Look What You Made Me Do

While many of my friends were attending Taylor Swift’s “The Eras Tour,” I was at a trial in New Jersey. As I watched video clips of these friends, doused in glitter and singing at the top of their lungs while I burned the midnight oil, I couldn’t help but resonate with the lyrics to one song in particular: “Look What You Made Me Do.” What could this revenge song have to do with a civil trial you ask? Late-night preparation and arguments over certain evidentiary items that the other side would not agree to, despite the apparent irrelevance (in my humble opinion) of such evidence in the case.

Evidentiary fights are part of any legal proceeding, particularly at trial. But there are multiple mechanisms we can use in the months and weeks leading up to trial to address many of these issues, including motions in limine, Daubert hearings, and oral arguments to address exhibits or other evidentiary objections. One mechanism that may be overlooked in civil trials is requesting a specific Rule 104 hearing.

Rule 104 involves preliminary questions:

• 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.
• 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.
• 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:
  • the hearing involves the admissibility of a confession;
  • a defendant in a criminal case is a witness and so requests; or
  • justice so requires.
• Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
• 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.

Requests for 104 hearings are often seen in the criminal context, commonly with respect to confessions or statements of co-conspirators. But why not use them more in civil cases, particularly in situations that do not fit squarely within other common mechanisms or where motions in limine may be limited? Particularly if it’s an evidentiary issue of importance, why not take the chance? At a minimum, it provides an opportunity to educate the court about the issues in the case. And who knows, you just may succeed and find yourself better able to (in the words of Taylor Swift) “Breathe.”