190 (1982).
In People v. Thompson (1980) 27 Cal.3d 303, 314; 165 Cal.Rptr. 289, 611 P.2d 883, because the prosecution did not establish how that drug abuse resulted in appellant’s motive for committing the robberies, the evidence of drug abuse alone did not have a tendency to prove a motive for the robberies. Further, because of the substantial prejudicial effect inherent in other crimes evidence, uncharged offenses are admissible only where they had substantial probative value, and if there is any doubt as to that value, the evidence should be excluded. Cal.Evid 352,
In People v. Tuggles (2009)179 Cal. App. 4th 339, 100 Cal. Rptr. 3d 820, the trial court was fond not to have abused its discretion or violate any federal constitutional rights by restricting cross-examination of an accomplice about his drug abuse and mental health issues based on undue consumption of time. Evidence Code § 352. See also People v. Rodriguez (1986) 42 Cal. 3d 730, 230 Cal. Rptr. 667, 726 P.2d 113, reh’g denied (Evidence regarding state witness’s history of drug abuse and psychiatric treatment five and six years before trial did not have sufficient bearing upon credibility of her testimony at trial to make its exclusion an abuse of discretion).
The Accidental/Incidental Mention by a Defense Witness of the Defendant’s Prior Drug Usage Does Not Open the Door to Further Evidence on That Subject
If any witness accidentally/incidentally mentions the defendant’s prior drug usage, the door to further evidence on that subject has not “opened.” “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony. The so-called ‘open the door’ or ‘open the gates argument is a ‘popular fallacy.’ (Citation Omitted).” People vs. Gambos (1970) 5 Cal.App.3d 187; People vs. Williams (1989) 213 Cal.App.3d 1186, 1189, fn. 1; People vs. Valentine (1988) 207 Cal.App.3d 697, 705 [government’s purported impeachment of defendant was an improper rebuttal to a collateral matter improperly raised on cross-examination].
Defendant respectfully requests to exclude all references to past drug use by defendant as all such evidences is irrelevant, an undue waste of time and/or substantially more prejudicial than probative. Evidence Code §§ 210, 350, 350.1, 352.
Dated this __ day of ___, 20__
DECLARATION OF [ATTORNEY’S NAME]
I, [ATTORNEY’S NAME] declare:
I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020.
I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of
I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.
Executed in Pleasant Hill, CA on March 16, 2022.
[ATTORNEY’S NAME], SBN
1 Cal. Const., art. I, § 28, subd. (f)(2), the 1982 so called “truth in evidence” amendment to the California constitution did not abrogate the requirement of relevancy the manner in which relevancy is determined or the obligation of a trial court to exclude such evidence. Evidence Code §§ 210, 350, People v. Dalton (2019) 7 Cal. 5th 166, 214, 247 Cal. Rptr. 3d 273, 319, 441 P.3d 283, 322.
2 Likewise, the so called “truth in evidence” amendment to the California constitution (Cal. Const., art. I, § 28, subd. (f)(2)) did not abrogate the court’s discretion to exclude evidence under Evidence Code § 352. People v. Dalton (2019) 7 Cal. 5th 166, 214, 247 Cal. Rptr. 3d 273, 319, 441 P.3d 283, 322.