Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about

whether a witness is qualified, a privilege exists, or evidence is admissible.

In so deciding, the court is not bound by evidence rules, except those on

privilege.

(b) 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, in its discretion, may

admit the proposed evidence on the condition that the proof be introduced

later.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court

must conduct any hearing on a preliminary question so that the jury cannot

hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) 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.

(e) Evidence Relevant to Weight and Credibility. This Rule does not limit

a party’s right to introduce before the jury evidence that is relevant to the

weight or credibility of other evidence.

Comment

See Rule 1101 and Rule 601.

Rule 104(a) tracks F.R.E. 104(a). It applies to preliminary hearings (called

preliminary examination in F.R.E) in criminal cases as well as to civil cases.

See Rule 1101(b) as to applicability of these rules to preliminary hearings in

criminal cases.

Rule 104(b) largely tracks F.R.E. 104(b), except for the addition of the words

“in its discretion” in the second sentence.

Rule 104(c) tracks F.R.E. 104(c).

Rule 104(d) tracks F.R.E. 104(d). The Committee recognized that the rule, as

drafted, does not address itself to the question of subsequent use of testimony

given by an accused at a preliminary hearing. The Committee decided to leave

the resolution of this problem to developing case law. See Harris v. New York,

401 U.S. 222, 91 S

ion” in the second sentence.

Rule 104(c) tracks F.R.E. 104(c).

Rule 104(d) tracks F.R.E. 104(d). The Committee recognized that the rule, as

drafted, does not address itself to the question of subsequent use of testimony

given by an accused at a preliminary hearing. The Committee decided to leave

the resolution of this problem to developing case law. See Harris v. New York,

401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971); Walder v. United States,

347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); Simmons v. United States,

390 U.S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); McCormick, § 178, pp.

416-418.

Rule 104(e) tracks F.R.E. 104(e).

See Rule 801(d)(2)(E) as to statements made by co-conspirators.

For prior Delaware cases illustrating the law covered by Rule 104(a), see

Kelluem v. State, Del. Supr., 396 A.2d 166 (1978); State v. Brown, Del. Oyer

& Term., 36 A. 458 (1896).

D.R.E. 104 was amended in 2017 in response to the 2011 restyling of the

Federal Rules of Evidence. The amendment is intended to be stylistic only.

The pre-2017 “Comment” to D.R.E. 104 was revised only as necessary to

reflect the 2017 amendments. There is no intent to change any result in

ruling on evidence admissibility.