Section I · General Provisions
Rule 104. Preliminary questions
2024 Manual for Courts-Martial, United States
See all changes(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.