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. (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 (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.