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.

(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.

20 Now subsection (e).

(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.

Maine Restyling Note [November 2014]

Current Maine Rule 104 is slightly different from its former Federal

counterpart. Federal Rule 104(b) has been restyled to make it very similar to

Maine Rule 104(b). The language regarding applicability of the rules of

evidence in preliminary determinations has been eliminated from Rule 104(a)

as part of the restyling process to reflect that the proposed new Rule 101 sets

forth all provisions regarding the applicability of the Rules

ent from its former Federal

counterpart. Federal Rule 104(b) has been restyled to make it very similar to

Maine Rule 104(b). The language regarding applicability of the rules of

evidence in preliminary determinations has been eliminated from Rule 104(a)

as part of the restyling process to reflect that the proposed new Rule 101 sets

forth all provisions regarding the applicability of the Rules. Maine Rule 104(a)

previously included a reference to the inapplicability of the Rules on

preliminary questions other than those arising in connection with Motions to

Suppress “and the like.” There is no express reference to Motions to Suppress

in the proposed revised Rule 101 as it was the determination of the Advisory

Committee that Motions to Supress, which generally consider whether

evidence was obtained illegally such as in violation of a person’s constitutional

rights, are not preliminary determinations of admissibility under Rule 104.

Under the revised language and consistent with well-settled Maine law and

practice, the Maine Rules of Evidence will continue to apply during

evidentiary hearings on such motions.

Federal Advisory Committee Note

The language of Rule 104 has been amended as part of the restyling of the

Evidence Rules to make them more easily understood and to make style and

terminology consistent throughout the rules. These changes are intended to

be stylistic only. There is no intent to change any result in any ruling on

evidence admissibility.

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