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EVIDENCE CODE SECTION 352 CANNOT BE USED TO EXCLUDE EVIDENCE BASED ON SPECULATION AS TO ITS PREJUDICIAL IMPACT

While the purpose of Evidence Code section 352 is to protect the defendant, the defense recognizes that the prosecution may be accorded some protection under Evidence Code section 352 from the use of prejudicial evidence with little probative fact:  “the purported prejudice to the prosecution cannot be based on mere speculation and conjecture.”  (People v. Wright, 39 Cal. 3d 576, 585.)  Moreover, “evidence that is relevant to the prime theory of the defense cannot be excluded in wholesale fashion merely because the trial would be simpler without it.”  (People v. McDonald (1984) 37 Cal. 3d 351, 372 (overruled on other grounds by, People v. Mendoza (2000) 23 Cal. 4th 896.)

If the trial court must err, it should err on the side of admission of defense evidence.  As the Supreme Court of California observed in People v. Wright, supra., at 584-585:

We first reiterate, from a unanimous opinion of this court, the wise advice for trial judges in criminal cases (and for prosecuting attorneys) [that] was articulated long ago: ‘Questions as to the admissibility of evidence frequently arise, and in the hurry of a trial the best Judge may err… [Whenever] the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in, since, in nine cases out of ten, a single equivocal fact, of doubtful bearing upon the case, would have no effect upon the judgment of the jurors, who are usually disposed to pass… upon the general merits’.  In other words, trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.

 

Evidence Code section 352 reads: 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 defined by Evidence Code section 210, “relevant evidence means evidence, including evidence relevant to 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 the action.”

Furthermore, it is a constitutional command that “all relevant evidence is admissible.”  (Art. I, § 28 (d) Cal. Const.[evidence code section 352])  In addition, the defense has a federal constitutional right to compulsory process and to put on a defense.  (Washington v. Texas (1967) 388 U.S. 14; Holmes v. South Carolina (2006) 126 S. Ct. 1727.)  These protections are violated when relevant defense evidence is excluded.  Evidence Code section 352 “must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.”  (People v. Reeder (1978) 82 Cal. App. 3d 543, 553; People v. Cunningham (2001) 25 Cal.4th 926, 999; See also Fowler v. Sacramento County Sheriff’s Department (9th Cir. 2005) 421 F.3d 1027 [granting federal habeas for misuse of 352 to denying confrontation evidence against complaining witness].)

The balancing under Evidence Code section 352 “is particularly delicate and critical where what is at stake is a criminal defendant’s liberty.”  (People v. Wright, supra., at 584-588 [excluding evidence of drugs in the victim’s system erroneously prevented the defendant from supporting his perception of the victim’s irrational state of mind].  In sum, the trial court’s exercise of discretion under section 352 “should favor the defendant in cases of doubt.”  (People v. De Larco (1983) 142 Cal. App. 3d 294, 306.)  Assuming the court is determined to engage in the weighing process and consider exclusion, the court must make a finding supported by the record (People v. Clair (1992) 2 Cal. 4th 629, 660) that the value of the evidence is substantially outweighed by the “a” and “b” factors discussed next.  Notice the phrasing in 352 is only if substantially outweighed, which instructs the court that only a lopsided outweighing warrants exclusion.  Anything close goes to the Defendant.

Concerning factor (a) of Evidence Code Section 352, the production of all evidence takes time so the focus has to be on “undue” consumption of time.  For example, in Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, the trial judge was reversed for disallowing prior bad acts evidence of a law enforcement officer in a suit by a prisoner concerning his manhandling while in custody.  The trial judge would not allow the other acts of misconduct to be introduced because it would require time-consuming “mini-trials” on those issues.  The Appellate Court reversed because “the fact that the jury must resolve conflicting versions cannot justify the exclusion of all such evidence on this [352] ground alone.”  (Id. at 947.)

A common argument for excluding evidence under section 352 for taking too much time is that it is cumulative evidence.  However, there is a reason for putting on some cumulative evidence.  Evidence that corroborates is necessary and thus cannot be excluded as merely cumulative.  (People v Brown (1995) 35 Cal. App.4th 1585, 1595-1597.)  Additional evidence may be of more probative value than previous versions.  “Evidence that is identical in subject matter to other evidence should not be excluded as ‘cumulative’ when it has greater evidentiary weight or probative value.”  (People v. Mattson (1990) 50 Cal.3d 826, 871.[Evidence Code section 352])  See also People v Minife (1996) 13 Cal.4th 1055, 1065 [“A person claiming self-defense is required to “prove his own frame of mind” and in doing so is “entitled to corroborate his testimony that he was in fear of his life.`” quoting People v. Davis (1965) 63 Cal.2d 648, 656]; People v. Carmichael (1926) 198 Cal. 534, 548 [“It might be that the jury would hesitate to accept the uncorroborated evidence of a defendant in a case, when, if his testimony were supported by the evidence of a disinterested witness, they might take an entirely different attitude toward it.” – overruled on other grounds.]

Concerning factor (b) of Evidence Code section 352, evidence can only be excluded if it creates substantial danger of undue prejudice.  Prejudice does not mean damaging.  Here, the best evidence is prejudicial to the prosecution. (People v. Jackson (1991) 235 Cal.App.3d 1670, 1679 [the evidence “was prejudicial only in the sense that it cast doubt on the prosecution’s case against defendant.”].)  Undue prejudice means that the evidence has very little relevance and a great potential for unfairly prejudicing the other side.  “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against one party as an individual and which has very little effect on the issues.  (People v. Karis (1988) 46 Cal. 3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.)

Thus, the balancing process mandated by Evidence Code section 352 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 issue, or only a collateral one, and the necessity of the evidence to the proponent’s case.  (People v. Wright, supra., at 585.)  To warrant exclusion on that ground, the weighing process requires a finding of lopsidedness such that relevance is minimal and unique prejudice to the State is maximal.  That is not the case here.

Here, as to the evidence confusing the issues, or misleading the jury, it is difficult to conceive that the relevant evidence is minimally relevant while being so potent it would substantially confuse the issues or mislead a jury.  (People v. Mayfield (1972) 23 Cal.App.3d. 236 [reversing for exclusion of testimony by a superior officer concerning the credibility of a deceased undercover cop on this basis; held an abuse of discretion that resulted in a denial of due process].)

 

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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: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jay leiderman muder trials jury federal court EVIDENCE CODE SECTION 352

Jay Leiderman makes a TV appearance discussing a case that was recently sentenced. He was explaining why the sentence was unjust.

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: http://www.jayleiderman.com/htm/contact.php

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IN ORDER FOR THE DEFENDANT TO PREVAIL IN HIS MOTION TO DISMISS, HE MERELY HAS TO RAISE A REASONABLE DOUBT AS TO THE FACTS UNDERLYING THE DEFENSE; UPON DOING SO THE BURDEN SHIFTS TO THE PEOPLE TO ESTABLISH THAT THERE IS A REASONABLE LIKELYHOOD THEY WILL BE ABLE TO CARRY THEIR BURDEN AT TRIAL

With regard to the requisite burden of proof, the Mower court concluded that “as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt.” People v. Mower (2002) 28 Cal.4th 457, 481. The Supreme Court analyzed the quantum of proof for analogous factual situations: Most similar is the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug. For that defense, a defendant need raise only a reasonable doubt as to his or her possession of the drug in question with a physician’s prescription. Id. at 481. The court concluded that medical marijuana patients should have the same burden as patients who use prescription drugs. “As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal — so long as its conditions are satisfied — than the possession and acquisition of any prescription drug with a physician’s prescription.” Id. at 482.   Furthermore, since the passage of the Medical Marijuana Program qualified individuals shall not be subject, on that sole basis that they associated in order to collectively cultivate medical marijuana, to criminal liability under Health and Safety Code Section 11358. (See, H&S 11362.775).

Subsequent to the enactment of the CUA and the MMP the burden has dramatically shifted-once the defendant has raised a reasonable doubt by introducing some evidence of lawfulness the burden is on the prosecution to prove beyond a reasonable doubt that the defendant’s conduct was not lawful; In other words, as provided by Mower supra,

 “With respect to many defenses, as has been and is extremely common in the penal law, a defendant has been required merely to raise a reasonable doubt as to the underlying facts. Such defenses relate to the defendant’s guilt or innocence. Perhaps most pertinent here are the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug. … The defense of possession of a dangerous or restricted drug with a physician’s prescription negates the element of unlawful possession of such a drug. ”  Mower supra at pp. 399- 480

 

Without the shift in the burden of proof at the pre-trial stage of criminal matter involving the medical marijuana defense, the limited immunity, which is provided by the CUA and the MMP would become meaningless, contrary to the legislative intent, which was “to avoid unnecessary arrest and prosecution of these individuals”, [persons qualified under the CUA and/or the MMPA.] See, preamble to the Medical Marijuana Program, SB 420 Sec 1(a)(4)(b)(1) 2003 Cal ALS 875.

With respect to the Compassionate Use Act and the Medical Marijuana Program Act, Health and Safety Code § 11362.5 and Health and Safety Code §§ 1362.7 et seq. [CUA and MMPA] are silent with respect to the burden of proof required to overcome a defendant’s claim to the immunities provided by the respective Acts.

In an analogous context the California Supreme Court held in Zamora, at foot note 25, that a defendant may be entitled to a pretrial hearing that is separate and apart from a Penal Code § 995 motion, regarding the jurisdictional issue connected to the statute of limitations:

“the limitation question is a basic jurisdictional issue and the bar thereof is aimed as much at the prevention of untimely prosecutions as it is at the prevention of untimely convictions. If it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earliest possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed. Moreover, the determination of the trial court after such a hearing will be similar to that on a motion for a directed verdict (§§ 1118, 1118.1) without the necessity of first litigating the merits of the case. ….At such a hearing, it may properly be considered whether the reasonable diligence requirement of section 800 has been complied with. We emphasize that there is no right to such a preliminary determination of the limitation issue. In each case the court should, before granting a hearing on the issue, consider such factors as the likelihood that the People will be unable to meet their burden of proof on the question (citation omitted), and the potential length of both the hearing and a full trial on the merits. If the People prevail after such a hearing, then the limitation issue must still be resolved by the jury if it remains disputed by the defendant.”

 

People v. Zamora (1976) 18 Cal. 3d 538, 563-564 fn 25

 

As in Zamora, the Court should determine through these offers of proof whether the prosecution is likely to meet their burden of proof to overcome the immunities asserted by the defendant.  If it is unlikely that the Prosecution will prevail at trial, then the Kelly decision directs that the matter should be dismissed in order to avoid unnecessary prosecution of qualified individuals who assert their immunities under the Compassionate Use Act and/or the Medical Marijuana Program.

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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: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jay leiderman is at the cutting edge of criminal defense in the United States by using technology to defend cases reasonable doubt

Attorney Jay Leiderman intently studies his computer. He is always looking for that one case or one piece of evidence that will turn the case around

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: http://www.jayleiderman.com/htm/contact.php

 

 

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A PERSON IS A “QUALIFIED PATIENT” SO LONG AS PRIOR TO THE USE OF MARIJUANA HE RECEIVED A WRITTEN RECOMMENDATION OR ORAL APPROVAL FROM A PHYSICIAN; ONCE GIVEN, THE WRITTEN RECOMMENDATION OR ORAL APPROVAL DOES NOT “EXPIRE”

Health and Safety Code section 11362.5 (d) states in pertinent: “…Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (emphasis added)

The defendant maintained a valid physician’s recommendation throughout his cultivation process.  Once a recommendation is obtained from a physician for the medical use of cannabis, it may be used perpetually for that purpose. “[W]e see nothing in the statute that requires a patient to periodically renew a doctor’s recommendation regarding medical marijuana use. The statute does not provide, as the Attorney General asserts, that a recommendation “expires” after a certain period of time.” People v. Windus (2008) 165 Cal. App. 4th 634, 641.  

Even when a physician testifies contrary to the defendant with respect to an oral recommendation the matter must be resolved by the jury. See, People v. Jones (2003) 112 Cal.App.4th 341, 350 (error to exclude defense evidence where defendant’s testimony raised reasonable doubt about physician’s oral approval.) “But, of course, the statute uses the conjunctive; the defense it provides obtains if there is either a “recommendation or approval of a physician.” We think it clear that these two terms mean something slightly different, and that ‘”approval”‘ connotes a less formal act than a “recommendation.”” People v. Trippet (1997)56 Cal.App.4th 1532. “The word “recommendation,” as used in the Compassionate Use Act, suggests the physician has raised the issue of marijuana use and presented it to the patient as a treatment that would benefit the patient’s health by providing relief from an illness. The word “approval,” on the other hand, suggests the patient has raised the issue of marijuana use, and the physician has expressed a favorable opinion of marijuana use as a treatment for the patient. Thus, a physician could approve of a patient’s suggested use of marijuana without ever recommending its use.” People v. Jones (2003) 112 Cal.App.4th 341, 347.

A single lay witnesses’ testimony on this issue is sufficient to require the court to instruct the jury on the medical use defense; People v. Jones (2003) 112 Cal.App.4th 341, 350.

“Here, we conclude the evidence was sufficient to raise a reasonable doubt as to whether Dr. Morgan approved defendant’s use of marijuana for his migraine headaches. If the jury credited defendant’s testimony that Dr. Morgan told him marijuana use “‘might help, go ahead,’” the jury could find defendant had Dr. Morgan’s “approval” because Dr. Morgan expressed a favorable opinion of defendant’s proposed marijuana use. Because defendant’s testimony was sufficient to raise a reasonable doubt over the fact of the physician’s approval, the trial court erred in barring defendant from presenting his Compassionate Use Act defense to the jury.” id at 350

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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: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

MEDICAL MARIJUANA COMPUTER HACKING MURDER HOMICIDE qualified patient

A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.

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: http://www.jayleiderman.com/htm/contact.php

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Jay Leiderman interviewed on AnonUK Radio Replay – t0pG3ar Live – Global internet activist conversation.  The topic was Matthew Keys and the lessons and fallout from the case.

Listen here to Jay Leiderman interviewed on AnonUK Radio by T0p and G3ar

Journalist sentenced to 24 months in prison.

A federal judge sentenced journalist Matthew Keys to two years in prison after he was convicted last year of three counts of conspiracy and criminal hacking.

It is a horse and buggy law in a jet plane society,” Jay Leiderman told the court. “It doesn’t account for the modern Internet, the punishments do not fit the crime.”

Jay Leiderman has dedicated his entire professional career to standing up as a staunch defender of our constitutional freedoms. He is a criminal law specialist and defense attorney who has represented members of Anonymous and Lulzsec. Jay, one of Keys’ attorneys said the legal team may even try to appeal up to the Supreme Court as a way to challenge the law Keys was charged under, the Computer Fraud and Abuse Act, a notorious anti-hacking law that dates back to 1984.

Jay Leiderman interviewed on AnonUK Radio about the Matthew Keys hacking case

Jay Leiderman discussing the Matthew Keys case and more on AnonUK Radio

Jay Leiderman, who did the bulk of the arguing on behalf of Keys, admitted that his client was “immature” at the time of the conduct for which he was convicted. He even noted that Keys had recently applied for a job as a records clerk at the Vacaville Police Department, and that they were apprised of his legal situation. After the conclusion of the hearing, Jay Leiderman expanded on that point, indicating that the defense was hoping for a retrial…

Listen here to Jay Leiderman interviewed on AnonUK Radio by T0p and G3ar

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Make Your iPhone More Secure – 4 Tips to Keep Your Smartphone Safer

With the recent event of FBI being able to crack into a smartphone without any help from Apple being all over the news, people can’t help but think if their smartphone is secure at all even if there is a passcode on it, not to mention Apple’s top-notch encryption when it comes to security purposes. After all, if the FBI could do it, anyone with the right tools can do it, right? Well, yes. It is a matter of concern because while the FBI aren’t going to misuse your property since they work for the government, anyone not associated with the government would probably try to break the security so that they have control of your phone. But you can easily prevent that by following these 4 tips that will keep your smartphone safer and secure:

Make Your iPhone More Secure - 4 Tips to Keep Your Smartphone Safer

Now that the FBI has hacked an iPhone what can you do to keep your smartphone safe?

The security of your data and your privacy is important

  1. Password instead of PIN: The most common form of basic security used by iPhone owners is having a 4 or 6-digit PIN on their smartphone. While a PIN code does have the benefits of easier access and quicker unlocking, it’s also relatively vulnerable. You can prevent that by having a password instead of a pincode. This way, if someone does try to break your security, they would actually have to go through a lot of trouble to be able to do.

 

  1. Two Step Verification: Two-step verification is one of the popular security features today as it is more convenient compared to existing methods of verifying that the person who logged in to your account was actually you. This way, whenever you sign in to an Apple device using your Apple ID, you will have to enter a verification code received via your SMS or find my phone service.

 

  1. Lockscreen Notifications: No matter how powerful your security setup might be, lockscreen notifications is that one feature which will constantly provide tidbits of information to anyone who has your phone, no matter what. If you want your phone to maintain utmost privacy, then it’s probably a good idea to disable lockscreen notifications as well, which will simply display the password screen if someone tries to access your phone rather than app notifications.

 

  1. Turn off Automatic Sync: Now this is purely upon a person’s opinion on whether they trust the iCloud or not. A lot of mishaps have happened in the past regarding photograph leaks, hacked accounts and so on but in Apple’s defense, they’re trying the best that they can to make sure it doesn’t happen again. Still, if you are concerned about iCloud’s security, you can turn off automatic sync to make sure that each and every photo that you click, every message received, and every contact saved isn’t uploaded to iCloud for the sake of backup.

 

Make Your iPhone More Secure - 4 Tips to Keep Your Smartphone Safer

The digital revolution is the most important jump in technology since the work that went into the moon landing

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