Also known as: preliminary questions · preliminary issue
Written by attorneys · grounded in primary & secondary sources — see below
A procedural determination by the court on whether a witness is qualified, a privilege exists, or evidence is admissible. The court makes this determination without being bound by the evidence rules except those concerning privilege.
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Paula Pierce offers an expert whose opinions rest on draft ledgers. The court reviews those materials to decide whether the expert is qualified even though the ledgers would be inadmissible at trial. The ruling allows the expert to testify once the court finds sufficient qualifications.
Paula Pierce seeks to withhold an email chain. The court reviews the communications in camera to decide whether the privilege exists even though the emails contain otherwise relevant facts. The ruling sustains the privilege once the court finds the elements satisfied.
Pamela Phillips objects to a co-conspirator statement. The court determines whether a conspiracy existed and whether the statement was made in furtherance of it before admitting the evidence. The finding rests on evidence the court may consider without applying ordinary hearsay rules.
Preston Pratt seeks to introduce a copy of a lost document. The court first decides whether the original was lost or destroyed in good faith. That preliminary finding determines whether the copy may be received.
Pablo Perez objects to a physician's testimony on causation. The court decides whether the opinion meets the reasonable medical probability standard before allowing the jury to hear it. The ruling turns on the physician's explanation of the basis for the opinion.
Perry Pratt moves to suppress a confession. The court conducts a hearing outside the jury's presence to decide whether the statement was voluntary. The determination rests on evidence the court may consider without applying ordinary evidence rules.
The court decides these questions. The court is not bound by the evidence rules except those on privilege when making the determination.
Supporting sources
The court must hold the hearing outside the jury's presence when the hearing concerns a matter that would otherwise suggest inadmissible evidence to the jury.
Supporting sources
No. Testimony on a preliminary question does not subject the defendant to cross-examination on other issues in the case.
Supporting sources
…practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted. In Lord Morley’s Case (supra) , it would seem to have been…