Q.    Select Legal Authorities

Evidence Code §350

No evidence is admissible except relevant evidence.


Evidence Code §351

Except as otherwise provided by statute, all relevant evidence is admissible.


Evidence Code §352

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 §402

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.


Evidence Code §1200

“Hearsay evidence” 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.

Except as provided by law, hearsay evidence is inadmissible.

This section shall be known and may be cited as the hearsay rule.

Note: There are many exceptions to the hearsay rule that allow hearsay statements to be introduced into evidence.  Some of the more common exceptions include:

    • Evidence Code §1220 – Admission of party, such as a defendant’s statements
    • Evidence Code §1230 – Declaration against interest, such as a confession or claim of gang membership.
    • Evidence Code §1235 – Inconsistent statements. A witness’s prior statement that contradicts his current testimony can be used against him.
    • Evidence Code §1236 – Prior consistent statements. If a witness’s credibility is attacked by showing inconsistencies in his testimony, evidence may be presented to show that the witness previously gave the same version of events.
    • Evidence Code §1237 – Past recollection recorded, such as a report written at the time of an incident that contains details of the incident the witness no longer recalls.
    • Evidence Code §1238 – Prior eye witness identification.
    • Evidence Code §1240 – Spontaneous statement, such as “he shot her!”
    • Evidence Code §1241 – Statement made by declarant explaining his conduct, such as, “I’m going to the store.”
    • Evidence Code §1242 – Dying declaration. Statements from a person who believes they are dying regarding the cause of death.
    • Evidence Code §§1250, 1251 – Statement of the speaker’s state of mind, such as “I’m tired” or “my leg hurts.”
    • Evidence Code §1253 – Statements to medical professionals.
    • Evidence Code §§1271, 1280 – Business records, such as a hotel receipt or a birth certificate.
    • Evidence Code §1291 – Former testimony, such as statements made during a preliminary hearing.
    • Evidence Code §1320, 1324 – The general reputation of a person.
    • Evidence Code §1350 – Statements from a witness made unavailable by the defendant. If a defendant makes a witness unavailable, the witness’s prior statements may be used against the defendant.


Penal Code §995

…the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion [if] the defendant had been committed without reasonable or probable cause.


Penal Code §1054.1 

The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

    • The names and addresses of persons the prosecutor intends to call as witnesses at trial.
    • Statements of all defendants.
    • All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.
    • The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.
    • Any exculpatory
    • Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.


Penal Code §1382

The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:

When a person has been held to answer for a public offense and an information is not filed against that person within 15 days.

In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information… However, an action shall not be dismissed under this paragraph if either of the following circumstances exists:

The defendant enters a general waiver of the 60-day trial requirement…

The defendant requests or consents to the setting of a trial date beyond the 60-day period…

Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later, or in all other cases, within 45 days after the defendant’s arraignment or entry of the plea, whichever occurs later… [unless the defendant waives time as noted above]…


Penal Code §1473

(a) A person unlawfully imprisoned or restrained of his or her liberty, under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of his or her imprisonment or restraint.

(a) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:

(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her incarceration.

(2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.


(A)New evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.

(B) For purposes of this section, “new evidence” means evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching.

(c) Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in paragraphs (1) and (2) of subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to paragraph (1) or (2) of subdivision (b).

(d) This section does not limit the grounds for which a writ of habeas corpus may be prosecuted or preclude the use of any other remedies.

(1) For purposes of this section, “false evidence” includes opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.

(2) This section does not create additional liabilities, beyond those already recognized, for an expert who repudiates his or her original opinion provided at a hearing or trial or whose opinion has been undermined by later scientific research or technological advancements.


Penal Code §1538.5

(a) (1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

(A) The search or seizure without a warrant was unreasonable.

(B) The search or seizure with a warrant was unreasonable because any of the following apply:

(i) The warrant is insufficient on its face.

(ii) The property or evidence obtained is not that described in the warrant.

(iii) There was not probable cause for the issuance of the warrant.

(iv) The method of execution of the warrant violated federal or state constitutional standards.

(v) There was any other violation of federal or state constitutional standards…