701.4Preliminary Questions [Rule 104]

Last Updated: 03/21/21

Key Concepts

  • The court is not bound by the rules of evidence (except for rules on privilege) when deciding whether challenged evidence is admissible.
  • Hearings on the admissibility of confessions and motions to suppress should be conducted outside the jury’s presence.
  • The court only rules on the admissibility of the evidence – the weight and credibility of the evidence are left for the jury to decide.

The Basic Rule

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 subdivision (b). 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 other motions to suppress evidence in criminal trials in Superior Court 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 he so requests.

(d) Testimony by accused. – The accused does not, by testifying upon a preliminary matter, subject himself 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.

G.S. 8C-104.

Legal Overview

Procedure for Evaluating Admissibility

This rule sets forth the basic procedures by which the trial judge should evaluate and rule on the admissibility of evidence, qualifications of a witness, or existence of a privilege. In general, the judge is not called upon to weigh the proposed evidence or testimony or consider its overall probative value (except in unique circumstances, such as when comparing its probative value against the risk of unfair prejudice). Instead, the judge is only making a determination as to whether the evidence or testimony should be admitted for consideration by the trier of fact. See State v. Walker, 266 N.C. 269 (1966) (“Admissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge.”).

However, if the judge’s determination regarding admissibility depends upon a question of fact, the judge “will of necessity receive evidence pro and con on the issue” and he or she essentially “acts as a trier of fact” regarding those matters in order to decide whether the proffered evidence or testimony is admissible. G.S. 8C-104, Official Commentary.

Significantly, subdivision (a) states that the rules of evidence themselves (except for the rules relating to privilege) do not apply to this evaluation process. Thus, for example, if the judge is called upon to decide whether the defendant’s confession was voluntary, or whether an expert witness is qualified to offer an opinion, the court may receive testimony and consider facts that would otherwise be excluded by other evidentiary rules such as the rules on prejudice, hearsay, or authentication. See, e.g., State v. Ginyard, 122 N.C. App. 25 (1996) (question of admissibility of prior inconsistent statement was matter to be decided by the judge, outside presence of the jury, after hearing any evidence that either party may offer); State v. Goode, 341 N.C. 513 (1995) (similar ruling regarding evaluating a proffer of expert testimony); In re Will of Leonard, 82 N.C. App. 646 (1986) (concluding that trial judge did not err by considering records of commitment proceedings in making preliminary determination of witness’s competency; stating that “in deciding preliminary matters, the trial court will consider any relevant and reliable information that comes to its attention, whether or not that information is technically admissible under the rules of evidence”).

Practice Pointer

Motions to Suppress
A motion to suppress is simply a formal challenge to the admissibility of some of the state's anticipated evidence, and therefore any hearing held on the motion is governed by Rule 104(a). This means that the rules of evidence, except those as to privilege, do not apply at a suppression hearing (e.g., hearsay evidence is admissible). See G.S. 8C-104(a), 1101(b); State v. Ingram, 242 N.C. App. 173 (2015) (“Rules 104(a) and 1101(b)(1) of the North Carolina Evidence Code state explicitly the rules of evidence do not apply in suppression hearings”).
For more information, see the related entry on Suppression Motions: Hearings and Burden of Proof

Conditional Relevancy

Subdivision (b) addresses what is known as “conditional relevancy.” When the relevance of the evidence being offered depends upon a certain fact (e.g., a journal that documents preparations for the commission of the alleged crime would likely be relevant, but only if it can be shown that the defendant is the one who wrote it) the court may admit the evidence either “upon” a showing of its relevance, or “subject to” a later showing of relevance. G.S. 8C-104(b). If the anticipated connection that would make the admitted evidence relevant never materializes, the judge should withdraw the matter from the jury's consideration. G.S. 8C-104(b), Official Commentary ("If after all the evidence on the issue is in, pro and con" but "the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration[.]”) Id. If it remains in dispute whether subsequent evidence established the conditional relevancy link, the matter should be left to the jury to decide. Id. (if the evidence is such that the jury "could reasonably conclude that fulfillment of the condition is not established, the issue is for them").

In practice, this rule gives the trial court more flexibility to allow the parties to present their case in the manner that will be most efficient and effective. See, e.g., State v. Barnes, 345 N.C. 184 (1997) ("It is not necessary for the prosecution to establish the existence of the conspiracy before the admission of a hearsay statement falling within this exception as long as the existence of the conspiracy is eventually established"); State v. Jordan, 305 N.C. 274 (1982) (no error in allowing a witness to testify about a letter based upon anticipated evidence that would link the letter to the defendant, and defendant failed to object or move to strike when such linking evidence never materialized); State v. Thompson, 73 N.C. App. 60 (1985) (no error in allowing officer to give “corroborative” testimony about what a witness told him before the witness testified, since witness was expected to testify later).

Hearing of the Jury

Hearings on the admissibility of a confession or a motion to suppress must be conducted outside the presence of the jury. See G.S. 8C-104(c); State v. Childs, 269 N.C. 307 (1967) (manifest error to make findings of fact, conclusions of law, and declare confession admissible while jury was present in courtroom).

Hearings on the admissibility of other types of evidence must also be conducted outside the presence of the jury if: (a) the defendant so requests; or (b) the interests of justice so require. See G.S. 8C-104(c); State v. Brewington, 170 N.C. App. 264 (2005); State v. Nackab, 213 N.C. App. 219 (2011) (unpublished).

Testimony by the Accused

Pursuant to subdivision (d), if the defendant chooses to testify about a "preliminary matter" (e.g., testifying at a pretrial hearing on a motion to suppress), the defendant is not subject to cross-examination about other unrelated issues in the case. G.S. 8C-104(d). See also Simmons v. United States, 390 U.S. 377 (1968) (improper for government to establish guilt at trial by using testimony given at a hearing to suppress illegally obtained evidence).

Weight and Credibility

Finally, subdivision (e) makes clear that the court’s ruling to admit evidence does not bar the opposing party from challenging its weight or credibility. “For example, even if the court determines that a confession was not coerced, the defendant may introduce evidence of coercion, since this is relevant to the weight of the evidence.” G.S. 8C-104(e), Official Commentary; see State v. Baldwin, 125 N.C. App. 530 (1997). The jury ultimately decides what weight, if any, to give to the evidence. See State v. Noffsinger, 137 N.C. App. 418 (2000).

Portions of this entry were excerpted from Penny J. White, “The Rules of Evidence – An Introduction,” May 2015.