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Rutgers University, Newark School of Law
Francione, Gary L.

Fall 2009

I.        The Role of the Trial Judge
A.     The Trial Judge’s Authority
1.      Rule

Rule 104. Preliminary Questions(a) Questions of admissibility generally.
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
2.      ExplanationIn each instance, the admissibility of evidence will turn upon the answer to the question of the existence of the condition. The judge makes this decision. If the question is factual, the judge will receive evidence pro and con. Generally, the rules of evidence do not apply.This rule is born of practical necessity. For example, the content of an asserted declaration against interest must be considered before ruling whether it is against interest; the testimony of a witness, particularly a child, must be used to determine competency; to determine personal knowledge under Rule 602, it is necessary to understand whether the declarant had an opportunity to observe the fact.

3.      Examples

Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable?Was a stranger present during a conversation between attorney and client?Legal
For a hearsay statement offered as a declaration against interest, did the statement possess the required against-interest characteristics?

B.     The Trial Judge’s Discretion
1.      Objections
a.      If counsel does not raise an objection at trial, the reviewing court will reverse only if it finds plain error.
b.      If counsel does object during trial, the reviewing court will reverse only for an abuse of discretion by the lower court.
c.      Bandera: The objection, if its basis is not obvious, is not preserved unless its ground is stated.

2.      Abuse of Discretion Standard
a.      Pure issues of rule construction and mixed questions of fact and law are reviewed de novo.
b.      However, the vast majority of evidentiary rulings are reviewed under the abuse of discretion standard. Such deference is provided because the trial judge’s first-hand exposure to the witnesses and the evidence of a whole cannot be recreated.
c.      This means that chances of reversal on evidentiary grounds are very slim.
3.      Harmless Error Standard
a.      Even if a court finds an abuse of discretion by the trial court, it will not reverse if it finds harmless error.
b.      Amorphous. Reversal only if the error was “particularly egregious” or resulted in a “miscarriage of justice.”
c.      For nonconstitutional errors, the formulation may be “more probably harmless than not,” or “highly probable that verdict would h

m. Defendant had heard that the sheriff had killed this old man and therefore killed him in self defense. Testimony is relevant because it tends to show that it was less probable that defendant had heard this.Dominguez: Evidence in question was evidence that defendant owned a gun and had a barrel replacement. Defendant convicted of kidnapping, robbing, and murder. Gun was weak evidence; however, relevant because it tended to show that it was more likely that defendant killed than he did not. The barrel replacement is relevant because it tended to make guilt more probable than if there was no replacement. This is weak evidence, but relevant under the Rules.Larson: Evidence in question was defendant’s BAC and the BAC that would impair a person’s ability to drive. Defendant convicted of negligent endangerment because he and a child were thrown off a horse while he was riding intoxicated. Child killed. BAC relevant because it tended to show that defendant’s judgment was impaired when he decided to ride; BAC data relevant because it tended to show that someone too drunk too drive should not have been engaging in dangerous or risky behavior.