(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:

(1) The relevance of the proffered evidence depends on the existence of the preliminary fact;

Terms Used In California Evidence Code 403

  • Burden of producing evidence: means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue. See California Evidence Code 110
  • Conduct: includes all active and passive behavior, both verbal and nonverbal. See California Evidence Code 125
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Evidence: means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. See California Evidence Code 140
  • Person: includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity. See California Evidence Code 175
  • preliminary fact: means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. See California Evidence Code 400
  • proffered evidence: means evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact. See California Evidence Code 401
  • Statement: means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression. See California Evidence Code 225
  • Testimony: Evidence presented orally by witnesses during trials or before grand juries.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
  • Writing: means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. See California Evidence Code 250

(2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony;

(3) The preliminary fact is the authenticity of a writing; or

(4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.

(b) Subject to Section 702, the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial.

(c) If the court admits the proffered evidence under this section, the court:

(1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.

(2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists.

(Enacted by Stats. 1965, Ch. 299.)

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