Presentation of evidence - Roles of judge and jury

Learning Outcomes

This article explains how the Federal Rules of Evidence allocate authority between judge and jury in evidentiary issues, including:

• Distinguishing questions of law, admissibility, and preliminary facts reserved for the judge from questions of historical fact, credibility, and weight reserved for the jury
• Applying FRE 104(a) and 104(b) to determine when the judge or the jury decides preliminary facts and conditional relevance
• Recognizing when preliminary hearings must occur outside the jury’s presence, especially for confessions and other highly prejudicial matters
• Identifying how judicial notice operates, and how its effect differs in civil and criminal cases
• Evaluating how burdens of production and persuasion function at trial and how presumptions shift responsibilities between the parties and the court
• Using objections, motions in limine, and offers of proof to challenge evidentiary rulings and preserve issues for appeal
• Determining when limiting instructions are required, what they must accomplish, and how they maintain the proper judge–jury division
• Applying the rule of completeness to prevent misleading use of partial writings or recordings and to understand which decisions belong to the judge and which to the jury
• Analyzing MBE-style fact patterns to identify who decides each evidentiary issue and to avoid confusing admissibility with the weight of evidence

MBE Syllabus

For the MBE, you are required to understand how the Federal Rules of Evidence allocate responsibilities between judge and jury in the presentation and evaluation of evidence, with a focus on the following syllabus points:

• The judge’s authority over questions of law, admissibility, and preliminary fact questions (FRE 104(a))
• The jury’s exclusive control over fact-finding, credibility, and weight of evidence
• Conditional relevance and the division of labor under FRE 104(b)
• Preliminary hearings outside the jury’s presence in criminal cases
• Objections, offers of proof, preservation of error, and the plain error rule
• Judicial notice and its different effects in civil and criminal cases
• Limited admissibility, limiting instructions (FRE 105), and the rule of completeness (FRE 106)
• Burdens of production and persuasion, and the operation of presumptions

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Who decides whether a piece of evidence is admissible at trial?
   1. The jury
   2. The judge
   3. The parties
   4. The witness
2. If the relevance of evidence depends on the existence of a fact, who ultimately decides whether that fact exists?
   1. The judge, always
   2. The jury, if there is sufficient evidence of the fact
   3. The parties
   4. The clerk
3. Who determines the credibility of a witness and the weight to give the witness’s testimony in a jury trial?
   1. The judge
   2. The jury
   3. The parties
   4. The attorneys
4. When a party objects that offered evidence is inadmissible, what must the judge do to preserve the proper division of roles?
   1. Rule on the objection
   2. Submit the objection to the jury
   3. Ignore the objection
   4. Let the parties decide by agreement

Introduction

In every trial, the law carefully separates the functions of judge and jury. The judge serves as gatekeeper, applying the Federal Rules of Evidence (FRE) to decide what the jury may hear and under what conditions. The jury is the fact-finder: it decides what actually happened, which witnesses to believe, and how persuasive each item of admitted evidence is.

On the MBE, many Evidence questions turn on this allocation of responsibility. You must be able to spot whether an issue is:

• A question of law or admissibility for the judge, or
• A question of fact, weight, or credibility for the jury

Key Term: Admissibility
The legal determination by the judge that evidence may (or may not) be presented to the fact-finder under the rules of evidence.

Key Term: Credibility
The fact-finder’s assessment of whether a witness or declarant is believable and accurate.

The Judge’s Role: Questions of Law and Admissibility

The judge decides all questions of law. In the evidence context, that includes:

• Whether a rule of exclusion applies (hearsay, privilege, Rule 403, character evidence rules, etc.)
• Whether a privilege exists and applies
• Whether a witness is competent
• Whether a particular hearsay exception or exclusion is satisfied
• Whether evidence should be excluded as unfairly prejudicial, misleading, or confusing under Rule 403

These are treated as questions of law, even though they often require the judge to resolve some subsidiary factual issues.

Key Term: Preliminary Fact
A fact that must be established as a prerequisite before particular evidence is admissible (for example, that a statement was made, that a witness has personal knowledge, or that an out‑of‑court declarant was an agent).

Under FRE 104(a), the judge decides preliminary factual questions that go to admissibility—such as whether a declarant was an agent, whether a confession was voluntary, or whether a hearsay declarant is unavailable. In making these determinations, the judge is not bound by the rules of evidence (except privilege rules) and may consider otherwise inadmissible material.

Conditional Relevance and the Jury’s Role in Preliminary Facts

Not every preliminary fact is decided by the judge. When a piece of evidence is only relevant if some other fact is true, FRE 104(b) treats this as a problem of conditional relevance.

Key Term: Conditional Relevance
A situation where evidence is relevant only if some additional fact exists (e.g., a gun is relevant only if it can be linked to the defendant).

In conditional relevance situations:

• The judge asks: “Is there enough evidence for a reasonable jury to find the conditional fact?”
• If yes, the evidence is admitted conditionally
• The jury then decides whether the conditional fact actually exists; if the jury does not find the fact, it should give the evidence no weight
• If the promised predicate never materializes, the judge may strike the evidence and instruct the jury to disregard it

Examples of conditional relevance:

• A document is relevant to prove a contract only if the jury finds that the signature is genuine
• A prior statement is relevant as a party admission only if the declarant is found to be the party’s agent

Preliminary Hearings Outside the Jury’s Presence

Some admissibility questions are so sensitive that they must be resolved outside the jury’s hearing.

Key Term: Preliminary Hearing
A hearing, usually conducted outside the jury’s presence, in which the judge decides preliminary questions about admissibility.

Under FRE 104(c), the court must hold a hearing outside the presence of the jury when:

• The issue is the admissibility of a confession in a criminal trial
• The defendant in a criminal case testifies on a preliminary matter and requests that the jury not be present
• Justice otherwise requires (for example, when hearing the evidence in front of the jury would be unfairly prejudicial)

This protects the jury from hearing potentially inadmissible—and highly prejudicial—material.

The Jury’s Role: Fact-Finding, Weight, and Credibility

Once evidence is admitted, responsibility shifts to the jury (in a jury trial).

Key Term: Weight of Evidence
The jury’s assessment of the persuasiveness and importance of admitted evidence in deciding the facts.

The jury decides:

• What facts are proven by the admitted evidence
• How much weight to give each piece of evidence
• Which witnesses are credible and which are not
• How to resolve conflicts between witnesses

The jury may believe all, part, or none of any witness’s testimony. The judge may instruct the jury on factors relevant to credibility (demeanor, interest in the case, bias, prior inconsistent statements, etc.), but the ultimate determination belongs to the jury.

In a bench trial, by contrast, the judge is both gatekeeper and fact-finder. The same admissibility rules apply, but the judge also determines weight and credibility instead of a jury.

Exam Warning

Do not confuse admissibility with weight. The judge decides whether evidence is admissible; the jury decides what, if anything, the evidence proves and how strongly it supports a factual conclusion.

Judicial Notice: Judge-Decided Facts with Different Effects

Key Term: Judicial Notice
The judge’s acceptance of a fact as true without requiring formal proof, because it is not subject to reasonable dispute.

Judicial notice applies to adjudicative facts (case-specific facts) that are:

• Generally known within the court’s territorial jurisdiction, or
• Capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned (e.g., calendar dates, geographic locations)

When a court takes judicial notice:

• In a civil case, the court instructs the jury that it must accept the noticed fact as established
• In a criminal case, the court instructs that the jury may, but need not, accept the noticed fact

Thus, the judge’s decision to take judicial notice can effectively remove a factual issue from the jury in civil cases, but not in criminal cases.

Objections, Offers of Proof, and Preserving Error

To challenge an evidentiary ruling on appeal, two conditions must be met:

• A substantial right of the party must have been affected, and
• The party must have made the trial court aware of the problem and given it a chance to correct the error

This is done through objections and offers of proof.

Key Term: Offer of Proof
A statement on the record, outside the jury’s presence, explaining what excluded evidence would have shown and why it should have been admitted.

• If the court admits evidence that should have been excluded, the opposing party must make a timely, specific objection explaining the legal basis
• If the court excludes evidence that should have been admitted, the proponent must make an offer of proof to preserve the issue for appeal (unless the substance of the evidence is obvious from the context)

Key Term: Plain Error
An obvious error affecting substantial rights that an appellate court may correct even though no objection or offer of proof was made at trial.

Under the plain error rule, an appellate court may, in rare cases, reverse despite the absence of an objection or offer of proof if necessary to prevent a miscarriage of justice. On MBE questions, however, assume that failure to object or to make an offer of proof generally waives the issue.

Limiting Instructions and the Rule of Completeness

Evidence is often admissible for one purpose but not another, or against one party but not another.

Key Term: Limiting Instruction
A direction from the judge telling the jury that certain evidence may be considered only for a specified, proper purpose and not for other, improper purposes.

Under FRE 105:

• If evidence is admissible for a limited purpose (e.g., impeachment but not substantive proof), the judge must, upon request, instruct the jury to consider it only for that purpose
• If no party requests a limiting instruction, the court is not required to give one, and the failure to request one usually waives any complaint on appeal

Examples:

• A prior conviction admitted only to impeach a testifying defendant
• A prior bad act admitted under MIMIC (motive, intent, absence of mistake, identity, common plan) but not to show propensity

Key Term: Rule of Completeness
A rule allowing an adverse party to require the introduction of other parts of a writing or recorded statement that are necessary to understand the part already introduced.

Under FRE 106, if one party introduces part of a written or recorded statement, the opposing party may immediately introduce any other part that ought to be considered at the same time to avoid misleading the jury—even if the additional portions would otherwise be inadmissible hearsay. The judge decides whether additional parts are necessary to place the first part in context; the jury decides what weight to give the entire statement.

Burdens of Proof and Presumptions: Judge vs. Jury

Key Term: Burden of Production
A party’s obligation to produce enough evidence on an issue to get it to the jury; failure results in judgment as a matter of law against that party on that issue.

Key Term: Burden of Persuasion
A party’s obligation to convince the fact-finder of a fact to the required standard (e.g., preponderance of the evidence in civil cases, beyond a reasonable doubt in criminal cases).

The judge and jury interact closely with burdens and presumptions:

• The judge enforces the burden of production: if a party has not produced any evidence on a required element by the close of its case, the judge may grant judgment as a matter of law
• The jury applies the burden of persuasion: weighing the evidence to decide whether the standard is met

Key Term: Presumption
A rule that requires the fact-finder to draw a particular conclusion from a proven fact unless and until the opposing party produces evidence to rebut that conclusion.

Commonly tested:

• Rebuttable presumptions (e.g., properly addressed and mailed letters are presumed delivered) shift the burden of production to the opponent; once counter‑evidence is introduced, the “bubble bursts” and the presumption disappears, leaving the jury to decide the issue on all the evidence
• Conclusive (irrebuttable) presumptions are really rules of law for the judge; the jury is simply instructed to accept the conclusion

The judge determines whether the presumption applies and whether it has been rebutted as a matter of law; the jury decides the actual facts.

Worked Example 1.1

During a criminal trial, the prosecution seeks to introduce a confession. The defense objects, claiming the confession was involuntary and obtained in violation of the defendant’s rights. Who decides if the confession is admissible, and who decides whether the confession is credible?

Answer:
The judge decides admissibility: the court must hold a preliminary hearing (outside the jury’s presence in a criminal case) and determine, under FRE 104(a), whether the confession was voluntary and obtained in compliance with constitutional requirements. If the judge finds the confession admissible, the jury (as fact-finder) decides how much weight to give the confession and whether it is credible, along with the other evidence.

Worked Example 1.2

A party offers a contract into evidence. The opposing party claims the signature is forged. Who determines if there is sufficient basis to admit the document, and who decides whether the contract is genuine and proves the existence of an agreement?

Answer:
The judge decides whether there is enough evidence of authenticity—a preliminary fact affecting admissibility. If there is sufficient evidence for a reasonable jury to find that the document is genuine, the judge admits it (often conditionally). The jury then decides whether the signature is actually authentic, whether the contract is genuine, and whether it proves an agreement between the parties.

Worked Example 1.3

In a robbery trial, the prosecution offers a handgun found in a park. The theory is that it is the defendant’s gun used in the crime. Its relevance depends on proving that the defendant owned or possessed the gun. The defense objects: “There is no evidence this gun has anything to do with my client.”

Answer:
This is a conditional relevance problem under FRE 104(b). The judge asks whether the prosecution has (or will have) enough evidence from which a reasonable jury could conclude that the defendant owned or possessed the gun (e.g., testimony that the defendant regularly carried a similar gun and was seen discarding something in that area). If so, the judge may admit the gun conditionally. The jury then decides whether it believes the defendant in fact owned or used the gun; if not, it should give the gun no weight.

Worked Example 1.4

In a fraud case, the plaintiff introduces part of an email from the defendant: “I’ll make sure the numbers look good.” The defense wants to introduce the rest of the email, which continues: “—but only if the auditors approve the adjustments.” The plaintiff objects that the remainder is hearsay.

Answer:
Under the rule of completeness (FRE 106), if fairness requires that the remainder be considered with the part already introduced, the judge may allow the defense to introduce the additional language immediately, even if it might otherwise be hearsay. The jury then evaluates the entire email, deciding what it shows about the defendant’s intent.

Worked Example 1.5

At trial, a key issue is whether a particular day in a given year fell on a Friday. The judge takes judicial notice of the date from an official calendar. In a civil case, what is the effect on the jury? Would the effect be different in a criminal case?

Answer:
When the judge takes judicial notice of an adjudicative fact, the jury in a civil case must accept the noticed fact as conclusively established—it may not find otherwise. In a criminal case, the jury may, but need not, accept the noticed fact; it remains free to conclude otherwise, although in practice it almost always follows the judge’s notice.

Exam Warning​

On the MBE, when a question asks “who decides” about credibility or the weight of a piece of evidence, the answer is the jury (unless it is a bench trial). When the question asks “who decides” whether a rule of evidence is satisfied, the answer is the judge.

Revision Tip

When reading Evidence questions, first ask: “Is this about whether evidence gets in (judge) or about what the evidence proves (jury)?” That simple step often points to the correct answer.

Key Point Checklist

This article has covered the following key knowledge points:

• The judge decides all questions of law, including admissibility of evidence and most preliminary fact questions affecting admissibility (FRE 104(a)).
• When relevance turns on a conditional fact, the judge screens for sufficiency, but the jury decides whether the fact exists (FRE 104(b)).
• Certain preliminary matters—especially the admissibility of a confession in a criminal case—must be heard outside the jury’s presence.
• Once evidence is admitted, the jury decides facts, credibility, and the weight of each piece of evidence; the judge does not decide ultimate facts in a jury trial.
• Judicial notice allows the judge to establish undisputed adjudicative facts; in civil cases the jury must accept them, in criminal cases it may accept them.
• To preserve evidentiary issues for appeal, parties must make timely, specific objections and, when evidence is excluded, offers of proof; otherwise, only plain error may justify reversal.
• Evidence admissible for a limited purpose requires a limiting instruction upon request; failure to request usually waives the limitation.
• The rule of completeness allows an adverse party to require introduction of related parts of a writing or recording to avoid misleading the jury.
• The judge enforces burdens of production and applies presumptions; the jury applies the burden of persuasion to decide whether parties have met their proof standards.
• Rebuttable presumptions shift the burden of production but not the burden of persuasion and typically “burst” once adequate counter‑evidence is introduced.

Key Terms and Concepts

• Admissibility
• Preliminary Fact
• Conditional Relevance
• Preliminary Hearing
• Weight of Evidence
• Credibility
• Judicial Notice
• Offer of Proof
• Plain Error
• Limiting Instruction
• Rule of Completeness
• Burden of Production
• Burden of Persuasion
• Presumption