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.
(b) Relevancy conditioned on fact.
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.
(c) Hearing of jury.
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
1. (a) The Judge decides important stuff including admissibility of evidence.
2. (b) Conditional Relevance
a. A court may admit evidence that is only relevant if some other fact is true, but the other facts must be proven first.
i. When a single item of evidence is relevant to on issue in a case and is a type of evidence forbidden to be considered with respect to another issue.
1. There are 2 possible resolutions:
a. Keep the evidence out
b. Let the material in and give the jury a cautionary “limiting” instruction. The limiting instruction would tell jurors to consider the information only with respect to the topic for which it is legitimately admitted.
ii. The role of the Judge and Jury
1. Judges are supposed to admit evidence of this kind if its proponent has already produced the other material that shows its relevance to the trial or if the proponent promises to produce that contextual information later.
2. It is up to the to the jury to decide whether the underlying context ahs been proven adequately to support consideration of the conditionally relevant information.
3. The Jury (not the Judge) decides whether the condition has been met.
4. The judge does continue to have a role in the conditional relevance situation if it turns out that the proponent of the conditionally relevant information fails to produce the extra material that relates the conditionally relevant information to the case.
iii. If the condition has NOT been met, then it is assumed that the evidence admitted evidence will make no sense to the jury and not enter into their decision making (CB 12)
iv. Upon or subject to the introduction of evidence®this means that the order of admission of evidence can be controlled.
1. So if the condition has not been met, the second piece of information can be excluded (if it is prejudicial®swastika raincoat)
b. Cox v. State
i. ∆ shot man for revenge for his friend. Prosecution sought to introduce evidence that ∆ found out that friend had received a worse sentence for child molestation. The evidence’s purpose was intended to prove ∆’s motive. DC Permitted prosecutor of ∆’s friend to testify about friend’s conviction. AC Affirmed that this was conditionally relevant.
Judicial Notice
201 Judicial Notice of Adjudicative Facts
(a) Scope of rule.
This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts.
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary.
A court may take judicial notice, whether requested or not.
(d) When mandatory.
A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard.
A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice.
Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury.
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
c. The FRE regulate judicial notice of adjudicative facts.
d. Adjudicative v. Legislative Facts
i. Adjudicative facts
1. = those facts that are unique to the party in the litigation
2. Judges will not require a witness to define “chair” because they assume we all know what it is.
3. Similarly, when a judge uses his or her own perception of how our civilization works to decide whether, for example, tiredness is relevant to poor driving, the judge is permitted to decide the relevancy question without any evidence being admitted on just how tiredness and driving may be related.
ii. Legislative facts
1. = facts related to background idea about reality or law.
2. Legislative facts are so unavoidably a part of the judicial process that they operate without any controls from the law of evidence.
3. For these reasons the judicial notice provision of the rule apply only to adjudicative facts
4. Adjudicative facts are usually more specific than legislative facts.
5. They include such matters as the identity of people or companies involved in a dispute, what they might have down, where they did it when they did ia and why and how thye acted. Parties usally seek sot establish this type of fact through witnesses and physical evidence.
6. With judicial notice, however, a party can be excused from presenting any proof at all.
7. The doctrine only applies to facts that are generally known n the trial court’s jurisdiction or that can be determined easily from sources whose accuracy cannot reasonably be questioned.
8. The location or a large hotel the residential character of a neighborhood, typical fees charged by attorneys, typical cost f staying in a hotel an buying meals in a local restaurants and frequent occurrence of icy driving conditions in an area would all be types of fact that could be the subject of judicial notice as well known in the court’s jurisdiction.
9. The other basis for judicial notice, that a fact can be ascertained from a standard trustworthy source supports judicial notic
howing that the presumed fact is not true.
§ ON THE OTHER HAND if the opponent of the presumption does introduce some evidence about the existence of the presumed act, that evidence stops the presumption from having any effect in the case.
§ The jury will decide about the existence of the fact the proponent of the presumption wanted to establish by thinking gaobu tit in the same way the jury considers any other disputed fact.
§ The jury will weigh all the evidence in the case to see if the proponent has established the fact’s existence by a preponderance of the evidence (or what ever standard applies).
o Morgan/ “Bubble of Steel” / Wyoming
§ BOTH the burden of production and persuasion is shifted.
§ Morgan emphasizes that many presumptions reflect common experience about likely link between the basic fact and the presumed fact. Because of this, Morgan argued, that once a party introduced enough evidence adequate to support a finding that the basic fact was true, the burden of persuasion should be placed on the opponent of the presumption.
§ This point of view was rejected by the rules.
§ Morgan position gives stronger benefit to the proponent of the presumption.
§ The proponent must prove the basic fact or introduce evidence adequate to support a finding that the basic fact is true. Then even if the opponent of the presumed fact introduces evidence about the presumed fact, the presumption continues to affect the case.
§ The court will instruct the jury to find that the presumed fact is true unless the jury is persuaded by the opponent f the presumed fact that the presumed fact does not exist.
§ This represents a shift in the burden of persuasion taking away from the party who would ordinarily have borne it and placing it instead on the party who opposed the operation of the presumed.
Ø Examples of Statutes
o Colorado (488)
o Indiana (488)
§ Schultz v. Ford(488)
o Alaska (494)
o Wyoming (494)
o Hawaii (494)
Ø Criminal Cases ≠ Presumption
o Presumptions can cause constitutional problems in criminal cases if they are foreclosing the jury’s fact finding function too much.
o Instructions about permitted inferences pose no difficulty because they leave a jury free to disregard the possible conclusions suggested by the inference.
o If using a presumption would require a jury to treat of a proof of a presumed fact, then the constitutional guarantee of a jury may be impaired.
302 Applicability of State Law in Civil Actions and Proceedings
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
