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.



  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.



  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.



  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.



  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.



  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.