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 Jury • What happens when the two combine?

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

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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

The Roles of Judge and Jury