Del. R. Evid. 104

As amended through December 15, 2023

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, in its discretion, 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.

Del. R. Evid. 104

Amended November 28, 2017, effective 1/1/2018.

Comment

See Rule 1101 and Rule 601.

Rule 104(a) tracks F.R.E. 104(a). It applies to preliminary hearings (called preliminary examination in F.R.E) in criminal cases as well as to civil cases. See Rule 1101(b) as to applicability of these rules to preliminary hearings in criminal cases.

Rule 104(b) largely tracks F.R.E. 104(b), except for the addition of the words "in its discretion" in the second sentence.

Rule 104(c) tracks F.R.E. 104(c).

Rule 104(d) tracks F.R.E. 104(d). The Committee recognized that the rule, as drafted, does not address itself to the question of subsequent use of testimony given by an accused at a preliminary hearing. The Committee decided to leave the resolution of this problem to developing case law. See Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971); Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); McCormick, §178, pp. 416-418.

Rule 104(e) tracks F.RE. 104(e).

See Rule 801(d)(2)(E) as to statements made by co-conspirators.

For prior Delaware cases illustrating the law covered by Rule 104(a), see Kelluem v. State, Del. Supr., 396 A.2d 166 (1978); State v. Brown, Del. Oyer & Term., 36 A. 458 (1896).

D.R.E. 104 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 "Comment" to D.R.E. 104 was revised only as necessary to reflect the 2017 amendments. There is no intent to change any result in ruling on evidence admissibility.