irrelevant evidence if it finds the fact not to be true. Therefore, the judge can answer such questions under a lower 104(b) standard. FRE 104(a) FRE 104(b) Judge is restrictive gatekeeper Judge is permissive gatekeeper Preponderance standard (more likely Sufficiency standard (lower; sufficient than not) to support a finding) Considers all evidence (except Considers whether jury could privilege) reasonably believe fact to be true Assesses credibility (because judge is Credibility not considered the fact finder for the issue) Most preliminary questions of Questions of conditional relevance, admissibility, including: including: Qualification of witness as expert Personal knowledge of witness Existence of privilege under FRE 602 Admissibility of hearsay Authentication under FRE 901 Habit Prior acts under FRE 404 & 413-415 Relevance FRE 402 Relevant evidence is admissible unless any of the following provides otherwise: U.S. Constitution Federal statute FRE Other rules prescribed by the Supreme Court Irrelevant evidence is not admissible FRE 401 Evidence is relevant if both: It has any tendency to make some fact more or less probable than it would be without the evidence Any tendency is a low standard: relevant does not mean sufficient, alone, to prove a fact of consequence
irrelevant evidence if it finds the fact not to be true. Therefore, the judge can answer such questions under a lower 104(b) standard. FRE 104(a) FRE 104(b) Judge is restrictive gatekeeper Judge is permissive gatekeeper Preponderance standard (more likely than not) Sufficiency standard (lower; sufficient to support a finding) Considers all evidence (except privilege) Considers whether jury could reasonably believe fact to be true Assesses credibility (because judge is the fact finder for the issue) Credibility not considered Most preliminary questions of admissibility, including: Qualification of witness as expert Existence of privilege Admissibility of hearsay Habit Questions of conditional relevance, including: Personal knowledge of witness under FRE 602 Authentication under FRE 901 Prior acts under FRE 404 & 413-415 Relevance FRE 402 Relevant evidence is admissible unless any of the following provides otherwise: U.S. Constitution Federal statute FRE Other rules prescribed by the Supreme Court Irrelevant evidence is not admissible FRE 401 Evidence is relevant if both: It has any tendency to make some fact more or less probable than it would be without the evidence Any tendency is a low standard: relevant does not mean sufficient, alone, to prove a fact of consequence