(a) Determinations Made by the Court. Preliminary questions concerning the qualification or competency of a person to be a witness, the existence of a privilege, the admissibility of evidence, or the determination of probable cause, e.g., justification for a search and seizure, shall be made by the court, subject to the provisions of Subsection 104(b). In making its determination, the court is not bound by the laws of evidence except those with respect to privileges.

(1) 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 that the condition has been fulfilled.

(2) When the relevancy of evidence depends upon the admission of other evidence, which has not yet been admitted, the court may admit such evidence de bene, subject to a later motion to strike if the evidence is not forthcoming.

(c) Hearing of Jury. Hearings on the admissibility of confessions 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.

(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. A defendant who testifies at a preliminary hearing is nonetheless subject to cross-examination on issues that affect his or her credibility.

(e) Weight and Credibility. The principles of law stated in this section do not limit the right of any party to introduce before the jury evidence relevant to weight or credibility.

NOTE

Subsection (a). This subsection is derived from Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197–198, 539 N.E.2d 1017, 1021 (1989), and Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646, 779 N.E.2d 669, 673 (2002). See also Gorton v. Hadsell, 63 Mass. 508, 511 (1852) (explaining that Massachusetts follows the orthodox principle under which “it is the province of the judge . . . to decide all questions on the admissibility of evidence. It is also his province to decide any preliminary questions of fact, however intricate, the solution of which may be necessary to enable him to determine the other question of admissibility.”). The court may consider, in appropriate circumstances, representations of counsel and summary testimony. When the credibility of witnesses is in dispute on a preliminary question of fact, the court’s determination is final. See Commonwealth v. Lyons, 426 Mass. 466, 470, 688 N.E.2d 1350, 1353–1354 (1998); Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 502, 126 N.E. 841, 846 (1920). The general rule in all cases, except as to waiver of Miranda rights and the voluntariness of defendants’ statements in criminal cases, is that the judge’s findings of preliminary facts on which the admissibility of evidence depends need only be by a fair preponderance of the evidence. See Care & Protection of Laura, 414 Mass. 788, 792, 610 N.E.2d 934, 937 (1993); Commonwealth v. Polian, 288 Mass. 494, 498–499, 193 N.E.2d 68, 70 (1934).

When the preliminary question involves the applicability of a privilege and the substance of the proposed testimony or evidence is not known to the court, it may be necessary to require that the party or witness asserting the privilege make a disclosure in camera of enough of the evidence to enable the court to make a preliminary determination. See Commonwealth v. Collett, 387 Mass. 424, 436, 439 N.E.2d 1223, 1230 (1982) (in camera review may be appropriate in determining applicability of client–social worker privilege); Notes to Section 511(b), Privilege Against Self-Incrimination: Privilege of a Witness (discussing Commonwealth v. Martin, 423 Mass. 496, 668 N.E.2d 825 [1996]). See also Carr v. Howard, 426 Mass. 514, 531, 689 N.E.2d 1304, 1314 (1998) (medical peer review privilege). An in camera hearing should not be used unless the court is not able to determine the existence of the privilege from the record. Commonwealth v. Martin, 423 Mass. at 504–505, 668 N.E.2d at 831–832. See, e.g., Bays v. Theran, 418 Mass. 685, 693, 639 N.E.2d 720, 725 (1994); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65–66, 354 N.E.2d 872, 878 (1976).

Preliminary questions involving the voluntariness of a defendant’s statement, whether there was a valid waiver of the rights required by Miranda v. Arizona, 384 U.S. 436 (1966), or whether an identification was unnecessarily suggestive, should be raised in advance of trial by a motion to suppress. See Mass. R. Crim. P. 13(c)(1), (2). When voluntariness is a live issue and is challenged by a pretrial motion to suppress or an objection at trial, the court shall conduct an evidentiary hearing. See Commonwealth v. Adams, 389 Mass. 265, 269–270, 450 N.E.2d 149, 152 (1983); Commonwealth v. Miller, 68 Mass. App. Ct. 835, 842, 865 N.E.2d 825, 831 (2007); Commonwealth v. Gonzalez, 59 Mass. App. Ct. 622, 624, 797 N.E.2d 449, 451 (2003); Commonwealth v. Florek, 48 Mass. App. Ct. 414, 419, 722 N.E.2d 20, 24 (2000). However, if a pretrial motion to suppress was heard and determined in advance of trial, and the evidence at trial is not materially different, the trial judge has no duty to rehear the motion based on an objection made at trial. See Commonwealth v. Parker, 412 Mass. 353, 356, 589 N.E.2d 306, 308 (1992).

In some criminal cases, there are certain preliminary facts which, after being found by the judge, must also be submitted to the jury. In those situations, the judge must instruct the jury to disregard the evidence if they do not believe that those preliminary facts exist. See, e.g., Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, 1206 (humane practice rule), cert. denied, 457 U.S. 1137 (1982); Commonwealth v. Key, 381 Mass. 19, 22, 407 N.E.2d 327, 330 (1980) (dying declaration); Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598, 755 N.E.2d 767, 773 (2001) (statements by joint venturers). See also G. L. c. 233, § 78 (business records).

Cross-Reference: Section 1101(c)(3), Applicability of Evidentiary Sections: Sections Inapplicable: Miscellaneous Proceedings.

Subsection (b)(1). This subsection is derived from Commonwealth v. Perry, 432 Mass. 214, 234, 733 N.E.2d 83, 101 (2000); Commonwealth v. Leonard, 428 Mass. 782, 785–786, 705 N.E.2d 247, 250 (1999); and Fauci v. Mulready, 337 Mass. 532, 540, 150 N.E.2d 286, 291 (1958). “Relevancy conditioned on fact” means that the judge is satisfied that a reasonable jury could find that the event took place or the condition of fact was fulfilled. Commonwealth v. Leonard, 428 Mass. at 785–786, 705 N.E.2d at 250. See, e.g., Commonwealth v. Gambora, 457 Mass. 715, 730, 933 N.E.2d 50, 62 (2010) (expert shoe-print evidence was relevant because reasonable jury could have found that police seizure of sneaker “from a closet in a bedroom at the defendant’s mother’s home—a room where the police also found personal papers bearing the defendant’s name and photographs of him”—warranted an inference that the sneaker belonged to him, and therefore made it relevant). Contrast Section 104(a) (judge finds facts by preponderance of evidence).

Subsection (b)(2). This subsection is derived from Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 n.4, 803 N.E.2d 735, 740 n.4 (2004). In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence, admitted de bene, on its own motion. Commonwealth v. Sheppard, 313 Mass. 590, 595–596, 48 N.E.2d 630, 635 (1943). If the objecting party fails to move to strike the evidence, the court’s failure to strike it is not error. Muldoon v. West End Chevrolet, Inc., 338 Mass. 91, 98, 153 N.E.2d 887, 893 (1958). See Commonwealth v. Navarro, 39 Mass. App. Ct. 161, 166, 654 N.E.2d 71, 75 (1995). See also Section 611(a), Manner and Order of Interrogation and Presentation: Control by Court.

Subsection (c). This subsection is derived from Fed. R. Evid. 104(c) and Proposed Mass. R. Evid. 104(c) and is consistent with Massachusetts law. See Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422–423, 517 N.E.2d 152, 155 (1988).

Subsection (d). This subsection is derived from Fed. R. Evid. 104(d) and Proposed Mass. R. Evid. 104(d) and is consistent with Massachusetts law. See Commonwealth v. Judge, 420 Mass. 433, 444–446, 650 N.E.2d 1242, 1250–‌1251 (1995). It is well established that a defendant’s testimony in support of a motion to suppress evidence may not be admitted against him or her at trial on the issue of guilt. See Simmons v. United States, 390 U.S. 377, 394 (1968). Such testimony may, however, be used for purposes of impeachment at trial if the defendant elects to testify. See Commonwealth v. Judge, 420 Mass. at 446 n.9, 650 N.E.2d at 1251 n.9 (the fact that defendant’s testimony at suppression hearing may later be used at trial does not mean the scope of cross-‌examination of defendant at preliminary hearing should be limited). See also United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991) (defendant’s testimony at a pretrial hearing can be used against him for impeachment purposes at trial).

Subsection (e). This subsection is based on the long-standing principle that, in cases tried to a jury, questions of admissibility are for the court, while the credibility of witnesses and the weight of the evidence are questions for the jury. See Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 13, 696 N.E.2d 909, 918 (1998); Commonwealth v. Festa, 369 Mass. 419, 424–425, 341 N.E.2d 276, 280 (1976); Commonwealth v. Williams, 105 Mass. 62, 67 (1870).