1. The Roles of Judge and Jury Court controls legal rulings in the trial Court controls legal rulings in the trial Jury decides factual issues Jury decides factual issues

2. The Roles of Judge and Jury What happens when the two combine? What happens when the two combine?

3. Preliminary Fact Determinations HYPO: HYPO: Rape case. The prosecution wants to offer a prior sexual assault by defendant, where the victim refused to cooperate with the prosecution. The defendant claims the prior event was consensual. Rape case. The prosecution wants to offer a prior sexual assault by defendant, where the victim refused to cooperate with the prosecution. The defendant claims the prior event was consensual. Do we keep it out? Or let it in? How do we decide? Do we keep it out? Or let it in? How do we decide?

4. Preliminary Fact Determinations The process for resolving factual disputes related to admissibility are called “preliminary fact determinations”. The process for resolving factual disputes related to admissibility are called “preliminary fact determinations”. These decisions directly affect (are focused on) the admissibility of evidence rather than the disposition of the underlying charges or claims. These decisions directly affect (are focused on) the admissibility of evidence rather than the disposition of the underlying charges or claims.

5. Preliminary Fact Determinations Evid. Code § 400 Evid. Code § 400 “preliminary fact” defined “preliminary fact” defined Means a fact on the existence (or non- existence) of which depends the admissibility of evidence Means a fact on the existence (or non- existence) of which depends the admissibility of evidence “the admissibility or non-admissibility of evidence” includes the qualification of a person to be a witness and the existence of a privilege “the admissibility or non-admissibility of evidence” includes the qualification of a person to be a witness and the existence of a privilege

6. Preliminary Fact Determinations Evid. Code § 401 Evid. Code § 401 “proffered evidence” defined: “proffered evidence” defined: The evidence about which the hearing on admissibility is being held The evidence about which the hearing on admissibility is being held

7. Preliminary Fact Determinations Evid. Code § 402 Evid. Code § 402 Determines procedure to be used Determines procedure to be used The court may hear the question of admissibility outside the presence of the jury The court may hear the question of admissibility outside the presence of the jury The admissibility of a confession or admission by a defendant in a criminal matter must be heard outside the presence of the jury The admissibility of a confession or admission by a defendant in a criminal matter must be heard outside the presence of the jury

8. Preliminary Fact Determinations Evid. Code § 403 Evid. Code § 403 Standard of proof: whether “the court finds there is evidence sufficient to sustain a finding of the existence of the preliminary fact…” Standard of proof: whether “the court finds there is evidence sufficient to sustain a finding of the existence of the preliminary fact…” This standard of proof favors allowing the jury to decide the issue of the existence of the preliminary fact This standard of proof favors allowing the jury to decide the issue of the existence of the preliminary fact

9. Preliminary Fact Determinations Evid. Code § 403 Evid. Code § 403 This section applies when the relevance of the proffered evidence depends on the existence of the preliminary fact: This section applies when the relevance of the proffered evidence depends on the existence of the preliminary fact: Whether the witness has personal knowledge of the subject matter of his/her testimony; Whether the witness has personal knowledge of the subject matter of his/her testimony; Whether the writing (or other tangible item) is authenticated; Whether the writing (or other tangible item) is authenticated; Whether the witness is the person who made the statement or engaged in the conduct at issue; Whether the witness is the person who made the statement or engaged in the conduct at issue;

10. Preliminary Fact Determinations Evid. Code § 403 Evid. Code § 403 Concept of conditional relevance Concept of conditional relevance Court may admit evidence conditionally subject to later proof establishing the preliminary fact; Court may admit evidence conditionally subject to later proof establishing the preliminary fact; May instruct jury (and shall on request) to disregard proffered evidence unless jury finds preliminary fact to exist; May instruct jury (and shall on request) to disregard proffered evidence unless jury finds preliminary fact to exist; Shall instruct jury to disregard proffered evidence if court later determines jury could not reasonably find preliminary fact Shall instruct jury to disregard proffered evidence if court later determines jury could not reasonably find preliminary fact

11. Preliminary Fact Determinations Evid. Code § 404 Evid. Code § 404 Standard to be applied in making preliminary fact determination when a witness claims that an answer to a questions may tend to incriminate the witness Standard to be applied in making preliminary fact determination when a witness claims that an answer to a questions may tend to incriminate the witness Witness has burden to show tendency to incriminate Witness has burden to show tendency to incriminate Standard favors person claiming the privilege Standard favors person claiming the privilege

12. Preliminary Fact Determinations Evid. Code § 405 Evid. Code § 405 Default provision – if not within purview of §§ 402, 403 or 404, determination shall be made under § 405 Default provision – if not within purview of §§ 402, 403 or 404, determination shall be made under § 405 The Court indicates which party has burden of production and burden of proof based on the applicable law The Court indicates which party has burden of production and burden of proof based on the applicable law

13. Preliminary Fact Determinations Evid. Code § 405 – examples in comment Evid. Code § 405 – examples in comment Disqualification for lack of mental capacity Disqualification for lack of mental capacity Qualifications of expert witness Qualifications of expert witness Opinion evidence on sanity Opinion evidence on sanity Privileges Privileges Admissions made in compromise negotiations Admissions made in compromise negotiations Hearsay evidence (e.g. under sense of death) Hearsay evidence (e.g. under sense of death) Opinion evidence on handwriting Opinion evidence on handwriting Comparison of handwriting with exemplar Comparison of handwriting with exemplar Best evidence rule Best evidence rule

14. Preliminary Fact Determinations FRE 104 (a): Questions of Admissibility Generally FRE 104 (a): Questions of Admissibility Generally The Court determines the admissibility of evidence, subject to provisions of sub. (b); The Court determines the admissibility of evidence, subject to provisions of sub. (b); Not bound by rules of evidence except as to privilege Not bound by rules of evidence except as to privilege Applies to: Applies to: Qualifications of a witness Qualifications of a witness Existence of privilege Existence of privilege Admissibility of evidence Admissibility of evidence

15. Preliminary Fact Determinations FRE 104 (b): Relevancy Conditioned on Fact FRE 104 (b): Relevancy Conditioned on Fact When the relevance of evidence depends on the fulfillment of a condition of fact, When the relevance of evidence depends on the fulfillment of a condition of fact, The court shall admit it on The court shall admit it on Or subject to Or subject to The introduction of evidence sufficient to support a finding of the fulfillment of the condition of fact The introduction of evidence sufficient to support a finding of the fulfillment of the condition of fact

16. Preliminary Fact Determinations FRE 104 (b): Relevancy Conditioned on Fact (Conditional relevance) FRE 104 (b): Relevancy Conditioned on Fact (Conditional relevance) Rape case hypo: Rape case hypo: If the prior event was consensual, it is not relevant If the prior event was consensual, it is not relevant If the prior event was assaultive, it is relevant as circumstantial evidence of defendant’s intent, motive, plan, identity, absence of mistake, etc. If the prior event was assaultive, it is relevant as circumstantial evidence of defendant’s intent, motive, plan, identity, absence of mistake, etc. If evidence of assault, sufficient to support a jury finding of assault, is introduced: evidence admitted If evidence of assault, sufficient to support a jury finding of assault, is introduced: evidence admitted

17. Preliminary Fact Determinations FRE 104 (c): Hearing of the Jury FRE 104 (c): Hearing of the Jury Hearing on the admissibility of confessions must be outside the presence of the jury Hearing on the admissibility of confessions must be outside the presence of the jury Other hearings may be held outside the presence of the jury when: Other hearings may be held outside the presence of the jury when: The interests of justice require The interests of justice require When the accused is a witness and so requests When the accused is a witness and so requests

18. Preliminary Fact Determinations FRE 104 (d): Testimony by the Accused FRE 104 (d): Testimony by the Accused Grants the defendant in a criminal case the ability to testify about a preliminary matter (e.g. in a Miranda/voluntariness hearing) without being subject to cross examination about other issues in the case Grants the defendant in a criminal case the ability to testify about a preliminary matter (e.g. in a Miranda/voluntariness hearing) without being subject to cross examination about other issues in the case

19. Preliminary Fact Determinations FRE 104 (e): Weight and Credibility FRE 104 (e): Weight and Credibility Even if the judge admits the evidence, the parties may fully challenge the weight and credibility of the evidence Even if the judge admits the evidence, the parties may fully challenge the weight and credibility of the evidence

20. The Roles of Judge and Jury Court controls legal rulings in the trial & Jury decides factual issues: Court controls legal rulings in the trial & Jury decides factual issues: At time of instructing jury, Court has duty to instruct on issues raised by the evidence (e.g. lesser included offenses; defenses; eyewitness identification) At time of instructing jury, Court has duty to instruct on issues raised by the evidence (e.g. lesser included offenses; defenses; eyewitness identification) Court also has duty not to instruct on issues not supported by the evidence Court also has duty not to instruct on issues not supported by the evidence Sufficiency of evidence standard – court should not engage in weighing witness credibility (People v. Tufunga (1999) 21 Cal.4 th 935, 944.) Sufficiency of evidence standard – court should not engage in weighing witness credibility (People v. Tufunga (1999) 21 Cal.4 th 935, 944.)

21. Refreshing Recollection May use most anything to refresh memory If a writing: FRE 612/ Evid. Code § 771 If a writing: FRE 612/ Evid. Code § 771 Cannot have witness read writing to jury (otherwise in conflict with hearsay and best evidence rules) – witness reads to self and then answers questions Cannot have witness read writing to jury (otherwise in conflict with hearsay and best evidence rules) – witness reads to self and then answers questions Must produce writing to adverse party Must produce writing to adverse party Failure to produce writing may result in sanctions re evidence Failure to produce writing may result in sanctions re evidence

22. Refreshing Recollection How it usually comes up: Witness must testify to: 1) a lack of memory about subject matter; and 2) that something may refresh recollection; Witness must testify to: 1) a lack of memory about subject matter; and 2) that something may refresh recollection; Then witness is shown item and asked to review it silently; Then witness is shown item and asked to review it silently; Then witness is asked if memory refreshed; if yes– witness answers question Then witness is asked if memory refreshed; if yes– witness answers question

23. Refreshing Recollection This method of dealing with witness is usually friendly; This method of dealing with witness is usually friendly; Cf. past recollection recorded; Cf. past recollection recorded; Cf. impeachment with prior inconsistent statements; seeking finding of willful evasiveness; asking jury not to believe claim of lack of memory Cf. impeachment with prior inconsistent statements; seeking finding of willful evasiveness; asking jury not to believe claim of lack of memory