I. General Provisions
II. Judicial Notice
IV. Relevancy and Its Limits
VII. Opinions and Expert Testimony
X. Contents of Writings, Recordings,
|Revised Rule 104. Preliminary Questions
Rule 104 generally follows the common law separation of functions between
the judge and jury. Under Current Rule 104(a), the judge resolves
issues of qualification, privilege, and admissibility; under Current Rule
104(b), the judge is to determine threshold issues of "conditional relevance,"
but is not to usurp the jury's fact finding function.
Current Rule 104(a) does not state the
standard for deciding preliminary questions. Under common law rules
evidence principles, there was some disagreement over whether the standard
should: 1) remain consistent in all cases, 2) vary according to whether
constitutional rights were involved, or 3) vary according to the standard
used to judge the ultimate substantive issues at trial. In
Bourjaily v. United States, the Supreme Court held that trial courts
should determine the existence of a conspiracy by a preponderance of the
evidence as a preliminary question under Rule 104(a) prior to admitting
coconspirator statements - as admissions under Current Rule 801(d)(2)(E).
The Court explicitly extended that holding to preliminary questions pertaining
to expert opinions in Daubert v. Merrell Dow Pharmaceuticals.
Accordingly, Current Rule 104(a) has been modified in Revised Rule 104(a)
to state explicitly the general rule that when a preliminary issue is not
controlled by a standard of admissibility explicitly incorporated into
a rule, preliminary questions are to be resolved by a preponderance of
the evidence standard. Examples of instances in which preliminary
issues are governed by explicit admissibility standards are Current
and Revised Rules 609(a) and Rule 403, and Revised Rule 404(c).
Revised Rule 104(a) makes an exception
to the general rule, however, when a preliminary question will overlap
with an ultimate question to be decided by the jury. This will occur
only in civil cases in which the standard for admissibility (preponderance
of the evidence) will be the same as applied by the jury to the determination
of the same issue. In such cases, a preponderance standard would
intrude upon the province of the jury. Therefore, consistent with
current practice and the common law, a prima facie standard should
Revised Rule 104(a) leaves essentially
unchanged the last clause of the section, allowing the court to be
unencumbered by the rules of evidence, other than those with respect to
privilege, in making its determination on preliminary matters. Thus,
the court is allowed to consider matters that would be inadmissible at
trial (i.e, hearsay, unauthenticated items, etc.) for the purpose of ruling
on a preliminary issue.