Procedural Considerations: Relationship of Parties, Judge, and Jury

Question 1

What is the role of the judge/jury in determining the existence of preliminary facts?

FRE?

CA?

Answer 1

FRE –>

1. When jury is to determine existence of a preliminary fact, judge first determines whether there is sufficient evidence to support a finding that the preliminary fact exists
2. If there is sufficient evidence to support a finding that fact exists, judge admits the evidence and lets the jury decide on existence of the fact

CA –>

• Same as federal rule
• NOTE –> in CA, the genuineness of a handwriting exemplar is determined by the judge alone

Question 2

What evidence for preliminary fact considerations may be considered by judge?

Under FRE?

IN CA?

Answer 2

FRE –> When judge alone determines existence of a preliminary fact, she may consider ANY NON-PRIVILEGED relevant evidence, even if not otherwise admissible
EXAMPLE –> judge can consider hearsay etc.

CEC –> judge is BOUND by rules of evidence when determining existence of a preliminary fact.
EFFECT –> CANNOT use inadmissible hearsay