Also known as: preliminary question
Written by attorneys · grounded in primary & secondary sources — see below
A judicial determination on whether a witness is qualified, a privilege exists, or evidence is admissible. The court resolves these threshold issues and may consider any evidence except that barred by privilege rules.
Pierce Patterson offered an expert whose opinions rested on draft ledgers. The court examined those materials to decide the expert's qualifications and the admissibility of the testimony. The hearing occurred outside the jury's presence.
Philip Powell faced charges involving an alleged conspiracy. The prosecution sought to introduce a declarant's out-of-court statement. The court determined by a preponderance of the evidence whether a conspiracy existed and whether the statement furthered it before admitting the evidence.
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Phoebe Park moved to suppress a confession obtained during questioning. The court conducted a hearing to decide whether the statement was voluntary. The judge considered all relevant evidence, including the circumstances of the interrogation, to resolve the threshold issue.
Paul Peterson sued for defamation and the defendant moved for summary judgment. The court assessed whether a genuine factual dispute existed that required trial resolution. This determination controlled whether the case proceeded to a jury.
Peter Park challenged the admission of his confession at trial. The court held a separate hearing to decide whether the statement was voluntary. The jury never learned of the judge's preliminary ruling on that issue.
Penelope Price moved to exclude evidence seized after an arrest. The court decided the preliminary question of whether the arrest was lawful before determining admissibility. The ruling shaped what the jury ultimately heard.
The court decides any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.
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The court may consider any evidence when deciding preliminary questions except evidence barred by privilege rules.
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The court must conduct any hearing on a preliminary question so that the jury cannot hear it when required by the rule.
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A defendant in a criminal case who testifies on a preliminary question does not become subject to cross-examination on other issues in the case.
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The court must be satisfied that a conspiracy existed and that the statement was made during and in furtherance of it, and the court may consider hearsay when making that determination.
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…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…