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University of Iowa School of Law
Tomkovicz, James Joseph "Jim"

The Trial Judge’s Authority to Make Preliminary Determinations – Responsibility of Console

1. – 104(a) – Trail Judges Authority to Make Preliminary Determinations
a. 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. In words
a. The judge has the authority to decide questions about….
1. Qualification of a person to be a witness
2. Existence of a privilege; or
3. The admissibility of evidence

3. Preliminary facts about which judge makes ultimate decision – legal admissibility
a. When the preliminary fact relates to the legal admissibility of the offered evidence (e.g., the qualifications of an expert witness or the existence of a privilege) the existence of the preliminary fact is generally determined by the trial judge alone. The proponent of the evidence must establish the preliminary fact by a preponderance of the evidence.

4. Rationale for giving power to Judge
a. We don’t want to distract the jury (the evidence issues are not always on point of case)
b. We don’t’ want to show juries ‘evidence’ that turns out to be excluded

5. Why isn’t court bound by rules of evidence (expect for privileges) in determining this?
a. Practical necessity
b. You have to let in the evidence to determine if the evidence is relevant and you want the judge to do this…….don’t show the jury
c. Jurors properly view their primary job to be determining the truth. When a person has such a role, she is likely to consider any evidence that is relevant. She is not likely to care much whether a rule of evidence would forbid consideration of certain relevant evidence; she will not understand the reasons for the rule. Courts, on the other hand, understand the importance of evidence rules.
d. When the underlying evidence wil lnot be relevant unless the preliminary fact is ture, there is no real danger that the jury will consider the evidence unless that fact is true. 401 relies on everday logic, and does not require legal expertise. If evidence is not relevant, a jury is as likely as a judge to know that fact.

1. 103 – Consoles Responsibility

1. Objecting to admitted evidence – 103(a)(1)
a. Error may not be predicated upon a ruling
b. Which admits evidence unless
3. A timely objection or motion to strike appears of record
4. Stating the specific ground of objection, if the specific forum was not apparent from the context
5. And a substantial right of the party is affected

2. Objecting to excluded evidence – 103(a)(2)
1. Error may not be predicated upon a ruling
2. Which excluded evidence unless
3. The substance of the evidence was made known to the court by offer or was apparent from the context
4. And the excluded evidence substantially effects a right of the party

1. Rational
1. Role responsibility of counsel (Has impact at trial but has real impact after the trial)
1. Meant to promote efficiency by pushing parties to bring ‘error’ to attention to judge so they can deal with it at the time in question

100. Elements common to both (a) (1) and (a)(2)

1.Preserving a claim for appeal
1. Once court makes definitive ruling admitting or excluding evidence, either at or before trial, a party doesn’t need to renew the objection to preserve a claim for appeal.

In limine
If you object to a in limine ruling admitting evidence, only the evidence you objected to in the in limine motion is persevered for appeal. Not something close to it.

Objection during trial
If the basis for an objection is not clear, it is not preserved unless the ground is stated. And if the ground is not stated, the only review is, at most, for plain error.

1.Standard of review if granted appeal
1. Abuse of discretion
1. Affords great deference to the trial court’s determination of the admissibility of evidence because of the judges first-hand exposure to the situation (witness, facts, ect)

2.Plain error – 103(d)
1. If you don’t properly preserve an objection or bring it up, the court can still review the lower courts decision if it is a plain error. However, the judge will have substantial discretion.
1. Egregious error, deprive the plaintiff of a fair trial
2. A big error that the judge should have either admitted or not admitted ………however, the error must have had a substantial impact

Relevance – Probative Value/Prejudice – Conditional Relevance

1. § 104(b) -Preliminary Facts as to Which Jury makes ultimate decision – Conditional Relevance –
1. relevancy conditioned on fact
1. When relevancy of evidence depends on fulfillment of a condition of fact
2. Court shall admit that evidence upon (i.e., after) or subject to (i.e., before – but on condition of) the introduction of evidence sufficient to support a finding of fulfillment of the condition
1. Could the jury find that the conditional facts exist? Is there evidence sufficient for a

alancing the probative value of and need for the evidence against the harm likely to result from its admission
i. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

b. In words
i. Relevant evidence may be excluded if:
i. Probative value is substantially outweighed by
i. Danger of
i. Unfair prejudice
ii. Confusion of issues; or
iii. Misleading jury or
ii. Considerations of (this set of concerns is aimed at preventing bogging down the process)
i. Undue delay
ii. Waste of time; or
iii. Needless presentation of cumulative evidence

b.Determining probative value
i. Need
· Availability of relevant evidence to prove the same point and if the alt evidence has much less risk of unfair prejudice…..
· Old Bull’s admission was conclusive evidence of the element needed to prove and it was much less prejudicial
· Does the other evidence only offer marginal value?
· If the evidence that one side wants to admit makes it extremely likely that it is the truth – and the other side’s evidence only adds a tiny bit to the probability of truth….

Substantially outweighed
If it is close, let it in……..must be substantial

Unfair prejudice
Lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged
· Propensity reasoning (you did bad things in the past, so you did bad things here)

Balancing between probative value and dangers/considerations
(1) the effect of cautionary jury instructions,
(2) the availability of alternative proof,
c. (3) the possibility of stipulations to reduce unfair prejudice in making the balancing determination.
d. If the past crime is similar to the present crime
e. Length of time between past crime and current action
f. Does the evidence sought to be introduced (even though alt’s available) aid the jury?