2. Court is not bound by evidence rules except as to privileges. B. When relevancy is conditioned upon fulfillment of condition of fact, C. evidence shall be admitted subject to proof of that fact. Hearings on preliminary questions must be held out of hearing of the jury if: 1. Relative to admissibility of a confession. D. Accused is not subject to cross-examination on other issues by virtue of testimony on preliminary matter. CAVEAT: 1. Limitation designed to encourage defendant to testify as to preliminary matters. 2. Credibility of witness is always in question. 3. Defendant may be impeached if he lies at trial. E. Rule does not limit right to introduce evidence relevant to weight or credibility. COMMENTS Rule 104(a) allows the Court to make preliminary rulings as to the admissibility of evidence. The application of the rules of evidence generally depends upon the existence of a condition. Is the child competent? Is the. expert qualified? Is the evidence hearsay? In order to answer the above questions, the Court must hear testimony from the child, the expert, or from the witness as to the hearsay statement. How far counsel may examine the witness before the court is prepared to rule is left to the discretion of the court. Rule 104(b) allows the Court to admit evidence subject to the fulfillment of a condition of fact. For example, assume that counsel attempts to show that X received a letter from Y and desires to offer the letter into evidence. The letter has no probative value unless counsel can fulfill a condition of fact; providing evidence that Y wrote the letter or authorized it to be written. Likewise, in a conspiracy case, the Court may allow the witness to testify relative to any statements made by the co-conspirators on the condition the government establishes the existence of a conspiracy. Rule 104(c) requires that all hearings on confessions be heard out of the presence of the jury. For obvious reasons, to allow the jury to hear this type of evidence would prejudice the defendant irrespective of the Court's ultimate ruling on the admissibility of the confession. On other matters, the Court must make a determination as to whether the presentation of the matter in the presence of the jury would unduly prejudice the party against whom the evidence is offered. This procedure may result in matters. being presented twice if the Court admits the evidence, but it avoids the expense of a mistrial or reversal on appeal should the Court decide to exclude it. Rule 104(d) allows the defendant to testify about preliminary matters without fear of opening the door to cross-examination about collateral matters. To allow such cross-examination of the defendant would chill the defendant's right to testify in his own behalf at hearings on motions to suppress statements, identifications and evidence. This rule does not prevent the government from later cross-examining the defendant about his testimony in the preliminary proceedings where the defendant seeks to hide behind this immunity in order to testify falsely at his trial. Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 402 U.S. 714 (1975); Walder v. U.S., 347 U.S. 62 (1954); U.S. v. Havens, 48 U.S.L.W. 4596 (1980). U.S. Rule 104(e) enables a party, against whom the Court has admitted evidence, to introduce competent evidence relative to the weight or credibility the trier of fact should give the admitted evidence. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. ELEMENTS A. Where evidence is admitted as to one party or for one purpose, 1. Restrict the scope of the evidence. 2. Instruct the jury accordingly. Note: Rule envisions timely objection by counsel and a request for limiting instructions. COMMENT This rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly. This rule should be read in conjunction with Rule 403, which provides for the exclusion of relevant evidence on the grounds of undue prejudice, confusion, waste of time, or needless presentation of cumulative evidence. The application of this rule is appropriate in the following circum stances: (a) A Bruton situation (Bruton v. United States, 391 U.S. 123 (1968); (b) Impeachment by prior conviction under Rule 609; (c) Where other prior similar acts or crimes are introduced into evidence under Rule 404(b) or 608(b); and (d) Impeachment by prior inconsistent statement under Rule 607. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. ELEMENTS A. When any writing or recorded statement or, portion thereof is introduced, an adverse party may require introduction of any other part at that time if: 2. Ought, in fairness, to be considered contemporaneously with it. |