An interesting thing happened to me recently at a cocktail party. Before you get too excited let me say that this is a PG blog post! And it’s about the law! Anyway, an experienced trial lawyer (perhaps emboldened by drink?) got all up in my grill and asserted: “I know the evidence rules backwards and forwards. Bet you can’t stump me, professor.” A better person would have smiled and walked away. But, alas, that’s not me. I couldn’t resist. In my defense, he had also trotted out this old line: “Those who can’t do, teach.” I let that one go but this was too much! He basically entrapped me into bad behavior, especially with the snarky way he said “professor” (well, that’s my story). So I asked, “Okay, what’s the rule that tells us when the rules apply.” He deflated. Not a lot of people can answer that question. But it comes up every now and then, as it did in a recent Court of Appeals case, State v. Foster. The answer is: Rules 101 and 1101. Rule 101 says that Rule 1101 controls. Rule 1101(a) in turn says that except as provided in subdivision (b) or by statute, the rules apply “to all actions and proceedings in the courts of this State.” Subsection (b) sets out the exceptions. It states that the rules, other than those with respect to privileges, do not apply to: The determination of questions of fact preliminary to admissibility of evidence when the issue is to [...]
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