100s: General Provisions

Question 1

Rule 104. Preliminary Questions

Answer 1

(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) 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.

Question 2

104(c): Conducting a hearing so that the jury cannot hear it.

Answer 2

(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.

Question 3

What is the standard for 104?

Answer 3

Preponderance. But there are exceptions. The standard is a sufficiency standard if:

• Authentication
• Personal knowledge
• Conditional Relevance
• Prior bad acts?

Question 4

Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

Answer 4

If the court admits evidence that is admissible against a party or for a purpose–but not against another party or for another purpose–the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.