In Limine Motions: Character Evidence Exclusion

Posted in Evidence: Pre-trial Motions on October 2, 2008

Winfred D. v. Michelin North America, Inc., (2nd District, August 7, 2008) — Cal.Rptr.3d —-, 2008 WL 3115802

A man who sustained a severe brain injury when the right rear tire on his cargo van delaminated and caused the vehicle to roll over, filed suit against the tire manufacturer. At trial, over objection, the trial court permitted defense counsel to introduce evidence that while the plaintiff was married to his first wife, he had an affair with and later married his business partner’s wife, that he falsely told his second wife before marrying her that he had divorced his first wife, and that after divorcing his second wife he had an affair with a third woman with whom he had two children. The trial court reasoned that the evidence was relevant to credibility and to the cause of the accident.

Following the jury verdict in favor of the defendants the plaintiff appealed, arguing that the disputed evidence should have been excluded under Evidence Code Section 352. The court of appeal agreed, reversed the judgment and ordered the case remanded for a new trial, holding that the disputed evidence was so inflammatory that it appeared reasonably probable that had it been excluded, the plaintiff could have obtained a verdict in his favor:

Michelin’s primary basis for introducing evidence of Winfred’s illicit conduct was to contradict his deposition testimony that he could not recall who Rosalinda and Maria were. But his extramarital affairs were irrelevant to the substantive issue in the case: the cause of the accident. To the extent the evidence was relevant to Winfred’s credibility, it was more prejudicial than probative. It follows that the trial court abused its discretion by overruling Winfred’s section 352 objection.
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Because this evidence has no tendency to prove or disprove any disputed fact concerning the cause of Winfred’s accident, its use is necessarily limited to impeachment. (citations) Just as evidence of a woman’s unchaste behavior is no longer admissible on the issue of credibility unless it tends to show bias-for example, if she had an intimate relationship with a party or witness (citations) neither is evidence of a man’s sexual conduct . . . Further, a “witness may have a strong reason to lie [about illicit, intimate relationships]” (citations) such that he “may not [be] cross-examine[d] … upon [that] collateral matter[ ] for the purpose of eliciting something to be contradicted”. Accordingly, Winfred’s denial of his extramarital affairs at his deposition may not be contradicted at trial because the denial itself is irrelevant and prejudicial and thus inadmissible. (citations) In short, the existence of irrelevant testimony by a witness does not permit its introduction by an adversary just so the adversary can then offer contradictory evidence to impeach the witness.
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In addition, where the irrelevant evidence implicates the privacy concerns and reputations of nonparties, the trial court must consider the effect of admissibility on them. (citations) Here, the record contains numerous references to the full names of Winfred’s second wife and his subsequent mistress, exposing them to possible public ridicule and doubts about their character. Both were deposed by Michelin and questioned about their relationship with Winfred, subjecting them to unnecessary embarrassment. (citations) Perhaps more disturbing was Michelin’s disclosure of the full names and birthdates of Winfred’s two illegitimate children-which were read into the record-as well as the admission into evidence of their birth certificates; the use of this evidence was even more questionable given that Winfred had already testified that he and his mistress had two children. (citations)

In sum, the trial court abused its discretion in concluding that the evidence of Winfred’s illicit activities was more probative than prejudicial under section 352.