Evidence in California PI Cases.

Overview

Every fact in your case must be supported by admissible evidence. This guide covers the key rules that determine what the jury gets to see and hear.

Evidence Code Overview

Structure of the California Evidence Code

The California Evidence Code (Evid. Code) is a comprehensive statutory scheme that replaced common law evidence rules in 1967. Unlike the Federal Rules of Evidence, which many other states have adopted, California follows its own code. The key divisions relevant to PI practice are:

• Division 2 (Sections 200-230): Words and phrases defined
• Division 3 (Sections 300-406): General provisions on burden of proof and presumptions
• Division 4 (Sections 500-607): Burden of proof allocation
• Division 6 (Sections 700-795): Witnesses, including expert qualification
• Division 7 (Sections 800-870): Opinion testimony
• Division 9 (Sections 900-1070): Privileges
• Division 10 (Sections 1100-1160): Hearsay evidence and exceptions
• Division 11 (Sections 1200-1341): Writings (authentication and secondary evidence)

The Default Rule: Everything Is Admissible

Evidence Code section 351 establishes the foundational principle: all relevant evidence is admissible unless excluded by statute. This means the burden is on the party opposing evidence to identify a specific statutory basis for exclusion. As the proponent of evidence, you start with the presumption that your evidence comes in.

Relevance: The Threshold Requirement

Evidence Code Section 210: Definition of Relevant Evidence

Evidence Code section 210 defines "relevant evidence" as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. This is a very low bar -- the evidence need not make a fact certain or even probable, only more or less likely.

Evidence Code Section 350: Only Relevant Evidence Is Admissible

Section 350 codifies the twin pillars of relevance: no evidence is admissible unless it is relevant, and all relevant evidence is admissible except as otherwise provided by statute.

Evidence Code Section 352: The Gatekeeper

Section 352 is the most-cited evidentiary provision in California trial courts. It grants the court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will:

• Necessitate undue consumption of time
• Create substantial danger of undue prejudice
• Create substantial danger of confusing the issues
• Create substantial danger of misleading the jury

Conditional Relevance: Evidence Code Section 403

Some evidence is relevant only if a preliminary fact is established. Under section 403, the proponent must produce evidence sufficient to sustain a finding that the preliminary fact exists. The court does not weigh the evidence; it determines only whether a reasonable jury could find the preliminary fact.

Example: A surveillance video of the accident scene is relevant only if the proponent establishes that it depicts the actual scene on the date of the accident.

Evidence Code 352 Balancing

The Standard

The 352 balancing test is not a simple comparison. The statute requires that the court find the probative value is substantially outweighed by the danger of prejudice. This tilts the balance toward admission. Evidence Code section 352 gives trial courts broad discretion, and appellate courts review rulings under the abuse of discretion standard.

Types of Prejudice

Courts distinguish between several types of prejudice under section 352:

1. Emotional prejudice: Evidence that appeals to the jury's emotions rather than reason (e.g., gruesome photographs beyond what is needed to show injuries)
2. Confusion of issues: Evidence that could sidetrack the jury onto collateral matters
3. Misleading the jury: Evidence that could cause the jury to draw improper inferences
4. Undue consumption of time: Evidence requiring mini-trials on collateral issues

Common 352 Battles in PI Cases

Evidence	Plaintiff Argues	Defense Argues
Graphic injury photos	Necessary to show nature and severity of injuries; jurors need to see what plaintiff endured	Cumulative and designed solely to inflame passion
Plaintiff's prior accidents	Irrelevant to current incident; confuses the jury	Relevant to pre-existing conditions and credibility
Defendant's other incidents	Shows notice and pattern of dangerous conduct	Unfairly prejudicial and invites improper propensity reasoning
Day-in-the-life video	Best evidence of plaintiff's actual limitations	Staged, manipulative, and cumulative of testimony

Authentication of Evidence

The Foundation Requirement

Evidence Code section 1401 requires that before evidence is admitted, there must be sufficient evidence to sustain a finding that the writing (or other evidence) is what its proponent claims it is. This is authentication -- proving that the evidence is genuine.

Methods of Authentication

Evidence Code sections 1410-1421 provide multiple methods:

• Section 1413: Testimony of a witness who observed the creation of the writing
• Section 1414: Admission by the party against whom it is offered
• Section 1415-1416: Handwriting comparison by expert or jury
• Section 1417: Comparison with authenticated exemplar
• Section 1421: Content and circumstances (circumstantial authentication)

Authenticating Common PI Evidence

Photographs and Video

Photographs require testimony from a witness with knowledge that the photograph accurately depicts what it purports to show at the relevant time. The photographer need not testify -- any witness with personal knowledge will suffice.

Electronic Evidence

Text messages, emails, social media posts, and electronic records require authentication showing the evidence is what its proponent claims. For social media, this may require circumstantial evidence linking the post to its purported author (content, account details, IP addresses).

Medical Records

Medical records are typically authenticated through the custodian of records or a qualified witness from the healthcare provider under the business records exception. See Business Records Exception below.

Hearsay and Its Exceptions

The Hearsay Rule: Evidence Code Section 1200

Hearsay is evidence of a statement made other than by a witness while testifying at the hearing, offered to prove the truth of the matter asserted in the statement. Hearsay is inadmissible unless an exception applies.

Key Hearsay Exceptions for PI Cases

Prior Inconsistent Statements (Evid. Code 1235)

A witness's prior inconsistent statement is admissible for its truth in California -- unlike federal courts, where prior inconsistent statements are admissible only for impeachment unless made under oath. This is a powerful tool for impeaching defense witnesses with deposition testimony.

Admissions of a Party (Evid. Code 1220)

Any statement by a party to the action is admissible against that party. This includes the defendant's statements at the accident scene, in incident reports, to investigators, and in discovery responses.

Adoptive Admissions (Evid. Code 1221)

A statement offered against a party is admissible if the party, with knowledge of the content, manifested adoption or belief in its truth. Silence in the face of an accusation can constitute an adoptive admission in some circumstances.

Authorized Admissions (Evid. Code 1222)

Statements made by a person authorized by a party to speak on their behalf are admissible. This captures statements by insurance adjusters, corporate spokespersons, and designated agents.

Declarations Against Interest (Evid. Code 1230)

A statement by a declarant who is unavailable as a witness, made against the declarant's proprietary, pecuniary, or penal interest, is admissible when the declarant had no motive to misrepresent.

Spontaneous Statements (Evid. Code 1240)

A statement purporting to describe an act, condition, or event perceived by the declarant, made spontaneously while under the stress of excitement caused by the perception, is admissible. Bystander statements at accident scenes often qualify.

Contemporaneous Statements (Evid. Code 1241)

A statement that is offered to explain, qualify, or make understandable conduct of the declarant, and that was made while the declarant was engaged in such conduct, is admissible.

Statements of Mental or Physical State (Evid. Code 1250-1252)

A declarant's statement of then-existing mental or physical state is admissible. In PI cases, this covers plaintiff's statements about pain, fear, and suffering -- critical evidence for damages.

Past Recollection Recorded (Evid. Code 1237)

A writing that a witness made or adopted when the matter was fresh in the witness's memory, and that the witness is now unable to recall, may be read into evidence. The writing itself is not received as an exhibit unless offered by an adverse party.

Business Records Exception

Evidence Code Section 1271

The business records exception is one of the most important hearsay exceptions in PI cases. Under section 1271, a writing made in the regular course of a business, at or near the time of the act, condition, or event recorded, is admissible if the custodian or other qualified witness testifies to its identity and the mode of preparation, and the sources of information and method of preparation indicate trustworthiness.

Elements Required

1. Writing made in the regular course of business -- The record must be a routine part of the business's operations
2. Made at or near the time -- The record must be contemporaneous with the event
3. Custodian or qualified witness testifies -- Foundation requires testimony about identity and mode of preparation
4. Trustworthiness -- The source of information and method of preparation must be trustworthy

Streamlined Foundation: Evidence Code Section 1561

For records produced pursuant to a subpoena duces tecum for records (CCP 1985-1987), the custodian may provide a declaration of custodian of records under Evidence Code section 1561 in lieu of live testimony. This is the standard method for admitting medical records, employment records, and billing records in PI cases.

Common Business Records in PI Cases

• Medical records and billing statements
• Employment records (for lost wage claims)
• Police reports (with limitations -- see below)
• Ambulance/EMS records
• Insurance claim files (of the defendant)
• Corporate incident reports
• Maintenance and inspection records

Medical Records Admissibility

Foundation for Admission

Medical records are the backbone of every PI case. They are admissible under the business records exception (Evid. Code 1271) when properly subpoenaed and accompanied by a custodian declaration (Evid. Code 1561).

What Is Admissible Within Medical Records

• Objective findings: Physical examination results, imaging results, test results, diagnoses
• Treatment rendered: Procedures, medications, therapy
• Patient history: Statements by the patient regarding symptoms, mechanism of injury, and medical history (admissible under Evid. Code 1253 as statements made for purposes of medical diagnosis or treatment)
• Billing records: Charges for treatment (subject to Howell/Pebley framework for reasonable value)

What May Be Challenged

• Attorney referral notations: Defense frequently moves to redact notations that the patient was referred by an attorney, arguing unfair prejudice. Plaintiff should argue the notation is part of the business record and its redaction creates an incomplete record.
• Subjective complaints not tied to treatment: If a notation appears designed for litigation rather than treatment, the defense may argue it lacks the trustworthiness required for the business records exception.
• Opinions beyond the treating physician's scope: A treating physician's record may contain opinions (e.g., causation) that go beyond the factual observations made during treatment.

Howell/Pebley and Medical Billing Evidence

Under Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, a plaintiff may recover as economic damages only the amounts actually paid or incurred for past medical treatment -- not the full billed amount. Under Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, the plaintiff may still present evidence of the full billed amount to prove the reasonable value of services, and the jury decides the reasonable value.

For detailed guidance on medical billing evidence, see Discovery and Direct Examination.

Expert Testimony

Evidence Code Section 720: Qualification

A witness is qualified as an expert if the witness has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject. The court has broad discretion in determining qualifications, and the expert need not be the most qualified person available.

Sargon Enterprises v. University of Southern California (2012) 55 Cal.4th 747

Sargon is California's gatekeeper standard for expert testimony. The court held that trial courts have a duty to act as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.

The Sargon standard requires that the expert's opinion be based on matter that is perceived by or personally known to the expert, or that is of a type reasonably relied upon by experts in the particular field.

For comprehensive expert witness guidance, see Expert Witnesses.

Photographs, Video, and Demonstrative Evidence

Photographs

Photographs are admissible when a witness with personal knowledge testifies that the photograph fairly and accurately depicts the scene, condition, or person at the relevant time. The photographer does not need to testify.

Injury Photographs

Photographs of the plaintiff's injuries are critical evidence. They are admissible to show the nature and severity of injuries, the plaintiff's condition over time, and the impact on daily life. The defense may object under Evidence Code section 352, arguing the photographs are unduly gruesome or inflammatory.

Video Evidence

Video evidence (surveillance footage, dashcam video, body camera footage) follows the same authentication requirements as photographs. The proponent must establish that the video accurately depicts what it purports to show.

Day-in-the-Life Videos

Day-in-the-life videos are powerful demonstrative evidence showing the plaintiff's daily struggles. California courts generally permit these videos, though the defense frequently objects under section 352. The key to admissibility is ensuring the video is a fair and accurate depiction of the plaintiff's typical day, not staged or exaggerated.

Demonstrative Evidence

Demonstrative evidence (diagrams, models, animations, charts, timelines) is evidence used to illustrate or explain other evidence. Demonstrative evidence is not itself substantive evidence but is used to help the jury understand testimony or other evidence.

Requirements for demonstrative evidence:

• A witness must testify that the demonstrative exhibit fairly and accurately illustrates the point it is intended to make
• The exhibit must not be misleading or confusing
• The exhibit must be relevant to a disputed issue

Judicial Notice

Evidence Code Sections 451-453

Judicial notice is the court's acceptance of a fact as true without requiring formal proof. There are two categories:

Mandatory Judicial Notice (Evid. Code 451)

The court must take judicial notice of:

• Decisional and statutory law of California and the United States
• Regulations of California agencies
• Rules of court
• Facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy

Permissive Judicial Notice (Evid. Code 452)

The court may take judicial notice of:

• Decisional and statutory law of other jurisdictions
• Official acts of legislative, executive, and judicial departments
• Records of any California or federal court
• Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute

Common Uses in PI Cases

• Judicial notice of weather conditions on the date of an accident (from official weather records)
• Judicial notice of court records from related proceedings
• Judicial notice of regulatory standards (OSHA, building codes, traffic regulations)
• Judicial notice of official maps and geographic facts

Privileges

Attorney-Client Privilege (Evid. Code 950-962)

The attorney-client privilege protects confidential communications between attorney and client made in the course of the attorney-client relationship. In PI cases, the privilege protects:

• Communications between plaintiff and counsel regarding the case
• Work product of counsel (also protected under CCP 2018.030)
• Litigation strategy and mental impressions

Physician-Patient Privilege (Evid. Code 990-1007)

The physician-patient privilege protects confidential communications between patient and physician. However, in PI cases, the plaintiff waives this privilege as to the conditions placed in controversy by filing the lawsuit. Evidence Code section 996 provides that there is no privilege when the patient has tendered their physical or mental condition as an issue.

Spousal Privilege (Evid. Code 970-973, 980-987)

Both the testimonial privilege (right not to testify against a spouse) and the confidential marital communication privilege may arise in PI cases, particularly when the spouse is a key witness to the plaintiff's damages.

Other Privileges

• Clergy-penitent privilege (Evid. Code 1030-1034): Protects communications made in confidence during spiritual counseling
• Psychotherapist-patient privilege (Evid. Code 1010-1027): Similar to physician-patient but stricter; waiver requires the patient to affirmatively tender mental health as an issue
• Official information privilege (Evid. Code 1040): May protect government investigation files

Character Evidence

General Rule: Evidence Code Section 1101

Evidence of a person's character or trait of character is generally inadmissible to prove conduct on a particular occasion. In PI cases, this means:

• Evidence that the defendant is a "bad driver" or has a history of traffic violations is generally inadmissible to prove negligent driving on the occasion in question
• Evidence that the plaintiff is a "litigious person" or has filed prior lawsuits is generally inadmissible

Exceptions Under Section 1101(b)

Character evidence is admissible when offered to prove something other than conduct on a particular occasion, including:

• Motive
• Opportunity
• Intent
• Preparation
• Plan
• Knowledge
• Identity
• Absence of mistake or accident

In PI cases, prior similar incidents involving the defendant's property or product may be admissible under section 1101(b) to show notice, knowledge of a dangerous condition, or the existence of the dangerous condition itself.

Credibility: Evidence Code Section 1101(c)

Evidence of a person's character for honesty or dishonesty is always admissible on the issue of credibility after the witness's character has been attacked.

Habit Evidence

Evidence Code Section 1105

Evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom. This is distinct from character evidence and is freely admissible in California.

Distinguishing Habit from Character

Feature	Character	Habit
Nature	General disposition or trait	Specific, regular response to a particular situation
Example	"He's a careless driver"	"He always checks his mirrors before changing lanes"
Admissibility	Generally inadmissible (Evid. Code 1101)	Admissible (Evid. Code 1105)
Foundation	Reputation or opinion testimony	Evidence of repeated, regular conduct

Using Habit Evidence in PI Cases

Habit evidence can be powerful in PI cases:

• Plaintiff's safety habits: Evidence that the plaintiff habitually wore a seatbelt, always used a crosswalk, or routinely followed safety protocols
• Defendant's dangerous habits: Evidence that a commercial driver habitually ran red lights, a property owner routinely ignored maintenance requests, or a trucking company consistently overloaded vehicles
• Business custom: Evidence of a company's standard operating procedures (or failure to follow them)

Subsequent Remedial Measures

Evidence Code Section 1151

Evidence of repairs, changes, or precautions taken after an event is inadmissible to prove negligence or culpable conduct in connection with the event. The policy rationale is to encourage parties to make safety improvements without fear that those improvements will be used against them.

What Section 1151 Excludes

• Evidence that the defendant repaired a dangerous condition after the plaintiff's accident
• Evidence that the defendant changed policies or procedures after the incident
• Evidence that the defendant recalled or modified a product after the injury

Exceptions and Limitations

Section 1151 evidence is admissible for purposes other than proving negligence:

• Ownership and control: To prove the defendant owned or controlled the premises or instrumentality
• Feasibility of precautions: If the defendant contends that a precaution was not feasible, evidence of subsequent implementation is admissible to rebut that contention
• Impeachment: Subsequent remedial measures may be used to impeach a witness who testifies that the condition was not dangerous or that no better alternative existed

Strict Liability: Ault v. International Harvester

In Ault v. International Harvester Co. (1974) 13 Cal.3d 113, the California Supreme Court held that Evidence Code section 1151 does not apply to strict products liability claims. Subsequent design changes are admissible in strict liability cases to prove a product defect. This is a critical distinction for product liability cases.

Settlement Offers and Negotiations

Evidence Code Section 1152

Evidence of furnishing, offering, or promising to furnish a settlement or compromise, and any conduct or statements made in negotiation thereof, is inadmissible to prove liability or the invalidity of a claim. This rule encourages settlement by protecting parties from having their settlement attempts used against them.

Scope of Protection

Section 1152 protects:

• Settlement offers (formal and informal)
• Counteroffers
• Statements made during negotiation
• Mediator communications (also protected under Evid. Code 1115-1128)
• CCP 998 offers (with specific exceptions for cost-shifting purposes)

What Section 1152 Does Not Protect

• Admissions of fact made outside the context of settlement negotiations
• Statements that are independently admissible (not made during negotiations)
• Payment or promise to pay medical expenses (Evid. Code 1152(b) -- these are also inadmissible to prove liability, but the protection is limited to the payment itself, not accompanying statements)

For detailed guidance on CCP 998 offers and settlement strategy, see CCP 998 Offers and Settlement Negotiation.

Motions to Exclude Evidence

Pre-Trial: Motions in Limine

The primary vehicle for excluding evidence before trial is the motion in limine. File motions in limine to exclude specific evidence you anticipate the defense will offer, and prepare oppositions to defense motions targeting your evidence.

For comprehensive guidance on motions in limine, see Motions in Limine.

At Trial: Objections

During trial, you must make timely objections to preserve evidentiary issues for appeal. The most common objections in PI trials:

• Relevance (Evid. Code 350): The evidence is not relevant to a disputed fact
• Hearsay (Evid. Code 1200): Out-of-court statement offered for truth
• Lack of foundation (Evid. Code 403): Insufficient preliminary facts established
• Improper opinion (Evid. Code 800-805): Lay witness offering expert opinion
• Speculation (Evid. Code 702): Witness lacks personal knowledge
• 352 objection: Probative value substantially outweighed by prejudice
• Best evidence rule (Evid. Code 1500-1510): Secondary evidence when original is available
• Assumes facts not in evidence: Question assumes facts that have not been established

Continuing Objections

If the court overrules your objection to a line of questioning, request a continuing objection. This preserves the issue for appeal without requiring you to object to every question on the same topic, which would annoy the jury and the judge.

Evidence Admissibility Checklist

Use this checklist when evaluating the admissibility of any piece of evidence:

• [ ] Relevance: Does the evidence have any tendency to prove or disprove a disputed fact? (Evid. Code 210, 350)
• [ ] 352 Balancing: Does the evidence's probative value substantially outweigh the danger of prejudice, confusion, or time consumption? (Evid. Code 352)
• [ ] Authentication: Can I establish that the evidence is what I claim it is? (Evid. Code 1401)
• [ ] Hearsay analysis: Is the evidence an out-of-court statement offered for truth? If so, does an exception apply? (Evid. Code 1200 et seq.)
• [ ] Personal knowledge: Does the witness have personal knowledge of the matters about which they are testifying? (Evid. Code 702)
• [ ] Expert qualification: If expert testimony, is the witness qualified and does the opinion satisfy Sargon? (Evid. Code 720)
• [ ] Best evidence rule: If the evidence is a writing, am I offering the original or an admissible secondary version? (Evid. Code 1500-1510)
• [ ] Privilege: Is the evidence protected by any privilege? (Evid. Code 900-1070)
• [ ] Policy exclusion: Does a policy exclusion bar the evidence (e.g., subsequent remedial measures, settlement offers, character evidence)? (Evid. Code 1101, 1151, 1152)
• [ ] Completeness: Should additional portions of the evidence be admitted under the rule of completeness? (Evid. Code 356)
• [ ] Foundation witness identified: Have I identified the witness who will lay the foundation for each exhibit?
• [ ] Pre-marked exhibits: Have I pre-marked all exhibits and exchanged them per the court's pretrial order?

See also: Motions in Limine | Expert Witnesses | Direct Examination | Cross-Examination | Discovery

Cross-References

• Trial Practice
• Motions in Limine
• Expert Witnesses
• Direct Examination
• Depositions
• Discovery

Common Questions

Sources & Legal Citations

1. California Evidence Code § 210. Definition of relevant evidence.
2. California Evidence Code § 352. Discretion to exclude unduly prejudicial evidence.
3. California Evidence Code § 1200. Hearsay rule and definition.
4. California Evidence Code § 1271. Business records exception to hearsay.
5. California Evidence Code § 801. Expert opinion testimony requirements.
6. California Evidence Code § 1400. Authentication requirements for evidence.