Section I · General Provisions

Rule 104. Preliminary questions

2024 Manual for Courts-Martial, United States

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(a) In general. The military judge must decide any preliminary question about whether a witness is available or qualified, a privilege exists, a continuance should be granted, or evidence is admissible. In so deciding, the military judge is not bound by evidence rules, except those on privilege.
(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 military judge may admit the proposed evidence on the condition that the proof be introduced later. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary.
(c) Conducting a Hearing so that the Members Cannot Hear It. The military judge must conduct any hearing on a preliminary question so that the members cannot hear it if:
(1) the hearing involves the admissibility of a statement of the accused under Mil. R. Evid. 301-306;
(2) the accused is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining the Accused. By testifying on a preliminary question, the accused 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 members evidence that is relevant to the weight or credibility of other evidence.
Cross-referencesCited by 6Cites 6
Cited by

Provisions elsewhere in the Manual whose text cites Rule 104. Each link opens the citing provision.

Rules for Courts-Martial
Discussion under R.C.M. 905(b)(3) — Motions generally (104(a))
…on other grounds may be raised by objection at trial or by motions in limine. See R.C.M. 906(b)(13), Mil. R. Evid. 103, 104(a) and (c).
Discussion under R.C.M. 905(c)(1) — Motions generally (104(a))
See Mil. R. Evid. 104(a) concerning the applicability of the Military Rules of Evidence to certain preliminary questions.
Discussion under R.C.M. 906(b)(13) — Motions for appropriate relief (104(c))
See Mil. R. Evid. 104(c). A request for a preliminary ruling on admissibility is a request that certain matters which are ordinarily…
Military Rules of Evidence
Mil. R. Evid. 202(b) — Judicial notice of law
…military judge, in determining foreign law, may consider any relevant material or source, in accordance with Mil. R. Evid. 104. Such a determination is a ruling on a question of law.
Mil. R. Evid. 1008 — Functions of the military judge and the members (104(b))
…When a court-martial is composed of a military judge and members, the members determine - in accordance with Mil. R. Evid. 104(b) - any issue about whether:
Mil. R. Evid. 1101(d)(1) — Applicability of these rules (104(a))
the military judge's determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
Rule 104 cites

Provisions named in the text of Rule 104. Where the cited provision is on this site, the link opens it.