# Rule 104, SCRE: Rule 104. PRELIMINARY QUESTIONS > South Carolina · Court rules · In force URL: https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R104 ## Section - **Citation:** Rule 104, SCRE - **Heading:** Rule 104. PRELIMINARY QUESTIONS - **Jurisdiction:** South Carolina - **Kind:** Court rules - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** South Carolina Court Rules / South Carolina Rules of Evidence / Rule 104, SCRE ## Text RULE 104 PRELIMINARY QUESTIONS (a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of Jury. Hearings on the admissibility of confessions or statements by an accused, and pretrial identifications of an accused shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. Note: Except for subsection (c), this rule is identical to the federal rule. The first sentence of subsection (a) is in accord with prior South Carolina law. Wright v. Pub. Sav. Life Ins. Co. , 262 S.C. 285, 204 S.E.2d 57 (1974). No South Carolina authority has been found which specifically determines whether a judge must apply the rules of evidence in conducting a hearing on the admissibility of evidence. Cf . Congdon v. Morgan , 14 S.C. 587 (1880) (passing comment that judge did not violate rules of evidence during hearing on admissibility of evidence). Subsection (b) addresses situations where the relevancy of an item of evidence depends upon the existence of a particular preliminary fact es whether a judge must apply the rules of evidence in conducting a hearing on the admissibility of evidence. Cf . Congdon v. Morgan , 14 S.C. 587 (1880) (passing comment that judge did not violate rules of evidence during hearing on admissibility of evidence). Subsection (b) addresses situations where the relevancy of an item of evidence depends upon the existence of a particular preliminary fact. Prior South Carolina case law has recognized that a judge commits no error in admitting evidence where its relevancy is established later in the trial. Perry v. Jefferies , 61 S.C. 292, 39 S.E. 515 (1901) (evidence of acts of defendant's agents admitted before any evidence of agency introduced). Subsection (c) modifies the federal rule by adding the phrase "or statements made by an accused, and pretrial identifications of an accused." This addition is made to emphasize the fact that hearings on the admissibility of all statements made by a criminal defendant, whether inculpatory or exculpatory, must be made outside the presence of the jury. State v. Primus , 312 S.C. 256, 440 S.E.2d 128 (1994); State v. Lee , 255 S.C. 309, 178 S.E.2d 652 (1971). The addition also requires all hearings regarding the admissibility of pretrial identifications (to include any assertion that an in-court identification should be excluded as a result of a pretrial identification) to be heard outside the presence of the jury. State v. Simmons , 308 S.C. 80, 417 S.E.2d 92 (1992). No South Carolina cases have been found which address the matters stated in subsections (d) and (e). ## Nearby sections - [Rule 101, SCRE Rule 101. SCOPE](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R101.md) - [Rule 102, SCRE Rule 102. PURPOSE AND CONSTRUCTION](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R102.md) - [Rule 103, SCRE Rule 103. RULINGS ON EVIDENCE](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R103.md) - [Rule 104, SCRE Rule 104. PRELIMINARY QUESTIONS](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R104.md) - [Rule 105, SCRE Rule 105. LIMITED ADMISSIBILITY](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R105.md) - [Rule 106, SCRE Rule 106. REMAINDER OF OR RELATED WRITINGS OR STATEMENTS](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R106.md) - [Rule 201, SCRE Rule 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R201.md) - [Rule 301, SCRE Rule 301. PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R301.md) - [Rule 401, SCRE Rule 401. DEFINITION OF "RELEVANT EVIDENCE"](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R401.md) - [Rule 402, SCRE Rule 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R402.md) - [Rule 403, SCRE Rule 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R403.md) - [Rule 404, SCRE Rule 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTION; OTHER CRIMES](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R404.md) - [Rule 405, SCRE Rule 405. METHODS OF PROVING CHARACTER](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R405.md) - [Rule 406, SCRE Rule 406. HABIT; ROUTINE PRACTICE](https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R406.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_SC_SCRE_R104. Check the current official text before relying on it. Not legal advice.