specially concurring:
Although I think the majority crafts, in its well-written opinion, a tolerable solution to the difficult evidentiary problems posed by this appeal, I share many of the concerns expressed by Judge Tjoflat in his special concurrence — especially those regarding the trial judge’s control over the order of proof — and prefer the course which he suggests.
Among my difficulties with the majority opinion is its description of its construction of Rule 104 as “the orthodox position.” I do not think a division of preliminary questions about the admissibility of evidence between judge and jury orthodox at all. Nor do I ascertain in the text of Rule 104 any disposition to depart from the received practice by assigning decision of any such matters to the jury.1
. Because I cannot improve upon them, I offer the words of Dean McCormick, both for the proposition that decision of all such matters by the trial judge is orthodox and as explaining why it is preferable:
*584“It is orthodox that all questions affecting the admissibility of evidence belong to the province of the trial judge. It follows that, when the admissibility of a given piece of evidence depends upon some preliminary question of fact, the existence or nonexistence of that fact is to be determined by the judge. (Citing Wigmore.) These include such facts as: Whether a confession was voluntarily made, whether a witness has qualified as an expert, whether an instrument is admissible as an ancient document, whether sufficient foundation has been laid for the admission of secondary evidence of the contents of a written instrument, whether a conspiracy has been sufficiently shown to warrant the introduction of the statements of an alleged conspirator,
“Of course where the evidence as to the existence of the preliminary fact is undisputed and such as to admit of only one finding, no difficulty arises. But where the evidence is disputed and is such that a reasonable man might find either way, a number of decisions have departed from the orthodox rule. They leave the question of admissibility more or less to the jury. For example, in Massachusetts if the judge finds that the fact exists, he must admit the evidence and charge the jury to exclude it unless they also find that the preliminary fact exists. .
“ . . . Although this heterodox practice may be due to a fortuitous combination of circumstances, arguments in its favor are not lacking. One of the most common is that adherence to the orthodox rule results frequently in the judge entirely disposing of the case. But the answer to this is: First, that there is no rule requiring that all relevant evidence be submitted to the jury, and, second, there is nothing inherently wrong with judge-made decisions.
“When the preliminary fact coincides with an ultimate fact on the merits it has been argued that since the jury must alternately pass upon the existence of the fact it makes no difference whether they do it as an incidental question of admissibility or as a final ruling on the merits. And it is said that the jury may find differently from the judge. But this is no objection. There is no requirement that the findings of the judge and jury be consistent, even if made for the same purpose. A fortiori where as here the purposes are very different. The judge passes on the question only for the purpose of deciding whether the evidence shall go to the jury. If admitted, the jury then pass upon the same question for the purpose of determining the credibility and sufficiency of the evidence.
“The sound arguments unquestionably favor the orthodox rule. In the first place, it is the simple one. To leave questions of admissibility to the jury merely ‘cumbers the jury with legal definitions and offers an additional opportunity for quibbling over the tenor of the instructions.’ Moreover, if these questions are left with the trial judge a greater degree of consistency will be attained. Certainly this element of predictability is desirable. Furthermore, since the very purpose of the exclusionary rules is to keep from the jury evidence which may prejudice them in their decision, this protection is better guaranteed by permitting the judge to entirely exclude objectionable evidence. Finally, unless we are prepared to scrap the exclusionary rules, it would seem that the orthodox rule must prevail, for all arguments in favor of the heterodox practice strike at the very foundation of the exclusionary rules.”
1 McCormick and Ray, Texas Law of Evidence 2-5 (2d ed. 1956).
This simple rule seems to me best: what goes into the record is the responsibility of the judge; what (of this) is credited, that of the jury. I therefore concur in the result only.
. I recognize, as I must, that the Committee Notes do contain expressions supportive of the majority position. One can only wonder, however, why no faintest nod in such a direction is apparent in the rule itself,