What Is the Legal Definition of ''Preliminary Fact'' ?
Sections 400 through 405 of the Evidence Code define the terms and set forth the procedures to be utilized where the admissibility of evidence is dependent upon the existence of a preliminary fact.
As used in these sections, a " 'preliminary fact' means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence." (Evid. Code, 400.)
Additional provisions that are pertinent to this claim include Evidence Code sections 402 and 403.
Evidence Code section 402 provides:
"(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
"(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 requests.
"(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."
Whereas Evidence Code section 403 states:
"(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;. . . (b) Subject to Section 702 (personal knowledge of a witness), 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, the court:
"(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."
Evidence Code section 403, subdivision (c) does not indicate by what standard of proof the jury must be satisfied of the existence of the preliminary fact. "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." (Evid. Code, 115.)
Therefore, the correct standard of proof for a preliminary fact under Evidence Code section 403 is evidence sufficient to support a finding by a preponderance of the evidence. (People v. Marshall (1996) 13 Cal. 4th 799, 832-833 55 Cal. Rptr. 2d 347, 919 P.2d 1280; People v. Simon (1986) 184 Cal. App. 3d 125, 134 228 Cal. Rptr. 855; 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1997) 24.5, p. 382.)
In other words that there be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. (People v. Simon, supra, 184 Cal. App. 3d at p. 132, citing People v. Albertson (1944) 23 Cal. 2d 550, 581 145 P.2d 7 (conc. opn. of Traynor, J.).)
In Simon, the court held that the function of the trial court is to determine whether the evidence of the preliminary fact is "sufficient to allow the jury to determine by a preponderance standard" that the preliminary fact exists. (People v. Simon, supra, 184 Cal. App. 3d at p. 134.)
In Marshall, the court held that "the trial court must determine whether the evidence is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence, even if the court personally would disagree" (People v. Marshall, supra, 13 Cal. 4th at pp. 832-833.)