Chapter 7 - §2. General procedure

• Jurisdiction: United States

§2. General procedure

If a party challenges the admission of proffered evidence, the court in most cases must make a preliminary fact determination before the evidence can be admitted. See Evid. C. §403(b) (for some evidence, court can conditionally admit it, subject to evidence of the preliminary fact being supplied later). While the procedure for determining a preliminary fact issue is generally the same for all preliminary facts, the burden of proof required to establish the preliminary fact and the effect of the court's determination will vary depending on the type of preliminary fact at issue. See Evid. C. §§402-405. For a discussion of the specific rules that apply to certain preliminary fact determinations, see "Types of preliminary fact determinations," ch. 7, §3.

§2.1. Request preliminary fact determination.

1. Generally. If a party wishes to bar introduction of proffered evidence by disputing the existence of a preliminary fact, the party must request a preliminary fact determination or the issue will be waived. See People v. Sims (1993) 5 Cal.4th 405, 448. To avoid delays at trial, the party should file a motion in limine at the earliest possible time, asking for the determination to be made before the jury is selected. Although no specific statutory authority exists for motions in limine, they are traditionally used to seek exclusion of evidence. A standard order in limine excludes the particularized evidence and instructs counsel to refrain from referring to the matter during the proceedings. When filing a motion in limine, parties should ideally do so in writing and should research any local rules that could affect filing and time requirements for such motions. Parties can also request a preliminary fact determination by objecting at trial, regardless of whether a motion in limine has been filed.

Note

To challenge the admissibility of evidence based on an unconstitutional search and seizure under the Fourth Amendment, the party must comply with the specific motion and procedure requirements under Pen. C. §1538.5. For a discussion of those requirements, see "Procedure for excluding evidence," ch. 5-A, §5.

2. Specificity required. If a party disputes a preliminary fact and seeks to bar introduction of the proffered evidence, it must do so with specificity. See Evid. C. §353(a); People v. Lucas (2014) 60 Cal.4th 153, 264-65, disapproved on other grounds, People v. Romero (2015) 62 Cal.4th 1; People v. Solomon (2010) 49 Cal.4th 792, 821; People...