19-19-104. 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;
(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 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 section does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Source: SL 1979, ch 358 (Supreme Court Rule 78-2, Rule 104); SDCL §§ 19-9-7 to 19-9-11; SL 2016, ch 239 (Supreme Court Rule 15-20), eff. Jan. 1, 2016.
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