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The Roles of Judge and Jury. Court controls legal rulings in the trial Jury decides factual issues. The Roles of Judge and Jury. What happens when the two combine?. Preliminary Fact Determinations. HYPO:

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the roles of judge and jury
The Roles of Judge and Jury
  • Court controls legal rulings in the trial
  • Jury decides factual issues
the roles of judge and jury1
The Roles of Judge and Jury
  • What happens when the two combine?
preliminary fact determinations
Preliminary Fact Determinations
  • 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.
    • Do we keep it out? Or let it in? How do we decide?
preliminary fact determinations1
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.
preliminary fact determinations2
Preliminary Fact Determinations
  • Evid. Code § 400
    • “preliminary fact” defined
    • 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
preliminary fact determinations3
Preliminary Fact Determinations
  • Evid. Code § 401
    • “proffered evidence” defined:
      • The evidence about which the hearing on admissibility is being held
preliminary fact determinations4
Preliminary Fact Determinations
  • Evid. Code § 402
    • Determines procedure to be used
    • 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
preliminary fact determinations5
Preliminary Fact Determinations
  • 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…”
    • This standard of proof favors allowing the jury to decide the issue of the existence of the preliminary fact
preliminary fact determinations6
Preliminary Fact Determinations
  • Evid. Code § 403
    • 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 writing (or other tangible item) is authenticated;
      • Whether the witness is the person who made the statement or engaged in the conduct at issue;
preliminary fact determinations7
Preliminary Fact Determinations
  • Evid. Code § 403
    • Concept of conditional relevance
      • 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;
      • Shall instruct jury to disregard proffered evidence if court later determines jury could not reasonably find preliminary fact
preliminary fact determinations8
Preliminary Fact Determinations
  • 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
    • Witness has burden to show tendency to incriminate
    • Standard favors person claiming the privilege
preliminary fact determinations9
Preliminary Fact Determinations
  • Evid. Code § 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
preliminary fact determinations10
Preliminary Fact Determinations
  • Evid. Code § 405 – examples in comment
    • Disqualification for lack of mental capacity
    • Qualifications of expert witness
    • Opinion evidence on sanity
    • Privileges
    • Admissions made in compromise negotiations
    • Hearsay evidence (e.g. under sense of death)
    • Opinion evidence on handwriting
    • Comparison of handwriting with exemplar
    • Best evidence rule
preliminary fact determinations11
Preliminary Fact Determinations
  • FRE 104 (a): Questions of Admissibility Generally
  • The Court determines the admissibility of evidence, subject to provisions of sub. (b);
  • Not bound by rules of evidence except as to privilege
  • Applies to:
    • Qualifications of a witness
    • Existence of privilege
    • Admissibility of evidence
preliminary fact determinations12
Preliminary Fact Determinations
  • FRE 104 (b): Relevancy Conditioned on Fact
    • When the relevance of evidence depends on the fulfillment of a condition of fact,
    • The court shall admit it on
    • Or subject to
    • The introduction of evidence sufficient to support a finding of the fulfillment of the condition of fact
preliminary fact determinations13
Preliminary Fact Determinations
  • FRE 104 (b): Relevancy Conditioned on Fact (Conditional relevance)
    • Rape case hypo:
      • 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 evidence of assault, sufficient to support a jury finding of assault, is introduced: evidence admitted
preliminary fact determinations14
Preliminary Fact Determinations
  • FRE 104 (c): Hearing 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:
      • The interests of justice require
      • When the accused is a witness and so requests
preliminary fact determinations15
Preliminary Fact Determinations
  • 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
preliminary fact determinations16
Preliminary Fact Determinations
  • 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
the roles of judge and jury2
The Roles of Judge and Jury
  • 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)
  • 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.4th 935, 944.)
refreshing recollection
Refreshing Recollection

May use most anything to refresh memory

  • 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
    • Must produce writing to adverse party
    • Failure to produce writing may result in sanctions re evidence
refreshing recollection1
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;
  • Then witness is shown item and asked to review it silently;
  • Then witness is asked if memory refreshed; if yes– witness answers question
refreshing recollection2
Refreshing Recollection
  • This method of dealing with witness is usually friendly;
  • 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
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