California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies
![handle is hein.journals/uclalr31 and id is 1019 raw text is: CALIFORNIA'S NEW LAW ON CHARACTER
EVIDENCE: EVIDENCE CODE SECTION
352 AND THE IMPACT OF RECENT
PSYCHOLOGICAL STUDIES
Miguel Angel Mendez*
INTRODUCTION
In June of 1982, California voters passed Proposition 8
amending the state constitution. Billed by its supporters as the
Victims' Bill of Rights, Proposition 8 introduced a wide range
of changes in criminal procedure, including major changes in the
rules of evidence in criminal proceedings. This Article focuses on
one of the most radical transformations effected by Proposition 8:
the almost total abolition of the common law rules of character
evidence and the replacement of those rules with a grant of broad
judicial discretion to admit or exclude character evidence.'
* Professor of Law, Stanford University; A.A., Texas Southmost College, 1963;
A.B., George Washington University, 1965; J.D., George Washington University,
1968. Financial support for this Article was provided by the Stanford Legal Research
Fund through contributions made possible by a bequest from the Estate of Ira S.
Lillick and by gifts from Roderick E. and Carla A. Hills and other friends of the
Stanford Law School. The comments of Barbara Babcock, Phoebe Ellsworth, Jack
Friedenthal, John Kaplan, Mark Kelman, Eric Neisser, Phil Peake, David Rosenhan
and Eleanor Swift are gratefully acknowledged. I especially wish to thank Vince
Waldman, J.D., Stanford University, 1983, for his aid in conceptualizing many of the
ideas contained in this Article and William C. Thompson, J.D., Boalt Hall, 1982,
whose excellent paper on psychology and character evidence provided me with the
insights needed to undertake this project.
1. Portions of Proposition 8 made changes not considered in this Article, includ-
ing the following: (1) section 25(a), which ostensibly precludes the introduction in
court of evidence of involuntary intoxication to prove unconsciousness, and evidence
of voluntary intoxication or mental disease to disprove the mental state of the offense
charged; (2) section 25(b), which reverses People v. Drew, 22 Cal. 3d 333, 583 P.2d
1318, 149 Cal. Rptr. 275 (1978) (adopting the American Law Institute's definition of
insanity), and adopts the McNaghten definition of insanity with the additional re-
quirement that the defendant satisfy both prongs of the test; (3) section 1192.7(a),
which prohibits [p]lea bargaining in any case in which the indictment or information
charges any serious felony or any offense of driving while under the influence of alco-
hol, drugs, narcotics, or any other intoxicating substance, or any combination thereof
. . . unless there is insufficient evidence to prove the people's case, or testimony of a
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California's New Law on Character Evidence: Evidence Code Section 352 and the Impact of Recent Psychological Studies
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