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Rule 104(a) provides: 'Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . . . In making its determination it is not bound by the rules of evidence except those with respect to privileges. ' (Emphasis added.) Rule 1101(c) provides: 'The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.' Taken together, these Rules might be read to establish that in a summons-enforcement proceeding, attorney-client communications cannot be considered by the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to make the crime-fraud determination without due regard to the existence of the privilege.


Even those scholars who support this reading of Rule 104(a) acknowledge that it leads to an absurd result. 'Because the judge must honor claims of privilege made during his preliminary fact determinations, many exceptions to the rules of privilege will become `dead letters,' since the preliminary facts that give rise to these exceptions can never be proved. For example, an exception to the attorney-client privilege provides that there is no privilege if ...

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