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 privileges.
(b) Relevancy Conditioned on Fact. Whenever the relevancy of evidence depends upon the 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 the condition.
(c) Hearing of Jury. Hearings on the admissibility of confessions in criminal cases must be 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.
(d) Testimony by Accused. By testifying upon a preliminary matter, an accused does not become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
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 are technical in nature and no substantive change is intended.
SOURCES: Minutes of Joint Procedure Committee: March 24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, page 16; October 1, 1975, page 2. Rule 104, Federal Rules of Evidence; Rule 104(a), Uniform Rules of Evidence (1974); Rule 104, SBAND proposal.
CONSIDERED:29-21-03, 29-21-04, NDCC.
CONSIDERED: Rule 43(c), NDRCivP.
CROSS REFERENCE: Rule 1008, NDREv.