Print Version
Previous PageFile uploaded: 6/10/2019

Rule 104.Preliminary Questions.


(a)   InGeneral. Thecourt must decide any preliminary question about whether a witness isqualified, a privilege exists, or evidence is admissible. In so deciding, thecourt is not bound by evidence rules, except those onprivilege.


(b)   RelevanceThat Depends on a Fact. When the relevance of evidence depends on whether a factexists, proof must be introduced sufficient to supporta finding that the fact does exist. The court may admit the proposed evidenceon the condition that the proof be introduced later.


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

(c)(1)   the hearing involves the admissibility of aconfession;


(c)(2)   a defendant in acriminal case is a witness and so requests; or


(c)(3)   justice so requires.


(d)   Cross-Examininga Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminalcase does not become subject to cross-examination on other issues in the case.


(e)   EvidenceRelevant to Weight and Credibility. This rule does not limit a party?s right to introduce before thejury evidence that is relevant to the weight or credibility of other evidence.



2011Advisory Committee Note. The language of this rule has been amendedas part of the restyling of the Evidence Rules to make them more easilyunderstood and to make style and terminology consistent throughout the rules.These changes are intended to be stylistic only. Thereis no intent to change any result in any ruling on evidence admissibility. Thisrule is the federal rule, verbatim.


Original Advisory CommitteeNote.  Thisprovision is the federal rule, verbatim, and is comparable to Rule 8, UtahRules of Evidence (1971). Rule 104(c) recognizes that hearings on motions tosuppress confessions should be conducted out of thehearing of the jury where there is a contested issue. State v. Allen, 29Utah 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).