Evidence Rule 104

Evidence Rule 104 reads as follows:

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. (emphasis added)

(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or 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 shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.

(D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself 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.

It seems that Evid. R. 104 would give attorneys and judges a way to shorten trials. If there were preliminary matters regarding the admissibility of evidence that did not depend on establishing a condition of fact, such matters could be disposed of by filing written motions with supporting documents or having brief summary hearings prior to trial on the admissibility of evidence. An example might be the admissibility of photographs, business records, etc.

In over 20 years on the bench, however, I can only recall a very few times that attorneys have referenced Evid. R. 104 to me regarding admissibility of evidence issues. My recollection is that such references have been during a trial, yet it would seem to be a tool that could be effectively used prior to trial.

Judge James Kimbler