Kentucky Rules of Evidence

ARTICLE I. GENERAL PROVISIONS

KRE 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 subdivision (b) of this rule. In making its determination it 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 or the fruits of searches conducted under color of law 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 and so requests. 

     (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject 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, including evidence of bias, interest, or prejudice.

1992 c 324, section 2, 34, eff. 7-1-92; 1990 c 88, section 4

 STUDY COMMITTEE'S OFFICIAL COMMENTARY

     Subdivision (a).  Preliminary questions generated by objection and offers of proof are rich in diversity.  In some instances, they assume the appearance of legal rather than factual issues.  The question of relevancy is illustrative.  The law of evidence provides the standard of measurement by which the question must be resolved; the trial judge resolves the question through theexercise of logic in the light of human experiences.  Questions of this type are common in the law of evidence.  For example, the trial judge must decide whether or not an event can be called "startling" for purposes of the excited utterance exception to the hearsay rule, whether or not a statement is adverse to a declarant's interest for purposes of the declaration against interest exception, whether or not a statement is pertinent to diagnosis or treatment for hearsay purposes, etc.

     In other instances questions concerning admissibility take on the look of factual issues.  Evidence law contains an abundance of rules which have the potential to create preliminary issues of fact upon which the admissibility of evidence is made to depend.  The following are typical:  (i) Is the "original" of a writing lost so that a "copy" may be introduced under the best evidence rule?  (ii)  Was a business record made close in time to the event it records, as required by the business records exception to the hearsay rule?  (iii)  Is a document more than 20 years of age as required for application of the ancient documents rule?  (iv)  Was a statement made under a consciousness of impending death as required by the dying declaration exception to the hearsay rule?  Conflicting evidence on such issues create preliminary issues of fact which must be resolved before the applicable evidence rule can be applied.

     In requiring the judge to resolve questions of the first type, subdivision (a) simply codifies long-standing and universally accepted practice.  In giving the judge exclusive responsibility for resolving questions of the second type, the provision adopts the prevailing modern view that juries cannot be expected to resolve preliminary issues pertinent to admissibility and use the evidence only upon a finding of particular facts.  Findings prerequisite to admissibility under the rules of evidence law must be made by the trial court before submission of the evidence to the jury.

     The last sentence of subdivision (a) frees trial . . .

Return to Top of Page

Disclaimer

          We are not attempting to practice law, give advice or represent ourselves as anything more than a resource portal with many unique features. Our design is copyrighted. We have no claim of any affiliation with any linked website nor any liability for anything they may say or do. We, and our contributing authors, offer no warranties of any type, to anyone, about anything express or implied.  What you see is what you get, we cannot afford to be your insurer and most assuredly are not your lawyer and do not render you any legal advice whatsoever.  No attorney client relationship is established by this site, and there is absolutely no confidentiality of any information or communication herein.  No emails received will be responded to pertaining to legal questions or advice.

          By going further into this site, you accept this complete waiver of all warranties and acknowledge reading our Legal Disclaimer.  

©  2001-2004 LouisvilleLaw, LouisvilleLaw.com & Kentucky Law Net, LLC
  
"The Kentucky Lawyer" is a registered Service Mark of Kentucky Law Net LLC. 

 LouisvilleLaw, LouisvilleLaw.com, Louisville LawWire, eLegal Summaries & LouisvilleLawyers  are service marks and the intellectual property of Kentucky Law Net LLC. 2001-2004

 To Suggest a Link or Report broken Links, please contact our Webmaster

 
Number of Hits Since June 1, 2001
 

kentucky rules of evidence, evidence code, admissibility of evidence, trial procedure, procedural rules