§ 7.01  Introduction  [87]

 

Federal Rule 104(a) follows the traditional practice of allocating to the trial judge the responsibility for determining the admissibility of evidence.  Rule 104(b), however, modifies this principle somewhat with respect to preliminary questions involving issues of “conditional relevancy.”

 

 

§ 7.02  Preliminary Questions: General Rule: FRE 104(a)  [87-89]

 

                        [A]       Application of Evidence Rules

 

Under Rule 104(a), the trial court is “not bound by the rules of evidence except those with respect to privileges” when ruling on the admissibility of evidence.  Accordingly, the judge may consider affidavits and other hearsay information.

 

                        [B]       Burden of Proof on Preliminary Issues

 

As a general rule, the party offering evidence has the burden of persuasion on preliminary issues once an objection has been raised.  Also as a general rule, the “preponderance of evidence” standard applies.

 

§ 7.03  Conditional Relevancy: FRE 104(b) [89-91]

 

Under Rule Rule 104(b), the court does not decide questions of conditional relevancy using the preponderance-of-evidence standard, as under Rule Rule 104(a).  Rather, the trial court determines only if sufficient evidence has been introduced “to support a finding of the fulfillment of the condition.”  In effect, this is a prima facie standard.  The difference is between a preponderance of evidence and evidence sufficient for a jury to find a fact by a preponderance of evidence, a rather subtle difference.

 

§ 7.04  Hearing of Jury: FRE 104(c)   [92]

 

Rule 104(c) requires the trial judge to hold a hearing out of the presence of the jury when ruling on the admissibility of a confession.  Rule 104(c) provides that hearings “on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.”

 

§ 7.05  Testimony by Accused: FRE 104(d)   [92-93]

 

Rule 104(d) limits the scope of cross-examination when a criminal defendant testifies on a preliminary matter; such testimony does not subject the defendant "to cross-examination as to other issues in the case."

 

§ 7.06  Weight & Credibility: FRE 104(e)  [93-94]

 

A basic axiom of trial practice is that the trial judge decides issues of admissibility and the jury decides questions of weight and credibility.  Rule 104(e) makes clear that a court’s admissibility ruling does not curtail the right of a party to dispute the reliability of admitted evidence before the jury. 

 

Chapter 7