Intro to the Federal Rules of Evidence - 2

E. PRELIMINARY QUESTIONS (FRE 104)
1. Questions of admissibility generally (FRE 104(a))
If an objection to admissibility is based on a technical exclusionary rule, any factual question needed to decide that objection belongs solely to the judge. When the judge makes such a finding, the judge is not bound by the rules of evidence except those regarding privileges.

And the judge decides such a factual issue by a preponderance of the evidence standard in both civil and criminal cases. See Bourjaily v. U.S., 483 U.S. 171 (1987).

But if the objection is that the evidence is irrelevant, the judge’s role may be more limited. While the judge handles ordinary relevance issues himself, the judge and the jury work on conditional relevance issues.

2. Relevancy conditioned on fact (FRE 104 (b))
If fact B is relevant only if fact A exists, B is conditionally relevant.
It is the jury that will decide whether fact A exists, but the judge decides whether a reasonable jury could find that fact A (the preliminary fact) exists.

For example, when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorizes it. Relevance in this sense has been labeled “conditional relevancy.” (ACN)

The Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. (ACN)

Example 1:
P borrows D’s car, and is injured when a tire blows out. D seeks to prove that as P proves away, D shouted, “The left tire’s bad, so keep it under 55.” (D claims that this statement made P assume the risk of the kind of accident that occurred.) P asserts that she never heard this warning, and points out that if she didn’t, she cannot be held to have assumed the risk because she didn’t know about it.
Evidence of fact B (that D made the warning) is not logically relevant unless fact A (that P heard the warning) is first established. Who should decide whether P heard the warning, judge or jury?
Under the FRE, it is jury.

But the judge must decide whether a reasonable jury could find that the preliminary fact exists: if the answer is no, he will not allow the conditional relevant evidence.

Example 2: Authentication
Questions of authentication of documents and real evidence fall into this conditionally relevant category, and thus must be left to the jury.

P claims that D has libeled P in a letter written by D to X. P offers a letter purporting to be from D to X. So long as the judge thinks that there’s enough evidence that the letter was written by D that a reasonable jury could possibly find that it was indeed written by D, the judge must let the document into evidence, even if the judge thinks that the letter was probably nor written by D. It will now be up to the jury to decide (by a preponderance of the evidence) whether the letter really was written by D; if the jury concludes that it wasn’t, then the jury will disregard the letter.

3. Weight & Credibility (FRE 104(e))
The judge decides issues of admissibility and the jury decides questions of weight and credibility. A court’s admissibility ruling does not curtail the right to a party to dispute the reliability evidence before the jury.

F. LIMITED ADMISSIBLITY (FRE 105)
1. Multiple admissibility
An item of evidence may properly be used for multiple purposes. For example, a party’s prior inconsistent statement may be admitted for impeachment as a prior inconsistent statement (FRE 613) and substantive evidence as a party admission (FRE 801(d)(2)(A)).

2. Limited admissibility
Evidence may be admissible for one purpose but inadmissible for another purpose. (ex. FRE 404(b), FRE 407, FRE 408, FRE 411). Evidence also may be admissible against one party but not against another party. In other words, the evidence is admissible for a limited purpose. Under FRE 105, the court must, upon request, instruct the jury as to the limited purpose of the evidence.