Sec. 1-3. Preliminary Questions

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification

or competence of a person to be a witness, the

existence of a privilege or the admissibility of evi­

dence shall be determined by the court.

(b) Relevance conditioned on fact. If the relevance of evidence depends upon whether a fact

exists, evidence must be admitted sufficient to

support a finding that the fact does exist. The

court may admit the proffered evidence on the

condition that the connecting evidence be intro­

duced subsequently.

COMMENTARY

(a) Questions of admissibility generally.

The admissibility of evidence, qualification of a witness and

applicability of a privilege are preliminary questions to be deter­

mined by the court. Often, such a determination is dependent

upon the existence of foundational facts. Was the declarant’s

statement made under the stress of excitement? Is the alleged

expert a qualified social worker? Was a third party present

during a conversation between husband and wife? In each of

these examples, the court’s determination will turn upon the

answer to these foundational questions of fact. In most

instances, subsection (a) makes it the responsibility of the

court to find these preliminary facts. See, e.g., State v. Stange,

212 Conn. 612, 617, 563 A.2d 681 (1989); Manning v. Michael,

188 Conn. 607, 610, 453 A.2d 1157 (1982); D’Amato v. John­

ston, 140 Conn. 54, 61–62, 97 A.2d 893 (1953).

Pursuant to Section 1-1 (d) (2), courts are not bound by the

Code in determining most preliminary questions of fact under

subsection (a). Accordingly, in finding these facts, the court

may consider nonprivileged evidence that would otherwise be

inadmissible under the Code. In such instances, the court acts

as the fact finder in determining whether the foundational facts

exist by a fair preponderance of the evidence. The court may

assess the credibility of the foundational evidence, including

any testimony offered by the proponent of the evidence

ding these facts, the court

may consider nonprivileged evidence that would otherwise be

inadmissible under the Code. In such instances, the court acts

as the fact finder in determining whether the foundational facts

exist by a fair preponderance of the evidence. The court may

assess the credibility of the foundational evidence, including

any testimony offered by the proponent of the evidence.

The Code does apply, however, to factual determinations

regarding the existence of an evidentiary privilege; see Section

1-1 (d); and to questions of conditional relevance, including

whether evidence has been sufficiently authenticated. See

Section 1-3 (b).

(b) Relevance conditioned on fact.

Frequently, the relevance of a particular fact or item of evidence depends upon evidence of another fact or other facts,

i.e., connecting facts. For example, the relevance of a witness’

testimony that the witness observed a truck swerving in and

out of the designated lane at a given point depends upon other

testimony identifying the truck the witness observed as the

defendant’s. Similarly, the probative value of evidence that A

warned B that the machine B was using had a tendency to

vibrate depends upon other evidence establishing that B actu-

ally heard the warning. When the relevance of evidence

depends upon evidence of connecting facts, subsection (b)

authorizes the court to admit the evidence upon admission

of the connecting facts or subject to later admission of the

connecting facts. See, e.g., State v. Anonymous (83-FG), 190

Conn. 715, 724–25, 463 A.2d 533 (1983); Steiber v. Bridgeport, 145 Conn. 363, 366–67, 143 A.2d 434 (1958).

If the proponent fails to introduce evidence sufficient to sup-

port a finding of the connecting facts, the court may instruct

the jury to disregard the evidence or order the earlier testimony

stricken. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694

.g., State v. Anonymous (83-FG), 190

Conn. 715, 724–25, 463 A.2d 533 (1983); Steiber v. Bridgeport, 145 Conn. 363, 366–67, 143 A.2d 434 (1958).

If the proponent fails to introduce evidence sufficient to sup-

port a finding of the connecting facts, the court may instruct

the jury to disregard the evidence or order the earlier testimony

stricken. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694

(1970); State v. Johnson, 160 Conn. 28, 32–33, 273 A.2d

702 (1970).

The authentication of evidence is another example of an

instance in which the relevance of evidence to the case

depends upon the existence of another fact or other facts.

Evidence can be relevant for the purpose for which it is being

offered only if it is what the proponent claims it to be. As a

preliminary matter, the court must decide whether the proponent has offered a satisfactory foundation from which the finder

of fact could reasonably determine that the evidence is what

it purports to be. The court makes this preliminary determination in light of the authentication requirements of Article IX. In

conducting its preliminary inquiry, the court does not assess

the credibility of the evidence proffered in support of authenti­

cation but simply determines whether the evidence, if credited,

is sufficient to support a finding that the proffered evidence is

what the proponent claims it to be. State v. Porfil, 191 Conn.

App. 494, 519–21, 215 A.3d 161 (2019), appeal dismissed,

338 Conn. 792, 259 A.3d 1127 (2021). If the court determines

that a prima facie showing of authenticity has been made, the

evidence, if otherwise admissible, goes to the fact finder. It

is for the fact finder ultimately to decide whether evidence

submitted for its consideration is what the proponent claims

it to be. See, e.g., State v. Carpenter, 275 Conn. 785, 856,

882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct.

1578, 164 L. Ed. 2d 309 (2006); State v. Colon, 272 Conn.

106, 188–89, 864 A.2d 666 (2004), cert. denied, 546 U.S.

848, 126 S. Ct

the fact finder. It

is for the fact finder ultimately to decide whether evidence

submitted for its consideration is what the proponent claims

it to be. See, e.g., State v. Carpenter, 275 Conn. 785, 856,

882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct.

1578, 164 L. Ed. 2d 309 (2006); State v. Colon, 272 Conn.

106, 188–89, 864 A.2d 666 (2004), cert. denied, 546 U.S.

848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Shah,

134 Conn. App. 581, 593, 39 A.3d 1165 (2012); see also

Section 9-1, commentary.

The Code applies in making determinations required by

Section 1-3 (b).