With respect to preliminary fact determinations not governed by Section 403 or 404:

(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.

Terms Used In California Evidence Code 405

  • Action: includes a civil action and a criminal action. See California Evidence Code 105
  • Burden of proof: means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. See California Evidence Code 115
  • 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
  • Law: includes constitutional, statutory, and decisional law. See California Evidence Code 160
  • 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

(b) If a preliminary fact is also a fact in issue in the action:

(1) The jury shall not be informed of the court’s determination as to the existence or nonexistence of the preliminary fact.

(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court’s determination of the preliminary fact.

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

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