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.
§ 2105.Preliminary Questions
Chapter 40: Oklahoma Evidence Code · Last amended November 1, 2002 · Last verified August 3, 2026
In one sentenceGives the trial judge, not the jury, authority to decide preliminary questions about a witness's qualifications, a privilege, or the admissibility of evidence, and sets the standards and procedures for making those calls.
Full Text of § 2105
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.
Amendment History
Laws 1978, SB 276, c. 285, § 105, eff. 10/1/1978; Amended by Laws 2002, HB 1939, c. 468, §25, eff. 11/1/2002.
Plain-English Summary
Preliminary questions -- is this witness qualified, does a privilege apply, is this evidence admissible -- belong to the judge, not the jury. Subsection B sets the burden for privilege disputes: the person claiming a privilege, or an exception to one, must show the necessary conditions are more probably true than not, and the court can review the material privately if there's a good-faith basis to think that's necessary.
Subsection C addresses conditional relevance -- where evidence only matters if some other fact turns out to be true -- by letting the judge admit it subject to later proof of that condition. Confession hearings always happen outside the jury's hearing; other preliminary matters do too when justice requires it or the accused asks. Testifying at one of these hearings doesn't open the accused up to cross-examination on unrelated issues, and none of this stops a party from putting evidence about weight or credibility before the jury.
Frequently Asked Questions
Who decides whether a witness is qualified to testify in Oklahoma?
The judge. Section 2105(A) gives the court, not the jury, the job of deciding preliminary questions on a witness's qualifications, a privilege, or admissibility.
Who has the burden of proof when someone claims a privilege?
The person claiming it. Subsection B requires the party claiming a privilege -- or an exception to one -- to prove the necessary conditions are more probably true than not.
Are hearings on whether a confession is admissible held in front of the jury?
No. Subsection D requires hearings on the admissibility of confessions to be conducted out of the jury's hearing in every case.
If the accused testifies at a preliminary hearing, can that be used against them on other issues?
No. Subsection E says testifying on a preliminary matter doesn't subject the accused to cross-examination on other issues in the case.
Source & verification. Section text is reproduced verbatim from
Title 12 of the Oklahoma Statutes, enacted by the Oklahoma Legislature.
Last verified August 3, 2026.
· Official source
Also known as: oklahoma evidence code FRE 10412 O.S. § 2105 preliminary questionswho decides admissibility oklahomaburden of proving a privilege oklahoma