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Rule104. Preliminary Questions


(a)   InGeneral. The courtmust decide any preliminary question about whether a witness is qualified, aprivilege exists, or evidence is admissible. In so deciding, the court is notbound by evidence rules, except those on privilege.


(b)   RelevanceThat Depends on a Fact.When the relevance of evidence depends on whether a fact exists, proof must beintroduced sufficient to support a finding that the fact does exist. The courtmay admit the proposed evidence on the condition that the proof be introducedlater.


(c)   Conductinga Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminaryquestion so that the jury cannot hear it if:


(1)   thehearing involves the admissibility of a confession;


(2)   adefendant in a criminal case is a witness and so requests; or


(3)   justice so requires.


(d)   Cross-Examininga Defendant in a Criminal Case. Bytestifying on a preliminary question, a defendant in a criminal case does notbecome subject to cross-examination on other issues in the case.


(e)   EvidenceRelevant to Weight and Credibility. Thisrule does not limit a party’s right to introduce before the jury evidence thatis relevant to the weight or credibility of other evidence.


2011 Advisory CommitteeNote. – The languageof this rule has been amended as part of the restyling of the Evidence Rules tomake them more easily understood and to make style and terminology consistentthroughout the rules. These changes are intended to be stylistic only. There isno intent to change any result in any ruling on evidence admissibility. Thisrule is the federal rule, verbatim.




This provision is the federal rule,verbatim, and is comparable to Rule 8, Utah Rules of Evidence (1971). Rule104(c) recognizes that hearings on motions to suppress confessions should beconducted out of the hearing of the jury where there is a contested issue.State v. Allen, 29 Utah 2d 88, 505 P.2d 302 (1973). See also Jackson v. Denno, 378 U.S. 368 (1964). Cf. Pinto v. Pierce, 389 U.S.31, 88 S. Ct. 192, 19 L. Ed. 2d 31 (1967).