Copyright © 2010

Thomson Reuters

Chapter 1

THE ROLE OF JUDGE AND JURY

Table of Sections

Sec.

1.00 Allocating Power Between Judge and Jury.

1.01 Preliminary Matters Governed by § 403.

1.02 Section 403 and the Federal Doctrine of Conditional Relevance.

1.03 Preliminary Matters Governed by § 405.

1.04 The Burden of Proof in § 405 Determinations.

1.05 The Rules of Evidence and Preliminary Fact Determinations.

1.06 Preliminary Fact Determinations Involving Ultimate Issues.

1.07 Other Provisions Relating to Admissibility.

1.08 Summary of Major Differences Between the Code and the Rules.

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§ 1.00 Allocating Power Between Judge and Jury

FEDERAL RULES OF EVIDENCE

Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

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CALIFORNIA EVIDENCE CODE

§ 310. Questions of law for court

(a) All questions of law (including but not limited to questions concerning the construction of statutes and other writings, the admissibility of evidence, and other rules of evidence) are to be decided by the court. Determination of issues of fact preliminary to the admission of evidence are to be decided by the court as provided in Article 2 (commencing with Section 400) of Chapter 4.

(b) Determination of the law of an organization of nations or of the law of a foreign nation or a public entity in a foreign nation is a question of law to be determined in the manner provided in Division 4 (commencing with Section 450).

§ 312. Jury as trier of fact

Except as otherwise provided by law, where the trial is by jury:

(a) All questions of fact are to be decided by the jury.

(b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants.

§ 400. Preliminary fact

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.

§ 401. Proffered evidence

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.

§ 402. Procedure for determining foundational and other preliminary facts

(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.

§ 403. Determination of foundational and other preliminary facts where relevancy, personal knowledge, or authenticity is disputed

(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, 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.

§ 404. Determination of whether proffered evidence is incriminatory

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.

§ 405. Determination of foundational and other preliminary facts in other cases

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.

§ 406. Evidence affecting weight or credibility

This article does not limit the right of a party to introduce before the trier of fact evidence relevant to weight or credibility.

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Comparative Note. The California Evidence Code and the Federal Rules of Evidence have much in common in defining the respective roles of judges and jurors. Their differences, while significant in some instances, are few in number.

Federal Rule of Evidence 104(a) and California Evidence Code § 310 classify questions regarding the admissibility of evidence as questions of law to be decided by the judge. Evidence Code § 312 expressly commits all "questions of fact" to the jurors, including questions regarding the credibility of witnesses and hearsay declarants. The Rules do not have an analogous provision. A specific rule, however, is unnecessary since under the Common Law tradition judges determine the admissibility of the evidence and jurors the weight of the evidence that has been admitted.1

The major difference between the Rules and the Code with respect to the roles of judges and jurors is structural, not substantive. Federal Rule of Evidence 104(a) specifies those questions of admissibility reserved for the judge. These are preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, and the admissibility of evidence. Questions regarding the admissibility of evidence objected to on irrelevance grounds are governed by Rule 104(b). When the relevance of an item of proffered evidence depends upon the proof of a preliminary fact, Rule 104(b) specifies the procedure the judge is to follow in determining the existence or nonexistence of the disputed preliminary fact. Rule 104(b), however, does not attempt to specify the kinds of preliminary fact disputes that might fall within the rule.

The California Evidence Code takes the opposite approach. When the relevance of an item of evidence depends upon proof of a preliminary fact, Section 403 not only specifies the procedure the judge is to follow in determining the existence or nonexistence of disputed preliminary facts, it also identifies the kinds of preliminary fact disputes governed by the section. The Code takes the position that preliminary fact determinations not covered by § 403 are to be governed by § 405. Thus, under the Code, § 405 is the default provision. Section 405 governs the preliminary fact dispute before the judge if it does not fit within one of the classifications specified in § 403. Because questions regarding the qualifications of witnesses (including experts), the existence of a privilege, or the admissibility of evidence on grounds other than relevance (e.g., hearsay) are not included in the classifications specified in § 403, they become, as under Rule 104(a), questions of law for resolution by the judge under § 405.

When an objection is made to the introduction of an item of evidence, it is up to judge to rule on whether or nor the item should be admitted. In this regard, it is immaterial whether the admissibility of the item is governed by Rule 104(a) or § 405, on the one hand, or Rule 104(b) or § 403, on the other. In deciding whether to withhold the item from the jurors, however, the judge will play one of two very different roles. If the objection calls for the application of Rule 104(a) or § 405, then the judge will enjoy greater powers in determining the admissibility of the evidence. If, on the other hand, the objection calls for the application of Rule 104(b) or § 403, the judge's powers will be highly circumscribed.

Rule 104(a) and § 405 Example. If a party objects to the testimony of an expert on the ground that the expert is not qualified to testify, the judge's ruling will be based on the evidence the parties have introduced regarding the witness's qualifications or lack of qualifications and on the judge's assessment of the credibility of witnesses called on the issue of the expert's qualifications. The judge will allow the expert to testify only if the judge finds by a preponderance of the evidence that the witness is qualified to testify. If the judge is not convinced by this high standard, the judge will withhold the expert's testimony from the jury.

Rule 104(b) and § 403 Example. If in a homicide prosecution the accused objects to the introduction of a knife which the prosecution alleges was the murder weapon, the judge will have to exclude the knife unless the prosecution produces some evidence connecting the knife with the homicide and the accused. Otherwise, the knife would have no connection with case and would be irrelevant. To discharge this burden, the prosecution might call a witness who can identify the knife as the knife found lodged in the victim and another witness who can identify the knife as one he saw in the accused's home prior to the homicide. In ruling on the objection, the judge may not take into account the credibility or lack of credibility of the two prosecution witnesses. The question for the judge is not whether he is persuaded by the two witnesses that the knife offered is the knife that was used to kill the victim and belongs to the accused. Rather the question for the judge is whether reasonable jurors could find those facts if the jurors believe the witnesses' testimony. Both Rule 104(b) and § 403 limit the judge's power to withhold this kind of evidence from the jurors by imposing a sufficiency standard with respect to the existence or nonexistence of preliminary facts governed by their respective provisions. If the judge overrules the objection and admits the knife (as the judge should in the example), the accused is entitled to some consolation. Upon request, the judge would instruct the jurors to disregard the knife in their deliberations unless they first find that it was used in the homicide and that it belongs to the accused.

As is evident, a judge's power to withhold evidence from the jurors is much greater under Rule 104(a) and § 405, than under Rule 104(b) and § 403. It is thus critical for judges and lawyers to know when judges are entitled to exercise their greater or lesser powers to withhold evidence from the jurors.

§ 1.01 Preliminary Matters Governed by § 403

Comparative Note. Scholars disagree on whether judges should use a sufficiency standard, as contemplated in § 403, or a higher standard, as is the case under § 405, in ruling on the admissibility of evidence.1 The Code avoids the controversy by describing with particularity the kinds of preliminary fact issues governed by § 403 and relegating all other issues for determination under § 405.2

Rule 104(b) by contrast does not specify the preliminary fact questions that fall within its ambit. Although the term "conditional relevancy" used in the Advisory Committee Note probably embraces the kinds of preliminary fact questions listed under § 403,3 Rule 104(b) does not provide judges and litigants or their lawyers with the same kind of detailed guidance as does § 403 and its Comment.

The preliminary facts subject to resolution under § 403 are as follows:

Relevance of the Proffered Evidence. Section 403(a)(1) governs when the relevance of the proffered evidence depends on the existence of a preliminary fact. As the Assembly Judiciary Committee notes in its Comment to § 403, "[I]f P sues D upon an alleged agreement, evidence of negotiations with A is inadmissible because irrelevant unless A is shown to be D's agent; but the evidence of the negotiations with A is admissible if there is evidence sufficient to sustain a finding of the agency."

Personal Knowledge of a Witness. Section 702 provides that the testimony of a lay witness concerning a particular matter is inadmissible unless the witness has personal knowledge of the matter. Against objection, personal knowledge must be shown before the witness may testify about the matter. Section 403(a)(2) governs when the personal knowledge of a witness is contested.

Section 800 permits lay witnesses to testify in the form of an opinion if it is rationally based on the perception of the witness and the opinion is helpful to a clear understanding of the witness's testimony. Whether or not the opinion is based on the witness's perception is governed by § 403, as the limitation is merely a specific application of the personal knowledge requirement (§ 800 Comment).

Authenticity of Writings. When a writing is offered in evidence, the proponent must also offer some evidence that the writing is what the proponent claims it to be.4 If in a contract dispute the plaintiff offers a writing that she claims is the contract she and the defendant entered into, then the plaintiff must offer some evidence indicating that the writing is indeed that contract. Whether or not the writing is the contract is governed by § 403(a)(3). To eliminate any uncertainty about the point, § 1400, which defines authentication, imposes the same requirement.

Although authentication is usually associated with writings, the concept applies whenever any tangible object is offered in evidence.5 Whether the object be the knife the prosecution believes the accused used to kill the victim or the ladder the plaintiff claims was defective, the proponent must connect the object with the case. Showing that the object is relevant to the issues to be decided will require some evidence that the object is what the proponent claims it to be. For purposes of admissibility, the quantum of evidence, as in the case of writings, need satisfy only § 403's sufficiency standard.

Identity of the Actor or Declarant. Section 403(a)(4) governs when "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." Impeaching a witness through a prior conviction assumes that the witness was the person who was convicted. If the identity of the person convicted is disputed, the judge must permit the use of the conviction if the proponent demonstrates by a sufficiency of the evidence that the person convicted was the witness (§ 403 Comment). The same principle applies when the preliminary issue is whether a particular person, including a hearsay declarant, made a statement. Thus, any evidence that the statement was made by the claimed declarant is sufficient to warrant the introduction of admissions by parties under § 1220, of previous statements by witnesses under §§ 1235–1236, as well as of statements by the declarants who are described in §§ 1224–1227 and whose liability, breach of duty, or right is at issue.

Whether a party has authorized or adopted an admission is also governed by § 403(a)(4). Since in California the admission of a coconspirator is a form of an authorized admission, the admission is admissible upon the introduction of evidence sufficient to sustain a finding of the conspiracy. The Federal Rules, as we shall see, differ on this point.

§ 1.02 Section 403 and the Federal Doctrine of Conditional Relevance

Comparative Note. A review of the kinds of preliminary facts governed by § 403 reveals that most involve some aspect of relevance. A writing or other tangible object is irrelevant unless it is what the proponent claims it to be; the statement of a declarant is irrelevant unless the declarant made the statement; similarly, a person's conduct is irrelevant unless it is the conduct of that person. In each instance the evidence is irrelevant unless some condition is fulfilled. For this reason, some scholars view these preliminary fact determinations as calling for a special relevance analysis known as "conditional relevancy." This is the approach taken by Federal Rule of Evidence 104(b) to these kinds of preliminary fact determinations. The label, however, is immaterial. Both Code § 403 and Rule 104(b) attempt to achieve the same goals.

§ 1.03 Preliminary Matters Governed by § 405

Comparative Note. As has been noted, § 405 is designed as a default provision. If a preliminary issue is not governed by § 403, it will be determined under § 405. Despite the simplicity of this approach, uncertainty about the scope of § 403 led the drafters of the Code to list in the Comment some of the preliminary fact issues governed by § 405. The Comment to § 405 includes the following:

Competency of Witnesses. Whether a witness is capable of expressing himself in a manner that can be understood or is capable of understanding the duty to tell the truth are matters to be resolved by the judge under § 405. But, as has been noted, whether a witness possesses the requisite personal knowledge is decided by the judge under § 403.

Under Rule 104(a), questions concerning the qualification of a person to be a witness are to be determined by the judge.

Qualification of Experts. Whether a witness is qualified to provide the fact finder with an expert opinion is determined by the judge under § 405. Accordingly, the judge's determination that the witness is qualified is binding on the fact finder, but the fact finder may consider the witness's qualifications in deciding what weight, if any, to give to the opinion. Moreover, whether the expert's opinion is based on matters of a type reasonably relied upon by experts in the field or on scientific principles and techniques generally accepted by the pertinent scientific community are also questions to be decided by the judge under § 405.

Under Rule 104(a), whether a person qualifies as an expert is to be determined by the judge.

Section 405 also governs whether a witness is sufficiently acquainted with a person to give an opinion on that person's sanity or with a person's handwriting to give an opinion on whether a writing is in that person's handwriting. Since these questions relate to the qualifications of the witness, presumably they too would be determined by a federal judge under Rule 104(a).

Writings. Although authenticity is a § 403 issue, whether a writing is genuine must be determined by the judge under § 405 before admitting the writing for comparison with other writings whose authenticity is in dispute. One would expect a similar role for a federal judge if the writing offered for comparison does not raise a conditional relevancy question. Rule 104(a), like § 405, is a default provision. It is generally applicable unless the preliminary question at issue is to be decided under the conditional relevancy provision of Rule 104(b).1

As is discussed in Chapter 10, under the California Secondary Evidence Rule, a party may prove the contents of a writing by offering the original writing or secondary evidence of the original. The proponent, however, must offer the original if a genuine dispute exists concerning the material terms of the original and justice requires its exclusion, or if admission of the secondary evidence would be unfair. Presumably, upon objection the proponent must convince the judge under § 405 either that no genuine dispute exists concerning the material terms of the original writing or that admission of the secondary evidence would not be unfair.

As is discussed in Chapter 10, the Federal Rules of Evidence retain the traditional Best Evidence Rule. Proof of the contents of a writing must be made through the original of the writing unless nonproduction of the original writing is excused. As in California, most questions regarding the satisfaction of the rule's requirements are for the judge under the standards of Rule 104(a).

Privileges. The party objecting on the grounds of privilege must establish the privileged nature of the matter under § 405. Moreover, the party claiming an exception to the privilege must establish the preliminary facts under the same standard. These rules are consistent with one of the goals of § 405: to withhold evidence from the fact finder when public policy requires its exclusion.

Federal Rule of Evidence 104(a) is in accord. The existence of a privilege is committed to the judge.

Witness Unavailability. The proponent of hearsay evidence requiring the unavailability of the declarant has the burden of persuading the judge of the declarant's unavailability as a witness under § 405. If the opponent objects to the evidence on the ground that the proponent procured the declarant's unavailability to prevent the declarant from testifying, the opponent must establish that claim under § 405.

The Rules and the Advisory Committee Notes are silent on these points. Presumably, these questions are committed to the judge for resolution under the standards of Rule 104(a). However, neither this rule nor its note indicates which party should have the production and persuasion burdens. The federal approach to hearsay is that of the Common Law, that is, a general rule of exclusion with exceptions.2 Under this approach, the burden of proof on preliminary matters relating to admissibility is usually on the proponent.3 Thus, upon objection the proponent of the evidence would have to persuade the judge of the declarant's unavailability. Because of the Rules' silence, resort to the federal common law is necessary to determine whether the opponent has the burden of proof on the question whether the proponent procured the declarant's unavailability.

Hearsay Evidence. According to the Comment to § 405, "When hearsay evidence is offered, two preliminary fact questions may be raised. The first question relates to the authenticity of the proffered declaration—was the statement actually made by the person alleged to have made it? The second question relates to the existence of those circumstances that make the hearsay sufficiently trustworthy to be received—e.g., was the declaration spontaneous, the confession voluntary, the business record trustworthy? Under [the Code], questions relating to authenticity of the proffered declaration are decided under Section 403. * * * But other preliminary fact questions are decided under Section 405."

Section 405, not § 403, thus governs whether a declaration, when made, was so far contrary to the declarant's interests that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true; whether a statement previously made by a witness is inconsistent with the witness's testimony and complies with the requirements of § 770; whether a statement previously made by a witness is consistent with the witness's testimony and complies with the requirements of § 791; whether a statement previously made by a witness qualifies as past recollection recorded; whether a statement previously made by a witness qualifies as a statement of prior identification; whether a declaration qualifies as an excited utterance or as a contemporaneous statement; whether a declaration qualifies as a statement of a present or past mental state; whether certain writings meet the requirements for business and official records; whether testimony given in another action qualifies as former testimony; and whether a declaration qualifies as a dying declaration or a declaration against interest.

The language of Federal Rule of Evidence 104 and its accompanying Advisory Committee Note would support a similar construction in the case of hearsay and its exceptions. To the extent that the relevance of the hearsay declaration depends on the existence of the preliminary fact in dispute, the question would call for the application of the sufficiency standard of Rule 104(b). Preliminary fact disputes relating to the circumstances justifying the hearsay exception would fall within Rule 104(a). But this is not the construction given to Rule 104 by the United States Supreme Court. In California, for example, the Code requires the prosecution to prove the foundational facts of the hearsay exception for coconspirators' declarations by the sufficiency standard of § 403. The California approach is predicated on the theory that coconspirators' admissions are a form of authorized admissions, and the question of authority is governed by § 403. But in Bourjaily v. United States4 the Court held that under the Federal Rule 104 the proponent must establish the foundational facts of the coconspirators' hearsay exception by a preponderance of the evidence.5

§ 1.04 The Burden of Proof in § 405 Determinations

CALIFORNIA EVIDENCE CODE

§ 115. Burden of proof

"Burden of proof" means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.

§ 550. Party who has the burden of producing evidence

(a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact.

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Comparative Note. Section 405 does not prescribe the burden of proof that applies to the determination of the preliminary facts governed by the section. Instead, § 405 directs the judge to "the rule of law" under which the issue arises in allocating the burden of producing evidence and determining the burden of persuasion.

The "rule of law" applicable to a given preliminary fact dispute governed by § 405 may be silent with respect to the burdens of producing evidence and of persuasion. In such a circumstance, the Code provides two default positions on these questions. Section 115 provides that, unless otherwise provided by law, the burden of persuasion requires "proof by a preponderance of the evidence." Section 550 in turn places the burden of producing evidence on a particular issue on the party with the burden of persuasion on that issue. As a rule, then, unless the applicable rule of law states otherwise, the proponent must come forward with evidence that convinces the judge by a preponderance of the evidence of the existence or nonexistence of the preliminary facts governed by § 405.

The Rules do not contain similar default provisions with respect to the allocation of the production and persuasion burdens governing preliminary fact determinations under Rule 104(a).1 In the case of hearsay, however, the Advisory Committee Note states that Rule 801 places upon the objecting party the burden of persuading the judge that the proffered evidence is assertive and therefore hearsay. The Code is silent on this point. Presumably, in California the proponent would have the burden of persuading the judge that the evidence is not assertive.2

§ 1.05 The Rules of Evidence and Preliminary Fact Determinations

Comparative Note. The Law Revision Commission recommended that the rules of evidence not apply to determinations made under § 405.1 That position, however, was rejected by the California Legislature when it failed to exempt § 405 from the application of the Evidence Code.

The Commission was concerned that applying the rules could result in the exclusion of reliable hearsay statements:

For example, if witness W hears X shout, "Help! I'm falling down the stairs!", the statement is admissible only if the judge finds that X actually was falling down the stairs while the statement was being made. If the only evidence that he was falling down the stairs is the statement itself, or the statements of bystanders who no longer can be identified, the statement must be excluded. Although the statement is admissible as a substantive matter under the hearsay rule, it must be held inadmissible if the formal rules of evidence are rigidly applied during the judge's preliminary inquiry.2

In the Commission's view, the rules of evidence were developed largely to protect jurors untrained in the law from weak and unreliable evidence.3 Judges need no such protection. The Legislature, however, disagreed, and, as a result, the Evidence Code applies to hearings to determine preliminary facts.

The drafters of the Federal Rules of Evidence adopted the position espoused by the Commission and others. Rule 104(a) provides that in determining preliminary questions concerning the admissibility of evidence, the judge "is not bound by the rules of evidence except those with respect to privileges." The federal approach allows the judge to consider a hearsay declaration as proof of the foundational elements of a hearsay exception. But whether the declaration alone should suffice as proof of the foundational facts has been controversial. In 1997 Congress amended Rule 801(d)(2) to provide that "the statement must be considered but does by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E)." These subdivisions refer to the hearsay exemptions for authorized admissions, admissions by agents and servants, and coconspirators' admissions.

§ 1.06 Preliminary Fact Determinations Involving Ultimate Issues

Comparative Note. As has been discussed, Federal Rule 104(a) and § 405 allow judges to withhold evidence from the jury based on the judges' resolution of conflicts in the evidence of the preliminary facts and on their assessment of the credibility of the witnesses called to prove or disprove the preliminary facts.

These broad powers can threaten a party's right to a jury determination of factual issues whenever the preliminary fact issue is also an issue involved in the merits of the case. In a contract action, for example, one of the issues might be the existence of the contract. The defendant's position might be that he never entered into a contract with the plaintiff.

Suppose that the plaintiff offers in evidence, not the original contract, but a copy authenticated as a true copy of the original on the theory that the original was lost through no fault of the plaintiff. Under the California Secondary Evidence Rule, the plaintiff may offer a copy, unless the defendant disputes the existence of the original.1 Whether the original was lost as claimed by the plaintiff or never existed as claimed by the defendant is governed by § 405.

A ruling excluding the contract would result in a verdict in the defendant's favor without the plaintiff getting to the jury on the issue of the existence or nonexistence of the contract. To preserve this issue for jury resolution, Federal Rule 1008 provides that the jury determines whether (a) an asserted writing existed; (b) the writing produced at the hearing is the original; or (c) other evidence of the content of a writing accurately reflects the content.

The California Secondary Evidence Rule does not contain a similar limitation.

§ 1.07 Other Provisions Relating to Admissibility

Comparative Note. Under Code § 404, a person claiming the federal or state self-incrimination privilege has the burden of showing that the proffered evidence might tend to incriminate him or her. 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." The Rules do not have an equivalent provision. Presumably, in federal court the privilege claimant would rely on federal cases defining the witness privilege under the Self–Incrimination Clause of the Fifth Amendment.

Federal Rule 104(d) provides that the accused does not, by testifying upon a preliminary question, become subject to cross-examination as to other issues in the case. The Code is silent on this point.

Rule 104(e) and Code § 406 specify that the provisions governing preliminary fact questions do not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

§ 1.08 Summary of Major Differences Between the Code and the Rules

Comparative Note. Both the Code and the Rules acknowledge that judges should exercise different screening powers in determining the admissibility of evidence. To preserve the jury's fact finding function, both require judges to use a sufficiency standard in determining the admissibility of evidence contested on irrelevance grounds. By specifying the kinds of preliminary fact disputes subject to this standard, § 403 provides judges and parties greater guidance than does Rule 104(b)'s conditional relevance approach.

To assure the exclusion of evidence disfavored by the rules, both the Code and the Rules give judges greater screening powers. The Code achieves this goal by making § 405 a default provision. If the preliminary fact dispute is not governed by § 403, it falls within the ambit of § 405. If the "rule of law" governing the § 405 dispute does not specify the burden of proof, other Code default provisions require the proponent to come forward with proof that convinces the judge by a preponderance of the evidence of the existence or nonexistence of the disputed preliminary fact.

Rule 104(a) is also a default provision. In determining the admissibility of evidence, the federal judge is to exercise the powers conferred by this subdivision unless the preliminary fact question is governed by Rule 104(b)'s conditional relevancy provision. While § 405 does not attempt to specify the kinds of preliminary fact questions falling within the section, Rule 104(a) expressly provides that preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence are to be determined under subdivision (a) unless the question is governed by Rule 104(b).

The Code makes up for § 405's lack of specificity by extensive discussion in the comments to §§ 403 and 405 of the kinds of preliminary facts falling within each section. The detailed comments provide judges and parties with greater guidance than do Rule 104 and its note.

The Rules do not specify which burden of persuasion applies when the preliminary fact question is not governed by the sufficiency standard. The United States Supreme Court, however, has "traditionally required that these matters be established by a preponderance of proof."1

The Code and the Rules are at odds with respect to the kind of evidence that can be received to prove the existence or nonexistence of preliminary facts when the judge is asked to make the admissibility determinations contemplated by § 405 and Rule 104(a). Under the Rule 104(a), the judge "is not bound by the rules of evidence except those with respect to privileges." Under the Code, the rules of evidence apply.

Finally, the Rules provide that in the case of some Best Evidence Rule objections, the judge must allow the disputed preliminary fact to go to the jury under a sufficiency standard when the issue is also a question in the merits of the case. The related California provision does not go this far with respect to similar questions raised under California's Secondary Evidence Rule.