Judge vs Jury on Preliminary Determinations of Admissibility

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction/;

"Can you shed light on questions in evidence where it is up to the jury to decide certain things and up to the judge to instruct the jury etc."

Response:

On the MBE, these questions revolve around the preliminary determination as to whether evidence is admissible. In other words, sometimes the existence of a preliminary fact is a condition to the admissibility of evidence, and a question is raised as to whether a judge or jury should make a determination as to that fact.

As a general rule, the judge decides on facts that involve the competency of evidence while the jury decides on facts that involve the relevancy of evidence.

More specifically, the jury decides matters such as the authenticity of a document, whether a witness had personal knowledge of an event to which the witness testified, as well as the credibility of any witness that has testified.

The judge, on the other hand, decides on matters such as the requirements of hearsay exceptions, the existence of a privilege, whether an expert is an expert for the purposes of expert testimony, etc. This is not an exhaustive list, but, generally, judges decide on matters of law, while juries decide on matters of fact.

As an additional matter, at least in respect to the MBE (as opposed to state-specific rules) when the judge is making these preliminary determinations of admissibility, the judge can consider any relevant evidence, even if that evidence would not be admissible under the Federal Rules for other purposes.