6. Judge & Jury

Question 1

What is the difference between the roles of the judge and jury regarding admissibility of preliminary facts?

Answer 1

1) Judge
- Admissibility of facts
- Existence of facts
- Otherwise if competency/existence of facts could not be determined by judge at first but jury then hears facts and discovers competency/existence, disregarding those facts later will be pointless since jury already knows the facts so they would be admissible anyway

2) Jury
- Relevancy of facts

Question 2

What is the difference between the roles of the judge and jury regarding determination of questions of evidence?

Answer 2

Judge

• Questions of law
• Questions of fact (non-jury trial)

Jury
- Questions of fact

Question 3

What happens if judge determines that jury could not reasonably find preliminary fact exists?

Answer 3

Jury must disregard evidence regardless of whether jury could find evidence to be relevant

Question 4

What type of preliminary facts must jury decide after judge determines the facts?

Answer 4

Agency existence
- TP communications (TP is agent of party)

Authenticity of document
- Forgery not relevant

W’s credibility

• Criminal conviction offered vs W’s credibility
• Determine W’s identity of criminal conviction

W’s personal knowledge
- Determine whether W had personal knowledge

Question 5

What type of preliminary facts must judge determine?

Answer 5

Privilege protection

Hearsay exception admissibility

W’s mental competency

W’s expert qualifications

Pardon granted to W

Secondary evidence of writing admissibility
- Original writing was lost/destroyed

Voluntariness of confession

Question 6

When must jury be excused during preliminary fact determination hearing?

Answer 6

Determining admissibility of D’s confession

D requests jury to be excused

Question 7

Is judge determining admissibility of evidence subject to evidence rules?

Answer 7

NO (UNLESS privileged)
- If Evidence B is used to prove admissibility of Evidence A => Evidence B is NOT subject to evidence rules (e.g. whether it is hearsay is NOT relevant, whether it is privileged is relevant)

Question 8

When may jury not be present during the preliminary hearing on admissibility of evidence?

Answer 8

Admissibility of confession

Criminal defendant is witness + requests jury to leave

Justice so requires