Miss. R. Evid. 104

As amended through March 21, 2024

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 may admit the proposed evidence on the condition that the proof be introduced later. If the proof is not introduced, the objector may request an instruction directing the jury to disregard the evidence. This request is not prerequisite to a motion for mistrial.

(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.

(f)Punitive Damages. If the court allows the jury to consider punitive damages, evidence of net worth may not be offered until the close of evidence.

Miss. R. Evid. 104

Restyled eff. 7/1/2016.

Advisory Committee Note

The language of Rule 104 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The provisions regarding punitive damages - formerly subsumed in subdivision (a) - now appear as separate subdivision (f). These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

(a) Subsection (a) recognizes that a significant amount of a trial judge's responsibility is to make preliminary rulings. For instance, the judge, in cases where there is a question of the witness's competency, must first make a determination that the witness is competent before the witness is allowed to testify concerning the issue at bar. Other preliminary questions might concern privileges, the exclusionary rule, the voluntariness of confessions, and qualifications of experts. In House v. State, 445 So.2d 815 (Miss. 1984), the Supreme Court set forth extremely explicit guidelines for the trial court to use in determining whether a witness who has been hypnotized may testify in a criminal prosecution about matters explored while under hypnosis.

Oftentimes preliminary matters will involve a determination of facts. In such instances, the judge is the trier of facts. See FRE 104, Advisory Committee Notes. When the judge hears evidence on these preliminary questions, he is not bound under Rule 104 to apply the rules of evidence. The one exception to this, which is explicitly stated, is the evidentiary law relating to privileges.

(b) Subsection (b) refers to conditional relevancy. If before we determine X, we must determine that condition Y exists, then the court must admit evidence of the condition precedent. The evidence is admitted only after the judge makes an initial determination that a sufficient predicate has been laid. If later the judge believes that the condition was never fully established, he may withdraw the preliminary evidence from the jury's consideration. It is within the judge's discretion as to how the proof should be presented. See FRE 104, Advisory Committee Notes.

(c) Subsection (c) is designed to prevent the jury from hearing what may be prejudicial evidence which may be later ruled inadmissible. Rather than exposing the jury to this evidence, the rule requires that the admissibility hearing be held outside the jury's presence. This procedure must always be followed in cases where the preliminary matter under discussion is the voluntariness of a criminal defendant's confession. This is in accord with long-standing Mississippi practice. See, e.g., Hall v. State, 427 So.2d 957 (Miss. 1983); McElroy v. State, 204 So.2d 463 (Miss. 1967); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964). The admissibility of possibly illegally obtained evidence may be another matter to be considered outside the jury's presence. To protect the criminal defendant, the rule provides he may have a hearing outside the jury's presence at his request. In other cases, the judge's discretion governs. For instance, in determining the competency of a child to testify, the judge would most likely not dismiss the jury. To dismiss the jury in such a case would be needlessly time-consuming.

(d) Subsection (d) allows the defendant to challenge preliminary questions without exposing himself to a full cross-examination. Thus, if the defendant in a hearing to consider a motion to suppress evidence or in a hearing to consider the voluntariness of a confession testifies, the prosecutor on cross-examination may not inquire into other issues. This subsection is necessary to provide a limitation on the wide-open cross-examination provision of Rule 611(b). Subsection (d) does not address the issue of whether a defendant's testimony at a hearing on a preliminary matter may be used by the prosecutor at trial. But see Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971).

(e) Subsection (e) is self-explanatory. For a similar provision see FRE 104 (e).

["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]

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