ADMISSIBILITY: PRELIMINARY DETERMINATIONS Flashcards
§ 400 - Preliminary Fact
A fact that directly affects the admissibility or inadmissibility of evidence. 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.
§ 401 - “Proffered Evidence”
“Proffered evidence” means evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.
§ 402 - Determining Admissibility/Existence of a Preliminary Fact
When the existence of a preliminary fact is in dispute, the court may hear and determine the admissibility of evidence outside the presence of the jury. 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.
§ 403 (a) - Preliminary Fact Determinations & Admissibility: Disputes as to Relevancy, Personal Knowledge, or Authenticity
Evidence is admissible only where the proponent establishes a preliminary fact when:
1) The relevance of the evidence depends on the existence of a preliminary fact.
2) The preliminary fact is that a witness has personal knowledge regarding the subject of his testimony.
3) The preliminary fact is the authentication of a writing.
4) The evidence is about a person’s statement or conduct, and the preliminary fact is whether the person made the statement or acted as alleged.
§ 403 - Conditionally Admitting Evidence Subject to Establishing the Preliminary Fact Later in the Trial
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.
§ 404 - Preliminary Fact Determinations: Incriminatory Evidence
A person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him. The proffered evidence is inadmissible unless it clearly appears that the evidence cannot possibly have a tendency to incriminate the person.
§ 405 - Preliminary Fact Determinations: All Other Disputes
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 under the law. The court shall make a determination on the existence of the preliminary fact and the admissibility of evidence.
§ 406 - Evidence Affecting Weight or Credibility
This article does not limit the right of a party to introduce evidence relevant to weight or credibility.
