What is the legal test for a motion to exclude or strike evidence in a criminal case?

California, United States of America


The following excerpt is from People v. Milton, B293489 (Cal. App. 2020):

"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[ ] . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made . . . ." (Evid. Code, 353, subd. (a).) "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' [Citation.]" (People v. Partida (2005) 37 Cal.4th 428, 434.) An objection also " 'allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice' " and " 'allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (Ibid.)

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