TITLE ONE — GENERAL PROVISIONS
Rule 104. Preliminary Questions
In General. The court must decide any preliminary question about whether a witness is qualified or competent, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by the law of evidence, except that of privilege.
Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence, de bene, on the condition that the proof be introduced later. Evidence so admitted is subject to a motion to strike if that proof is not forthcoming.
Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case, except issues that affect the witness’s credibility.
Evidence Relevant to Weight and Credibility. The law stated in this section does not limit a party’s right to introduce before a jury evidence that is relevant to the weight or credibility of other evidence.
Burden and Standard of Proof.
The proponent of evidence bears the burden upon a preliminary question of its admissibility.
Except as Rule 104(6)(c) and Rule 104(11) provide, the court shall decide a preliminary question by a preponderance of the evidence.
Where the question is one of conditional relevance under Rule 104(2), or of authentication under Rule 901, the court admits the evidence upon proof sufficient to support a finding, and the weight of the connecting or authenticating proof is for the trier of fact.
Where a statute or these rules assign the burden or fix a different standard, that assignment or standard governs.
Materials the Court May Consider. Upon a preliminary question other than one of privilege, the court may consider an affidavit, a declaration made under the penalties of perjury, a deposition, a stipulation, an offer of proof, a recording, a capture, a log, an in-game record, and the statement of counsel, whether or not the material would be admissible at trial. The court shall not consider matter protected by Title Five over the claim of the holder.
Conducting the Hearing. A hearing upon a preliminary question shall be conducted in the proceeding communications of the case, except as Rule 103(14) or Rule 104(3) requires otherwise. The court may:
hear the question in advance of trial upon a motion in limine under Rule 103(6);
hear the question upon written submissions filed through the electronic filing system, fixing the time for each submission in hours;
take testimony upon the question; and
fix and state the order in which the question and the evidence will be taken.
Voir Dire of a Witness or an Exhibit. Before a witness testifies to a matter, or before an exhibit is admitted, the opponent may request leave to conduct voir dire directed to the qualification of the witness, the foundation for the testimony, or the admissibility of the exhibit. The court in its discretion may grant, limit, or deny the request. Voir dire is confined to the preliminary question and shall be conducted outside the hearing of a jury where the subject is one described in Rule 104(3). Voir dire does not constitute cross-examination and does not exhaust a party’s right to cross-examine.
Conditional (De Bene) Admission; Procedure. Where the court admits evidence de bene:
the court shall state on the record the condition, the party who bears it, and the time within which the connecting proof must be introduced, stated in hours or by reference to a stage of the proceeding;
the proponent shall notify the court on the record when the condition has been satisfied;
upon the failure of the condition, the opponent may move to strike, and the court shall strike the evidence and, in a jury trial, instruct the jury to disregard it; and
the court may on its own strike evidence admitted de bene upon the failure of the condition, whether or not a motion is made.
Voluntariness of a Defendant’s Statement. Where the admissibility of a defendant’s statement is contested on the ground that it was not voluntary:
the court shall conduct a hearing outside the hearing of a jury, as Rule 104(3)(a) requires;
the State bears the burden of proving voluntariness beyond a reasonable doubt before the statement may be admitted; and
where the statement is admitted and a jury sits, the court shall instruct the jury that it may consider the statement only if it independently finds the statement to have been made voluntarily, and, in a proceeding in which no jury sits, the court shall so find on the record.
Findings. Upon deciding a preliminary question the court shall state on the record its ruling and, where the ruling rests upon a disputed fact, the fact found. The court’s finding upon a preliminary question is not evidence, shall not be disclosed to the jury, and does not bind the trier of fact upon the weight or credibility of the evidence admitted.
Reconsideration. The court may reconsider a ruling upon a preliminary question at any time before the close of the evidence, upon motion or on its own, where the evidence at trial differs materially from that upon which the ruling was made.