# W. Va. R. Evid. 104: Rule 104. Preliminary Questions

> West Virginia · Court rules · In force

URL: https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R104

## Section

- **Citation:** W. Va. R. Evid. 104
- **Heading:** Rule 104. Preliminary Questions
- **Jurisdiction:** West Virginia
- **Kind:** Court rules
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** West Virginia Court Rules / West Virginia Rules of Evidence / W. Va. R. Evid. 104

## Text

(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.
(c) Concluding 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 or evidence seized as a result of a search and seizure;
(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.
COMMENT ON RULE 104
Rule 104 is largely taken from its federal counterpart. The revised rule is substantively the same as the current state rule and the changes are merely stylistic. Language was added to 104(c)(1) in accordance with the requirement that hearings on the admissibility of evidence seized as a result of a search and seizure must be held out of the presence of the jury.

## Nearby sections

- [W. Va. R. Evid. 101 Rule 101. Scope; Definitions](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R101.md)
- [W. Va. R. Evid. 102 Rule 102. Purpose](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R102.md)
- [W. Va. R. Evid. 103 Rule 103. Rulings on Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R103.md)
- [W. Va. R. Evid. 104 Rule 104. Preliminary Questions](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R104.md)
- [W. Va. R. Evid. 105 Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R105.md)
- [W. Va. R. Evid. 106 Rule 106. Remainder of or Related Writings or Recorded Statements](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R106.md)
- [W. Va. R. Evid. 201 Rule 201. Judicial Notice of Adjudicative Facts](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R201.md)
- [W. Va. R. Evid. 202 Rule 202. Judicial Notice of Law](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R202.md)
- [W. Va. R. Evid. 301 Rule 301. Presumptions in Civil Cases Generally](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R301.md)
- [W. Va. R. Evid. 401 Rule 401. Test for Relevant Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R401.md)
- [W. Va. R. Evid. 402 Rule 402. General Admissibility of Relevant Evidence](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R402.md)
- [W. Va. R. Evid. 403 Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R403.md)
- [W. Va. R. Evid. 404 Rule 404. Character Evidence; Crimes or Other Acts](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R404.md)
- [W. Va. R. Evid. 405 Rule 405. Methods of Proving Character](https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R405.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_WV_RE_R104. Check the current official text before relying on it. Not legal advice.