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 rele- vance 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. (Amended March 29, 2022, to take effect June 13, 2022.) 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. The Code does apply, however, to factual determinations regarding the existence of an evidentiary privilege; see Section 3