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 may admit the proposed evidence on the

condition that the proof be introduced later. If the proof is not introduced, the

objector may request an instruction directing the jury to disregard the evidence.

This request is not prerequisite to a motion for mistrial.

(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.

(f) Punitive Damages. If the court allows the jury to consider punitive damages,

evidence of net worth may not be offered until the close of evidence.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

Advisory Committee Note

(f) Punitive Damages. If the court allows the jury to consider punitive damages,

evidence of net worth may not be offered until the close of evidence.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

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. The provisions regarding punitive

damages – formerly subsumed in subdivision (a) – now appear as separate

subdivision (f). These changes are intended to be stylistic only. There is no intent

to change any result in any ruling on evidence admissibility.

(a) Subdivision (a) recognizes that a significant amount of a trial judge’s

responsibility is to make preliminary rulings. For instance, the judge, in cases

where there is a question of the witness’s competency, must first make a

determination that the witness is competent before the witness is allowed to testify

concerning the issue at bar. Other preliminary questions might concern privileges,

the exclusionary rule, the voluntariness of confessions, and qualifications of

experts. In House v. State, 445 So. 2d 815 (Miss. 1984), the Supreme Court set

forth extremely explicit guidelines for the trial court to use in determining whether

a witness who has been hypnotized may testify in a criminal prosecution about

matters explored while under hypnosis.

Oftentimes preliminary matters will involve a determination of facts. In

such instances, the judge is the trier of facts. See FRE 104, Advisory Committee

Notes. When the judge hears evidence on these preliminary questions, he is not

bound under Rule 104 to apply the rules of evidence. The one exception to this,

which is explicitly stated, is the evidentiary law relating to privileges.

osis.

Oftentimes preliminary matters will involve a determination of facts. In

such instances, the judge is the trier of facts. See FRE 104, Advisory Committee

Notes. When the judge hears evidence on these preliminary questions, he is not

bound under Rule 104 to apply the rules of evidence. The one exception to this,

which is explicitly stated, is the evidentiary law relating to privileges.

(b) Subdivision (b) refers to conditional relevancy. If before we determine

X, we must determine that condition Y exists, then the court must admit evidence

of the condition precedent. The evidence is admitted only after the judge makes an

initial determination that a sufficient predicate has been laid. If later the judge

believes that the condition was never fully established, he may withdraw the

preliminary evidence from the jury’s consideration. It is within the judge’s

discretion as to how the proof should be presented. See FRE 104, Advisory

Committee Notes.

(c) Subdivision (c) is designed to prevent the jury from hearing what may

be prejudicial evidence which may be later ruled inadmissible. Rather than

exposing the jury to this evidence, the rule requires that the admissibility hearing

be held outside the jury’s presence. This procedure must always be followed in

cases where the preliminary matter under discussion is the voluntariness of a

criminal defendant’s confession. This is in accord with long-standing Mississippi

practice. See, e.g., Hall v. State, 427 So. 2d 957 (Miss. 1983); McElroy v. State,

204 So. 2d 463 (Miss. 1967); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct.

1774, 12 L.Ed.2d 908 (1964). The admissibility of possibly illegally obtained

evidence may be another matter to be considered outside the jury’s presence. To

protect the criminal defendant, the rule provides he may have a hearing outside the

jury’s presence at his request. In other cases, the judge’s discretion governs

So. 2d 463 (Miss. 1967); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct.

1774, 12 L.Ed.2d 908 (1964). The admissibility of possibly illegally obtained

evidence may be another matter to be considered outside the jury’s presence. To

protect the criminal defendant, the rule provides he may have a hearing outside the

jury’s presence at his request. In other cases, the judge’s discretion governs. For

instance, in determining the competency of a child to testify, the judge would most

likely not dismiss the jury. To dismiss the jury in such a case would be needlessly

time-consuming.

(d) Subdivision (d) allows the defendant to challenge preliminary questions

without exposing himself to a full cross-examination. Thus, if the defendant in a

hearing to consider a motion to suppress evidence or in a hearing to consider the

voluntariness of a confession testifies, the prosecutor on cross-examination may

not inquire into other issues. This subdivision is necessary to provide a limitation

on the wide-open cross-examination provision of Rule 611(b). Subdivision (d)

does not address the issue of whether a defendant’s testimony at a hearing on a

preliminary matter may be used by the prosecutor at trial. But see Harris v. New

York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).

(e) Subdivision (e) is self-explanatory. For a similar provision see FRE

104(e).

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016;

amended July 1, 2016, to note restyling.]