The Roles of Judge and Jury Court controls legal rulings in the trial Court controls legal rulings...

The Roles of Judge and JuryThe Roles of Judge and Jury

Court controls legal rulings in the Court controls legal rulings in the trialtrial

Jury decides factual issuesJury decides factual issues


What happens when the two What happens when the two combine?combine?

Preliminary Fact Preliminary Fact DeterminationsDeterminations

HYPO:HYPO:Rape case. The prosecution wants to Rape case. The prosecution wants to

offer a prior sexual assault by offer a prior sexual assault by defendant, where the victim refused to defendant, where the victim refused to cooperate with the prosecution. The cooperate with the prosecution. The defendant claims the prior event was defendant claims the prior event was consensual. consensual.

Do we keep it out? Or let it in? How do Do we keep it out? Or let it in? How do we decide?we decide?


The process for resolving factual The process for resolving factual disputes related to admissibility are disputes related to admissibility are called “preliminary fact called “preliminary fact determinations”.determinations”.

These decisions directly affect (are These decisions directly affect (are focused on) the admissibility of focused on) the admissibility of evidence rather than the disposition evidence rather than the disposition of the underlying charges or claims.of the underlying charges or claims.


Evid. Code § 400Evid. Code § 400““preliminary fact” definedpreliminary fact” definedMeans a fact on the existence (or non-Means a fact on the existence (or non-

existence) of which depends the existence) of which depends the admissibility of evidenceadmissibility of evidence

““the admissibility or non-admissibility of the admissibility or non-admissibility of evidence” includes the qualification of a evidence” includes the qualification of a person to be a witness and the person to be a witness and the existence of a privilegeexistence of a privilege


Evid. Code § 401Evid. Code § 401““proffered evidence” defined:proffered evidence” defined:

The evidence about which the hearing on The evidence about which the hearing on admissibility is being heldadmissibility is being held


Evid. Code § 402Evid. Code § 402Determines procedure to be usedDetermines procedure to be usedThe court may hear the question of The court may hear the question of

admissibility outside the presence of the admissibility outside the presence of the juryjury

The admissibility of a confession or The admissibility of a confession or admission by a defendant in a criminal admission by a defendant in a criminal matter must be heard outside the matter must be heard outside the presence of the jurypresence of the jury


Evid. Code § 403Evid. Code § 403Standard of proof: whether “the court Standard of proof: whether “the court

finds there is evidence sufficient to finds there is evidence sufficient to sustain a finding of the existence of the sustain a finding of the existence of the preliminary fact…”preliminary fact…”

This standard of proof favors allowing This standard of proof favors allowing the jury to decide the issue of the the jury to decide the issue of the existence of the preliminary factexistence of the preliminary fact


Evid. Code § 403Evid. Code § 403This section applies when the relevance of This section applies when the relevance of

the proffered evidence depends on the the proffered evidence depends on the existence of the preliminary fact:existence of the preliminary fact:Whether the witness has personal knowledge Whether the witness has personal knowledge

of the subject matter of his/her testimony;of the subject matter of his/her testimony;Whether the writing (or other tangible item) is Whether the writing (or other tangible item) is

authenticated;authenticated;Whether the witness is the person who made Whether the witness is the person who made

the statement or engaged in the conduct at the statement or engaged in the conduct at issue;issue;


Evid. Code § 403Evid. Code § 403

Concept of conditional relevanceConcept of conditional relevanceCourt may admit evidence conditionally Court may admit evidence conditionally

subject to later proof establishing the subject to later proof establishing the preliminary fact;preliminary fact;

May instruct jury (and shall on request) to May instruct jury (and shall on request) to disregard proffered evidence unless jury disregard proffered evidence unless jury finds preliminary fact to exist;finds preliminary fact to exist;

Shall instruct jury to disregard proffered Shall instruct jury to disregard proffered evidence if court later determines jury could evidence if court later determines jury could not reasonably find preliminary factnot reasonably find preliminary fact


Evid. Code § 404Evid. Code § 404Standard to be applied in making Standard to be applied in making

preliminary fact determination when a preliminary fact determination when a witness claims that an answer to a witness claims that an answer to a questions may tend to incriminate the questions may tend to incriminate the witnesswitness

Witness has burden to show tendency to Witness has burden to show tendency to incriminateincriminate

Standard favors person claiming the Standard favors person claiming the privilegeprivilege


Evid. Code § 405Evid. Code § 405Default provision – if not within purview Default provision – if not within purview

of §§ 402, 403 or 404, determination of §§ 402, 403 or 404, determination shall be made under § 405shall be made under § 405

The Court indicates which party has The Court indicates which party has burden of production and burden of burden of production and burden of proof based on the applicable lawproof based on the applicable law


Evid. Code § 405 – examples in commentEvid. Code § 405 – examples in comment Disqualification for lack of mental capacityDisqualification for lack of mental capacity Qualifications of expert witnessQualifications of expert witness Opinion evidence on sanityOpinion evidence on sanity PrivilegesPrivileges Admissions made in compromise negotiationsAdmissions made in compromise negotiations Hearsay evidence (e.g. under sense of death)Hearsay evidence (e.g. under sense of death) Opinion evidence on handwritingOpinion evidence on handwriting Comparison of handwriting with exemplarComparison of handwriting with exemplar Best evidence ruleBest evidence rule


FRE 104 (a): Questions of Admissibility FRE 104 (a): Questions of Admissibility GenerallyGenerally

The Court determines the admissibility of The Court determines the admissibility of evidence, subject to provisions of sub. (b);evidence, subject to provisions of sub. (b);

Not bound by rules of evidence except as Not bound by rules of evidence except as to privilegeto privilege

Applies to:Applies to: Qualifications of a witnessQualifications of a witness Existence of privilegeExistence of privilege Admissibility of evidence Admissibility of evidence


FRE 104 (b): Relevancy Conditioned on FRE 104 (b): Relevancy Conditioned on FactFactWhen the relevance of evidence depends When the relevance of evidence depends

on the fulfillment of a condition of fact,on the fulfillment of a condition of fact,The court shall admit it onThe court shall admit it onOr subject toOr subject toThe introduction of evidence sufficient to The introduction of evidence sufficient to

support a finding of the fulfillment of the support a finding of the fulfillment of the condition of fact condition of fact


FRE 104 (b): Relevancy Conditioned on FRE 104 (b): Relevancy Conditioned on Fact (Conditional relevance)Fact (Conditional relevance)Rape case hypo: Rape case hypo:

If the prior event was consensual, it is not relevantIf the prior event was consensual, it is not relevantIf the prior event was assaultive, it is relevant as If the prior event was assaultive, it is relevant as

circumstantial evidence of defendant’s intent, circumstantial evidence of defendant’s intent, motive, plan, identity, absence of mistake, etc.motive, plan, identity, absence of mistake, etc.

If evidence of assault, sufficient to support a jury If evidence of assault, sufficient to support a jury finding of assault, is introduced: evidence finding of assault, is introduced: evidence admittedadmitted


FRE 104 (c): Hearing of the JuryFRE 104 (c): Hearing of the JuryHearing on the admissibility of Hearing on the admissibility of

confessions must be outside the confessions must be outside the presence of the jurypresence of the jury

Other hearings may be held outside the Other hearings may be held outside the presence of the jury when:presence of the jury when:The interests of justice requireThe interests of justice requireWhen the accused is a witness and so When the accused is a witness and so

requestsrequests


FRE 104 (d): Testimony by the FRE 104 (d): Testimony by the AccusedAccused

Grants the defendant in a criminal case Grants the defendant in a criminal case the ability to testify about a preliminary the ability to testify about a preliminary matter (e.g. in a Miranda/voluntariness matter (e.g. in a Miranda/voluntariness hearing) without being subject to cross hearing) without being subject to cross examination about other issues in the examination about other issues in the casecase


FRE 104 (e): Weight and CredibilityFRE 104 (e): Weight and Credibility

Even if the judge admits the evidence, Even if the judge admits the evidence, the parties may fully challenge the the parties may fully challenge the weight and credibility of the evidenceweight and credibility of the evidence


Court controls legal rulings in the trial & Court controls legal rulings in the trial & Jury decides factual issues:Jury decides factual issues:

At time of instructing jury, Court has duty At time of instructing jury, Court has duty to instruct on issues raised by the to instruct on issues raised by the evidence (e.g. lesser included offenses; evidence (e.g. lesser included offenses; defenses; eyewitness identification)defenses; eyewitness identification)

Court also has duty not to instruct on Court also has duty not to instruct on issues not supported by the evidenceissues not supported by the evidence

Sufficiency of evidence standard – court Sufficiency of evidence standard – court should not engage in weighing witness should not engage in weighing witness credibility (People v. Tufunga (1999) 21 credibility (People v. Tufunga (1999) 21 Cal.4Cal.4thth 935, 944.) 935, 944.)

Refreshing RecollectionRefreshing Recollection

May use most anything to refresh May use most anything to refresh memorymemory

If a writing: FRE 612/ Evid. Code § 771If a writing: FRE 612/ Evid. Code § 771Cannot have witness read writing to jury Cannot have witness read writing to jury

(otherwise in conflict with hearsay and best (otherwise in conflict with hearsay and best evidence rules) – witness reads to self and evidence rules) – witness reads to self and then answers questionsthen answers questions

Must produce writing to adverse partyMust produce writing to adverse partyFailure to produce writing may result in Failure to produce writing may result in

sanctions re evidencesanctions re evidence

Refreshing RecollectionRefreshing Recollection

How it usually comes up:How it usually comes up:Witness must testify to: 1) a lack of Witness must testify to: 1) a lack of

memory about subject matter; and 2) memory about subject matter; and 2) that something may refresh that something may refresh recollection;recollection;

Then witness is shown item and asked Then witness is shown item and asked to review it silently;to review it silently;

Then witness is asked if memory Then witness is asked if memory refreshed; if yes– witness answers refreshed; if yes– witness answers questionquestion

Refreshing RecollectionRefreshing RecollectionThis method of dealing with witness is This method of dealing with witness is

usually friendly;usually friendly;

Cf. past recollection recorded;Cf. past recollection recorded;

Cf. impeachment with prior Cf. impeachment with prior inconsistent statements; seeking inconsistent statements; seeking finding of willful evasiveness; asking finding of willful evasiveness; asking jury not to believe claim of lack of jury not to believe claim of lack of memorymemory

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