The ability to introduce relevant, admissible evidence is a critical part of a good defense. However, there are several technical rules requiring which party has the burden of proving a preliminary fact necessary for evidence to be admissible. Furthermore, courts are allowed to conditionally admit proffered evidence on the basis that it will become admissible at a later time. Those procedures are governed by California Evidence Code section 403 and Federal Rules of Evidence Rule 104.
Burden of Proof – California Evidence Code Section 403Section 403 outlines the procedure for admitting evidence that depends on the existence of a preliminary fact, and requires the proponent of the evidence to demonstrate the existence of this preliminary fact before the evidence can be considered admissible.
This requirement applies when (1) the relevance of the proffered evidence hinges on the existence of the preliminary fact; (2) the preliminary fact pertains to a witness's personal knowledge about the subject of their testimony; (3) the preliminary fact involves verifying the authenticity of a written document; and (4) the proffered evidence consists of a statement or conduct by a specific individual, and the preliminary fact to establish is whether that person indeed made the statement or acted in the manner described.
Example of Proving the Existence of a Preliminary FactMark and Chris are on trial for conspiracy to commit murder. The prosecution intends to call Sarah to testify about a conversation she had with Mark and Chris regarding the plan, and this testimony is crucial for the prosecution’s case.
The relevance of Sarah's testimony depends on the existence of a preliminary fact, which is whether the conversation regarding the murder plot actually occurred. This preliminary fact is crucial because if the conversation never took place, her testimony would be irrelevant.
Sarah has personal knowledge of the subject matter of her testimony, i.e., the conversation. Her ability to describe the details of this conversation is essential in establishing the preliminary fact.
The proffered evidence, in this case, is Sarah’s statement about their conversation. The preliminary fact to establish is whether Mark and Chris made the statements attributed to them.
Upon a defense objection that there is insufficient evidence to establish that the conversation actually occurred, the court must conduct a preliminary determination, and the burden is on the prosecution to produce evidence to demonstrate the existence of the conversation.
If the court finds that there is sufficient evidence to sustain a finding of the existence of the preliminary fact (i.e., the conversation occurred), the proffered evidence (Sarah’s testimony) becomes admissible. This is because its relevance is established based on the existence of the conversation. If the court determines that there is insufficient evidence to establish the preliminary fact (i.e., it cannot reasonably conclude that the conversation occurred), Sarah’s testimony may be deemed inadmissible.
Burden of Proof – Federal Rule 104Rule 104 states that when the relevance of evidence depends on the existence of a particular fact, the party seeking to introduce the evidence must provide sufficient proof to support a finding that the fact indeed exists.
For example, in a wire fraud case where it is alleged that the defendant set up a GoFundMe account fabricating claims that he had suffered injuries from a motorcycle accident to profit off innocent do-gooders, the government has the burden of proving that the GoFundMe account was set up by the defendant. Without being able to establish that particular fact, the evidence relating to the GoFundMe account would be ruled irrelevant and inadmissible.
Conditional Admission of Proffered Evidence – California Evidence Code Section 403Section 403 also authorizes the judge to conditionally admit proffered evidence provided that the evidence supporting the preliminary fact is supplied later in the course of the trial. When the court admits the proffered evidence conditionally it must instruct the jury to assess whether the preliminary fact exists, and to disregard it if the jury finds that the preliminary fact does not exist. If the court later concludes that a reasonable jury could not find the preliminary fact to be true, the court must instruct the jury to disregard the proffered evidence.
For example, in a robbery case, the prosecution wants to introduce evidence of a stolen vehicle found near the crime scene, arguing that it links the defendant to the crime. The defense objects, asserting that the evidence’s relevance depends on whether the defendant had access to the vehicle. The court may conditionally admit the evidence related to the stolen vehicle, subject to the prosecution later providing sufficient proof that the defendant had access to the vehicle. If at the end of the trial, the court determines that there no reasonable jury would find that the defendant had access to the vehicle, the jury must be instructed to disregard the evidence of the stolen vehicle.
Conditional Admission of Proffered Evidence – Federal Rule 104Rule 104 allows the court to conditionally admit evidence that depends on the existence of a particular fact, subject to the actual proof being presented later in the proceedings.
For example, in a counterfeiting case, the government wants to introduce evidence of a counterfeiting device allegedly associated with the defendant that helped facilitate the fraud. The defense objects, asserting that the evidence’s relevance depends on whether the defendant actually had access to the counterfeiting device. The court may conditionally admit the evidence about the device, subject to the government later providing sufficient proof that the defendant had access to it. If at the end of the trial, the court determines that the counterfeiting device was actually only operated by the defendant’s nephew and the defendant had no access to it whatsoever, the evidence of the counterfeiting device would be deemed inadmissible.
If you are facing charges for a crime, it is absolutely critical that you discuss your case with an experienced criminal defense attorney. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive experience in ensuring that only relevant admissible evidence comes out at a trial and has an in depth knowledge of Federal and California rules of 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.