Rules of Evidence. Rule 104. The Most Important Rule of Evidence.

Rules of Evidence.  Rule 104.  The Most Important Rule of Evidence.  Rule 104 is the most important because without it, none of the other Rules of Evidence can be reliably enforced.

Texas Rule of Evidence 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. 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.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession in a criminal case;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury’s hearing on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

With every case we file Rule 104 Motions.  Most of the time when a defense lawyer files a Motion in Limine, she should probably be filing a Rule 104 Motion instead.  We file them whenever the State has given notices of extraneous offenses under Rule 404(b) to determine beforehand what will be admitted.  We review the police reports and if there is hearsay or opinion testimony that should be excluded from the cop’s testimony, we file a Rule 104 motion.  We review medical records for hearsay objections that don’t qualify under Rule 803(4).  With videotapes, those portions we believe are objectionable, we present in a Rule 104 Motion.  If we want certain evidence introduced but know the State will oppose it, we may try to get a ruling beforehand admitting it.  Look at the first blog in this series for a sample Rule 104 Motion restricting the Summary Witness testimony.  And a big area is Motions to Suppress Confessions and Illegal Searches.  So, what is the advantage of filing these motions?

1. It produces better rulings from the trial judge.  If the judge must consider the law at the moment, you make an objection, the ruling will likely be against you if you represent someone accused of a crime.  If the judge has a chance to consider the objection with some law ahead of time, we are more likely to get a favorable ruling.
2. It keeps us from forgetting something in the objection. Appellate courts are prone to say, “You objected to hearsay, but you didn’t mention the Confrontation Clause, or Rule 403 prejudice, so your objection is not preserved.”
3. It makes sure the objection is on time. If by the time you are able to get to your feet and lodge and objection, the prosecutor has asked two more questions, the objection may not be “timely.”
4. It provides that the objection be outside the presence of the jury, so the skunk isn’t already in the jury box even though your objection is sustained.
5. Your objection is preserved for trial without objecting again when it is asked. Rule 103 provides this protection: “(b) Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.”

Texas and federal rules 104 are almost identical.  Texas Rule 104(c) (1), adds the phrase “in a criminal case” to the federal rule that just says “(1) the hearing involves the admissibility of a confession….”  Federal Rule 103 on not needing to renew an objection does not include the requirement that the objection has been made “outside the presence of the jury.”  The Texas Rule on Extraneous offenses requires the trial court to determine that there is sufficient evidence to support a jury finding beyond a reasonable doubt that the defendant committed the act before the court admits evidence of an extraneous offense.  Harrell v. State, 884 S.W.2d 154, 159–60 (Tex. Crim. App. 1994).

Shooting from the hip on objections can be risky.  Because almost all issues of evidence can be figured out before trial, the Rule 104 Motions become the most important part of preparing your objections for trial.