Also known as: Fed. R. Evid. 104 · Rule 104 · FRE 104 · Federal Rules of Evidence 104
Written by attorneys — see sources below.
2 senses
A procedural rule that assigns the court responsibility for deciding any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. The court may consider any evidence, including otherwise inadmissible material, when resolving those questions, except that privilege rules remain fully applicable.
A procedural rule that assigns the court responsibility for deciding any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. The court may consider any evidence, including otherwise inadmissible material, when resolving those questions, except that privilege rules remain fully applicable.
The government offered Lonardo's telephone statements against Bourjaily in a drug conspiracy trial. Bourjaily objected that the statements failed to qualify as co-conspirator admissions. The court examined the surrounding circumstances outside the jury's presence and determined the statements were made during and in furtherance of the conspiracy.
A standard that governs evidence whose relevance depends on the existence of another fact. The proponent must introduce evidence sufficient to support a finding that the connecting fact exists. Once that threshold is met the court may admit the evidence subject to later connecting proof.
Prosecutors charged Carla with embezzling cash from MetroMart nightly deposits. They offered ValueWorld records showing she had previously manipulated customer returns. The documents supplied enough detail for a reasonable juror to conclude Carla committed the earlier acts. The court admitted the records for the non-propensity purpose of showing absence of mistake.
3 common questions
A standard that governs evidence whose relevance depends on the existence of another fact. The proponent must introduce evidence sufficient to support a finding that the connecting fact exists. Once that threshold is met the court may admit the evidence subject to later connecting proof.
Each sense below has its own examples, sources, and questions.
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 caseHarris made statements to police implicating Williamson in a drug transaction. Williamson objected that the statements were not truly against Harris's penal interest. The court conducted a preliminary hearing to isolate the precise portions that were genuinely self-inculpatory before deciding admissibility.
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 caseThe IRS sought in-camera inspection of attorney-client documents to test the crime-fraud exception. Zolin objected that the government had not yet made any threshold showing. The court first evaluated whether the partial transcripts supplied a sufficient basis to justify reviewing the privileged material.
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 casePlumer moved to dismiss the diversity action for improper service under state rules. Hanna argued that federal procedural rules controlled the method of service. The court resolved the preliminary choice-of-law question before reaching the merits of the case.
On February 6, 1963, petitioner, a citizen of Ohio, filed her complaint in the District Court for the District of Massachusetts, claiming damages in excess of $10,000 for personal injuries resulting from an automobile accident in South Carolina, allegedly caused by the negligence of one Louise Plumer Osgood, a Massachusetts citizen deceased at the time of the filing of the complaint. Respondent, Mrs. Osgood's executor and also a Massachusetts citizen, was named as defendant. On February 8, service was made by leaving copies of the summons and the complaint with respondent's wife at his residence, concededly in compliance with Rule 4 (d) (1). Respondent filed his answer on February 26, alleging, inter alia, that the action could not be maintained because it had been brought contrary to and in violation of the provisions of Massachusetts General Laws Chapter 197, Section 9. On October 17, 1963, the District Court granted respondent's motion for summary judgment. On appeal, the Court of Appeals for the First Circuit affirmed. The Supreme Court granted certiorari because of the threat to the goal of uniformity of federal procedure posed by the decision below.
View caseOfficers searched Matlock's home after obtaining consent from a woman who claimed authority over the premises. Matlock later challenged the search on the ground that actual common authority had not been shown. The court held a hearing to decide whether the government had produced enough evidence of apparent authority to uphold the consent.
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 case1 common questions
Yes. Rule 104(a) permits the court to consider any evidence, including hearsay, when resolving preliminary questions such as expert qualification, provided no privilege applies.
The proponent must introduce evidence sufficient for a reasonable juror to find the connecting fact. The court may admit the evidence subject to later proof of that fact.
No. The judge asks only whether a reasonable juror could find that the defendant committed the prior act. The jury then decides the weight and credibility of that evidence.
The opposing party may move to strike the evidence and request a limiting instruction. The initial admission does not become final until the connecting proof is supplied.
…agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions. We are therefore guided by our prior…