An Essay on: Of Judges and Juries Revisited in the Context of Certain Preliminary Fact Questions Determining the Admissibility of Evidence Under Federal and California Rules of Evidence

Abstract

2007 marks the 50th anniversary of the adoption of the California Evidence Code (CEC) and the introduction of the California Bar Examination coverage of the CEC on the Bar for the first time. This essay compares the provisions of the Federal Rules of Evidence (FRE) and the CEC in dealing with the allocation of functions of judge and jury in the determination of preliminary fact questions. The differences are notable particularly in connection with who, judge or jury, decides the preliminary fact questions for admissions. The author argues that the CEC has it wrong, but the California Law Revision Commission has no interest in making any changes.