§ 90.105, Fla. Stat. — Preliminary Questions
Plain English
The judge — not the jury — decides the gatekeeping questions: whether a witness is qualified, whether a privilege applies, and whether a piece of evidence is admissible. There’s a special rule for conditional relevance: when evidence is relevant only if some preliminary fact is true, the court lets it in once there’s prima facie evidence of that fact — or admits it conditionally, subject to that proof coming in later. And confession-admissibility hearings happen outside the jury’s hearing; other preliminary hearings are held the same way when justice requires, or when the accused is a witness and asks for it.
From the Courtroom
The most consequential 90.105 moment is the suppression hearing — the confession fight, held out of the jury’s hearing. Whether a statement comes in is decided by the judge before a juror hears a word of it, and that ruling often decides the case. Knowing it’s the judge’s call, not the jury’s, shapes the entire strategy.
Key Points & Authority
- § 90.105(1), Fla. Stat. — The court decides preliminary questions of witness qualification, privilege, and admissibility.
- (2) Conditional relevance: evidence is admitted on prima facie proof of the preliminary fact, or conditionally subject to later proof. (3) Confession hearings (and other preliminary matters when justice requires) are held outside the jury’s hearing.
- Federal parallel: Fed. R. Evid. 104.
Federal Parallel
The federal counterpart is Fed. R. Evid. 104 — the court decides preliminary questions, with conditional-relevance evidence admitted subject to proof, and certain hearings (including on a defendant’s confession) conducted outside the jury’s presence.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
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Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
(1) Except as provided in subsection (2), the court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.
(2) When the relevancy of evidence depends upon the existence of a preliminary fact, the court shall admit the proffered evidence when there is prima facie evidence sufficient to support a finding of the preliminary fact. If prima facie evidence is not introduced to support a finding of the preliminary fact, the court may admit the proffered evidence subject to the subsequent introduction of prima facie evidence of the preliminary fact.
(3) Hearings on the admissibility of confessions shall be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be similarly conducted when the interests of justice require or when an accused is a witness, if he or she so requests.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.105 has the court decide preliminary questions of witness qualification, privilege, and admissibility; conditional-relevance evidence is admitted on prima facie proof of the preliminary fact; and confession hearings are held outside the jury’s hearing.