§ 6.10 HEARINGS OUT OF THE JURY'S PRESENCE: FRE 103(D)

• Jurisdiction: United States

§ 6.10. HEARINGS OUT OF THE JURY'S PRESENCE: FRE 103(d)

As previously noted, the underlying purpose of an exclusionary rule of evidence may be defeated if the jury is exposed to the excluded evidence through an offer of proof or by argument of counsel. Thus, Rule 103(d) requires that discussions involving the admissibility of evidence be held outside the hearing of the jury whenever practicable.⁸³ The trial judge has discretion to require either a side-bar conference or a hearing without the jury.⁸⁴ In addition, evidentiary issues may be raised prior to trial, either at a pretrial conference⁸⁵ or by means of a motion in limine.⁸⁶

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Notes:

^[83] See also Fed. R. Evid. 104(c) (containing a comparable provision).

^[84] See Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1320 (9th Cir. 1986) ("[T]he court excused the jury and held a seven-day hearing on . . . admissibility.").

^[85] Fed. R. Civ. P. 16(c); Fed. R. Crim. P. 17.1. See supra 3.02[B] (discussing pretrial conferences).

^[86] See supra § 6.04 (discussing motions in limine).