Section 1.10 Preliminary Determination

• Library: Sources of Proof (2014 Ed.)

A. (§1.10) Preliminary Determination

“These rules—except for those on privilege—do not apply to . . . the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility.” FED. R. EVID. 1101(d)(1). Federal Rule of Evidence 104 recites the law of Missouri:

(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) Conducting a Hearing So That the Jury Cannot Hear It.

The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a

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