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F 2.001 n1 Evidence Dependent Upon Proof Of A Preliminary Fact: General Note.
EC 403(c) requires the trial court, upon request, to instruct the jury regarding the necessity of finding preliminary facts. The statutory language is as follows:
“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.”
Whenever the relevance of evidence is dependent upon a preliminary fact, an EC 403(c)(1) instruction must be given when requested. (See, e.g., FORECITE F 2.03a; FORECITE F 2.52a, etc.)
Defendant’s Right To An Instruction That The Jury Is Entitled To Disregard
Certain Evidence When A Sufficient Foundation Has Not Been Shown
*NOTE: CJ 2.50.2 defining the preponderance standard should be given with this instruction:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that __________. If, and only if, the prosecution meets this burden, you may consider the evidence that __________ in your deliberations. However, you may not rely upon this evidence, in whole or part, to convict the defendant unless the prosecution has proven the existence of the preliminary fact beyond a reasonable doubt.
Points and Authorities
Pursuant to EC 403, the proponent of evidence must establish a sufficient foundation in four areas: (1) relevancy; (2) the personal knowledge of the witness; (3) the authenticity of a writing; and (4) whether or not a hearsay statement was actually made by the declarant alleged to have made it. Compare EC 405. If the judge finds that the jury could reasonably find the preliminary fact then it must submit the question to the jury for actual determination. (See People v. Kronemyer (87) 189 CA3d 314, 351 [234 CR 442]; People v. Humphries (86) 185 CA3d 1315, 1334 [230 CR 536].) Compare EC 405 relating to other preliminary facts such as competence where the judge’s determination is final. (Kronemyer 189 CA3d at 352.) When a preliminary fact is submitted to the jury, the defendant is entitled to an instruction which advises the jury that it must find a sufficient foundation before considering certain evidence. In this regard, EC 403(c) provides:
“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.”
Although the case law on EC 403 is sparse, it has been held to apply to the following situations: (1) character evidence of prior criminal conduct when the defendant denies commission of the prior act or claims that the act was committed with a different motive than that asserted by the prosecutor (People v. Simon (86) 184 CA3d 125, 129-32 [225 CR 855];) (2) the sufficiency of the showing of the existence of a conspiracy to allow for the admission of hearsay statements pursuant to EC 1223 (People v. Saling (72) 7 C3d 844, 854 [103 CR 698];) (3) the sufficiency of the showing that an experiment was conducted under circumstances substantially similar to the facts of the case at bar (People v. Bonin (89) 47 C3d 808, 847 [254 CR 298];) (4) whether a party has sufficient knowledge of the content of a hearsay statement to allow for application of the adoptive admission exception to the hearsay rule (People v. Pic’l (81) 114 CA3d 824, 859 [171 CR 106];) (5) the sufficiency of the showing of the identity of a hearsay declarant (People v. Collins (75) 44 CA3d 617, 628 [118 CR 864];) (6) evidentiary chain of custody to authenticate physical evidence (e.g., People v. Mattison (71) 4 C3d 177, 187 [93 CR 185];) (7) ethnic/racial background of the perpetrator to allow DNA typing based on ethnic/racial data base (People v. Pizarro (92) 10 CA4th 57, 94 [12 CR2d 436];) and (8) whether a prior conviction is sufficiently relevant to credibility (People v. Keating (81) 118 CA3d 172, 180 [173 CR 286].)
Aside from the cited cases, counsel should review the extensive legislative comment which was contemporaneously prepared with the enactment of EC 403. (Comment — Assembly Committee on Judiciary, 29B West’s Ann. (1966 Ed.) EC 403, pp. 266-71.) As the comment makes clear, EC 403 applies to the following situations: (1) whether or not a particular individual’s conduct should be imputed to the defendant on the theory that the individual was the agent of the defendant (id. at p. 267); (2) whether a witness personally observed the incident about which he purposes to testify (id. at pp. 267-68); (3) whether or not a witness to be impeached with a prior conviction is the same person who suffered the prior conviction (id. at p. 268); and (4) whether a document has been sufficiently authenticated (id. at p. 270.)
ALERT: As to the admissibility of testimonial hearsay see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant]; see also FORECITE PG VII(C)(43) [Crawford Update].)
While no case has decided what standard of proof applies to EC 403, normally a foundational fact for admission of evidence need only be proved beyond a preponderance of the evidence. (E.g., People v. McClellan (69) 71 C2d 793, 804 [80 CR 31] [other crimes evidence].) However, in a criminal trial the defendant must be proven guilty beyond a reasonable doubt. (E.g., Mullaney v. Wilbur (75) 421 US 684 [44 LEd2d 508].) Hence, to avoid implicating federal constitutional due process principles (14th Amendment) in a EC 403(c) situation the jury should be clearly instructed upon the distinction between the determination of whether the evidence is admissible and the actual use of that evidence to convict the defendant. (Conceptually this distinction is analogous to a court trial where the judge determines both admissibility and guilt.)
Moreover, the reasonable doubt standard applies to “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt.” (See People v. Watson (56) 46 C2d 818, 831 [299 P2d 243]; see also CJ 2.01.) (See also FORECITE F 2.50d.)
[See Brief Bank # B-515 for additional briefing on the reasonable doubt issue.]
CAVEAT: EC 403 can be a vital tool for creative trial counsel. In this regard, every piece of evidence must be relevant before it can be admitted. Thus, pursuant to EC 403, the defendant can always obtain an instruction which will compel the jury to carefully scrutinize the preliminary facts attendant to consideration of particular pieces of evidence. While FORECITE has suggested EC 403 instructions in the areas of consciousness of guilt and flight (see FORECITE F 2.03a and FORECITE F 2.52a), it is essential to note that there is literally no limit on the number and type of instructions which counsel can devise under EC 403.
However, the decision of whether to request a EC 403 instruction necessarily involves strategic considerations. There may be a concern that the distinction between the jury’s role in determining the preliminary fact and in finding proof beyond a reasonable doubt will be too confusing for the jury thus risking dilution of the reasonable doubt standard. For example, in some cases the determination of the preliminary fact may be closely aligned with the determination of guilt. (E.g., when the defense is lack of chain of custody, then both admissibility of the evidence and guilt or innocence will rest on a determination of the preliminary fact.) In such a case, it will be essential for the jury to understand that the preliminary fact must be proven first by a preponderance of the evidence (to make it admissible) and then beyond a reasonable doubt to allow it to be utilized to convict the defendant.
On the other hand, an EC 403 instruction offers several strategic advantages. First, there is the psychological advantage of being able to argue to the jury that it must not even consider certain evidence if the EC 403 burden is not met.
Second, the EC 403 instruction sets up two evidentiary hurdles for the prosecution to overcome. Thus a borderline juror would not be backed into a corner where only a yes or no answer could be given. Instead, the juror could say “yes” I think they cleared the preponderance hurdle, but “no” they didn’t clear the reasonable doubt hurdle.
Third, in the same vein as above, the existence of two different evidentiary standards could accentuate the strictness of the reasonable doubt standard in comparison with the preponderance standard.
In sum, an EC 403 instruction has many potential benefits. However, it should only be requested after careful thought and preparation well before trial.
Juror unanimity as to preliminary fact: see FORECITE F 17.01c.
Witness Credibility: Pretrial Silence as to Exculpatory Evidence — Foundational Facts: see FORECITE F 2.20 n4.