CALIFORNIA EVIDENCE: CIVIL AND CRIMINAL
...Foundation Issues
......Basic Rules & Definitions
.........Preliminary Facts; Proffered Evid
 17 Cards On This Topic:
  • Court to decide preliminary facts before admitting proffered evidence.
  • Questions of fact are to be decided by jury.
  • Whether preliminary fact exists shall be determined according to Evid. Code §400 et seq.
  • "Preliminary fact" means fact which must be shown to exist to admit proffered evidence. Admissibility of proffered evidence depends on whether preliminary fact exists.
  • By ruling on admissibility of proffered evidence, court impliedly rules upon sufficiency of preliminary fact-no other finding necessary.
  • "Proffered evidence" is evidence the admission of which depends upon the existence of preliminary fact.
  • Questions of relevancy, personal knowledge, authentication or identity of hearsay declarant, are inadmissible unless proponent has met burden.
  • Error in overruling D's lack-of-foundation objection to entomologist's testimony re maggots found in V's body and how long the body was in an open field was harmless error.
  • Exclusion of note in D's handwriting, with personal information he claimed V gave him, was not error where D failed to meet EC 403 burden re preliminary fact that V was the source of the information.
  • No error in excluding purported list of V's sexual partners where D failed to establish as preliminary facts that V's mother and O were competent to testify re V's sexual history or meaning of names.
  • No foundational error in allowing evidence of D's skull-shaped ring, consistent in shape with scratches on V's thigh, into evidence where criminalist's testimony sufficiently connected D to the ring.
  • Nothing fundamentally unfair about applying ordinary rules of evidence to exclude speculative opinion testimony for which no foundation, especially where an obvious other source for the same information available.
  • In marijuana possession case where D sought to suppress contraband by claiming search was without consent, consent is preliminary fact and marijuana was proffered evidence.
  • Upon claim of privilege, facts which support existence of attorney-client privilege would be preliminary fact.
  • In robbery case, whether photographic ID was overly suggestive would be preliminary fact and ID of D by witness would be proffered evidence.
  • Experimental evidence requires, as preliminary fact, that experiment was conducted under same or similar conditions as those at time of accident.
  • Upon objection to admissibility of criminal confession, valid Miranda admonition and voluntary waiver are preliminary facts.


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