The doctrine of conditional relevancy, which in Michigan is found in MRE 104(b), is the Rodney Dangerfield of evidence: it gets no respect. It’s rarely mentioned at trial. It’s hardly ever discussed in appellate cases. When scholars take notice of it, most of them condemn it as “nonsensical” and even urge that it “be dismantled at the earliest opportunity.”¹ And yet the doctrine of conditional relevance has been a part of American jurisprudence for nearly 100 years.² It’s an important concept that deserves our attention, if not our respect.

Conditional relevancy is the recognition that sometimes the relevancy of an item of evidence depends on the answer to a preliminary question. The Advisory Committee on Proposed Rules note to FRE 104(b) gives two examples:

[W]hen a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled “conditional relevancy.”

The purpose of MRE 104(b) is not merely to recognize the existence of preliminary questions. Rather, MRE 104(b) takes on what was once a very stormy controversy in Anglo-American jurisprudence: namely, during a jury trial is the judge or the jury responsible for answering these preliminary questions?

To be sure, the doctrine of conditional relevancy applies equally to both jury and nonjury trials, but the historic basis for the doctrine is juries. For decades, dating as far back as the Andrew Jackson administration, legal reformers complained that judges, under the guise of deciding preliminary questions of fact to determine the admissibility of evidence, were deciding cases on the merits, thereby depriving American citizens of their constitutional right to trial by jury.³

WHO ANSWERS PRELIMINARY QUESTIONS OF FACT?

By way of example, the admissibility of the following items of evidence depends on how the preliminary questions are answered. Who answers the following questions: the judge or the jury?

• In deciding on the admissibility of a statement of a co-conspirator against another co-conspirator, the preliminary questions of fact are these: Was there a conspiracy? If so, were the statements made during the course of, and in furtherance of, the conspiracy?⁴
• In deciding on the admissibility of a self-incriminating social media post by the defendant in a criminal case, the preliminary questions of fact are these: Did the defendant write or authorize the incriminating post, or did someone else write it?⁵
• In deciding whether a murder victim’s last statement constituted a “dying declaration” and is thus admissible as an exception to the rule against hearsay, the preliminary questions of fact are these: Did the declarant speak in extremis while truly believing that his death was approaching and was inevitable?⁶

A TALE OF TWO SUBPARTS: MRE 104(A) AND MRE 104(B)

To understand the doctrine of conditional relevancy, MRE 104(b), must be read in conjunction with MRE 104(a). The two subparts read as follows:

(a) Questions of Admissibility Generally. 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, subject to the provisions of subdivision (b). In making its determination it is not bound by the Rules of Evidence except those with respect to privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.⁷

The language of MRE 104(A) and MRE 104(B) were identical to its federal counterpart until the federal rules were restyled in 2011 to make them more easily understood.⁸ In 1993, the Michigan Supreme Court made the rather unremarkable observation that inasmuch as the Michigan Rules are based on the federal ones, federal case law interpreting federal rules are persuasive authority.⁹ Since Congress’ restyling of the federal rules did not change the substance of the law, any federal case interpreting the pre-2011 federal rules remains persuasive, though obviously not binding on Michigan courts.¹⁰

Both the Michigan Supreme Court¹¹ and the United States Supreme Court¹² have done a fairly good job in drawing the distinction between subparts (a) and (b) in MRE 104. But neither court has ever taken the time to explain in any detail when a trial court decides admissibility under subpart (a) and when a trial court decides it under subpart (b). This is too bad, because knowing which subpart applies is critically important for several reasons. First, if the court has to decide a preliminary question of fact under subpart (a), the court and the court alone answers the question. The jury plays no role whatsoever. Moreover, in deciding the question, the Rules of Evidence do not apply (except regarding privilege) so the judge can consider anything in resolving the preliminary question of fact, even inadmissible evidence. And since the formal trappings of a trial are not necessary, the court can decide these questions during a sidebar conference or in chambers.

In sharp contrast, if the preliminary question is decided under subpart (b), the judge plays a very limited “screening” role. In deciding the preliminary question of fact under MRE 104(b), the judge need not be convinced of the answer; the judge’s only determination is whether there is sufficient evidence that a reasonable jury could find, by a preponderance of the evidence, the fulfillment of the condition of fact. The jury must ultimately decide the question of fact and thus, in effect, decide the admissibility of the evidence and, in so doing, the jury can only consider admissible evidence as presented during the formal procedures of a trial.

UNDERSTANDING THE DISTINCTIONS

Learning to distinguish MRE 104(a) and MRE 104(b) begins by examining the single most important theory that motivates the Rules of Evidence: all relevant evidence is admissible unless otherwise excluded by, among other things, the Rules themselves.¹³ Irrelevant evidence is never admissible.¹⁴ Thus, the rules generally exclude relevant evidence.

Broadly speaking, we exclude relevant evidence for policy reasons. For example, the law excludes evidence of subsequent remedial measures so as not to discourage people from taking steps necessary to protect the safety of the public.¹⁵ As for evidentiary privileges, society values certain therapeutic relationships such as attorney-client, doctor-patient, clergy-penitent and married couples. To protect and foster these special relationships, the law excludes from evidence some of the confidential communications that occur within them.¹⁶ To ensure reliability, the law generally excludes hearsay, though this rule is famously subject to dozens of exceptions.¹⁷

Add up all the rules, including their subparts, and there are perhaps hundreds of measures specifically written to keep relevant — and often even essential — information from the jury.

In short, MRE 104(a) addresses policy questions. MRE 104(b) addresses relevance questions. If the preliminary question of fact must be answered only to establish the relevancy of the evidence and not for a policy reason, MRE 104(b) applies, and the question is for the jury.¹⁸

MRE 104(a) recognizes the simple reality that in the short time we have our jurors, we cannot explain the myriad policy reasons behind exclusionary rules. Moreover, even if we could give juries a proper education on those matters, they might disagree with the policy behind the exclusion and ignore them anyway.

Accordingly, the rules leave these exclusions, which for the purpose of this article we will call policy exclusions, exclusively for the judge to enforce. This makes good sense. Imagine a murder case where the defendant confessed to her lawyer but her confession is protected by attorney-client privilege. If a juror learned of the confession and heard in court that the client calmly and under no duress confessed to her lawyer that she indeed murdered the victim, we cannot reasonably expect the jury to consider the utilitarian philosophy behind attorney-client privilege: that the privilege encourages full and frank communication between attorneys and their clients and thereby promotes a broader public interest in the administration of justice.¹⁹ The juror is likely to fail to appreciate or even understand such abstract reasoning and vote guilty based primarily on the defendant’s confession to her lawyer. Even if the juror acknowledged the role of privilege, it is simply asking too much for a juror to disregard the confession. So, the judge excludes the confession altogether. The juror never hears about it.

Likewise, to use an example referencing the Constitution rather than the rules, if the police fail to obtain a search warrant before entering an accused person’s house and finding evidence of a crime, we certainly do not expect jurors to disregard the defendant’s obvious guilt in order to achieve the abstract, higher goal of vindicating the Fourth Amendment and preserving the integrity of the judicial process.²⁰

These policy exclusions — whether based in the Rules of Evidence, federal or state constitutions, or otherwise — are left to the judge to decide under Rule 104(a). The judge alone decides the admissibility of the evidence. If there is a preliminary question of fact that must be answered to determine the admissibility of the evidence, the judge alone answers that question. Under state and federal rules, the trial judge must be personally convinced by a preponderance of the evidence of the answer to the question.²¹ The juries play no role whatsoever. To the extent possible, they are kept in the dark about the evidence.

Deciding preliminary questions under Rule 104(b) is quite different. Evidence decided under Rule 104(b) is not based on a sophisticated or controversial social policy. It is based squarely and exclusively on relevance. Here, the jury can play an important role because your average juror understands the concept of relevance. And even more to the point, the average juror has no trouble disregarding information he decides is irrelevant.

Here is an example. Let’s say a landowner is sued because someone was injured by a dangerous condition on the property. The evidence against the landowner includes a letter written before the accident warning the landowner of the dangerous condition. If the landowner read the letter, it goes to notice and it’s relevant. If he never saw it, the letter is irrelevant.

There is no policy that would exclude the letter. It’s a simple question of relevancy. Whether the landowner read the letter is the preliminary question of fact. If the jury decides that the landowner read the letter, it’ll be instructed to consider the letter when deciding the question of liability. If, in contrast, the jury decides that the landowner never saw the letter, it will have no difficulty disregarding the letter when it deliberates the question of liability. Here, the judge’s role is quite limited. She will only exclude the letter if she finds that no reasonable jury could find by a preponderance of the evidence that the landowner saw the letter. Her personal belief on the issue is irrelevant.

PRELIMINARY QUESTIONS OF FACT ANSWERED

Applying MRE 104 to the hypothetical cases mentioned previously, the answers are clear.

• Assuming that the co-conspirator’s statement is relevant, whether to introduce it against a different co-conspirator is grounded in policy. The judge therefore answers the preliminary questions of fact under Rule 104(a).²²
• Authenticating the Facebook post is purely a question of relevance. If the jury determines that the defendant did not post it, it is irrelevant, and they will disregard it. If the jury decides that he posted it, it is relevant, and the jury will take it into account as they decide his guilt or innocence. Thus, in determining the authenticity of the Facebook post, the judge only plays a limited screening role under MRE 104(b).²³
• Finally, the rule against hearsay, with its potential for excluding highly probative statements, is grounded in policy. In determining the subjective beliefs of the declarant, the judge answers the preliminary questions of fact under Rule 104(a).²⁴

CONCLUSION

To repeat a common complaint made by members of the judiciary against their brothers and sisters in the legislature, MRE 104(b) is not a model of clarity. But over 90 years of (often disparaging) scholarship, the committee notes to the federal rules, along with federal and state case law, leave no doubt of its meaning: Judges, without any input from juries, decide the admissibility of evidence when the answers to preliminary questions of fact involve the policies driving the Rules of Evidence, the federal or state constitutions, or statutes. Judges play a more limited screening role when considering a preliminary question of fact that must be answered only to establish the relevance of the evidence.