Preliminary questions of the admissibility of evidence, including the qualification of a person to be a witness and the existence of a privilege, are to be determined by the court. In making its determination, the court is not bound by the rules of evidence except in respect to privilege and may rely, for example, on hearsay.63

Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, a court will admit it upon the admission of evidence sufficient to support a finding of the fulfillment of the condition. The court, in its discretion, may permit the introduction of the evidence subject to the later introduction of evidence sufficient to support a finding of fulfillment of the condition.64

Where a writing or recorded statement or any part thereof is introduced by a party, an adverse party may require the party offering the writing or recorded statement to introduce any part of it not being offered which in fairness should be considered with it. Similarly, whether a part or the whole is offered, the adverse party may require the offering party to introduce any other writing or recorded statement that in fairness ought to be considered with it.65

The rule is limited to writings and recorded statements. However, the writing or recorded statement need not be introduced into evidence to trigger the rule. An oral quotation from part of the document triggers the requirement if the other parts are needed to put the matter into proper context.66 Similarly, if only part of an oral statement is testified to, the judge may admit the balance to prevent unfairness and misleading the trier of fact.67

If the interests of justice require it, hearings on the admissibility of evidence should be conducted outside of the hearing of a jury. In a criminal case, any such hearing must be outside the hearing of a jury if the accused so requests.68

A finding by the court that the evidence is admissible does not preclude a party from offering to the jury additional evidence relevant to weight or credibility.69

60. Del. Code Jud. Cond., Canon 3(D).

61. Nellius v. Stiftel, 402 A.2d 359, 360 (Del. 1978).

62. Del. Const. art. IV, § 15.

63. D.R.E. 104(a). See also Lloyd v. State, 534 A.2d 1262, 1264-65 (Del. 1987).

64. D.R.E. 104(b).

65. D.R.E. 106.

66. Burke v. State, 484 A.2d 490, 497-97 (Del. 1984).

67. See Lowber v. State, 100 A. 322, 324 (Del. 1917). Cf. D.R.E. 104(e) and 403.

68. D.R.E. 104(c).

© 2010  David L. Finger