Preliminary Questions of Fact: Respective Roles of Judge and Jury in Maine Courts

Virtually indisputable in the law is the notion that the trial judge determines questions of admissibility of evidence. However, when admissibility depends upon the evaluation of a preliminary question of fact, both courts and commentators disagree as to whether the judge should continue to occupy the role of sole decision-maker. The intertwining of fact, the preliminary condition, and law, the admissibility decision, raises some havoc with accepted views of the judge as arbiter of the law and the jury as fact finder. If the judge determines both questions, he is resolving not only legal, but also factual issues traditionally within the province of the jury. Similarly, a jury decision in both areas forces laymen to consider legal issues possibly outside their range of competence. The muddling of this situation is increased by the diversity of state practices in settling preliminary fact issues. This comment investigates the question of who should decide preliminary questions of fact prior to admissibility of evidence, and in what situations, with emphasis on Maine policies and practices.