Rule 104 Preliminary Questions

• Jurisdiction: Arizona

(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.
(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 may admit it 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 be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject 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.

Comment

Subsection (a) provides that the trial court is to determine preliminary evidentiary questions that challenge the admissibility of evidence or invoke the protective policies of the Rules of Evidence.[1] Such determinations include the logical (legal) relevancy of evidence, the qualifications of expert witnesses, admissibility of hearsay and its exceptions (especially hearsay related to testimony by co-conspirators), and competence of children as witnesses.[2] Protective policies include privileges and exclusion of relevant but prejudicial or confusing evidence, and constitutional challenges to illegally obtained evidence.[3] In making this determination, the trial court is not bound by the Rules of Evidence (except those establishing a privilege), and thus may consider hearsay.[4]

Subsection (b) preserves the traditional notion that, for certain types of evidence, the jurors must first decide whether certain facts exist before they may consider the evidence.[5] This is the principle of "conditional relevancy," or factual (as opposed to logical or legal) relevancy. Common examples of questions of conditional relevancy include whether a certain person did in fact write a certain document, and whether a person had authority to act as an agent for a party. The role of the trial court in this situation is limited to determining whether the party offering the evidence has presented sufficient additional evidence that, if believed, establishes the existence of the prerequisite condition. Once a party has introduced evidence sufficient to support a finding that the prerequisite condition has been fulfilled, the trial court must permit introduction of the conditionally relevant evidence. The trial court may, however, permit introduction of the conditionally relevant evidence first, subject to later introduction of evidence that the prerequisite condition has been fulfilled. At the close of all evidence, it must then determine whether the party has presented sufficient evidence to support a finding that the condition has been fulfilled. If the party has not presented sufficient evidence, the trial court must withdraw the question from the jurors and instruct them to disregard the conditionally relevant evidence previously introduced.

Subsection (c) recognizes the futility of invoking the protective policies of the Rules of Evidence if that evidence is made known to the jurors during the preliminary determination.[6] It does permit the trial court to conduct hearings on preliminary matters within the hearing of the jurors,[7] but includes the requirement that the court conduct hearings on the admissibility of confession in all cases outside the hearing of the jurors. In criminal cases, when the accused is a witness in the hearing on the preliminary matter, the accused may request that the hearing be conducted outside the hearing of the jurors. If a party fails to request that the proceedings be held out of the presence of the jurors, the party will have waived any claim that the trial court erred in conducting the proceedings in the jurors' presence.[8]

Subsection (d) limits the scope of cross-examination of an accused who testifies about the preliminary matter. If the accused testifies at trial, the state may use this testimony to impeach.[9]

Subsection (e) retains distinction between admissibility of evidence, which is a question for the trial court,[10] and the weight or credibility of the evidence, which is for the jurors.[11] This distinction is often difficult to make, such as in the case of a child in a civil case,[12] where the trial court must first determine whether the child's mental state is such that the child is competent as a witness, with the other party then having the right to present evidence to the jurors showing that the child's mental state is such that the child is not credible.[13]

Cases

Paragraph (a) - Questions of admissibility generally.

104.a.010 Admission of evidence is within the sound discretion of the trial court; the appellate court will uphold the trial court's ruling unless there appears to be a clear abuse of discretion.

Admission of evidence in general.

State v. Prince,160 Ariz. 268, 772 P.2d 1121 (1989)

Admission of evidence not properly disclosed prior to trial.

Olson v. Walker,162 Ariz. 174, 781 P.2d 1015 (Ct. App. 1989).

Whether evidence is admissible pursuant to a stipulation of the parties.

Schwartz v. Farmers Ins. Co.,166 Ariz. 33, 800 P.2d 20 (Ct. App. 1990).

A.R.S. Sec. 12-2251 - Admission of a statement by a decedent.

In re Page v. Litzenburg,177 Ariz. 84, 865 P.2d 128 (Ct. App. 1993).

Troutman v. Valley Nat'l Bank,170 Ariz. 513, 826 P.2d 810 (Ct. App. 1992).

Rule 103(c) - Whether to hold hearing on admission of evidence outside jurors' presence.

State v. Bible,175 Ariz. 549, 858 P.2d 1152 (1993).

Rule 104(c) - Whether to hold hearing on admission of evidence outside jurors' presence.

State v. Bible,175 Ariz. 549, 858 P.2d 1152 (1993).

Rule 401 - Whether evidence is relevant.

State v. Amaya‑Ruiz,166 Ariz. 152, 800 P.2d 1260 (1990).

State v. Winters,160 Ariz. 143, 771 P.2d 468 (Ct. App. 1989).

Rule 401 - Whether a photograph is relevant.

State v. Gulbrandson,184 Ariz. 46, 906 P.2d 579 (1995).

State v. Murray,184 Ariz. 9, 906 P.2d 542 (1995).

State v. Stuard,176 Ariz. 589, 863 P.2d 881 (1993).

State v. Lopez,174 Ariz. 131, 847 P.2d 1078 (1992).

State v. Salazar,173 Ariz. 399, 844 P.2d 566 (1992).

State v. Apelt (Michael),176 Ariz. 349, 861 P.2d 634 (1993).

State v. Amaya‑Ruiz,166 Ariz. 152, 800 P.2d 1260 (1990).

State v. McCutcheon,162 Ariz. 54, 781 P.2d 31 (1989).

State v. Bailey,160 Ariz. 277, 772 P.2d 1130 (1989).

Rule 401 - Admission of booking photograph.

State v. McCutcheon,162 Ariz. 54, 781 P.2d 31 (1989).

Rule 401 - Whether demonstrative evidence is relevant.

State v. Prince,160 Ariz. 268, 772 P.2d 1121 (1989).

Andrews v. Fry's Food Stores,160 Ariz. 93, 770 P.2d 397 (Ct. App. 1989).

Rule 403 - Balancing prejudicial effect against probative value.

State v. Spencer,176 Ariz. 36, 859 P.2d 146 (1993).

State v. Bible,175 Ariz. 549, 858 P.2d 1152 (1993).

State v. Atwood,171 Ariz. 576, 832 P.2d 593 (1992).

State v. Vickers,159 Ariz. 532, 768 P.2d 1177 (1989).

Rule 403 - Determination whether evidence is unfairly prejudicial.

State v. Murray,162 Ariz. 211, 782 P.2d 329 (Ct. App. 1989)

Rodriguez v. Schlittenhart,161 Ariz. 609, 780 P.2d 442 (Ct. App. 1989).

Rule 403 - Determination whether photograph is unfairly prejudicial.

State v. Gulbrandson,184 Ariz. 46, 906 P.2d 579 (1995).

State v. Stuard,176 Ariz. 589, 863 P.2d 881 (1993).

State v. Apelt (Michael),176 Ariz. 349, 861 P.2d 634 (1993).

State v. Lopez,174 Ariz. 131, 847 P.2d 1078 (1992).

State v. Salazar,173 Ariz. 399, 844 P.2d 566 (1992).

State v. Amaya‑Ruiz,166 Ariz. 152, 800 P.2d 1260 (1990).

State v. Bailey,160 Ariz. 277, 772 P.2d 1130 (1989).

Rodriguez v. Schlittenhart,161 Ariz. 609, 780 P.2d 442 (Ct. App. 1989).

Rule 403 - Determination whether booking photograph is unfairly prejudicial.

State v. McCutcheon,162 Ariz. 54, 781 P.2d 31 (1989).

Rule 404(a)(2) - Admission of evidence of the victim's character.

State v. Roscoe,182 Ariz. 332, 897 P.2d 634 (Ct. App. 1994).

Rule 404(b) - Admission of evidence of other acts.

State v. Apelt (Michael),176 Ariz. 349, 861 P.2d 634 (1993).

State v. Bible,175 Ariz. 549...