Preliminary Determinations of Admissibility of Evidence

Generally speaking legal issues are to be determined by the trial court and factual issues are to be determined by a jury or judge if no jury is present. However, either the judge or the jury may determine preliminary determinations of facts. Some preliminary determinations that may be made by a jury include:

Determination of whether agency or partnership existed.

Authenticity of evidence.

Credibility of a witness.

The judge may make other preliminary factual determinations. Some of those factual situations include:


Facts that affect the competency of evidence.

Applicability of hearsay exceptions.

Presence of privileges.

Evaluation of defendant's mental capacity.

Determination of the applicability of an insanity defense.

Determination of whether an expert truly qualifies as an expert witness.

When a factual or legal determination is required to be made by the trial court, it is within the trial court's discretion to determine whether to dismiss the jury if one is present. Often times the jury will be dismissed for the determination of factual issues so that they are not tainted in any way by the trial court's decision to permit or disqualify the admission of certain evidence or testimony.

Preliminary Proceedings

During preliminary proceedings the defendant may testify on any preliminary matter. By testifying the defendant does not waive her right against self-incrimination. The trial judge may comment on the evidence in federal courts, however such behavior is typically prohibited in state courts. The trial judge also has the power to call and question witnesses regarding preliminary matters. The trial judge should rule on any preliminary matters and should give a rationale for his or her decision. If the trial judge has determined that certain evidence or testimony should only be admitted for a limited purpose then the trial judge may give the jury a limiting instruction on the usage of such evidence or testimony.



Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.