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. If such proof is presented, and the court finds that the evidence is otherwise admissible, the court shall admit the evidence. 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(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.Amended April 20, 2017, eff. 7/1/2017.2016 NHRE Update Committee Note
The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic and substantive changes to the rule.
The language of the amended rule mirrors Federal Rule of Evidence 104, except that the last two sentences of New Hampshire Rule of Evidence 104(b) are not included in the Federal Rule. The Committee believes that the addition of the last two sentences codifies existing New Hampshire law and makes it clear that a judge cannot decline to admit evidence which is otherwise admissible if evidence is presented that is sufficient to permit the factfinder to find that the condition has been satisfied.