(a) Determinations made by the court. The qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence is decided by the court, subject to the provisions of subdivision (b).
Rule 2:104.PRELIMINARY DETERMINATIONS
Part Two: Virginia Rules of Evidence · Last amended 2021 · Last verified July 16, 2026
In one sentenceRule 2:104 assigns the judge, not the jury, the job of deciding whether a witness is qualified, a privilege applies, or evidence is admissible, sets out when evidence depending on unproven connecting facts may come in conditionally, and protects an accused who testifies on a preliminary matter from broader cross-examination.
Full Text of Rule 2:104
(b) Relevancy conditioned on proof of connecting facts. Whenever the relevancy of evidence depends upon proof of connecting facts, the court may admit the evidence upon or, in the court' s discretion, subject to, the introduction of proof sufficient to support a finding o f the connecting facts.
(c) Hearing of jury. Hearings on the admissibility of confessions in all criminal cases mu st be conducted out of the hearing of the jury. Hearings on other preliminary matte rs in a ll c a se s must be so conducted whenever a statute, rule, case law or 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) Evidence of weight or credibility. This rule does not limit the right of any party to introduce before the jury evidence relevant to weight or credibility.
Plain-English Summary
Rule 2:104 divides labor between judge and jury on threshold evidentiary questions. Under subdivision (a), the court — not the jury — decides whether a witness is qualified to testify, whether a privilege applies, and whether evidence is admissible. That gatekeeping role sits with the judge because these are legal determinations about what the jury gets to hear, not factual questions for the jury to weigh.
Subdivision (b) carves out an exception for evidence whose relevance depends on facts that have not yet been proven. Rather than requiring proof of every connecting fact before admitting evidence, the court can admit the evidence first and let the proponent supply sufficient proof of the connecting facts afterward — or, at the court’s discretion, condition admission on that proof coming in.
Subdivisions (c) and (d) protect the jury and the accused during these preliminary hearings. Confession admissibility in criminal cases must always be argued outside the jury’s hearing; other preliminary matters must be too, whenever a statute, rule, case law, or the interests of justice call for it, or when an accused testifies and requests it. And an accused who takes the stand on a preliminary matter — arguing, say, that a confession was coerced — does not open the door to cross-examination on unrelated issues in the case by doing so.
Subdivision (e) closes the rule with a reminder that none of this limits a party’s right to put evidence about weight or credibility before the jury. A judge’s preliminary ruling that evidence is admissible does not stop a party from later attacking how much the jury should believe it.
Frequently Asked Questions
Who decides whether a witness is qualified or a privilege applies — the judge or the jury?
The judge. Rule 2:104(a) assigns the qualification of a witness, the existence of a privilege, and the admissibility of evidence to the court, subject to the connecting-facts provision in subdivision (b).
What happens when evidence is only relevant if some other fact is later proven?
Rule 2:104(b) lets the court admit the evidence on the understanding that proof of the connecting facts will follow, or condition its admission on that proof being introduced, at the court’s discretion.
Must a hearing on whether a confession is admissible happen outside the jury’s presence?
Yes, in every criminal case. Rule 2:104(c) requires hearings on the admissibility of confessions to be conducted out of the jury’s hearing, and requires the same for other preliminary matters whenever a statute, rule, case law, or the interests of justice demand it, or an accused who is a witness requests it.
If the accused testifies about a preliminary matter, can the prosecution cross-examine about the rest of the case?
No. Rule 2:104(d) states that testifying on a preliminary matter does not subject the accused to cross-examination on other issues in the case.
Does a judge’s ruling that evidence is admissible stop a party from arguing it shouldn’t be believed?
No. Rule 2:104(e) preserves every party’s right to introduce evidence before the jury that bears on the weight or credibility of admitted evidence, regardless of the court’s preliminary admissibility ruling.
Amendment History
Adopted and promulgated by Order dated June 1, 2012; effective July 1, 2012. Last amended by Order dated November 13, 2020; effective July 1, 2021.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Rules of Supreme Court of Virginia, published by the
Supreme Court of Virginia. Last verified July 16, 2026.
· Official source
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