# D.R.E. 104: Rule 104. Preliminary Questions > Delaware · Court rules · In force URL: https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R104 ## Section - **Citation:** D.R.E. 104 - **Heading:** Rule 104. Preliminary Questions - **Jurisdiction:** Delaware - **Kind:** Court rules - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Delaware Court Rules / Other Rules / Delaware Uniform Rules of Evidence / D.R.E. 104 ## Text (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. ## Nearby sections - [D.R.E. 101 Rule 101. Scope; Definitions](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R101.md) - [D.R.E. 102 Rule 102. Purpose and Construction](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R102.md) - [D.R.E. 103 Rule 103. Rulings on Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R103.md) - [D.R.E. 104 Rule 104. Preliminary Questions](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R104.md) - [D.R.E. 105 Rule 105. Limiting Evidence That Is Not Admissible Against Other](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R105.md) - [D.R.E. 106 Rule 106. Remainder of or Related Writings or Recorded Statements](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R106.md) - [D.R.E. 201 Rule 201. Judicial Notice of Adjudicative Facts](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R201.md) - [D.R.E. 202 Rule 202. Judicial Notice of Law](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R202.md) - [D.R.E. 301 Rule 301. Presumptions in Civil Cases Generally](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R301.md) - [D.R.E. 302 Rule 302. Applicability of State Law in Civil Actions and Proceedings](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R302.md) - [D.R.E. 303 Rule 303. Effect of Presumptions in Criminal Cases](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R303.md) - [D.R.E. 304 Rule 304. Res ipsa loquitur](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R304.md) - [D.R.E. 401 Rule 401. Test for Relevant Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R401.md) - [D.R.E. 402 Rule 402. General Admissibility of Relevant Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R402.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_DE_DRE_R104. 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