Me. R. Evid. 104

As amended through February 27, 2023

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.

Me. R. Evid. 104

Adopted effective 1/1/2015.

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.

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