Preliminary Questions of Admissibility, Fed.R.Evid. 103 and 104; Motions in Limine
Criminal Law Bulletin, Vol. 44, No. 108, January-February 2008
34 Pages Posted: 21 Feb 2008 Last revised: 11 Jun 2008
The rules of evidence are administered by the trial judge. The qualification of a witness whether lay or expert, the existence of a privilege, or the admissibility of evidence often depends upon the existence of a condition which may be disputed. Submitting factual issues of this kind generally to the jury, as they arise from time to time during the trial or at its conclusion, would be hopelessly confusing, as well as beyond the probable capacity of the jurors. To illustrate, with the admissibility of a statement asserted to be protected from disclosure by the lawyer-client privilege, if the jurors heard the actual statement with instructions to erase it from their minds should they find it was not made knowingly in the presence of a third party, the jury would be incapable of doing so. It is something like telling a little boy to go to the corner and not think of elephants. The result would be frustration of the policy underlying the privilege. Hence such preliminary questions of fact as conditions precedent concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence are decided solely by the court, Fed.R.Evid. 104(a). Quite often the relevancy of a particular item of evidence may also depend upon the existence of a condition of fact. If such matters of conditional relevancy were determined solely by the court, the function of the jury would be unduly restricted. Accordingly, when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court must admit the evidence if evidence sufficient to support a finding of the fulfillment of the condition has been introduced, Fed.R.Evid. 104(b).
In preparing a case for trial, there frequently arise questions concerning the admissibility or inadmissibility of evidence, the determination of which is of significance in planning trial strategy. The most obvious illustration concerns the impact of the admissibility of the defendant's prior conviction in a criminal proceeding, Fed.R.Evid. 609, upon defense counsel's decision of whether to recommend that the defendant testify. That decision may itself have substantial impact on the voir dire of jurors, the content of the opening statement and the questioning of witnesses, as well as on the overall theory of the case presented by the defense. From the point of view of the prosecution, an advance ruling as to whether evidence of the defendant's other crimes, wrongs, or acts will be admissible, Fed.R.Evid. 404(b), may have a significant impact upon the presentation of evidence needed to make a prima facie case. A criminal defendant may employ a motion in limine to challenge the competency of the prosecutions expert and/or the sufficiency of the assurances of trustworthiness associated with the expert's explanative theory required by Daubert/Kumho/Fed.R.Evid. 702. Both sides may benefit from an advance ruling as to whether a model, map, photograph, computer animation, etc. will be admitted at trial over an objection on the ground of danger of unfair prejudice, misleading the jury, etc., Fed.R.Evid. 403. Situations in which advance knowledge as to admissibility is beneficial are as varied as the breadth of evidence offered in any given trial. The motion in limine, a motion at the outset, provides a means for possibly securing such advance knowledge.
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