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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(b) 

Current Rule 104(b) addresses the issue of “conditional relevance.”  When consideration of some item of evidence by a jury is predicated on the fulfillment of a requisite condition, Current Rule 104(b) explicitly mandates that the judge determine such a condition was indeed fulfilled, by sufficient evidence to support a finding, as a necessary step to admitting the item of evidence.
The general requirement of relevance and the concerns which led the Advisory Committee to adopt the theory of “conditional relevance” in Current Rule 104(b) were succinctly tied together by one commentator:

    [t]he problem is that we want decision-makers to decide rationally and not by whim.  That, in turn, means that the trial evidence must sufficiently connect with the common knowledge of the fact finder so that deliberation on the trial evidence may occur.  The trial judge’s role is merely to see to it that the intermediate premises needed for deliberation and decision are within the common knowledge of the fact finders, and if they are not, to see to it that evidence on those necessary intermediate propositions is forthcoming in order to put the fact finder in a position to deliberate rationally.  
      The Project concluded that Current Rule 104(b) is unclear and superfluous.  It is unclear because it does not specify who is responsible for determining the preliminary factual issues regarding conditionally relevant evidence.  The rule also fails to provide guidance on the standard by which such a determination is to be made, and if by the jury, whether the presiding judge should preliminarily screen the evidence, and if so, by what standard.   It is also unclear whether the jury should be instructed on its obligations relative to issues of conditional relevance and when such instructions would be appropriate.  
       Current Rule 104(b) is superfluous because logically a jury will only consider an item of evidence if it is satisfied that all preliminary conditions making that item of evidence logically relevant have been proven to the jury's satisfaction.  Moreover, the concerns alluded to by the Advisory Committee are not restricted to issues of "conditional" relevance, as there is no practical distinction between "pure" relevance and conditional relevance.  Indeed, “the distinguishing feature of the examples of conditional relevance given by the Advisory Committee is simply that the evidence proffered does not yet satisfactorily connect with the fact finders’ experience to justify allowing deliberation to occur.”   Consequently, Revised Rule 104(a) is applicable to all relevance determinations, including so-termed “conditional relevance” determinations.  More-over, through this general application to issues of relevance, the Revised Rule corrects the inconsistent absence of a standard, under the Current Rule 104, for determining “pure” relevance. 
      Although Current Rule 104(b) permits a court to admit conditionally relevant evidence “upon, or subject to,” the fulfillment of the necessary condition, this language was eliminated, along with the remainder of Current Rule 104(b), because a decision on whether to allow admission of otherwise irrelevant evidence subject to it being “connected up” is squarely within a judge’s discretion under Current Rule 611(a).   Sequencing requirements for the admission of evidence that depends upon one or more intermediate premises for relevance should be within the discretion of the judge under the Rule designed to control the mode and order of interrogation and presentation of evidence--Current Rule 611.