Preliminary Questions

U.S Code last checked for updates: Jan 18, 2025

Rule 104.

(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)

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.

(Pub. L. 93–595, § 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)