Preliminary Questions

Preliminary questions about whether evidence can be admitted are decided by the judge using a standard of preponderance of the evidence, meaning the judge believes it is more likely than not that the evidence is admissible. The judge does not have to follow the usual rules of evidence when making these decisions. However, if the relevance of the evidence depends on a fact that could be reasonably found by a jury, then that question goes to the jury.

In a trial, the defendant wants to introduce a witness's statement that was made out of court. The judge first determines if the statement is admissible by deciding if it meets the preponderance standard for hearsay exceptions. After finding that it does, the judge allows the jury to consider the statement's relevance based on the facts presented.

Judges weigh evidence for admissibility, but juries weigh it for relevance.

Exams may confuse students by presenting scenarios where the distinction between preliminary questions for the judge and conditional relevance for the jury is blurred, leading to incorrect conclusions about who decides what.

This rule often appears in questions that require candidates to identify whether a judge or jury should resolve a specific evidentiary issue, particularly in the context of hearsay or privilege determinations.