What evidence does the court need to consider when it is appropriate to hold a preliminary hearing before the jury?

California, United States of America

The following excerpt is from People v. Vanbuskirk, 132 Cal.Rptr. 30, 61 Cal.App.3d 395 (Cal. App. 1976):

Further, in this case at least, it would not be safe to assume that the record reveals all of the evidence pointing to possible unfairness which might have been developed, had the court held an appropriate hearing outside of the presence of the jury. While it is certainly true that the defense was highly motivated to demonstrate unfairness in the pretrial identification procedures for the purpose of belittling the weight of the prosecution witnesses' evidence (People v. Blackburn, 260 Cal.App.2d 35, 44, 66 Cal.Rptr. 845), every trial lawyer knows that there are tactical [61 Cal.App.3d 404] differences between cross-examining a witness in front of a jury and doing so at a hearing before the court on a preliminary question of fact. ⁶

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