Rule 104: Preliminary questions

(a) Questions of Admissibility Generally.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

(b) Relevance Conditioned on Fact.   When the relevance of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition. In the court's discretion, evidence may be admitted subject to subsequent introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of Jury.  Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness and so requests.

(d) Testimony of Accused.  The accused does not by testifying upon a preliminary matter become subject to cross-examination as to other issues in the case.

(e) Weight and Credibility.  This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

[As amended by order entered January 25, 1991, effective July 1, 1991.]

Advisory Commission Comments.

Part (a) governs the fact questions to be resolved by trial courts in deciding whether a sufficient foundation has been laid. For example, the court must decide that the declarant believed death was imminent in order to admit a dying declaration. This preliminary determination can be based on hearsay, because the judge should be able to separate reliable from unreliable proof.

Part (b) allows the court to admit evidence over a relevancy objection on condition that the offering party prove other facts making the evidence relevant. If subsequent proof fails to establish relevancy, the conditionally admitted evidence should be stricken with an appropriate jury instruction; extreme prejudice could result in a mistrial.

Whether preliminary questions are determined outside the jury's presence is discretionary under Part (c), except where a confession is offered or where the accused in a criminal case is a witness and requests a jury-out hearing through counsel.