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  • Brian Foley

Conroe Criminal Defense Lawyer - Rules of Evidence Series RULE 104

Updated: May 31, 2023

Conroe Criminal Defense Attorney Brian Foley Discusses Texas Rule of Evidence 104

Rule 104 lays out the general rules for suppression hearings or “preliminary questions.” Check out my article called I object to his Objection for an interesting look at what rules apply to suppression hearings. (Hint: practically none).

Rule 104 (a) states that a court is not bound by the rules of evidence other than those related to privilege.

The second part of Rule 104 discusses conditional admissibility. Conditional admissibility is the idea that a court can allow a lawyer to ask questions or introduce evidence that seems irrelevant at first but is later explained by more evidence. For example, if you are claiming self defense based on the evidence at a crime scene and the first witness for the State of Texas is the person you are claiming attacked you, your lawyer could ask if they are right or left handed. The lawyer for the State may object that it is irrelevant under Rule 401 and you could show the judge during a preliminary question hearing that in fact a blood spatter expert believes that blood evidence from the scene is consistent with your blood being struck by someone on the right side of your face. This would be consistent with someone who is left handed. The relevance of the dominant hand of the State’s witness isn’t apparent at first but will become apparent later.

Rule 104 sets up a rule that is so familiar to lawyers that we can sometimes forget it is actually required by the rules. 104(c) requires the judge to conduct a hearing about the admissibility of evidence “outside the presence of the jury.” This means that the Judge has to do it so the jury can’t hear. Typically, this is done by telling the jury to leave the courtroom and go to a special room designated for jury deliberations. The Code of Criminal procedure actually requires the existence of this rule and that no Intoxicating liquor be furnished to the jurors. See Tex. Code Crim. Proc. Art. 36.21 + this earlier Blog Post)

Most importantly for criminal defendants Rule 104 sets up a situation where you may testify as to the legality of the traffic stop or other “preliminary question” and not place yourself in a situation where you have to answer questions about the rest of the criminal offense. This limited scope questioning is called “cross-examination” and the lawyer for the State of Texas would be able to question you about things like, the traffic conditions before you were pulled over, the speed you were going, or generally anything related to the legal issues surrounding the reason for evidence being suppressed. However the lawyer for the State would not be able to ask about other aspects of the offense for example in a possession of marijuana case, “Did you know the marijuana was in the center console?”

This is a great tool to be able to use when necessary.

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. In so deciding, the court 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 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 in a criminal case;

(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 outside the jury’s hearing 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.

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