In trial for bank robbery, trial court conditionally admitted under FRE 104(b) a letter by the defendant concerning his DUI conviction as rebuttal to his defense that he did not drink alcohol and therefore could not have been the perpetrator whom witness claimed had “reeked of alcohol”; the letter was properly admitted on condition that the government offer proof the conviction was alcohol-related and the government withdrew it once it learned that the DUI was methamphetamine-related, in United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) (No. 00-4191)
The application of FRE 104 regarding conditional admissibility of evidence is rather straightforward. In relevant part, the rule provides that if “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 that condition.” FRE 104(b). The rule ensures that the judge has the discretion to reject conditionally admitted evidence if ultimately its proponent fails to lay a proper “foundation.”
In a useful case, the Tenth Circuit provided a rare appellate court discussion of the application of FRE 104(b). Oliver involved a defendant convicted of bank robbery. During his trial for robbing the First Security Bank in Utah, a teller from the victim bank identified Oliver as the perpetrator and also offered “that the robber ‘reeked of alcohol.’” Oliver, 278 F.3d at 1042. As part of his defense, defendant Oliver attempted to discredit the teller’s identification of him “by introducing evidence … that he did not drink.” Oliver, 278 F.3d at 1042. The government responded to this attempt to undermine the teller’s testimony by introducing:
“a letter from Oliver that indicated that he had received a DUI conviction. The United States also elicited foundational testimony from the letter’s recipient. No testimony as to the letter’s contents was entered. The district court admitted the letter into evidence over Oliver’s objection on the conditions that Oliver actually introduce testimony that he did not drink and that the United States prove that the DUI was alcohol-related. The first condition was satisfied. The United States eventually discovered, however, that the DUI was methamphetamine-related, rather than alcohol-related. The United States withdrew the letter, which was never published to the jury. Later, during its deliberations, the jury sent a note to the court requesting to see the letter. The district court replied with a one-word response: ‘No.’”
Oliver, 278 F.3d at 1042. After his conviction, on appeal the defendant alleged that the court’s conditional admission of the DUI letter violated the FRE.
In affirming his conviction, the circuit rejected this contention, explaining that the trial judge properly applied FRE 104(b):
“The district court here admitted the letter regarding Oliver’s DUI on the condition that the government offer proof that it was alcohol-related. When it became clear that the DUI was the result of driving under the influence of methamphetamine, rather than alcohol, the evidence was withdrawn. It was never published to the jury. The district court admitted the evidence conditionally as required by Rule 104(b), and the prosecution withdrew the evidence when it could not satisfy the condition. The court did not abuse its discretion.
“Nor is the fact that the jury asked to see a copy of the letter of any concern. The jury could not improperly consider or focus upon a letter that it never saw. Oliver’s suggestion that the jury was entitled to a more expansive explanation from the judge than a one-word explanation is puzzling at best. Such an explanation would only have drawn attention to the withdrawn evidence and might have raised suspicions about its contents. The district court did not err by failing to elaborate on the reason for the letter’s withdrawal.”
Oliver, 278 F.3d at 1042.
Oliver presents an example of evidence conditionally admitted and later rejected from the record because of the proponent’s failure to satisfy the conditions for admission. A similar application of FRE 104(b) occurs when a judge refuses to admit evidence conditionally in the belief that the proponent of the conditional evidence could not at the time of its admission or at a future date provide sufficient proof of other facts that would satisfy the condition. See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 767-68 (9th Cir. 1995) (Affirming exclusion of defense proffer of evidence of absence of a public record of births when he “failed to show as a preliminary matter under Fed. R. Evid. 104(b) that the events necessarily occurred in one of the four Guadalajara municipalities.”; the circuit notes the condition was unlikely to be satisfied because “[t]here are 2,800 other municipalities in Mexico where the marriage and birth could have occurred. Furthermore, if only a religious marriage occurs or if parents do not register a child after birth, there may be no records at all. Finally, there was no legal requirement for prior marriages to be recorded on a death certificate, even if both were registered within the same municipality.”).
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