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Importance Of Preparing For Those Evidentiary Questions Which Are Governed By EC 403.
EC 403 provides substantial rights which are extremely useful to criminal defendants. In this regard, EC 403 requires the court to make a finding concerning certain foundational facts before some types of evidence may be admitted. Moreover, and perhaps more importantly, EC 403 also allows a party to obtain an instruction to the jury that it may disregard the evidence if it finds that a sufficient foundation has not been laid. Thus, as will be explained below, counsel should always consider the applicability of EC 403 in preparing for trial.
By its express terms, EC 403(a) provides that “proffered evidence is inadmissible” unless the court makes preliminary findings of sufficient foundational facts in the following areas: (1) relevancy; (2) personal knowledge of the witness; (3) the authenticity of a writing; and (4) whether or not a hearsay statement is authentic (i.e., actually made by the person alleged to have made it.) Thus, prior to trial, counsel should determine whether any of the government’s evidence requires a foundational showing in the described areas. If so, the defense can request the court to determine the admissibility of the evidence in a hearing outside the presence of the jury. (EC 402(b).) In this way, counsel can ensure that the jury is not tainted by evidence which the court excludes for lack of foundation.
Assuming that the court allows the admission of the government’s evidence, EC 403 nonetheless authorizes the jury to conclude that a sufficient foundation does not exist. Thus, upon the defendant’s request, the court is required to “instruct the jury to determine whether the preliminary fact does exist.” (EC 403(c)(1).) Given this provision, counsel should prepare instructions prior to trial which will lay the framework for a closing argument which can persuade the jury to disregard portions of the government’s case. (See FORECITE F 2.001a for a discussion of subject areas upon which an instruction might be requested.)