Rule 2:104. Preliminary Determinations

• Library: A Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:104. PRELIMINARY DETERMINATIONS

(a) Determinations made by the court. The qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be decided by the court, subject to the provisions of subdivision (b).

(b) Relevancy conditioned on proof of connecting facts. Whenever the relevancy of evidence depends upon proof of connecting facts, the court may admit the evidence upon or, in the court's discretion, subject to, the introduction of proof sufficient to support a finding of the connecting facts.

(c) Hearing of jury. Hearings on the admissibility of confessions in all criminal cases shall be conducted out of the hearing of the jury. Hearings on other preliminary matters in all cases shall be so conducted whenever a statute, rule, case law or 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) Evidence of weight or credibility. This rule does not limit the right of any party to introduce before the jury evidence relevant to weight or credibility.

NOTES

Subdivision (a). Subdivisions (a) and (b) reflect the traditional division of labor between judge and jury: judges decide whether or not evidence is admissible or excludable under the various evidence doctrines; juries determine how much weight to give to the evidence that judges find admissible.

In determining admissibility, the judge is not bound by strict rules of evidence, other than privilege. See Va. R. Evid. 2:1101(b). In appropriate circumstances, representations by counsel and summary testimony may be considered by the judge in ruling on admissibility. This is not a bar to the judge's requiring actual testimony by a person with knowledge on any issue. Rather, it is a codification of the common law's recognition that evidence issues ought not to give rise to formal

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mini-trials in the midst of a trial on the merits of a dispute. See, e.g., Floyd v. Commonwealth, 219 Va. 575, 581-82 (1978) (trial judge has discretion in procedure for admission of proof). On occasion the judge must make a preliminary determination that evidence is relevant or that it relates to the events in suit. See, e.g., Claytor v. Anthony, 27 Va. (6 Rand.) 285, 291, 299-300 (1828).

Subdivision (b). This subdivision covers situations in which one piece of evidence depends on...