Rule 104. Preliminary Questions

ER 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 section (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 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.

[Amended effective September 1, 1992.]

Comment 104