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VOIR DIRE TO LAY FOUNDATION FOR OBJECTION - MN Bench Book - Trial Procedures & Practices for Judges
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VOIR DIRE TO LAY FOUNDATION FOR OBJECTION

From MN Bench Book - Trial Procedures & Practices for Judges

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WHEN TO ALLOW

WHEN A TRIAL OBJECTION DISPUTES THE EXISTENCE OF A REQUIRED FOUNDATIONAL FACT FALLING UNDER RULE 104(A),[1] THE OPPONENT NOT ONLY HAS A RIGHT TO VOICE AN OBJECTION; THE OPPONENT ALSO HAS A RIGHT TO CONDUCT A VOIR DIRE EXAMINATION IN SUPPORT OF THE OBJECTION.[2] WHEN IN DOUBT, PERMIT IT. THE TIMING OF SUCH VOIRE DIRE IS TO ALLOW IT AFTER A PHYSICAL EVIDENCE IS OFFERED BUT NOT YET RECEIVED OR AT THE POINT WHEN AN EXPERT IS ASKED FOR THEIR OPINION.

Opposing counsel may legitimately voir dire an expert witness only after the witness’ qualifications are entered and before the witness testifies to any facts or opinions.[3] The lay witness should be questioned prior to any recital of facts.[4] An exhibit should be challenged and voire dire requested to lay a foundation for an objection, when it is offered into evidence, or in the case of illustrative/demonstrative evidence, at any point during the questioning related to it.[5]

DONE IN PRESENCE OR ABSENCE OF JURY

It is descretionary with the trial judge to allow the voir dire to be conducted in the presence of the jury if the “interests of justice” are met.[6] (Note: challenges to the admissibility of a confession must be heard “out of the hearing of the jury.”[7] The admissibility of past convictions of a criminal defendant should be heard out of the jury’s hearing, but it is not absolutely required.)[8] While voir dires are preferably heard in the absence of the jury,[9] the interests of preserving time must be weighed against the danger of actual prejudice.[10]

THE COURT’S POWER TO LIMIT THE SCOPE AND LENGTH OF THE VOIR DIRE

Because the judge serves as the fact finder empowered to decide how much “weight” to give the foundational testimony,[11] the judge must hear all of the relevant evidence from both sides.[12] The judge is the “trier of fact”[13] with authority to make plenary “credibility determinations.”[14]

The judge has the power to strictly restrict the scope of the voir dire questions to those “calculated to elicit testimony relevant to the existence of the foundational fact in issue.”[15] The voir dire is not an occasion to argue the general merits of the case or engage in general cross examination.




References:

  1. “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court…” 50 M.S.A., Rules of Evid., Rule 104(a). The court is responsible both for ensuring that the offered preliminary fact satisfies the technical requirements, and gauging the credibility of the proffered preliminary fact. The key exception is in Rule 104(b), governing conditional relevance: “If the relevance of the offer is dependent on the existence of a [preliminary] fact the court's function is to determine whether there is [at the time of the offer] sufficient evidence admitted for a jury decision as to the existence of the second fact. [Not the credibility or weight.] It is for the jury to determine whether or not the second fact is established and the weight to be given the original offer.” 50 M.S.A., Rules of Evid., Rule 104(b), COMMITTEE COMMENT: 1977. (Emphasis added.) In effect, the proffering party must only make a prima facie case, and the judge must accept it at face value. Because of this, when the objection regards the relevancy of the proffered fact, questions regarding the weight and credibility of the foundational fact are impermissible on voir dire; they must be raised on cross-examination. 50 M.S.A. Rules of Evid., Rule 104.
  2. “To lay foundation for an objection, a lawyer may be permitted to “interrupt” the direct examination and question the authenticating witness. This process is referred to as voir dire of the witness.” 5 MN PRAC § 9.3.7. The right to voir dire to question admissibility is considered to be inherent in the right to object; it is only the scope that is restricted, see infra. If necessary, the proper citation is to 50 M.S.A., Rules of Evid., Rule 104(a) and the appropriate evidentiary rule (e.g. 601, 602, 701, 702, 801, et. al.).
  3. “An objection to the admission of evidence must be made at the time the evidence is offered.” CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn.App.2001); see also Carpenter v. Mattison, 300 Minn. 273, 279, 219 N.W.2d 625 (Minn.1974) (“The rule is well settled in this jurisdiction that objection to inadmissible evidence must be made at the time such evidence is introduced.”).
  4. “An objection to the admission of evidence must be made at the time the evidence is offered.” CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn.App.2001); see also Carpenter v. Mattison, 300 Minn. 273, 279, 219 N.W.2d 625 (Minn.1974) (“The rule is well settled in this jurisdiction that objection to inadmissible evidence must be made at the time such evidence is introduced.”).
  5. “An objection to the admission of evidence must be made at the time the evidence is offered.” CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn.App.2001); see also Carpenter v. Mattison, 300 Minn. 273, 279, 219 N.W.2d 625 (Minn.1974) (“The rule is well settled in this jurisdiction that objection to inadmissible evidence must be made at the time such evidence is introduced.”).
  6. “Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, and so requests.” 50 M.S.A., Rules of Evid., Rule 104(c).
  7. “Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.” 50 M.S.A., Rules of Evid., Rule 104(c). See also Jackson v. Denno, 84 S.Ct. 1774, 1790, 378 U.S. 368, 394, 12 L.Ed.2d 908, 925, 926, 1 A.L.R.3d 1205 (1964); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 554, 141 N.W.2d 3, 13 (1965), and Minn.R.Crim.P. 7.01, 8.03 and 11.02.
  8. “Prosecutors must take precautions so that errors in cross-examining a defendant as to prior convictions do not occur; proper procedure is to have a hearing outside presence of jury, and preferably before trial, to determine which convictions will be usable to attack credibility.” State v. Pulkrabek, 268 N.W.2d 561, 564 (Minn.1978).
  9. “In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.” 50 M.S.A., Rules of Evid., Rule 104(c); see also Minn. Civ. Trialbook § 10(a) stating, “…Argument, if allowed by the court, and any offer of proof shall be made outside of the hearing of the jury and on the record.”
  10. “Time is a legitimate reason to conduct a voir dire with the jury present.” 23 MNPRAC § 22.1; “Factors which may be considered in determining whether to conduct preliminary hearings on the admissibility of evidence outside the hearing of the jury include the fact that: (1) such procedure is time–consuming; (2) not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility; (3) time is saved by taking foundation proof in the presence of the jury; and (4) much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect.” Advisory Committee Notes to Federal Rules of Evidence, FRE 104.
  11. Bourjaily v. United States, 483 US 171, 180, 181, 97 L Ed 2d 144, 107 S Ct 2775 (1987).
  12. The court always has the authority to avoid needless consumption of time. Minn. R. Evid. 611(a)(2).
  13. Notes of the Advisory Committee on Rules, Fed R Evid 104, 28 USCA Appendix. See also United States v. Enright, 579 F2d 980, 3 Fed Rules Evid Serv 284 (6th Cir. 1978).
  14. Precision Piping & Instruments, Inc. v. E. I. Du Pont de Nemours & Co., 951 F2d 613, 621 (4th Cir. 1991).
  15. 45 AMJUR TRIALS 1: Determining Preliminary Facts Under Federal Rule 104 § 62. The objection and possible voir dire examination by the opponent.