§ 12-2105. Preliminary questions.

A.  Preliminary questions concerning the qualifications 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 subsections B and C of this section.

B.  A person claiming a privilege must prove that the conditions prerequisite to the existence of the privilege are more probably true than not.  A person claiming an exception to a privilege must prove that the conditions prerequisite to the applicability of the exception are more probably true than not.  If there is a factual basis to support a good faith belief that a review of the allegedly privileged material is necessary, the court, in making its determination, may review the material outside the presence of any other person.

C.  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

D.  Hearings on the admissibility of confessions shall be conducted in all cases out of the hearing of the jury.  Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require or when requested by an accused who is a witness.

E.  The accused does not subject himself to cross-examination on other issues in the case by testifying upon a preliminary matter.

F.  This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Added by Laws 1978, c. 285, § 105, eff. Oct. 1, 1978.  Amended by Laws 2002, c. 468, § 25, eff. Nov. 1, 2002.