Admission of Relevant Evidence for Substantive Use - Conditional Relevance (Part of Step 1)

Question 1

FRE 104(b)

Relevance That Depends on a Fact

Answer 1

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later

Question 2

Comparison of FRE 104(a) and FRE 104(b)

Deciding Decision Maker

Answer 2

FRE 104(a) – The judge decides if the evidence is relevant and that decision is final

FRE 104(b) – The judge’s decision about whether the evidence is relevant is contingent on the jury finding that the underlying facts exist.

• If the jury finds they exist, then the evidence is relevant.
• If the jury finds the facts do not exist, the evidence is not relevant and must be disregarded. The opposing party must seek a jury instruction prior to their deliberations for the evidence to be disregarded.

Question 3

Comparison of FRE 104(a) and FRE 104(b)

Standard

Answer 3

FRE 104(a) – The judge makes the relevant determination based on the preponderance of evidence standard

FRE 104(b)

• The judge determines whether there is sufficient evidence to allow a reasonably jury to find the underlying facts by a preponderance of evidence standard
• Later, the jury determines whether the underlying facts exist using the preponderance of evidence standard

Question 4

Comparison of FRE 104(a) and FRE 104(b)

Evidence Allowed

Answer 4

FRE 104(a)

• The judge can use any evidence, except privileged evidence, to determine whether the evidence is relevant
• This includes inadmissible evidence and evidence that was obtained illegally

FRE 104(b)

• The judge can only look at admissible evidence to determine whether the evidence is relevant
• The jury only considers evidence that has been admitted at trial in deciding whether the underlying facts exist

Question 5

Comparison of FRE 104(a) and FRE 104(b)

Credibility Determination

Answer 5

FRE 104(a) – The judge makes the credibility determination in deciding relevance

FRE 104(b)

• The judge does not make the credibility determination in deciding conditional relevance. Instead, the judge assumes the jury will believe the witness.
• The jury is free to make credibility determinations in any matter it deems fit

Question 6

Comparison of FRE 104(a) and FRE 104(b)

Right to Object

Answer 6

FRE 104(b) – Once the relevance issue is definitively decided, the opposing party does not have the right to object further.

FRE 104(b)

• After the judge makes the determination, the opposing party must renew the objection if the connecting facts are not offered
• The judge retains discretion in deciding the order of the presentation of evidence

Question 7

Situations Where Conditional Relevance Arises

Answer 7

The issue of conditional relevance arises in a variety of situations, such as character evidence (e.g. whether the prior act was committed) and hearsay (e.g. whether a statement was actually made).

In addition, FRE 104(b) is used in these contexts: personal knowledge (FRE 602), authentication (FRE 901) and three “best evidence” questions.