Rule 104  Preliminary questions.  (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 subsection (b).  In making its determination the court 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 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, if the accused so requests.

     (d)  Testimony by accused.  The accused does not, by testifying upon a preliminary matter, subject oneself 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. [L 1980, c 164, pt of §1; gen ch 1985]

RULE 104 COMMENTARY

  This rule is identical with Fed. R. Evid. 104.

  Subsection (a):  Questions of admissibility frequently hinge on determinations of fact.  Under Rule 603.1 a witness incapable of understanding the duty to tell the truth is disqualified.  Communications may be privileged under Rules 503, 504, 504.1, and 505 if they were intended to be confidential when uttered.  The hearsay exceptions in Rule 804(b) require that the declarant be shown to be "unavailable as a witness" as provided in Rule 804(a).  McCormick discusses the reasons for entrusting the determination of such preliminary matters to the court:

  If the special question of fact were submitted to the jury when objection was made, cumbersome and awkward problems about unanimity would be raised.  If the judge admitted the evidence ... to the jury and directed them to disregard it unless they found that the disputed fact existed, the aim of the exclusionary rule would likely be frustrated....

McCormick, Evidence §53 (2d ed. 1972) [hereinafter cited as McCormick].

  This subsection addresses also the issue of applicability of the evidence rules during such preliminary determinations of admissibility.  As the Advisory Committee's Note to Fed. R. Evid. 104(a) points out:

  If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue.  The rule [104(a)] provides that the rules of evidence in general do not apply to this process ... and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.  This view is reinforced by practical necessity in certain situations.  An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence.

  Any attempt to extend the rules of evidence to preliminary issues of admissibility would be self-defeating and, in most instances, self-contradictory.  The sole exceptions are the rules of privilege, see Article 5 infra.  As provided in Rule 1101(c) infra, the rules of privilege apply at all stages of actions or proceedings.  This is consistent with the intent of the privilege rules.  Most commonly, the status of the communicant rather than the content of the communication determines whether or not the privilege legitimately may be invoked; and compulsory disclosure of the communication, even at a preliminary hearing, might serve to defeat the purpose of the privilege.

  Subsection (b):  This is the standard rule of conditional relevancy.  It governs instances in which the probative value of an item of evidence depends upon the existence, and the proof, of another fact.  For example, the relevancy of a written contract would be conditioned upon proof of the authenticity of the signature of the party signing it.  See McCormick §53; E. Morgan, Basic Problems of Evidence 45-46 (1962).

  Unlike questions of preliminary admissibility, factual issues of conditional relevancy are properly within the province of the jury rather than the court, subject to preliminary determination by the court that sufficient foundation has been laid to support a determination by the jury that the condition has been fulfilled.  As with other factual determinations, the proponent may offer evidence in support of the condition, the opponent may offer contrary evidence, and the jury rather than the judge must reconcile the dispute.

  Subsection (c):  In Jackson v. Denno, 378 U.S. 368, 394 (1964), the Supreme Court held that preliminary hearings on admissibility of confessions must be held outside the jury's hearing.  The requirement that preliminary matters be heard out of the jury's presence when the accused is a witness and when he "so requests" was added to Fed. R. Evid. 104(c) by a House subcommittee which felt that "a proper regard for the right of an accused not to testify generally in the case dictates that he be given an option to testify out of the presence of the jury on preliminary matters."

  No clear-cut rule can be established to determine under what circumstances other preliminary questions should be addressed outside the hearing of the jury.  It must be left to the discretion of the court to balance such countervailing factors as danger of prejudice and needless waste of time.  This principle of judicial discretion is implied in HRCP 43(c), which provides that the judge may require that an offer of proof be made outside the hearing of the jury.

  Subsection (d):  Because of the possible breadth of cross-examination under Rule 611(b), this subsection is intended to safeguard the rights of the accused and to encourage his participation in determinations of preliminary matters.  Under this restriction, the accused may choose to testify upon any preliminary matter without exposing himself to cross-examination about "other issues in the case"; nor does such testimony constitute a waiver of his right to refuse to testify in the main proceeding.  However, he may be cross-examined upon any matter raised during his direct testimony upon a preliminary question.

  This subsection does not address itself to the issue of subsequent use of testimony given by the accused at a hearing upon a preliminary matter.  See Simmons v. United States, 390 U.S. 377 (1968); cf. State v. Santiago, 53 H. 254, 492 P.2d 657 (1971).

  Subsection (e):  This subsection accords generally with similar provisions in other jurisdictions, see, e.g., Cal. Evid. Code §406; Kan. Code Civ. P. §60-408; Uniform Rule of Evidence 104(e).

Rules of Court

  Pretrial motions, see HRPP rule 12(b).

Case Notes

  As scientific principles and procedures underlying hair and fiber evidence are well-established and of proven reliability, evidence could be treated as "technical knowledge"; independent reliability determination under this rule thus unnecessary.  85 H. 462, 946 P.2d 32 (1997).

  Plaintiff's proffer of evidence was sufficient to justify trial court's preliminary determination under this rule and rule 803(a)(2)(C) of the existence of conspiracies and admission of out-of-court statements where statements of other witnesses taken in context with statements of alleged co-conspirators supported allegations of a conspiracy.  89 H. 91, 969 P.2d 1209 (1998).

  Where trial court did not make an adequate preliminary determination as to whether defendant had adopted relatives' statements as defendant's own and defendant's nonverbal reaction was so ambiguous that it could not reasonably be deemed sufficient to establish that defendant manifested such an adoption, evidence of statements lacked proper foundation, constituted irrelevant and inadmissible hearsay and were thus erroneously admitted.  92 H. 161, 988 P.2d 1153 (1999).

  Whether a defendant has manifested an adoption of or belief in another's statement under rule 803(a)(1)(B) is a preliminary question of fact for the trial judge under subsection (a).  92 H. 161, 988 P.2d 1153 (1999).

  When a prosecutor seeks arguably privileged testimony, the prosecutor must either (1) give notice to the person who might claim the privilege and the person's counsel, so that the person or the person's attorney can seek judicial review of any claim or privilege or waive the privilege, or (2) give notice to the person's counsel and, if the person's counsel does not raise the privilege and seek judicial review, the prosecutor must seek the court's ruling on the privilege issue.  97 H. 512, 40 P.3d 914 (2002).

  Where defendant sought to introduce a pipe found in the room occupied by the complaining witness, the circuit court should have conducted a hearing under this rule to determine whether there was admissible evidence concerning the complaining witness' alleged drug use and its effect upon the complaining witness' perception.  132 H. 391, 322 P.3d 931 (2014).

  Where testifying officer did not have present recollection of field sobriety test, officer's qualifications to testify as witness on that matter should have been decided by the court not the jury.  80 H. 138 (App.), 906 P.2d 624 (1995).