Article 2. Preliminary Determinations On Admissibility Of Evidence of California Evidence Code >> Division 3. >> Chapter 4. >> Article 2.
As used in this article, "preliminary fact" means a fact upon
the existence or nonexistence of which depends the admissibility or
inadmissibility of evidence. The phrase "the admissibility or
inadmissibility of evidence" includes the qualification or
disqualification of a person to be a witness and the existence or
nonexistence of a privilege.
As used in this article, "proffered evidence" means evidence,
the admissibility or inadmissibility of which is dependent upon the
existence or nonexistence of a preliminary fact.
(a) When the existence of a preliminary fact is disputed, its
existence or nonexistence shall be determined as provided in this
(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
(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.
(a) The proponent of the proffered evidence has the burden of
producing evidence as to the existence of the preliminary fact, and
the proffered evidence is inadmissible unless the court finds that
there is evidence sufficient to sustain a finding of the existence of
the preliminary fact, when:
(1) The relevance of the proffered evidence depends on the
existence of the preliminary fact;
(2) The preliminary fact is the personal knowledge of a witness
concerning the subject matter of his testimony;
(3) The preliminary fact is the authenticity of a writing; or
(4) The proffered evidence is of a statement or other conduct of a
particular person and the preliminary fact is whether that person
made the statement or so conducted himself.
(b) Subject to Section 702, the court may admit conditionally the
proffered evidence under this section, subject to evidence of the
preliminary fact being supplied later in the course of the trial.
(c) If the court admits the proffered evidence under this section,
(1) May, and on request shall, instruct the jury to determine
whether the preliminary fact exists and to disregard the proffered
evidence unless the jury finds that the preliminary fact does exist.
(2) Shall instruct the jury to disregard the proffered evidence if
the court subsequently determines that a jury could not reasonably
find that the preliminary fact exists.
Whenever the proffered evidence is claimed to be privileged
under Section 940, the person claiming the privilege has the burden
of showing that the proffered evidence might tend to incriminate him;
and the proffered evidence is inadmissible unless it clearly appears
to the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.
With respect to preliminary fact determinations not governed
by Section 403 or 404:
(a) When the existence of a preliminary fact is disputed, the
court shall indicate which party has the burden of producing evidence
and the burden of proof on the issue as implied by the rule of law
under which the question arises. The court shall determine the
existence or nonexistence of the preliminary fact and shall admit or
exclude the proffered evidence as required by the rule of law under
which the question arises.
(b) If a preliminary fact is also a fact in issue in the action:
(1) The jury shall not be informed of the court's determination as
to the existence or nonexistence of the preliminary fact.
(2) If the proffered evidence is admitted, the jury shall not be
instructed to disregard the evidence if its determination of the fact
differs from the court's determination of the preliminary fact.
This article does not limit the right of a party to introduce
before the trier of fact evidence relevant to weight or credibility.