Relationship of Rules 401 and 104

  1. militarydefenselawyers358Preliminary Questions. The military judge decides questions of admissibility of evidence under Rule 104. They are determined solely by the military judge, not the “court” and the judge is not bound by the rules of evidence, except those with
    respect to privileges. Because relevancy is a condition for admissibility, it is one of the issues the military judge is intended to decide.
  2. When faced with deciding a relevancy objection, the military judge has four basic choices with respect to ruling on the issue:
    1. exclude the evidence;
    2. admit all the evidence;
    3. admit all the evidence subject to a limiting instruction; or
    4. admit part of the evidence and exclude part.
  3. Threshold. Although the primary responsibility for showing the relevancy of a
    particular piece of evidence rests with the proponent, it is a very low hurdle to
    overcome. All that the military judge is required to determine in order to rule a
    piece of evidence is relevant, is that a rational member could be influenced by the
    evidence in deciding the existence of a fact of consequence. The evidence only
    has to be capable of making determination of the fact more or less probable than
    it would be without the evidence.
  4. Relevancy Conditioned Upon Proof of a Predicate Fact. Rule 104(b) deals with
    the situation where the relevancy of a piece of evidence is conditioned upon
    proof of a predicate fact. United States v. Bins, 43 M.J. 79 (1995). The military
    judge’s responsibility in these cases is not to decide whether she believes the
    evidence or she believes the government has proven the predicate fact. Instead,
    the judge only decides whether counsel has introduced enough evidence so that
    the panel could reasonably conclude the existence of the conditional fact. In
    other words, the judge decides only if there is a sufficient factual predicate for
    admissibility of the evidence; weight and credibility of the evidence are matters
    for the members. United States v. Kelly, 45 M.J. 275 (1996). Huddleston v.
    United States, 485 U.S. 681 (1988) (holding that neither FRE 104 nor 404(b)
    requires the trial judge to determine by a preponderance of the evidence that a
    ‘similar act’ was committed; the trial judge is only required to consider all of the
    evidence offered and decide whether the jury could reasonably find the similar
    act was committed).

    1. The military judge should ask the following questions:
      1. Will the members find it helpful in deciding the case accurately?
        If NO, then the judge excludes the evidence. If YES, then the
        judge asks another question;
      2. Is there sufficient evidence to warrant a reasonable member in
        believing the evidence? If NO, then the judge excludes the
        evidence. If YES, then the judge admits the evidence.

When faced with deciding a relevancy objection

admit part of the evidence and exclude part.