Rule 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.

(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 criminal case is a witness and so requests; or

(3) Justice so requires.

(d) Cross-examining a defendant in a criminal case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence relevant to weight and credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Committee Notes

Maine Restyling Note [November 2014] Current Maine Rule 104 is slightly different from its former Federal counterpart. Federal Rule 104(b) has been restyled to make it very similar to Maine Rule 104(b). The language regarding applicability of the rules of evidence in preliminary determinations has been eliminated from Rule 104(a) as part of the restyling process to reflect that the proposed new Rule 101 sets forth all provisions regarding the applicability of the Rules. Maine Rule 104(a) previously included a reference to the inapplicability of the Rules on preliminary questions other than those arising in connection with Motions to Suppress "and the like." There is no express reference to Motions to Suppress in the proposed revised Rule 101 as it was the determination of the Advisory Committee that Motions to Supress, which generally consider whether evidence was obtained illegally such as in violation of a person's constitutional rights, are not preliminary determinations of admissibility under Rule 104. Under the revised language and consistent with well-settled Maine law and practice, the Maine Rules of Evidence will continue to apply during evidentiary hearings on such motions.

Federal Advisory Committee Note The language of Rule 104 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisers' Note to former M.R. Evid. 104 (February 2, 1976) Subdivision (a) incorporates accepted Maine practice in declaring that preliminary questions of admissibility are for the court. The rule that the court is not bound by the rules of evidence in the determination of a preliminary question is made subject to one exception which requires the rules to be followed in hearings on motions to suppress evidence and the like. This exception is not in the Federal Rule. The United States Supreme Court has upheld the use of inadmissible hearsay on a motion to suppress evidence, supporting the proposition that the use of such out-of-court statements does not offend the defendant's constitutional right of confrontation under the Sixth Amendment and the due process clause. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974). However, when there is a serious factual dispute on an issue which may be decisive of the case, as on a motion to suppress, common fairness requires that the witness be present and subject to cross-examination under the rules of evidence. The words "and the like" are intended to embrace other questions, such as identification, where the rights of a criminal defendant may be seriously jeopardized if the issue is determined without opportunity for cross-examination of the witness with knowledge of the facts. It should be noted that a statement made by a person out of court which is relied upon by the witness in doing certain acts, such as search for evidence, is not hearsay since it is not introduced for the truth of the matter asserted. Rather it is evidence of the information the witness possessed and therefore of probable cause. Apart from this, the rule is that generally prevailing in Maine and elsewhere. There are numerous preliminary questions which the court has always determined without being bound by the rules of evidence. Examples are questions involving exceptions to the hearsay rule, such as whether conduct is intended as assertive, whether a statement was made for diagnostic purposes, whether a document is a business record, and whether a declarant is unavailable. There is no reason to alter this practice. The exception with respect to privileges, which is in the Federal Rule, means that a privilege may not be violated in a preliminary hearing to determine whether or not it exists. Subdivision (b) is in accord with Maine law. It deals with the problem of conditional relevancy. When Item A and Item B considered separately are each irrelevant in absence of proof of the other, a relevancy objection may be interposed to whichever one is offered first. But a party must start somewhere. This rule requires the proponent merely to bring forward evidence from which the truth of Item A could be found, upon the representation that evidence of Item B will be offered. Evidence of the conditionally relevant Item B can then be shown. The dispute as to the truth of each is ultimately for the jury rather than the judge. But the order of proof is, as generally, for the judge. Rule 611 (a). He can decide whether to hear evidence of Item A or of Item B first. He may take into account the relative prejudice of having the jury hear one rather than the other if the proponent fails to offer evidence of one of them sufficient to warrant a finding of its truth. Whichever one he elects to hear first will be admitted conditionally or, in the traditional phraseology, de bene. If the proponent fails to make good on his representation to offer sufficient evidence of the second item, the evidence of the first will on motion be stricken and the jury instructed to disregard it. See Lipman Bros. v. Hartford Acc. & Indem. Co., 149 Me. 199, 209 ff., 100 A.2d 246, 252 ff. (1953). It is the obligation of opposing counsel to make the motion to strike. The Federal Rule has no provision about discretion to admit evidence conditionally. The reason for including it is to make it completely clear that the court's control of the order of proof, as provided in Rule 611 (a), is preserved. Subdivision (c) considers when preliminary questions should be conducted out of the hearing of the jury. In a criminal case a hearing on the admissibility of a confession is constitutionally required to be conducted out of the jury's hearing. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964). The Supreme Court has also held as a constitutional matter that the prosecution must at the preliminary hearing establish voluntariness of the confession by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619 (1972). The Law Court has gone beyond this minimum constitutional standard and required that the judge at the preliminary hearing determine voluntariness beyond a reasonable doubt. State v. Collins, 297 A.2d 620 (Me. 1972). On other preliminary matters the judge has discretion to decide whether the interests of justice require the hearing to be in the absence of the jury. This is the accepted Maine practice. In a criminal case when an accused is a witness, he is entitled on request to have any preliminary hearing conducted out of the jury's hearing. Subdivision (d) allows an accused in a criminal case to testify on a preliminary matter, such as a motion to suppress evidence, without exposing himself to general cross-examination. There are no Maine cases on the point. The rule does not address itself to the question of subsequent use of testimony given by an accused on a preliminary hearing. As a constitutional matter, however, such testimony cannot be used at the trial as evidence of his guilt. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968).