Also known as: FRE 104(a) · Fed. R. Evid. 104(a) · Federal Rule of Evidence 104(a) · 104(a) · Rule 104
Written by attorneys — see sources below.
A procedural rule under which the court determines preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence. The court is not bound by the rules of evidence in making this determination except those concerning privilege.
Ricardo Rojas stands trial for embezzlement. The defense offers testimony from a coworker who observed key events. The judge conducts a hearing outside the jury and finds the coworker possesses sufficient personal knowledge and capacity to testify before allowing the testimony.
Rhea Reynolds claims attorney-client privilege over documents the government seeks. The judge orders an in camera inspection to decide whether the crime-fraud exception applies and determines the communications fall outside the privilege before allowing disclosure.
This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue Service to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology, for the calendar years 1979 through 1983. In the course of its investigation, the IRS sought access to 51 documents that had been filed with the Clerk of the Los Angeles County Superior Court in connection with a case entitled Church of Scientology of California v. Armstrong. The Armstrong litigation involved a charge by the Church that one of its former member, Gerald Armstrong, had obtained by unlawful means documentary materials relating to Church activities, including two tapes. Some of the documents sought by the IRS had been filed under seal. On October 24, 1984, IRS Special Agent Steven Petersell served a summons upon the Clerk pursuant to 26 U.S.C. §7603 demanding that he produce the 51 documents. On November 21, IRS agents were permitted to inspect and copy some of the summoned materials, including the tapes. On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong, secured a temporary restraining order from the United States District Court for the Central District of California requiring the IRS to file with the District Court all materials acquired on November 21 and all reproductions and notes related thereto. By order dated December 10, the District Court returned to the IRS all materials except the tapes and the IRS' notes reflecting their contents. On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons seeking the tapes and 12 sealed documents the Clerk had refused to produce. The Church and Mary Sue Hubbard intervened to oppose production, claiming the IRS was not seeking the documents in good faith and objecting on grounds of lack of relevance and attorney-client privilege. Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS submitted two declarations by Agent Petersell. The second offered a description of the tapes' contents based on interviews. It appended partial transcripts of the tapes that the IRS had lawfully obtained from a confidential source. After oral argument and an evidentiary hearing, the District Court rejected respondents' claim of bad faith. The court ordered production of 5 of the 12 documents with a restriction that they not be delivered to any other government agency unless criminal tax prosecution is sought or a court order is obtained. The court ruled that the crime-fraud exception did not apply because the quoted excerpts tended to show or admit past fraud but gave no clear indication that future fraud or crime was being planned. Respondents appealed to the Court of Appeals for the Ninth Circuit and the IRS cross-appealed. The panel held that the Government's evidence of crime or fraud must come from sources independent of the attorney-client communications recorded on the tapes. It reviewed only the independent evidence and affirmed the District Court's determination that the IRS had failed to establish the applicability of the crime-fraud exception. The full Court of Appeals vacated the panel opinion for en banc review on the basis of a perceived conflict between precedents. A majority of the limited en banc court determined that the intracircuit conflict was illusory and reinstated the panel opinion in relevant part.
View caseRyan Roberts faces drug charges. The government offers a codefendant's out-of-court statement implicating Roberts. The judge holds a hearing and finds by a preponderance that the statement was against the declarant's penal interest before admitting it.
A deputy sheriff stopped Reginald Harris's rental car for weaving on the highway. Harris consented to a search that uncovered 19 kilograms of cocaine in two suitcases in the trunk, leading to his immediate arrest. Shortly after the arrest, DEA Special Agent Donald Walton interviewed Harris by telephone. Harris stated that he obtained the cocaine from an unidentified Cuban in Fort Lauderdale, that the cocaine belonged to petitioner Fredel Williamson, and that it was to be delivered to a particular dumpster that night. Physical evidence also connected Williamson to the car: the luggage bore the initials of Williamson's sister, Williamson was listed as an additional driver on the rental agreement, and an envelope addressed to Williamson along with a receipt bearing his girlfriend's address were found in the glove compartment. Several hours later, Agent Walton spoke with Harris in person. Harris explained that he had rented the car a few days earlier, driven it to Fort Lauderdale to meet Williamson, and received the cocaine from a Cuban acquaintance of Williamson along with a note instructing him on the delivery. Harris repeated that he was to leave the drugs in a dumpster, return to his car, and depart without waiting. When Agent Walton prepared to arrange a controlled delivery, Harris admitted he had lied about the Cuban, the note, and the dumpster. He stated instead that he was transporting the cocaine to Atlanta for Williamson, who was traveling ahead in another rental car, and that Williamson had driven past the stop and seen the police searching the trunk. Harris explained he had lied out of fear of Williamson and refused to have his statement recorded or to sign a written version, though Walton promised to report any cooperation to the prosecutor. At Williamson's trial on charges of possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine, Harris refused to testify despite receiving use immunity and being held in contempt. The District Court admitted Agent Walton's testimony about Harris's statements under Federal Rule of Evidence 804(b)(3), finding them against Harris's penal interest, Harris unavailable, and sufficient corroboration present. The Court of Appeals for the Eleventh Circuit affirmed the conviction without opinion, and the Supreme Court granted certiorari.
View caseRita Russell is tried for conspiracy to distribute narcotics. The prosecutor offers statements by an alleged coconspirator. The judge determines by a preponderance that a conspiracy existed and that Russell participated before admitting the statements against her.
In May 1984, Clarence Greathouse, working as an informant for the Federal Bureau of Investigation, arranged to sell a kilogram of cocaine to Angelo Lonardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonardo stated in a tape-recorded telephone conversation that he had a "gentleman friend" who had some questions to ask about the cocaine. In a subsequent telephone call, Greathouse spoke to the "friend" about the quality of the drug and the price. Greathouse then spoke again with Lonardo, and the two arranged the details of the purchase. They agreed that the sale would take place in a designated hotel parking lot, and Lonardo would transfer the drug from Greathouse's car to the "friend," who would be waiting in the parking lot in his own car. Greathouse proceeded with the transaction as planned. FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilogram of cocaine into petitioner's car in the hotel parking lot. In petitioner's car, the agents found over $20,000 in cash. Petitioner was charged with conspiring to distribute cocaine, in violation of 21 U.S.C. § 846. Petitioner was also charged with possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). The Government introduced, over petitioner's objection, Angelo Lonardo's telephone statements regarding the participation of the "friend" in the transaction. The United States District Court for the Southern District of Ohio found that, considering the events in the parking lot and Lonardo's statements over the telephone, the Government had established by a preponderance of the evidence that a conspiracy involving Lonardo and petitioner existed. The court also found that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. Accordingly, the trial court held that Lonardo's out-of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay. Petitioner was convicted on both counts and sentenced to 15 years. The United States Court of Appeals for the Sixth Circuit affirmed the conviction. The Supreme Court granted certiorari to review the admission of the recorded statements and related evidentiary and constitutional questions.
View caseRenee Rogers sues a manufacturer after a workplace injury. She offers a mechanical engineer whose opinions rest on proprietary software. The judge holds a hearing outside the jury and finds the engineer possesses sufficient specialized knowledge and reliable methods to testify.
Robert Rivera moves to suppress evidence seized from his apartment. The government claims a roommate consented. The judge conducts a hearing and finds by a preponderance that the roommate had actual authority to consent before denying the motion.
In February 1971, William Matlock was indicted for robbing a federally insured bank in violation of 18 U.S.C. § 2113. A week later he filed a motion to suppress evidence seized from a home in Pardeeville, Wisconsin, where he had been living. Suppression hearings followed in the District Court. On November 12, 1970, Matlock was arrested in the yard in front of the home leased by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children including her daughter Gayle Graff, Graff's three-year-old son, and Matlock. Three arresting officers went to the door, were admitted by Graff, told her they were looking for money and a gun, and asked if they could search the house. Graff consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searched and $4,995 in cash was found in a diaper bag in the only closet in the room. Graff made statements to the officers that she and Matlock occupied the east bedroom together, shared the dresser, and had slept together regularly in the room including the early morning of November 12. Other evidence showed Matlock and Graff had lived together in a one-bedroom apartment in Florida from April to August 1970, lived at the Marshall home from August to November 12, 1970, were seen going up or down stairs together, and that the east bedroom contained evidence it was lived in by a man and a woman. At the suppression hearings the District Court excluded as inadmissible hearsay Graff's out-of-court statements about joint occupancy as well as statements by both Graff and Matlock that they were husband and wife. The court concluded the remaining evidence was insufficient to prove to a reasonable certainty that Graff and Matlock were living together in the east bedroom at the time of the search. The Court of Appeals affirmed the District Court judgment in all respects. The Supreme Court granted certiorari.
View caseThe court decides preliminary questions about witness qualification under Rule 104(a). The judge makes this determination by a preponderance of the evidence and is not bound by the rules of evidence except those concerning privilege.
The court applies the preponderance of the evidence standard when resolving preliminary questions of admissibility or witness qualification under Rule 104(a). This ensures the technical and policy concerns addressed by the evidence rules receive due consideration before evidence reaches the jury.
Yes. Under Rule 104(a) the court is not bound by the rules of evidence when deciding preliminary questions except those concerning privilege. The judge may therefore review materials containing hearsay for the limited purpose of assessing an expert's qualifications.
No. For other-acts evidence offered for a non-propensity purpose the court applies a conditional relevance standard under Rule 104(b). The judge need only determine whether a reasonable juror could find that the defendant committed the prior act. A preponderance finding under Rule 104(a) is not required.
…declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy." Federal Rule of Evidence 104(a) provides: "Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court." Petitioner and the Government agree that the existence of a conspiracy and…