Friday, August 22, 2014

Trial Court Error 5 - Excluded 1108 Rebuttal Evidence under 352

The judge allowed evidence of the prior conviction to be admitted, but then excluded the defense witnesses in order to save time.

Section 352 allows the court to exclude otherwise admissable evidence if it would take up an undue amount of the courts time.

But the evidence that is subject to review is the prosecutions propensity evidence, not the defense rebuttal evidence.

The law is clear that once the prosecution has introduced propensity evidence under 1108, the defense is entitled to rebut that evidence. (If they can)

You can' t save time by admitting the prosecution evidence and then refusing to allow the defendant to present a defense.

Yet, that is exactly what happened

The trial court allowed in the prior and excluded the defense, saying:

THE COURT: "And I don't want to get bogged down in a mini trial of litigating something he's already been convicted of when all you have to do, or all you're required to do to get the effect that I think you want, is to show that he's been convicted of this."

Why get bogged down with a defense at all when the only thing you need for a conviction is the prosecution evidence?

Trials do go much faster when the jury only gets to hear one side.