RULE 104. PRELIMINARY QUESTIONS
(a) Questions of
admissibility generally. Preliminary questions concerning the qualification
of a person to be a witness, the existence of a privilege, or the admissibility of evidence, shall
be determined by the court, subject to the provisions of subdivision (b). In making its
determination it is not bound by the rules of evidence except those with respect to
(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) Relevancy conditioned on fact. Whenever the relevancy of evidence depends
fulfillment of a condition of fact, the court shall admit it upon, or in the court's discretion
subject to, the introduction of evidence sufficient to support a finding of the fulfillment of
(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) Hearing of jury. Hearings on the admissibility of confessions in criminal cases
conducted out of the hearing of the jury. Hearings on other preliminary matters in all cases
must be so conducted whenever the interests of justice require or, in criminal cases,
whenever an accused is a witness and so requests.
(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) Testimony by accused. By testifying upon a preliminary matter, an accused
become subject to cross-examination as to other issues in the case.
(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) Weight and credibility. This rule does not limit the right of a party to introduce
the jury evidence relevant to weight or credibility.
(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.
Rule 104 was amended, effective March 1, 1990; March 1, 2014.
Subdivision (a) continues the orthodox practice of placing with the court the responsibility of determining preliminary questions of admissibility of evidence. These determinations as to the competency of evidence involve deciding matters of both law and fact, and the two are often inextricably intertwined so as to render inappropriate a jury determination of the factual questions. A jury cannot be expected to view facts in terms of the often technical legal standards of competency of evidence. The jury cannot be expected to look at certain evidence and determine whether it is hearsay and, if it is, whether it comes within a recognized hearsay exception. Nor can a jury be expected to ignore evidence which, after consideration, is found to be incompetent and properly excluded.
For these reasons, questions of the competency of evidence are for decision by the court. In making its determination, the court is not bound by rules of evidence, except by rules of privilege, which are given exceptional status because of the need to maintain, totally, the confidentiality they are designed to protect.
Subdivision (b) provides that whenever a preliminary question is one of conditional relevancy of evidence, rather than its competency, the jury is to determine whether the preliminary fact exists. Thus, if the relevancy of a statement depends on whether it was heard by a certain party, the jury may receive the statement subject to fulfillment of the condition that, in fact, it was heard by the appropriate party. This preliminary, conditional question is one of fact that should be determined by a jury. None of the problems which render preliminary questions of competency proper matters for the court's determination exist when questions of conditional relevancy are involved; the question is solely one of the probative value of evidence. Nor is there a need to shield from the jury evidence that is introduced and later found irrelevant because the conditional fact is found not to exist. The jury is likely to recognize the lack of probative force of the evidence once they have found that the condition has not been met and, after being instructed not to consider that evidence, may be assumed to be able to ignore it.
Subdivisions (c) and (d) were amended, effective March 1, 1990. The amendments
technical in nature and no substantive change is intended.
Rule 104 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of January 26-27, 2012,
pages 30-31; March
24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, page 16; October 1, 1975,
page 2. Rule Fed.R.Ev. 104 , Federal Rules of
Evidence; Rule 104(a), Uniform Rules of
Evidence (1974); Rule 104, SBAND proposal.
Considered: N.D.C.C. §§ 29-21-03, 29-21-04.
Considered: Rule 43(c), NDRCivP.
Rule N.D.R.Ev. 1008 ,
NDREv. (Functions of Court and Jury);
N.D.R.Civ.P. 43 (Evidence).