§ RULE 5-104 PRELIMINARY QUESTIONS
RULE 5-104. 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 section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.
Committee note: See United States v. Zolin, 491 U.S. 554 (1989) and Zaal v. State, 326 Md. 54 (1992), noting the ability of a court, upon a proper foundation, to inspect privileged material in camera.
(b) Relevance Conditioned on Fact. When the relevance 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 by the trier of fact that the condition has been fulfilled.
(c) Hearing of Jury. Hearings on preliminary matters shall be conducted out of the hearing of the jury when required by rule or the interests of justice.
Cross reference: Rule 4-252.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter of admissibility, become subject to cross-examination as to other issues in the case.
Committee note: An accused who testifies only on a preliminary matter of admissibility can be cross-examined only on that matter and as to credibility. See also Rule 5-611(b)(2).
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the trier of fact evidence relevant to weight or credibility.
Source: This Rule is derived from F.R.Ev. 104.