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Table of Contents

Article I. General Provisions
Rule 103
Rule 104
Rule 105
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings, 

and Photographs
Revised Rule 104. Preliminary Questions Commentary 104(a) 

Current Rule 104 generally follows the common law separation of functions between the judge and jury.  Under Current Rule 104(a), the judge resolves issues of qualification, privilege, and admissibility; under Current Rule 104(b), the judge is to determine threshold issues of "conditional relevance," but is not to usurp the jury's fact finding function. 

      Current Rule 104(a) does not state the standard for deciding preliminary questions.  Under common law rules evidence principles, there was some disagreement over whether the standard should:  1) remain consistent in all cases, 2) vary according to whether constitutional rights were involved, or 3) vary according to the standard used to judge the ultimate substantive issues at trial.   In  Bourjaily v. United States,  the Supreme Court held that trial courts should determine the existence of a conspiracy by a preponderance of the evidence as a preliminary question under Rule 104(a) prior to admitting coconspirator statements - as admissions under Current Rule 801(d)(2)(E).  The Court explicitly extended that holding to preliminary questions pertaining to expert opinions in Daubert v. Merrell Dow Pharmaceuticals.   Accordingly, Current Rule 104(a) has been modified in Revised Rule 104(a) to state explicitly the general rule that when a preliminary issue is not controlled by a standard of admissibility explicitly incorporated into a rule, preliminary questions are to be resolved by a preponderance of the evidence standard.   Examples of instances in which preliminary issues are governed by explicit  admissibility standards are Current and Revised Rules 609(a) and  Rule 403, and  Revised Rule 404(c). 
      Revised Rule 104(a) makes an exception to the general rule, however, when a preliminary question will overlap with an ultimate question to be decided by the jury.  This will occur only in civil cases in which the standard for admissibility (preponderance of the evidence) will be the same as applied by the jury to the determination of the same issue.  In such cases, a preponderance standard would intrude upon the province of the jury.  Therefore, consistent with current practice and the common law,  a prima facie standard should be applied. 
      Revised Rule 104(a) leaves essentially unchanged the last clause of the section, allowing the court to be  unencumbered by the rules of evidence, other than those with respect to privilege, in making its determination on preliminary matters.  Thus, the court is allowed to consider matters that would be inadmissible at trial (i.e, hearsay, unauthenticated items, etc.) for the purpose of ruling on a preliminary issue.