Evidence – Lore – Spring 2013
Rule 104 – Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
-Entrusts all decisions concerning application of evidentiary rules to the judge
-The court must decide (in a “104” hearing) any preliminary question about whether a:
(1) Witness is qualified
(2) Privilege exists
(3) Evidence is admissible
*Judge NOT bound by Evidence Rules EXCEPT those with respect to privileges
-“Abuse of Discretion” standard on review
Burden: Party bringing the evidence
Standard: TC- Could reasonable jury find “By a Preponderance of the Evidence?”
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
-This is the “Conditional Relevancy” Rule and is the exception to 104(a)
-Sometimes an item of evidence by itself will have relevance to any issue in a trial but would be relevant if the trier of fact also had some other information
-When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
Burden: Party bringing the evidence
Standard: Prima Facie showing
Judges are supposed to admit evidence of this kind IF:
(1) The proponent has already produced the other material that shows its relevance to the trial; OR
(2) The proponent promises to produce contextual information later.
(c) Conducting a Hearing so that the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) The hearing involves the admissibility of a confession;
(2) The defendant in a criminal case is a witness and so requests; OR
(3) Justice so requires.
-Rarely applies because of FRE 12, which requires that constitutional challenges to the admissibility of confessions be raised prior to trial by a motion to suppress
-Also requires out-of-court hearings when justice requires or when an accused is a witness and so requests
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
-Limits the scope of cross exam. when a criminal ∆ testifies on a preliminary matter
-Allows ∆ to testify in prelim. matters without exposing himself to cross exam generally (on other issues in the case)
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
-Court’s admissibility ruling does not curtail the right of a party to dispute the reliability of admitted evidence before a jury
Ex. if a statement is properly admitted under the hearsay exception it can still be attacked as not trustworthy before the jury
Rule 105 – Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes
If the court admits the evidence that is admissible against a party or for a purpose- but not against another party or for another purpose- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
-Need to ‘redact’ evidence so as to only admit that which is admissible
-When ‘redaction’ is not possible, Judge must give jury a limited instruction (adjust their scope)
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
“Rule of Completeness” – Allows adverse party to introduce the entire writing or recording so as to avoid statements being taken out-of-context, immediately. No need to wait for cross-examination or re-direct to do so.
-Doesn’t apply to oral conversations unless thy are taped
-Decisions to apply the rule fall w/in discretion of TC
-Often, the incomplete portion of recording or writing is used at trial to attempt to impeach a witness
Applies when another passage, document, or recording is needed to:
1. Explain the admitted portion;
2. Place the admitted portion in context;
3. Avoid misleading the trier of fact; OR
4. Insure a fair and impartial understanding.
Criminal Defendants
-In cases w/ 5th amendment ∆’s who don’t testify – prosecutors often introduce statements made to police- question as to whether rule of completeness applies
Inadmissible Evidence Problem (e.g. Hearsay)
-SCOTUS: Relevancy for the “Rule of Completeness” is automatically met
-Large # of cts have recognized that R. 106 doesn’t empower a ct to admit unrelated HS in the interests of fairness and completeness when the HS
facts prior to trial
-‘Admissions’ in civil proceedings- become facts of the case
-May base judicial notice on prior proceedings; can’t judicially notice the ‘truth’ of the contents of any court document.
Rule 401 – Relevant Evidence Note: 401 is a very low standard
“Relevant Evidence” means:
(a) Having any tendency to make a fact more or less probable than it would be without the evidence; AND
Logical Relevancy- Describes the relationship between an item of evidence and the proposition it is offered to prove.
Question: Does it have any tendency to make the proposition that you’re trying to prove more or less likely?
(b) The fact is of consequence in determining the action.
Materiality- Describes the relationship between that proposition and the issues in the case – i.e. the consequential or material fact.
Consequential/Material Facts:
-Elements of: (1) a charged crime; (2) a cause of action; (3) affirmative defense; (4) damages in civil cases
-Episode or Fact w/in the Theory of the Case, such as:
-Motive
-Identity of the perpetrators/defendant; etc.
-Credibility of a witness
-Background facts
*If a piece of evidence doesn’t meet these requirements, it is excluded by Rule 402
Overarching Question: What is the evidence being offered to prove?
-Ex. motive alone is not sufficient to show D committed crime, need other things such as fingerprint in bedroom, witnessed at scene at time of death, etc.
-BUT if D was saying he never was in the bedroom, then yes, fingerprints would be sufficient to prove D was in fact in the bedroom
Basis for Relevancy Determination
-Trial judge uses own logic from either science or experiences in assessing the relevance of evidence
-Judge determines the probative value of evidence as “if true”
-‘Probative’ = ‘Relevant’
Direct Evidence- Testimony that describes a consequential fact of the action, as perceived by the witness himself. (ex. W saw ∆ shoot V)
Circumstantial- Must draw inferences; need an evidentiary chain to get from evidence to conclusion (ex. W says “I saw ∆ flee after I heard gunshot.”)
