Rule 5.104. Preliminary questions

a. In general. Subject to rule 5.104(b), 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 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.

Testimony given by a defendant in a criminal case upon a preliminary question is not admissible

against the defendant on the issue of guilt but may be used for impeachment if inconsistent with

defendant’s testimony at trial.

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.