§104 Preliminary Questions

• Library: Evidence Restated Deskbook (2021 Ed.)

§104 Preliminary Questions

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. Hearing of jury. Hearings on the admissibility of confessions shall, in all cases, be conducted out of the hearing of the jury. When the voluntary character of a confession is challenged, it is the duty of the court to conduct a preliminary hearing to determine whether the confession is admissible evidence. Hearings on other preliminary matters shall be so conducted when the interests of justice require.

D. Testimony by accused or spouse of accused. The accused or the spouse of the accused does not, by testifying on a preliminary matter, become subject to cross-examination beyond the scope of the accused's direct testimony.

E. Weight and credibility. The above provisions do not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Notes

A. Questions of admissibility generally

This section reflects the view that the judge is the exclusive determiner of preliminary fact questions leading to the admission of evidence. Accordingly, it requires the court to determine the:

· qualification of a person to be a witness, Benjamin v. Benjamin, 370 S.W.2d 639, 642–43 (Mo. App. E.D. 1963);

· existence of a privilege, State v. Brauch, 529 S.W.2d 926, 929–30 (Mo. App. E.D. 1975); and

· admissibility of evidence, Calvert v. Super Propane Corp., 400 S.W.2d 133, 141 (Mo. 1966); State v. Foote, 791 S.W.2d 879, 882–83 (Mo. App. E.D. 1990).

Trial courts have broad discretion with respect to these matters, and appellate courts will not interfere with those decisions unless there is a clear showing of abuse of discretion. Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003); State v. Smith, 330 S.W.3d 548, 553 (Mo. App. S.D. 2010); State v. Shockley, 410 S.W.3d 179, 195 (Mo. banc 2013).

An abuse of discretion will not be found unless the trial court's ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. See:

· Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 637 (Mo. banc. 2012)

· State v. Miller, 372 S.W.3d 455, 473–74 (Mo. banc 2012)

· State v. Nash, 339 S.W.3d 500, 515 (Mo. banc 2011)

· Howard v. City of Kansas City, 332 S.W.3d 772, 785–86 (Mo. banc 2011)

· Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011)

Questions of law are reviewed de novo

Even though Missouri appellate courts generally say that they review a trial court's evidentiary rulings for abuse of discretion, that does not mean that appellate courts never review evidentiary rulings de novo. Thus, for example, an appellate court reviews the admissibility of expert...