RULE 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 subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy 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 of the fulfillment of the condition.
(c) Hearing of Jury. Hearings on the admissibility of confessions or statements by an accused, and pretrial identifications of an accused shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Except for subsection (c), this rule is identical to the federal rule.
The first sentence of subsection (a) is in accord with prior South Carolina law. Wright v. Pub. Sav. Life Ins. Co., 262 S.C. 285, 204 S.E.2d 57 (1974). No South Carolina authority has been found which specifically determines whether a judge must apply the rules of evidence in conducting a hearing on the admissibility of evidence. Cf. Congdon v. Morgan, 14 S.C. 587 (1880) (passing comment that judge did not violate rules of evidence during hearing on admissibility of evidence).
Subsection (b) addresses situations where the relevancy of an item of evidence depends upon the existence of a particular preliminary fact. Prior South Carolina case law has recognized that a judge commits no error in admitting evidence where its relevancy is established later in the trial. Perry v. Jefferies, 61 S.C. 292, 39 S.E. 515 (1901) (evidence of acts of defendant's agents admitted before any evidence of agency introduced).
Subsection (c) modifies the federal rule by adding the phrase "or statements made by an accused, and pretrial identifications of an accused." This addition is made to emphasize the fact that hearings on the admissibility of all statements made by a criminal defendant, whether inculpatory or exculpatory, must be made outside the presence of the jury. State v. Primus, 312 S.C. 256, 440 S.E.2d 128 (1994); State v. Lee, 255 S.C. 309, 178 S.E.2d 652 (1971). The addition also requires all hearings regarding the admissibility of pretrial identifications (to include any assertion that an in-court identification should be excluded as a result of a pretrial identification) to be heard outside the presence of the jury. State v. Simmons, 308 S.C. 80, 417 S.E.2d 92 (1992).
No South Carolina cases have been found which address the matters stated in subsections (d) and (e).