RULES OF ADMISSIBILITY

Evidence Admissibility

WHAT ARE THE RULES OF ADMISSIBILITY IN CALIFORNIA CRIMINAL CASES?

In any criminal trial, the prosecution bears the burden of proving the defendant’s guilt beyond a reasonable doubt. This high standard of proof requires that all evidence presented to the jury be admissible under California law.

In other words, defense attorneys can object to evidence offered by the prosecution on the grounds that it is not legally admissible. If the court agrees with the objection, the jury will never see or hear that particular piece of evidence.

The State of California has a long list of “rules of admissibility” regarding what kinds of evidence may be introduced at a jury trial and what is not admissible. These are outlined in the California Evidence Code, which outlines rules about what kind of evidence can be introduced in a criminal jury trial.

The most important evidence rules include that all evidence introduced at trial must be relevant and reliable, who is competent to serve as a witness, how lawyers can question witnesses, hearsay evidence rule, evidentiary privileges, the rule against character evidence, undue prejudice, confuse the issues, and mislead the jury.

If the prosecutor violates any rule of evidence at your criminal trial, then your defense attorney might be able to get the evidence excluded by objecting to it.

If the judge decides not to strike the evidence, you might be able to appeal your criminal conviction because the evidence was improperly admitted.

Our California criminal defense lawyers will look at some of the most common admissibility rules invoked by defense attorneys.

THE RELEVANCE RULE – EVIDENCE CODE 210 EC

The primary evidence rules must be relevant to the issues being tried in court and provide proof that the evidence is reliable.

Evidence is only considered relevant if it tends to prove or disprove a material fact in the case. It is irrelevant if the evidence does not go to any material fact and cannot be introduced.

Relevant evidence is described as evidence that has any reasonable tendency to prove or disprove any fact that Is disputed and matters to the case’s outcome.

THE HEARSAY RULE – EVIDENCE CODE 1200 EC

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In other words, if someone testifies that “I heard John say that he saw the defendant commit the murder,” that is hearsay.

Hearsay is generally not admissible under Evidence Code 1200 EC unless it falls into one of the numerous exceptions to the rule. The description of hearsay is straightforward. It’s a statement made by someone other than the testifying witness that is offered to prove the truth.

The main reason for this rule of evidence in California criminal cases is that hearsay statements are unreliable enough to be accepted as valid evidence. Also, they are not made under oath and can’t be subjected to cross-examination in court.

A classic hearsay scenario is when a witness testifies that a friend told them the defendant confessed to committing the crime. Still, the friend who allegedly told them does not provide any testimony.

THE CHARACTER EVIDENCE RULE – EVIDENCE CODE 1101 EC

The character evidence rule prohibits the introduction of evidence of a person’s character or reputation to prove that they acted in accordance with that character on a particular occasion.

For example, suppose the defendant is on trial for murder? In that case, the prosecution cannot introduce evidence that the defendant has a history of violence to prove that they committed the murder.

This means the prosecution cannot use your past bad actions or crimes as proof that you committed this particular crime.

Also, they are not allowed to bring witnesses who express negative opinions regarding your character to prove your guilt.

However, it should be noted that a defendant’s prior actions may be used to establish patterns of habit to show that the person may have been capable of committing the crime or to show possible motives for committing the crime.

THE AUTHENTICATION RULE – EVIDENCE CODE 1401 EC

Authentication proves that a particular piece of evidence is what it purports to be. For example, if the prosecution wants to introduce a letter into evidence, it must first prove that the letter was written by the person it purports to be from. If the prosecution cannot authenticate the document, it is inadmissible evidence.

Evidence Code 1401 EC says, “(a) writing authentication is required before receiving it in evidence. (b) authentication of writing is required before secondary evidence of its content can be received in evidence.”

EVIDENTIARY PRIVILEGE RULES IN CALIFORNIA

Certain types of information are protected by law and cannot be disclosed in a criminal trial, even if relevant to the case.

This is because the interests protected by the privilege outweigh the probative value of the evidence. The most common evidentiary privileges invoked in criminal trials include:

• Psychotherapist-patient privilege under Evidence Code 1014 EC makes communications between therapist and patient inadmissible in court;
• Attorney-client privilege under Evidence Code 954 EC makes private communication between attorneys and their clients inadmissible in court;
• Spousal privilege under Evidence Code 970 and 971 EC means the courts cannot force spouses to testify against one another.

Your Constitutional Fifth-Amendment right not to give self-incriminating testimony also counts as an evidentiary privilege.

EXCLUSIONS OF EVIDENCE DEEMED CONFUSING, MISLEADING, OR PREJUDICIAL

Under Evidence Code 352 EC, even if the evidence is relevant and admissible, a judge may exclude it if they believe it would be confusing or misleading or if its admission could unfairly prejudice the jury against the defendant.

While this admissibility rule is at the judge’s discretion, an attorney may request that specific evidence be excluded by arguing why it is confusing, misleading, or prejudicial.

This statute says that the judge can decide to exclude any evidence if its value is substantially outweighed by the likelihood that it will create undue prejudice, mislead the jury, take up too much time at trial, or confuse the issues.

WITNESS COMPETENCY RULES – California Code, Evidence Code – EVID § 701

California law also lays out guidelines for who may be called a witness and their testimony’s admissibility. Expressly, witnesses must be qualified according to the following:

• Under Evidence Code 701 EC, they must have the ability to understand and answer questions and to understand their duty, to tell the truth; and
• Under Evidence Code 702 EC, their testimony must be based on personal knowledge of the matter.

If the witnesses do not meet these criteria, they are considered incompetent as witnesses and may not testify at trial.

In addition, a witness called an “expert witness” must have special knowledge, experience, skills, or education pertaining to some aspect of the case as described under Evidence Code 720 EC.

Also, they may only offer their opinion based on their special area of knowledge as it may help the jury as described under Evidence Code 801 EC.

It’s common in criminal trials in California for one side to challenge the credibility of the witnesses for the other side. This is called “impeachment of witnesses,” and particular evidence rules govern it.

OBJECTING TO VIOLATIONS OF CALIFORNIA EVIDENCE RULES

If the prosecution at your trial introduces evidence that violates any of the California evidence rules, then your defense lawyer will typically “object” to the evidence.

Next, the judge can either sustain the objection and exclude the evidence from the trial or overrule the objection and allow the evidence.

Suppose the judge overrules the objection and the evidence is admitted? In that case, it might be possible to appeal your criminal conviction on the grounds that the evidence that was allowed should have been excluded, and since it was admitted, there has been a miscarriage of justice.

If your defense attorneys failed to object at trial, you can’t appeal the case on this basis but may still be able to challenge the conviction for ineffective assistance of counsel.

Suppose you believe that evidence for your case was wrongly excluded at trial? In that case, you might be able to appeal your conviction on these grounds as long as it resulted in a miscarriage of justice and your defense attorney told the court of its relevance.

If you or a family member needs assistance with evidence in a California criminal jury trial, you should contact our office to review all the details.

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THE ORAL TESTIMONY INADMISSABLE FOR PROOF OF WRITING RULE –
EVIDENCE CODE 1520-1523 EC

CHAPTER 2. SECONDARY EVIDENCE OF WRITINGS

Article 1. Proof of the Content of a Writing (1520-1523)

1520. The content of a writing may be proved by an otherwise admissible original.

1521.

• (a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: ⁽¹²⁸⁵⁾
  • (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.
  • (2) Admission of the secondary evidence would be unfair.
• (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing). ⁽¹²⁸⁸⁾
• (c) Nothing in this section excuses compliance with Section 1401 (authentication).
• (d) This section shall be known as the “Secondary Evidence Rule.”

1522.

• (a) In addition to the grounds for exclusion authorized by Section 1521, in a criminal action the court shall exclude secondary evidence of the content of a writing if the court determines that the original is in the proponent’s possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before trial. This section does not apply to any of the following:
  • (1) A duplicate as defined in Section 260.
  • (2) A writing that is not closely related to the controlling issues in the action.
  • (3) A copy of a writing in the custody of a public entity.
  • (4) A copy of a writing that is recorded in the public records, if the record or a certified copy of it is made evidence of the writing by statute.
• (b) In a criminal action, a request to exclude secondary evidence of the content of a writing, under this section or any other law, shall not be made in the presence of the jury.

1523.

• (a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.
• (b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.
• (c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: ⁽¹²⁹⁹⁾
  • (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means.
  • (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.
• (d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

THE ORAL TESTIMONY INADMISSABLE FOR PROOF OF WRITING RULE –
EVIDENCE CODE 1530-1532 EC

CHAPTER 2. SECONDARY EVIDENCE OF WRITINGS

Article 2. Official Writings and Recorded Writings (1530-1532)

1530.

• (a) A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if:
  • (1) The copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept;
  • (2) The office in which the writing is kept is within the United States or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, and the copy is attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing; or
  • (3) The office in which the writing is kept is not within the United States or any other place described in paragraph (2) and the copy is attested as a correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of
    • (i) the person who attested the copy as a correct copy or
    • (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy. Except as provided in the next sentence, the final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. Prior to January 1, 1971, the final statement may also be made by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation in which the writing is kept, authenticated by the seal of his office. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without the final statement or (ii) permit the writing or entry in foreign custody to be evidenced by an attested summary with or without a final statement.
• (b) The presumptions established by this section are presumptions affecting the burden of producing evidence.

1531. For the purpose of evidence, whenever a copy of a writing is attested or certified, the attestation or certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be.

1532.

• (a) The official record of a writing is prima facie evidence of the existence and content of the original recorded writing if:
  • (1) The record is in fact a record of an office of a public entity; and
  • (2) A statute authorized such a writing to be recorded in that office.
• (b) The presumption established by this section is a presumption affecting the burden of producing evidence.

THE ORAL TESTIMONY INADMISSABLE FOR PROOF OF WRITING RULE –
EVIDENCE CODE 1550-1553 EC

Article 3. Photographic Copies and Printed Representations of Writings (1550-1553)

1550. A nonerasable optical image reproduction provided that additions, deletions, or changes to the original document are not permitted by the technology, a photostatic, microfilm, microcard, miniature photographic, or other photographic copy or reproduction, or an enlargement thereof, of a writing is as admissible as the writing itself if the copy or reproduction was made and preserved as a part of the records of a business (as defined by Section 1270) in the regular course of that business. The introduction of the copy, reproduction, or enlargement does not preclude admission of the original writing if it is still in existence. A court may require the introduction of a hard copy printout of the document.

1550.

• (a) If made and preserved as a part of the records of a business, as defined in Section 1270, in the regular course of that business, the following types of evidence of a writing are as admissible as the writing itself:
  • (1) A nonerasable optical image reproduction or any other reproduction of a public record by a trusted system, as defined in Section 12168.7 of the Government Code, if additions, deletions, or changes to the original document are not permitted by the technology.
  • (2) A photostatic copy or reproduction.
  • (3) A microfilm, microcard, or miniature photographic copy, reprint, or enlargement.
  • (4) Any other photographic copy or reproduction, or an enlargement thereof.
• (b) The introduction of evidence of a writing pursuant to subdivision (a) does not preclude admission of the original writing if it is still in existence. A court may require the introduction of a hard copy printout of the document.

1550.1. Reproductions of files, records, writings, photographs, fingerprints or other instruments in the official custody of a criminal justice agency that were microphotographed or otherwise reproduced in a manner that conforms with the provisions of Section 11106.1, 11106.2, or 11106.3 of the Penal Code shall be admissible to the same extent and under the same circumstances as the original file, record, writing or other instrument would be admissible.

1551. A print, whether enlarged or not, from a photographic film (including a photographic plate, microphotographic film, photostatic negative, or similar reproduction) of an original writing destroyed or lost after such film was taken or a reproduction from an electronic recording of video images on magnetic surfaces is admissible as the original writing itself if, at the time of the taking of such film or electronic recording, the person under whose direction and control it was taken attached thereto, or to the sealed container in which it was placed and has been kept, or incorporated in the film or electronic recording, a certification complying with the provisions of Section 1531 and stating the date on which, and the fact that, it was so taken under his direction and control.

1552.

• (a) A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the computer information or computer program that it purports to represent.
• (b) Subdivision (a) shall not apply to computer-generated official records certified in accordance with Section 452.5 or 1530.

1553. A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.

THE ORAL TESTIMONY INADMISSABLE FOR PROOF OF WRITING RULE –
EVIDENCE CODE 1560-1567 EC

Article 4. Production of Business Records (1560-1567)

1560.

• (a) As used in this article:
  • (1) “Business” includes every kind of business described in Section 1270.
  • (2) “Record” includes every kind of record maintained by a business.
• (b) Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods:
  • (1) In any criminal action, five days after the receipt of the subpoena.
  • (2) In any civil action, within 15 days after the receipt of the subpoena.
  • (3) Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.
• (c) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:
  • (1) If the subpoena directs attendance in court, to the clerk of the court.
  • (2) If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at the officer’s place of business.
  • (3) In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
• (d) Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing. Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.
• (e) As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party’s attorney, the attorney’s representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness’ business address under reasonable conditions during normal business hours. Normal business hours, as used in this subdivision, means those hours that the business of the witness is normally open for business to the public. When provided with at least five business days’ advance notice by the party’s attorney, attorney’s representative, or deposition officer, the witness shall designate a time period of not less than six continuous hours on a date certain for copying of records subject to the subpoena by the party’s attorney, attorney’s representative, or deposition officer. It shall be the responsibility of the attorney’s representative to deliver any copy of the records as directed in the subpoena. Disobedience to the deposition subpoena issued pursuant to this subdivision is punishable as provided in Section 2020.240 of the Code of Civil Procedure.

1561.

• (a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
  • (1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
  • (2) The copy is a true copy of all the records described in the subpoena duces tecum, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be.
  • (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
  • (4) The identity of the records.
  • (5) A description of the mode of preparation of the records.
• (b) If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.
• (c) Where the records described in the subpoena were delivered to the attorney or his or her representative or deposition officer for copying at the custodian’s or witness’ place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative or deposition officer stating that the copy is a true copy of all the records delivered to the attorney or his or her representative or deposition officer for copying.
• 1562. If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. When more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this section is a presumption affecting the burden of producing evidence.

1563.

• (a) This article shall not be interpreted to require tender or payment of more than one witness fee and one mileage fee or other charge, to a witness or witness’ business, unless there is an agreement to the contrary between the witness and the requesting party.
• (b) All reasonable costs incurred in a civil proceeding by any witness which is not a party with respect to the production of all or any part of business records the production of which is requested pursuant to a subpoena duces tecum may be charged against the party serving the subpoena duces tecum.
  • (1) “Reasonable cost,” as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8 1/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.
  • (2) The requesting party, or the requesting party’s deposition officer, shall not be required to pay those costs or any estimate thereof prior to the time the records are available for delivery pursuant to the subpoena, but the witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, is under no obligation to deliver the records.
  • (3) The witness shall submit an itemized statement for the costs to the requesting party, or the requesting party’s deposition officer, setting forth the reproduction and clerical costs incurred by the witness. Should the costs exceed those authorized in paragraph (1), or the witness refuses to produce an itemized statement of costs as required by paragraph (3), upon demand by the requesting party, or the requesting party’s deposition officer, the witness shall furnish a statement setting forth the actions taken by the witness in justification of the costs.
  • (4) The requesting party may petition the court in which the action is pending to recover from the witness all or a part of the costs paid to the witness, or to reduce all or a part of the costs charged by the witness, pursuant to this subdivision, on the grounds that those costs were excessive. Upon the filing of the petition the court shall issue an order to show cause and from the time the order is served on the witness the court has jurisdiction over the witness. The court may hear testimony on the order to show cause and if it finds that the costs demanded and collected, or charged but not collected, exceed the amount authorized by this subdivision, it shall order the witness to remit to the requesting party, or reduce its charge to the requesting party by an amount equal to, the amount of the excess. In the event that the court finds the costs excessive and charged in bad faith by the witness, the court shall order the witness to remit the full amount of the costs demanded and collected, or excuse the requesting party from any payment of costs charged but not collected, and the court shall also order the witness to pay the requesting party the amount of the reasonable expenses incurred in obtaining the order including attorney’s fees. If the court finds the costs were not excessive, the court shall order the requesting party to pay the witness the amount of the reasonable expenses incurred in defending the petition, including attorney’s fees.
  • (5) If a subpoena is served to compel the production of business records and is subsequently withdrawn, or is quashed, modified or limited on a motion made other than by the witness, the witness shall be entitled to reimbursement pursuant to paragraph (1) for all costs incurred in compliance with the subpoena to the time that the requesting party has notified the witness that the subpoena has been withdrawn or quashed, modified or limited. In the event the subpoena is withdrawn or quashed, if those costs are not paid within 30 days after demand therefor, the witness may file a motion in the court in which the action is pending for an order requiring payment, and the court shall award the payment of expenses and attorney’s fees in the manner set forth in paragraph (4).
  • (6) Where the records are delivered to the attorney, the attorney’ s representative, or the deposition officer for inspection or photocopying at the witness’ place of business, the only fee for complying with the subpoena shall not exceed fifteen dollars ($15), plus the actual cost, if any, charged to the witness by a third person for retrieval and return of records held offsite by that third person. If the records are retrieved from microfilm, the reasonable cost, as defined in paragraph (1), shall also apply.
• (c) When the personal attendance of the custodian of a record or other qualified witness is required pursuant to Section 1564, in a civil proceeding, he or she shall be entitled to the same witness fees and mileage permitted in a case where the subpoena requires the witness to attend and testify before a court in which the action or proceeding is pending and to any additional costs incurred as provided by subdivision (b).

1564. The personal attendance of the custodian or other qualified witness and the production of the original records is not required unless, at the discretion of the requesting party, the subpoena duces tecum contains a clause which reads:

“The personal attendance of the custodian or other qualified witness and the production of the original records are required by this subpoena. The procedure authorized pursuant to subdivision (b) of Section 1560, and Sections 1561 and 1562, of the Evidence Code will not be deemed sufficient compliance with this subpoena.”

1565. If more than one subpoena duces tecum is served upon the custodian of records or other qualified witness and the personal attendance of the custodian or other qualified witness is required pursuant to Section 1564, the witness shall be deemed to be the witness of the party serving the first such subpoena duces tecum.

1566. This article applies in any proceeding in which testimony can be compelled.

1567. A completed form described in Section 3664 of the Family Code for income and benefit information provided by the employer may be admissible in a proceeding for modification or termination of an order for child, family, or spousal support if both of the following requirements are met:

• (a) The completed form complies with Sections 1561 and 1562.
• (b) A copy of the completed form and notice was served on the employee named therein pursuant to Section 3664 of the Family Code.

Learn More

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Legal References:

1. Evidence Code 210 EC – Relevant evidence. (““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.”). See also Evidence Code 352.2 EC; AB-2799 (2022) (“In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.”)
2. Evidence Code 402 EC – Procedure for determining foundational and other preliminary facts [California evidence rule]. (“(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.”)Black’s Law Dictionary (9th ed. 2009), foundation. (“The basis on which something is supported; esp., evidence or testimony that establishes the admissibility of other evidence < laying the foundation>.”)
3. Evidence Code 700 EC – General rule as to competency [of witness to provide evidence]. (“Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.”)Evidence Code 701 EC – Disqualification of witness. (“(a) A person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) Incapable of understanding the duty of a witness to tell the truth. (b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.”)
4. Evidence Code 760 EC – Direct examination [of a witness at a criminal jury trial]. (““Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.”)Evidence Code 761 EC – Cross-examination [of a witness at a criminal jury trial]. (““Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.”)
5. Evidence Code 1200 EC – The hearsay rule. (“(a) “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. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.”)
6. Evidence Code 1101 EC – Evidence of character to prove conduct. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”) See also Evidence Code 1103 EC and Evidence Code 782 EC.
7. Black’s Law Dictionary (9th ed. 2009), privilege. (“3. An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship.”)
8. Evidence Code 352 EC – Discretion of court to exclude [character] evidence. (“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.”)
9. Evidence Code 353 EC – Erroneous admission of evidence; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”)
10. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
11. Evidence Code 210 EC – Relevant evidence, endnote 1, above.
12. Black’s Law Dictionary (9th ed. 2009), foundation, endnote 2, above.See also Evidence Code 1400 EC – Authentication [of written evidence]. (“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”)
13. Evidence Code 210 EC – Relevant evidence, endnote 1, above.
14. Based on People v. Lint (1960) 182 Cal.App.2d 402.
15. Evidence Code 701 EC – Disqualification of witness, endnote 3, above.
16. Evidence Code 702 EC – Personal knowledge of witness. (“(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (b) A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.”)
17. Evidence Code 800 EC – Lay witnesses; opinion testimony. (“If a witness is not testifying as an expert, his testimony in the 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 his testimony.”)
18. Evidence Code 720 EC – Qualification as an expert witness [in a California criminal trial]. (“(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. (b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.”)
19. Evidence Code 801 EC – Expert witnesses; opinion testimony. (“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”)
20. Evidence Code 772 EC – Order of examination [of witnesses in a California criminal trial]. (“(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination. (b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins. (c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness. (d) If the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party.”)
21. See same. See also Evidence Code 760 EC – Direct examination [of witnesses in a California criminal trial]. (““Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.”)
22. Evidence Code 761 EC – Cross-examination [of witnesses in a California criminal trial]. (““Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.”)
23. Evidence Code 762 EC – Redirect examination [of California witnesses]. (““Redirect examination” is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.”)
24. Evidence Code 763 EC – Recross-examination [of California witnesses]. (““Recross-examination” is an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness.”)
25. Evidence Code 767 EC – Leading questions. (“(a) Except under special circumstances where the interests of justice otherwise require: (1) A leading question may not be asked of a witness on direct or redirect examination. (2) A leading question may be asked of a witness on cross-examination or recross-examination. (b) The court may, in the interests of justice permit a leading question to be asked of a child under 10 years of age or a dependent person with a substantial cognitive impairment in a case involving a prosecution under Section 273a, 273d, 288.5, 368, or any of the acts described in Section 11165.1 or11165.2 of the Penal Code.”)
26. Evidence Code 764 EC – Leading question. (“A “leading question” is a question that suggests to the witness the answer that the examining party desires.”)
27. Evidence Code 767 EC – Leading questions, endnote 25, above.
28. Evidence Code 780 EC – Testimony; proof of truthfulness; considerations [concerning witnesses under California evidence law]. (“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. (b) The character of his testimony. (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. (d) The extent of his opportunity to perceive any matter about which he testifies. (e) His character for honesty or veracity or their opposites. (f) The existence or nonexistence of a bias, interest, or other motive. (g) A statement previously made by him that is consistent with his testimony at the hearing. (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. (i) The existence or nonexistence of any fact testified to by him. (j) His attitude toward the action in which he testifies or toward the giving of testimony. (k) His admission of untruthfulness.”)Evidence Code 785 EC – Parties may attack or support credibility. (“The credibility of a witness may be attacked or supported by any party, including the party calling him.”)
29. See same.
30. Evidence Code 788 EC – Prior felony conviction [for a witness in a California trial]. (“For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted. (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”)
31. Evidence Code 789 EC – Religious belief. (“Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.”)
32. Evidence Code 786 EC – Character evidence generally. (“Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.”)
33. Evidence Code 1200 EC – The hearsay rule, endnote 5, above.
34. See same.
35. See same.
36. Evidence Code 1220 EC – Admission of party. (“Evidence of a statement is not made inadmissible by the hearsay rule [California evidence rule] when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.”)
37. Evidence Code 1230 EC – Declarations against interest. (“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule [California evidence rule] if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”)
38. Evidence Code 1237 EC – Past recollection recorded. (“(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory; (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness’ statement at the time it was made; (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and (4) Is offered after the writing is authenticated as an accurate record of the statement. (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.”)
39. Evidence Code 1238 EC – Prior identification. (“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; (b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”)
40. Evidence Code 1240 EC – Spontaneous statement. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”)
41. Evidence Code 1241 EC – Contemporaneous statement. (“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct.”)
42. Evidence Code 1242 EC – Dying declaration. (“Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.”)
43. Evidence Code 1250 EC – Statement of declarant’s then existing mental or physical state. (“(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant. (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”)Evidence Code 1251 EC – Statement of declarant’s previously existing mental or physical state. (“Subject to Section 1252, evidence of a statement of the declarant’s state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.”)
44. Evidence Code 1271 EC – Admissible writings. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)Evidence Code 1280 EC – Record by a public employee. (“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”)
45. Evidence Code 1291 EC – Former testimony offered against party to former proceeding. (“(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”)
46. Evidence Code 1310 EC – Statement concerning declarant’s own family history. (“(a) Subject to subdivision (b), evidence of a statement by a declarant who is unavailable as a witness concerning his own birth, marriage, divorce, a parent and child relationship, relationship by blood or marriage, race, ancestry, or other similar fact of his family history is not made inadmissible by the hearsay rule, even though the declarant had no means of acquiring personal knowledge of the matter declared. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)Evidence Code 1311 EC – Statement concerning family history of another. (“(a) Subject to subdivision (b), evidence of a statement concerning the birth, marriage, divorce, death, parent and child relationship, race, ancestry, relationship by blood or marriage, or other similar fact of the family history of a person other than the declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: (1) The declarant was related to the other by blood or marriage; or (2) The declarant was otherwise so intimately associated with the other’s family as to be likely to have had accurate information concerning the matter declared and made the statement (i) upon information received from the other or from a person related by blood or marriage to the other or (ii) upon repute in the other’s family. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”)Evidence Code 1320 EC – Reputation concerning community history. (“Evidence of reputation in a community is not made inadmissible by the hearsay rule if the reputation concerns an event of general history of the community or of the state or nation of which the community is a part and the event was of importance to the community.”)Evidence Code 1324 EC – Reputation concerning character. (“Evidence of a person’s general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.”)
47. Evidence Code 1101 EC – Evidence of character to prove conduct, endnote 6, above
48. See same.
49. Based on the facts of People v. Terry (1970) 2 Cal.3d 362, 400.
50. Evidence Code 1105 EC – Habit or custom to prove specific behavior. (“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”)
51. Evidence Code 1101 EC – Evidence of character to prove conduct, endnote 6, above. (“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”)
52. Black’s Law Dictionary (9th ed. 2009), privilege, endnote 7, above.
53. Evidence Code 954 EC – Lawyer-client privilege. (“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a[n evidentiary] privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”)Evidence Code 955 EC – When lawyer required to claim privilege. (“The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.”)
54. Evidence Code 970 EC – Spouse’s privilege not to testify against spouse. (“Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.”)Evidence Code 980 EC – Confidential marital communication privilege. (“Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.”)
55. Evidence Code 1014 EC – Psychotherapist-patient privilege; application to individuals and entities. (“Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a[n evidentiary] privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by the holder of the privilege. (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.”)Evidence Code 1015 EC – When psychotherapist required to claim privilege. (“The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.”)
56. Evidence Code 1033 EC – [Evidentiary] privilege of penitent. (“Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.”)Evidence Code 1034 EC – [Evidentiary] privilege of clergy. (“Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.”)
57. Evidence Code 352 EC – Discretion of court to exclude [character] evidence, endnote 8, above.
58. Loosely based on People v. Pelayo (1999) 69 Cal.App.4th 115.
59. San Bernardino criminal defense lawyer Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to child abuse to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm Springs,Hemet, Riverside, Barstow and Victorville.
60. Evidence Code 353 EC – Erroneous admission of evidence; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”)
61. See same.
62. Evidence Code 354 EC – Erroneous exclusion of evidence; effect. (“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; (b) The rulings of the court made compliance with subdivision (a) futile; or (c) The evidence was sought by questions asked during cross-examination or recross-examination.”)