The roles of judge and jury
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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

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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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