Navigating Preliminary Determinations on Admissible Evidence Under California and Federal Law

A criminal defense attorney’s primary objective is to protect their client’s rights while ensuring a fair trial. Key to this mission is the ability to strategically present evidence and challenge its admissibility. This means understanding California Evidence Code sections 400-406 and the Rule 104 of the Federal Rules of Evidence.

Section 400 of the California Evidence Code lays the groundwork for understanding the importance of preliminary determinations on the admissibility of evidence, whereas section 401 sets the stage for preliminary fact determinations. It establishes that the court is responsible for determining the admissibility of evidence.

Example: In a criminal trial, the prosecution presents a surveillance video allegedly showing the defendant committing a robbery. A skilled criminal defense attorney could argue that the video is inauthentic or that the date and time stamps on the video are incorrect, causing the court to make a preliminary determination about whether the video is admissible.

Federal Rules of Evidence Rule 104 outlines the procedure for addressing preliminary questions regarding witness qualifications, privileges, and the admissibility of evidence.

Preliminary Question Decision: The court is responsible for deciding preliminary questions concerning witness qualifications, the existence of a privilege, or the admissibility of evidence. For example, in a tax evasion trial, the prosecution intends to call an expert witness to testify about forensic accounting analysis. The defense objects, arguing that the witness is not qualified to provide expert testimony on forensic accounting analysis. The court must decide the preliminary question of whether the expert witness is qualified to testify as an expert in this area, and the prosecution will need to present evidence supporting the witness's qualifications, such as their educational background, training, and experience.

Cross-Examination of a Defendant in a Criminal Case: A defendant in a criminal case, when testifying on a preliminary question, is not subject to cross-examination on other issues relevant to the case. This provision protects the defendant's right against self-incrimination. For example, in a conspiracy trial for embezzlement, the defendant takes the stand during a preliminary hearing to discuss their financial records. The prosecution attempts to cross-examine the defendant on unrelated issues, such as their personal life. Rule 104 explicitly states that by testifying on a preliminary question, the defendant does not become subject to cross-examination on other issues in the case.

Evidence Relevant to Weight and Credibility: Rule 104 does not restrict a party's ability to introduce evidence before the jury that pertains to the weight or credibility of other evidence presented. For example, in a counterfeiting trial, the defense introduces evidence showing that a key witness has a history of making inconsistent statements in prior cases. The defense argues that this evidence affects the credibility of the witness. Rule 104 allows the defense to introduce evidence relevant to the weight and credibility of the witness's testimony, and this evidence can be presented to the jury without being constrained by the preliminary determination process.

California Evidence Code section 402 allows for a motion in limine (a motion that is heard outside of the presence of the jury) to exclude prejudicial or irrelevant evidence. In a 402 motion, the court hears and determines whether evidence is admissible outside of the presence of the jury. In a criminal case, the court must hear and determine whether a confession or admission by the defendant is admissible outside the presence of the jury if either the prosecution or the defense attorney requests.

Example: In a case where the defendant confessed to rape, whether that confession is admissible as evidence must be heard outside of the presence of the jury, so as not to taint the jury pool if the judge eventually rules the confession inadmissible.

Federal Rules of Evidence Rule 104(c) also allows for confidential hearings. In criminal cases, the court must conduct any confidential hearings on preliminary questions in such a way that the jury cannot hear them, particularly in cases involving the admissibility of a confession, at the request of a defendant in a criminal case, or when justice requires it.

Example: In a wire fraud case where the government wants to introduce a defendant’s prior convictions for other financial crimes, the defendant may request that the court conduct the hearing on the admissibility of those prior convictions outside of the presence of the jury.

If you have been charged a crime, it is critical that you discuss your case immediately with a knowledgeable and aggressive criminal defense attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive knowledge of the California Evidence Code and the Federal Rules of Evidence and understands the importance of preliminary determinations of admissible evidence.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.