This chapter was updated on March 18, 2024, and reflects case and statutory law through December 1, 2023.
Links to previous versions of this chapter can be found immediately above the endnotes.

Chapter 6 Rules of Evidence in Criminal Cases

This chapter discusses the rules of evidence in criminal cases to assist law enforcement officers in understanding why evidence may or may not be admitted at trial. The discussion of exclusionary rules and informants in Chapter 4 under “Exclusionary Rules” and in Chapter 5 under “Part III. Undercover Officers and Informants” will not be repeated here.

Introduction

North Carolina has an evidence code¹ with rules of evidence that are substantially similar to the federal rules of evidence. Judges are guided by these rules of evidence and by appellate cases interpreting the rules when they make their evidentiary rulings. In addition, they are guided by federal and state constitutional requirements, miscellaneous state statutes, and the common law.

Judges have considerable discretion in deciding whether evidence should be admitted in a trial. For example, a judge must decide whether evidence, although otherwise admissible, should be excluded from a trial because

• its probative value is substantially outweighed by the danger of unfair prejudice to the State or the defendant,

• the evidence may confuse the issues in the case or mislead the jury, or

• the evidence is unnecessarily repetitious (and other specified reasons).²

For example, a judge could limit the number of character witnesses who testify at trial. Or, in a robbery case, a judge could exclude the testimony of an expert witness on identification testimony if the expert’s testimony would confuse the jurors and therefore would not assist them in understanding the robbery victim’s identification testimony.³ Thus, officers should realize that identical or similar evidence admitted in one trial may be excluded in another trial, and the discretionary rulings by the judges in both trials may be correct.

Officers also should realize that lawyers often may not object to improper questions or inadmissible evidence because (1) the evidence may not be harmful or even may be helpful to the lawyer’s case, and therefore an objection is unnecessary; (2) lawyers may be concerned that jurors may not like their objecting too often; (3) admission of evidence may permit the nonobjecting lawyer to introduce evidence later to refute the admitted evidence and actually help the lawyer’s case; or (4) the lawyer was inattentive or misunderstood the rules. Although trial judges may object on their own to the introduction of evidence, they rarely do so. Thus, evidence may be admitted in a trial that should have been excluded. Officers should remember that evidence may have been admitted only because a lawyer did not object—not because it was admissible. At another trial, similar evidence may be excluded because a lawyer properly objects. And, of course, judges sometimes make errors in admitting or excluding evidence.

Kinds of Evidence

It is useful to understand the different kinds of evidence that may be introduced at trial.

Direct and Circumstantial Evidence

Evidence is sometimes categorized as direct or circumstantial. Direct evidence directly proves a fact. For example, testimony that a witness saw the defendant shoot the victim is direct evidence. Circumstantial evidence does not directly prove a fact but provides an inference to assist in proving a fact. For example, a defendant’s fingerprint found at a murder scene is circumstantial evidence because it provides an inference that the defendant may have committed the murder but does not directly prove that the defendant did so.

Contrary to popular belief, a defendant may be convicted solely by circumstantial evidence, which often may be more valuable than direct evidence. Physical facts may be more reliable in proving that a defendant committed a crime than an eyewitness or accomplice, whose credibility or ability to observe or recall events may be questioned.

Testimonial, Real, Documentary, Illustrative, and Substantive Evidence

Evidence also may be categorized as testimonial, real, documentary, illustrative, or substantive. Testimonial evidence is what a witness says under oath. Real evidence is a physical object, such as a murder weapon, the victim’s clothing, illegal drugs, and the like. Documentary evidence is information in the form of business records, letters, and so on. Illustrative evidence (also known as demonstrative evidence) is used to help explain evidence. It may consist of a photograph or chart to assist in explaining testimony. When a photograph is introduced solely to illustrate a witness’s testimony, a jury may only consider the photograph for that purpose. However, a photograph also may be introduced as substantive evidence, which means that the jury may consider it to prove a fact in issue.⁴ For example, a photograph of a person committing a bank robbery may be offered solely to illustrate the bank teller’s testimony about the robbery. However, it could also be introduced as substantive evidence, which means that the jury may use the photograph to determine the robber’s identity.

Judicial Notice

A judge may take judicial notice of facts capable of accurate and ready determination by referring to sources whose accuracy cannot reasonably be questioned.⁵ A lawyer does not need to offer evidence of judicially noticed facts, which include the existence of federal and state laws and established medical and scientific facts (for example, oil floats on water); the dates of a calendar (for example, the fact that April 30, 2011, was a Saturday); and the times of sunrise, sunset, or tides from recognized sources.

Witnesses

Competence of Witnesses

Generally

A person is disqualified from testifying as a witness if a judge determines that the person is incapable of (1) understanding the duty to tell the truth or (2) expressing himself or herself in a manner that can be understood.⁶ Generally, this issue arises with young children or people with mental or other disabilities.

Spouses

In criminal cases, one spouse may choose to testify against the other spouse, but the State cannot compel a spouse to testify—except in prosecutions for assault or communication of a threat to the testifying spouse, any criminal offense against a minor child of either of the spouses, child abuse, abandonment or nonsupport of the spouse or their children, trespass when living separate and apart, and other specified offenses.⁷ For example, a wife may testify against her husband charged with murdering a neighbor, but the State cannot compel her to testify under threat of contempt. She alone makes that decision.⁸ On the other hand, the State may compel a wife to testify against her husband when he is charged with assaulting her.

A spouse’s marital status at the time of testifying determines whether the rules of spousal competency apply. Thus, a divorced spouse may be compelled to testify in all cases, but see the privilege for confidential communications between spouses, discussed below under “Confidential Communications between Spouses.”⁹

Direct Examination of Witnesses

Direct examination is the questioning of a witness by the attorney who has called the witness to testify. After direct examination, the opposing attorney then cross-examines the witness. Additional questioning is referred to as redirect and re-cross examination.

Leading Questions

A leading question suggests the desired answer—for example, “Isn’t it true that you saw the defendant shoot Paula Smith?” Leading questions are often those that may be answered “yes” or “no.” Although leading questions generally are not permitted on direct examination (to prevent the attorney from suggesting the answer to his or her own witness), exceptions may be made for preliminary matters, such as a witness’s employment and educational background, and for the questioning of a hostile witness or a child or other witness who has difficulty understanding questions.

Support of a Witness’s Testimony

There are various ways to support the credibility of a witness’s testimony:

• by offering the witness’s pretrial statement that is consistent with the witness’s trial testimony—for example, a statement to an officer at the crime scene that is consistent with the witness’s trial testimony;

• by offering evidence that the witness accurately perceived and remembered the events about which he or she is testifying;

• by showing that the witness is not biased or prejudiced against the other party;

• by offering evidence that the witness has no prior convictions and has not committed acts of misconduct related to truthfulness;

• by showing that the witness’s testimony is corroborated by physical evidence and by other witnesses’ testimony; or

• by offering evidence that the witness has a good character trait for truthfulness.

Cross-Examining Witnesses

An attorney who cross-examines a witness usually seeks to discredit or to minimize any harmful testimony given on direct examination and to elicit evidence favorable to the attorney’s case. Unlike on direct examination, leading questions are almost always permitted on cross-examination.

Impeaching a Witness’s Testimony

The various ways to impeach (discredit) a witness on cross-examination are essentially the opposite of the six ways of supporting a witness’s testimony (discussed in the bullet list above):

• by offering a prior inconsistent statement by the witness;

• by showing that the witness inaccurately perceived and recollected the events about which the witness has testified;

• by showing that the witness is biased or prejudiced against the other party;

• by offering evidence that the witness has prior convictions (discussed immediately below) and has committed acts of misconduct related to truthfulness;

• by offering evidence that the witness has a bad character trait for truthfulness; or

• by showing that the State’s witness has received favorable treatment from the prosecutor concerning his or her own pending criminal charges—for example, the prosecutor accepted a guilty plea to second-degree murder, reduced from first-degree murder, for the witness’s testimony against the defendant.

Impeaching a Witness with a Prior Conviction

Any witness, including a defendant, may be impeached by being asked about a prior conviction of a felony or a Class A1, 1, or 2 misdemeanor¹⁰ if the date of the conviction or the witness’s release from imprisonment for the conviction, whichever is later, occurred within ten years of the beginning of the trial at which the witness testified.¹¹ Convictions more than ten years old as calculated by this rule may be used only if a judge finds that their probative value substantially outweighs their prejudicial effect.¹² In addition to asking a witness about a prior conviction, an attorney may introduce evidence of the conviction, usually by a certified copy of the public record.

A prosecutor may not ask a defendant about prior juvenile adjudications. However, a witness other than the defendant may be asked about these adjudications if the judge finds that the evidence is necessary for a fair determination of guilt or innocence—for example, a defense lawyer usually may ask a juvenile accomplice of a defendant being tried for robbery whether the juvenile was adjudicated delinquent of the robbery.¹³

Impeaching One’s Own Witness

The rules of evidence permit a party to attack the credibility of any witness, even a witness the party has called to testify. However, there are limitations to impeaching one’s own witness, particularly when a prosecutor impeaches a State’s witness. For example, it is not uncommon for a State’s witness to give a written or oral statement to a law enforcement officer that incriminates the defendant and then, before trial, retract the statement or deny having made the statement. In such a case, a prosecutor is not permitted to call the witness at trial solely to have the witness deny making the statement and then, in an effort to impeach the witness, call the officer to testify about the witness’s prior inconsistent statement.¹⁴

Recollection

Refreshing Recollection

Witnesses—particularly investigating officers—are not expected to remember details of events that may have occurred months or years ago. They sometimes need to refer to their notes or to an investigative report.

An officer (or any other witness) may use his or her notes, an investigative report, or any other item to refresh his or her memory while testifying. For example, if an officer is asked to provide a vehicle’s license plate number and cannot remember it, the officer may look at notes or an investigative report to refresh his or her memory. This is commonly known as refreshing recollection.¹⁵ The defense lawyer has a right to inspect the notes or investigative report used to refresh recollection. However, a judge must determine what portion of the notes or report will be provided to the defense lawyer and must exclude privileged information¹⁶ (for example, an informant’s information) and information not directly related to the subject matter of the testimony. The defense lawyer may introduce into evidence those portions of the notes or report that relate to the witness’s testimony.

If an officer uses his or her notes, an investigative report, or any other item to refresh his or her memory before testifying, a judge may allow the defense lawyer to inspect and to introduce into evidence the notes, report, or other item in the same manner as described in the preceding paragraph. Note, however, that the judge’s decision to allow a defense lawyer’s inspection under these circumstances is discretionary.

An officer should not hesitate to refresh his or her recollection simply because a defense lawyer may have the right to inspect the officer’s notes or investigative report. They should consult with the prosecuting attorney or their agency’s legal advisor if they have any questions about doing so.

Recorded Past Recollection

Recorded past recollection is an exception to hearsay rules, discussed below under “Hearsay.” It permits the introduction of a written statement, memorandum, or recording concerning a matter about which a witness once knew but now has insufficient recollection to testify fully, made or adopted by the witness when the matter was fresh in his or her memory.¹⁷ In effect, although the witness cannot remember enough about the matter to testify fully, he or she admits that the prior written statement was accurate when taken. The written statement then may be read into evidence, but it may not be received as an exhibit unless offered by the other party.

The following is an example of recorded past recollection. An officer interviews a witness to a homicide and writes down what the witness says. The witness at trial testifies that he does not remember what happened. The prosecutor shows the witness the written statement that he signed when the officer interviewed him. The witness testifies that he remembers that he made the statement to the officer, saw the officer write it, told the truth to the officer, signed the statement, and saw the officer sign it. The statement then may be read into evidence because it qualifies as recorded past recollection.¹⁸ However, officers should remember that when a witness at trial denies having made a prior statement or says that the statement is not true, the prior statement is not admissible as recorded past recollection.

Opinion Evidence, Including Expert Testimony

Lay Opinion

Generally, lay (nonexpert) witnesses may testify only about their personal knowledge of facts, not their opinions. Opinions are evaluations of or inferences made from facts. However, lay witnesses may offer opinions that are rationally based on their perceptions and helpful to the jury in understanding their testimony or determining a fact in issue.¹⁹

A lawyer seeking an opinion from a witness must lay a foundation for it by showing that the witness had a basis to form the opinion—for example, knowledge of the underlying facts, ability to see and hear, and so forth. Some permissible lay opinions include (1) whether a person was dead, sane or insane, or under the influence of alcohol or drugs; (2) the speed of a vehicle; (3) the fair market value of property; and (4) identification of a person’s voice or handwriting.

Also admissible is a shorthand statement of fact, which is a conclusion about a variety of facts in one statement—for example, that a person “lost control of a vehicle” or that the person’s shoes were muddy and “didn’t look like they had been unlaced in several days.”²⁰

Expert Opinion

A witness qualified as an expert by knowledge, skill, experience, training, or education may give an opinion, even about an ultimate issue—for example, whether the defendant was insane—when the expert’s scientific, technical, or other specialized knowledge will help the jury understand the evidence or determine a fact in issue.²¹ Typical experts in a criminal case are physicians, psychiatrists, and scientific laboratory personnel. They offer opinions about cause of death, nature of injuries, insanity, and whether the defendant had the specific intent to kill. Experts also offer opinions about tests and examinations of drugs, blood and bodily fluids, DNA, fingerprints, hair, handwriting, footprints, tire tracks, fibers, bullets, firearms, toolmarks, questioned documents, and so on.

Expert testimony is admissible on the issue of impairment (but not on a specific alcohol-concentration level) concerning (1) the results of a Horizontal Gaze Nystagmus (HGN) Test, when the test was administered in accordance with the training of a person who has successfully completed HGN training and (2) whether a person was under the influence of one or more impairing substances and the category of the impairing substance or substances, when the witness holds a current certification issued by the State Department of Health and Human Services as a Drug Recognition Expert.²²

An expert in accident reconstruction who has performed a reconstruction of a crash or has reviewed the report of an investigation may with a proper foundation give an opinion about the speed of a vehicle, even if the expert did not observe the vehicle in motion.²³

Law enforcement officers sometimes may qualify as experts in drug cases. Although the case law may still be evolving, appellate courts have recognized that officers, when properly qualified by training and experience, may be experts in identifying a substance such as marijuana,²⁴ the manner in which marijuana is packaged,²⁵ how drug paraphernalia is used, and how heroin is cut.²⁶ On the other hand, officers are generally not permitted to identify substances as powder or crack cocaine.²⁷

Character Evidence

Evidence of character traits of a witness, a homicide or assault victim, or a defendant is admissible under certain circumstances. To be admissible, the character trait must be pertinent to the case. For example, the defendant’s character trait of peacefulness would be pertinent in a homicide case but not in a forgery case. Pertinent traits of character may be proved by either of two types of evidence, or by both:

1. Reputation evidence, which is what others believe about the witness’s character traits

2. Opinion evidence, which is an individual’s personal belief about the witness’s character traits²⁸

Character Traits of Testifying Witnesses

The character trait of truthfulness is pertinent for all witnesses who testify at trial, including a defendant who testifies. Thus, both the prosecutor and defense counsel may offer character witnesses to testify about a testifying witness’s character trait for truthfulness or untruthfulness. As discussed in the numbered list above, character witnesses may offer opinion or reputation evidence, or both, about a character trait.

Character Traits of Criminal Defendants

Even if a defendant does not testify, evidence of the defendant’s pertinent character traits may be introduced on his or her behalf. In any criminal case, the trait of obeying the law (being “law-abiding”) is always pertinent.²⁹ In homicide or assault cases, peacefulness is a pertinent character trait.³⁰

A prosecutor may cross-examine a defendant’s character witnesses about their knowledge of the defendant’s prior acts that reflect adversely on a pertinent character trait,³¹ and the prosecutor may offer character witnesses to rebut the testimony of the defendant’s character witnesses.³²

If a defendant testifies at trial, the prosecutor may question the defendant about his or her prior misconduct that did not result in a conviction (prior convictions were discussed above under “Impeaching a Witness with a Prior Conviction”), but only if the misconduct is relevant to the character trait of truthfulness.³³ For example, the defendant may be asked about lying on an application for employment, but he or she may not be asked about committing prior assaults or sexual abuse.³⁴

Character Traits of Homicide or Assault Victims

In any criminal case, a defendant may offer character witnesses to testify about pertinent character traits of the victim.³⁵ For example, the victim’s character trait of being a violent person would be pertinent in a homicide or assault case when there is evidence that the defendant acted in self-defense. If the defendant offers such evidence, the prosecutor may offer character witnesses to testify about the victim’s character trait of peacefulness.³⁶

Prior Sexual Behavior of Sexual Assault Victims

The prior sexual behavior of a victim of rape or other sexual offenses is not admissible unless it fits within one of the following four categories:

1. It was between the alleged victim and the defendant.

2. The evidence shows that the alleged sexual act was not committed by the defendant—for example, the defendant could not have been the source of semen found in the victim’s vagina.

3. The prior sexual behavior is so distinctive and so closely resembling the act being tried that the behavior tends to prove that the victim consented.

4. The prior sexual behavior is the basis of expert opinion that the alleged victim invented the charged act.³⁷

Even if evidence of prior sexual behavior is admissible under one of these four categories, it may not be proved by reputation or opinion evidence.³⁸

Rule 404(b): Other Offenses or Bad Acts Committed by the Defendant

Under Rule 404(b), evidence of other crimes or misconduct is admissible to prove a defendant’s identity, motive, intent, plan, and the like, unless the evidence is offered only to prove that the defendant has a bad character.³⁹ For example, evidence of a defendant’s prior assaults on a homicide victim may be admissible to show that the defendant acted with malice in killing the victim.⁴⁰ In a child sexual-offense trial, evidence of the defendant’s sexual assaults against the victim and the victim’s siblings may be admissible to show a common plan to sexually abuse children.⁴¹ In a rape and burglary trial, evidence that the defendant committed a similar rape and burglary may be admissible to prove the defendant’s identity in committing the charged offenses.⁴² In determining whether prior offenses are admissible under this rule, courts consider not only the relevance of the prior offense to the offense being tried but also how similar the prior offense is to the charged offense and how long before the charged offense it occurred.⁴³

A defendant also may offer evidence under Rule 404(b)—for example, evidence of similar offenses that tends to show that someone other than the defendant committed the charged crime.⁴⁴

Privileges

Confidential Communications between Spouses

Confidential communications between spouses are privileged when the communications are induced by the confidence of their relationship. The privilege also includes acts intended as communications. For example:a husband takes a gun from a cabinet while only his wife is present and tells her that he is going to shoot and kill someone. The privilege would prevent the State—over the husband’s objection—from eliciting testimony from the wife about the incident.⁴⁵

This privilege continues after divorce.⁴⁶ However, the privilege does not apply at any time to communications about child abuse or neglect.⁴⁷

Attorney-Client Privilege

The attorney-client privilege applies to confidential communications between an attorney and client made during the attorney-client relationship if the communications concern a matter for which the attorney is employed or being consulted.⁴⁸ The privilege may be waived only by the client—that is, the attorney may not testify about the communications if the client objects.

Physician-Patient Privilege

The physician-patient privilege applies to information that a physician (or someone working at the physician’s direction) needs in treating a patient. The privilege may be waived only by the patient. However, a judge may set aside the privilege and order the disclosure of information when the judge finds that it is “necessary to a proper administration of justice.”⁴⁹ For example, a judge could order a physician to testify about finding illegal drugs on a patient during treatment.⁵⁰

This privilege does not apply to information about child abuse.⁵¹

Other Privileges

Other privileges include communications between a member of the clergy and a communicant;⁵² between a patient and a nurse;⁵³ and between a client and a psychologist,⁵⁴ school counselor,⁵⁵ certified marital and family therapist,⁵⁶ social worker,⁵⁷ optometrist,⁵⁸ domestic violence or rape crisis center employee,⁵⁹ law enforcement peer-group counselor,⁶⁰ or registered professional counselor.⁶¹ A journalist has a qualified privilege against disclosing information in a legal proceeding that was obtained or prepared while he or she was acting as a journalist.⁶² The confidential relationship between a law enforcement officer and an informant is discussed in Chapters 4 and 5.

Hearsay

Hearsay is not admissible except as provided by the rules of evidence or statutory law.⁶³ Hearsay is not admissible because the party against whom it is offered does not have the opportunity to cross-examine the person who made the statement, the statement is usually not under oath, and the statement may be unreliable evidence.

A criminal defendant also has a Sixth Amendment right to confront the State’s witnesses. United States Supreme Court cases interpreting the Sixth Amendment’s Confrontation Clause have effectively narrowed the admissibility of hearsay offered by the State. For an analysis of the complex issues involved in these cases, see the resource cited in the accompanying footnote.⁶⁴

Definition

Hearsay is defined as a statement of another person that is offered to prove the truth of the matter asserted in the statement.⁶⁵ A statement is (1) an oral or written assertion—for example, a written statement or letter—or (2) a person’s nonverbal conduct that is intended as an assertion.⁶⁶ Such nonverbal conduct would include a witness at a lineup pointing at a person in response to an officer’s request to identify the person who committed a robbery.

If a law enforcement officer testifies that a rape victim told the officer shortly after the rape that John Smith forced her to have sexual intercourse, and the rape victim’s statement is offered to prove that John Smith raped her, that statement is hearsay and therefore inadmissible—unless it fits an exception to the hearsay rule, discussed immediately below. On the other hand, if the statement is offered solely to corroborate the rape victim’s trial testimony that she was forced to have sexual intercourse with John Smith, the statement is not hearsay.

If a law enforcement officer testifies that he or she went to 21 Elm Street in response to a radio communication that a murder was committed there, the communication is not hearsay if it is offered solely to explain why the officer went to that address. However, it is hearsay if it is offered to prove that a murder occurred there.

A witness’s affidavit is hearsay if the statements within the affidavit are offered to prove the truth of the matter asserted in them. A statement under oath is not excluded from the definition of hearsay.⁶⁷

Exceptions to the Hearsay Rule

There are more than twenty exceptions to the hearsay rule. The exceptions are divided into two categories, depending on whether or not the party offering the statement must prove that the declarant is unavailable as a witness to testify. Remember, however, that under some circumstances, the Sixth Amendment’s Confrontation Clause may require the State to produce the witness for cross-examination even though the hearsay rule does not.⁶⁸

When It Is Unnecessary to Prove That Hearsay Declarant Is Unavailable to Testify

The statements under the hearsay exceptions discussed below are admissible whether or not the declarant is available to testify as a witness. For example, if a person’s statement was made for medical diagnosis and treatment, discussed below under “Statement made for medical diagnosis or treatment,” the State may introduce the statement into evidence even though the person is available as a witness and is not called to testify. Remember, however, that under some circumstances, the Sixth Amendment’s Confrontation Clause may require the State to produce the witness for cross-examination even though the hearsay rule does not.⁶⁹

Admissions, including statements by co-conspirators. Any statement of the defendant offered by the State is admissible as an admission.⁷⁰ A statement includes not only the defendant’s verbal and written statements but also implied admissions—also known as admissions by silence.⁷¹ An implied admission is a statement made by someone other than the defendant in the defendant’s presence, including over the telephone, under circumstances in which a denial would be naturally expected if the statement were untrue. The defendant must have been able to hear and understand what was said and must have had an opportunity to speak.⁷² For example, if an accomplice and the defendant committed a murder together, the accomplice later explained the details of the murder to a third person while the defendant was in the same room listening to the explanation, and the defendant said nothing, then the defendant’s silence is an implied admission of the accomplice’s statements.⁷³ However, when a defendant remains silent in response to questioning about a crime by law enforcement officers, it is not an implied admission.⁷⁴

Statements made by the defendant’s co-conspirators are admissible as admissions against the defendant if the statements are made during the course of and in furtherance of the conspiracy.⁷⁵ On the other hand, statements made before the conspiracy begins or after the conspiracy ends are not admissions.⁷⁶

Statement made for medical diagnosis or treatment. Statements are admissible if they are made for medical diagnosis and treatment and describe a person’s medical history, past or present symptoms, pain or sensations, or the cause or source of the medical problem.⁷⁷ The statement may be made to medical personnel or to lay people who, as a result of the statement, contact medical personnel to treat the declarant. However, there are significant restrictions on the admissibility of these statements in child abuse cases.⁷⁸ If the statement includes the identity of the perpetrator who caused the medical problem, it also is admissible if the perpetrator’s identity aids proper medical treatment.⁷⁹

Excited utterance. Statements that relate to a startling event or condition are admissible if the declarant was under the stress of excitement caused by the event or condition.⁸⁰ Examples of statements that qualify under this exception include the following:

• A bystander (the declarant) to a shooting telling the defendant immediately after the defendant had shot the victim and was bending over her with the gun still in his hand “not to shoot her no more because he had already killed her”⁸¹

• An extremely excited declarant—fifteen minutes after a fire had started in a house—running to an officer and telling him that he had been inside the house and had gone to sleep and that the defendant had poured some fuel oil and set it on fire and left⁸²

A greater time period between the startling event and the statement is recognized for statements by young children—particularly when the event is child abuse—because the stress and spontaneity on which the exception is based is often present longer than with adults.⁸³

Existing mental, emotional, or physical conditions. Statements of the declarant’s then-existing state of mind, emotion, sensation, or physical condition—such as intent, plan, motive, mental feeling, pain, and physical health—are admissible under this exception.⁸⁴ Statements within this exception include a murder victim’s expression of fear of the alleged murderer or the victim’s statements about prior threats made by the alleged murderer against the victim.⁸⁵

Present-sense impression. Statements describing or explaining an event or condition are admissible when they were made while the declarant was perceiving the event or condition or made immediately thereafter.⁸⁶ When a victim came over to her mother’s house crying and told her that the defendant had kicked her out of his house, the statement was made “immediately thereafter” and was admissible under this exception.⁸⁷

Business records. The business-records exception includes records, memoranda, or reports or data compilations in any form—for example, computer data—made or transmitted in a timely manner by a knowledgeable person if the records were kept in the course of a regularly conducted business activity and it was the business’s regular practice to make the records. These facts must be proved by testimony of the records custodian or another qualified witness.⁸⁸ The exception would permit, for example, the introduction of hospital or private laboratory-test records,⁸⁹ computer-generated records,⁹⁰ telephone bills,⁹¹ and firearm-sales records.⁹²

Public records or reports. The public-records exception includes records, reports, statements, and data compilations, in any form, of public agencies setting forth (1) the agency’s activities; (2) matters observed pursuant to a legal duty for which there was a duty to report—excluding in a criminal case, however, matters observed by law enforcement officers and personnel; or (3) against the State in criminal cases, factual findings from an investigation made under legal authority, unless the sources of information or other circumstances indicate a lack of trustworthiness.⁹³ Under this exception, a defendant—but not the State—may introduce, for example, a State Crime Laboratory report on hair analysis.⁹⁴ (Note that drug laboratory reports may be introduced by the State under certain circumstances, discussed below under “Chemical Analyses in Drug Cases.”)

Residual hearsay exception. The residual hearsay exception permits the introduction of a statement that does not qualify under any specified exception, but only if the party seeking to introduce the statement satisfies rigorous criteria to show that the statement is sufficiently reliable to be admitted into evidence.⁹⁵

When It Is Necessary to Prove That Hearsay Declarant Is Unavailable to Testify

Statements under the hearsay exceptions discussed below are admissible only if the declarant is unavailable to testify as a witness. Remember, however, that under some circumstances, the Sixth Amendment’s Confrontation Clause may require the State to produce the witness for cross-examination even though the hearsay rule does not.⁹⁶

A declarant is unavailable as a witness if any one of the following occurs:

• A judge rules that the declarant has a privilege not to testify—for example, the declarant has asserted the Fifth Amendment privilege against self-incrimination

• The declarant refuses to testify about the subject matter of the hearsay statement, despite a judge’s order to do so

• The declarant testifies that he or she does not remember the subject matter of the hearsay statement

• The declarant is unable to be present or to testify because of death or physical or mental illness or infirmity⁹⁷

• The declarant is absent from the trial and the party seeking to offer the hearsay statement has been unable to procure the declarant’s attendance or testimony by legal process, such as a subpoena⁹⁸

Former testimony. Former testimony is admissible if it was given by an unavailable declarant at a prior court proceeding and the party against whom it is offered had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.⁹⁹ For example, the testimony of an unavailable witness from a prior trial against the same defendant or from a probable cause hearing for the offense being tried may be admitted if it otherwise qualifies under the exception.¹⁰⁰

Statement under belief of impending death (dying declaration). An unavailable declarant’s statement about the cause or circumstances of what the declarant believes to be his or her impending death—for example, “Tom Smith shot me”—is admissible if the statement is made while the declarant believes that death is imminent.¹⁰¹ The statement may be admissible even if the declarant does not die, as long as the declarant is unavailable at trial—for example, when the declarant is in a coma.

Statement against interest. An unavailable declarant’s statement is admissible if, when it was made, it was so contrary to the declarant’s pecuniary (money) or proprietary (property) interest, or so tended to subject the declarant to criminal liability, that a reasonable person in his or her position would not have made the statement unless the person believed it was true.¹⁰² A statement exposing the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the statement’s trustworthiness.¹⁰³ Under this exception, an unavailable declarant’s statement admitting involvement in criminal activity and implicating others, including the defendant, is admissible if corroborating circumstances clearly indicate the statement’s trustworthiness.¹⁰⁴

Residual hearsay exception. The residual hearsay exception permits the introduction of a statement that does not qualify under any specified exception, but only if the party seeking to introduce the unavailable declarant’s statement satisfies rigorous criteria to show that the statement is sufficiently reliable to be admitted into evidence.¹⁰⁵

Constitutional and Related Statutory Issues

Constitutional Duty to Provide Evidence Materially Favorable to a Defendant; Related Statutory Obligations

Prosecutors have a constitutional duty under the Due Process Clause of the Fourteenth Amendment to disclose to a defendant evidence that is materially favorable to the defendant at a trial or a sentencing hearing.¹⁰⁶ Prosecutors may violate a defendant’s constitutional rights even when they are unaware of materially favorable evidence in law enforcement files, because knowledge of that evidence is imputed to them.¹⁰⁷ Therefore, law enforcement officers should always attempt to provide prosecutors with all relevant information about a pending case.

Prosecutors also have statutory duties to disclose information, whether or not it is favorable to the defense.¹⁰⁸ For example, they must make available to a defendant the complete files of all law enforcement agencies, other investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.¹⁰⁹ Law enforcement and other investigatory agencies must provide on a timely basis a complete copy of their complete files concerning the investigation and prosecution. Also, if they obtain discoverable information and material, they must ensure that it is fully disclosed to the prosecutor on a timely basis for disclosure to the defendant.¹¹⁰ Any person who willfully omits or misrepresents evidence or information required to be disclosed to a defendant or to a prosecutor’s office commits a Class H felony or Class 1 misdemeanor (the punishment varies depending on the type of evidence or information).¹¹¹

Lost or Destroyed Evidence; Related Statutory Obligations

Officers should take appropriate care of relevant evidence in a pending case so that it is not lost or inadvertently destroyed or disposed of. Officers should consult with a prosecutor or their agency’s legal advisor before deliberately destroying or disposing of relevant evidence in a pending case or a case on appeal or review in state or federal courts, unless they are sure that they can do so.

Officers do not violate a defendant’s constitutional rights unless they act in bad faith in failing to preserve potentially useful evidence for the defense at trial.¹¹²

North Carolina statutory law requires government entities, including law enforcement agencies, to preserve DNA and biological evidence for specified time periods.¹¹³

Confessions That Implicate Another at a Joint Trial

Two people, Pete Smith and Sandra Jones, commit an armed robbery and murder. Smith is arrested and confesses to committing the crimes with Jones. Jones is arrested and denies any involvement in the crimes. If the two defendants are tried together, the prosecution may not introduce Smith’s confession—at least that part of the confession that implicates Jones—unless Smith testifies and thus provides Jones with her constitutional right to confront any witnesses against her. This rule of evidence is commonly known as the Bruton rule, named after a United States Supreme Court case.¹¹⁴

In deciding how to deal with Smith’s confession, a prosecutor must proceed in one of three ways: (1) a joint trial where the confession is not admitted into evidence; (2) a joint trial where the confession is admitted into evidence only after references to Jones have been effectively deleted so that the confession will not prejudice Jones—editing the confession in this manner is commonly known as redaction; or (3) separate trials for Smith and Jones.¹¹⁵

Miscellaneous Evidentiary Issues

Introduction of Forensic and Chemical Analysis Reports and Affidavits through Notice and Demand Statutes

To comply with a United States Supreme Court ruling¹¹⁶ involving a defendant’s right to confront witnesses at trial, the North Carolina General Assembly enacted legislation amending existing notice and demand statutes and creating others.¹¹⁷ Notice and demand statutes set up procedures by which the State may procure the defendant’s waiver of his or her confrontation right concerning forensic laboratory reports and chemical analyst affidavits.¹¹⁸ If a defendant declines to waive that right, the State generally will be required to produce the appropriate analyst to testify in court.

Forensic Analyses

Chapter 8, Section 58.20 of the North Carolina General Statutes (hereinafter G.S.) sets out a notice and demand procedure for a laboratory report of a written forensic analysis, including an analysis of a defendant’s DNA. It provides that in any criminal proceeding, a laboratory report that states the results of an analysis and is signed and sworn to by the person performing the analysis is admissible in evidence without the testimony of the analyst who prepared the report. The State must give notice of its intent to use the report no later than five business days after receiving it or thirty business days before any proceeding in which the report may be used against the defendant, whichever occurs first. The defendant then has fifteen business days to file a written objection to its use. If the defense fails to file an objection, the report is admissible without the testimony of the analyst, subject to the presiding judge ruling otherwise. If an objection is filed, the special admissibility provision in the statute does not apply.

Chemical Analyses of Blood or Urine

G.S. 20-139.1(c1) provides for the use of chemical analyses of blood or urine in any court without the testimony of the analyst. It applies to cases tried in both district and superior courts as well as to adjudicatory hearings in juvenile court. Under this provision, the State must (1) notify the defendant no later than fifteen business days after receiving the report and at least fifteen business days before the proceeding of its intent to introduce the report into evidence and (2) provide a copy of the report to the defendant. The defendant has until five business days before the proceeding to file a written objection with the court. If the defendant fails to object, then the evidence may be admitted without the testimony of the analyst. If the defense objects, the special admissibility provision in the statute does not apply.

Chemical Analyst’s Affidavit in District Court

G.S. 20-139.1(e1) provides for the use of a chemical analyst’s affidavit in district court. Under this statute, a sworn affidavit is admissible in evidence, without further authentication and without the testimony of the analyst, with regard to, among other things, alcohol concentration or the presence of an impairing substance. G.S. 20-139.1(e2) sets out a simple notice and demand procedure for this evidence. Specifically, the State must (1) provide notice to the defendant no later than fifteen business days after receiving the affidavit and at least fifteen business days before the proceeding that it intends to use the affidavit and (2) provide the defendant with a copy of that document. The defendant must file a written objection to the use of the affidavit at least five business days before the proceeding at which it will be used. Failure to file an objection is considered a waiver of the right to object to the affidavit’s admissibility. If an objection is timely filed, the special admissibility provision does not apply. However, the case must be continued until the analyst can be present and may not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to do so by the court.

Chemical Analyses in Drug Cases

G.S. 90-95(g) contains a simple notice and demand procedure for the use of chemical analyses in drug cases that applies in all court proceedings. It requires the State to provide notice to the defendant fifteen business days before the proceeding at which the report will be used. The defendant has until five business days before the proceeding to object. If no objection is filed, the report is admissible without the testimony of the analyst. If an objection is filed, the special admissibility provision does not apply.¹¹⁹

Breath-Testing Instrument Records and Permits

A judge must take judicial notice of preventive-maintenance records involving breath-testing instruments used for chemical analysis, chemical-analyst permits, and related information.¹²⁰

Division of Motor Vehicles Records

A certified copy of a driver’s license record maintained by the Division of Motor Vehicles (DMV) and sent by the Police Information Network (PIN, also known as DCI or Division of Criminal Information) is sufficient evidence to prove the status of a person’s license—for example, whether the license was revoked.¹²¹ A copy of a defendant’s conviction records maintained by the DMV or other state agency and sent by PIN (DCI) is sufficient evidence of those convictions to prove aggravating factors in a sentencing hearing for a defendant convicted of impaired driving.¹²² Evidence of the numbers and letters on a license plate attached to a motor vehicle or a motor vehicle identification number (VIN), together with certified DMV records showing the name of the owner of the vehicle to which the license plate or VIN is assigned, or a certified copy of the motor vehicle title on file with the DMV, is sufficient evidence of the ownership of the motor vehicle.¹²³

Public Records

Copies of public records—for example, conviction records—are admissible when properly certified under seal by the records custodian.¹²⁴ Certified copies of criminal conviction records in a criminal index maintained by a clerk of superior court are also admissible if the original documents on which the records are based have been destroyed pursuant to law.¹²⁵

Authentication of Physical Evidence or Documents: Chain of Custody

Before a physical object or document may be introduced in evidence, it must be properly identified as being what the party introducing the evidence asserts it is.¹²⁶ For example, if the State wants to introduce a white powdery substance to prove that the defendant possessed it at his or her home, it must show—before the substance is introduced—that it is the same substance that officers seized from that home.

A trial judge in each case exercises discretionary authority over whether to allow evidence to be introduced.¹²⁷ There are no standard rules to determine whether the State or the defendant has sufficiently identified an object so that it may be introduced at trial. One common way to identify a physical object sufficiently is to establish a chain of custody, which consists of accounting for the location and condition of the object from the time it is discovered until the time it is presented in court.¹²⁸ Mailing evidence in a sealed envelope is a common and proper way to maintain a chain of custody.¹²⁹ A chain of custody is not always required¹³⁰—nor is an unbroken chain always required¹³¹—to introduce evidence at trial. Any weak links in a chain of custody affect only the weight the jury gives the evidence, not its admissibility.¹³² However, as a matter of caution, officers should attempt to establish a chain of custody with all evidence they collect during an investigation because they obviously cannot know in advance how a trial judge may rule on whether the State has sufficiently identified an object to allow it to be introduced.

There are some steps officers may take to avoid problems in establishing a chain of custody. First, they should limit the number of people who handle evidence. Second, those who take control of evidence may want to mark it with their initials or some other notation if it is appropriate to do so with the particular kind of evidence. Third, evidence may be placed in sealed containers or tagged, if appropriate, with labels that have spaces for recording the time, date, and name of each recipient of the material whenever it is transferred from one person to another. Fourth, evidence should be stored in a place where unauthorized access is minimized.¹³³

Statutory Methods for Establishing Chain of Custody for Evidence Concerning Forensic and Chemical Analyses

North Carolina statutes set out procedures to allow, under certain circumstances, proof of a chain of custody of evidence without witness testimony concerning forensic and chemical analyses.¹³⁴ For a discussion of these statutes, see the publication cited in the accompanying footnote.¹³⁵

Authentication of Audio and Video Recordings

To authenticate an audiotape recording, the rules of evidence require only a witness’s testimony that he or she personally recognized the identity of the voice(s) on the recording.¹³⁶ The rules concerning the authentication of video recordings are set out in the cases and blog posts cited in the accompanying footnote.¹³⁷

Authentication of Text Messages and Cell Phone Records

Text messages may be authenticated in several ways—for example, by taking a screen shot of a text message¹³⁸ or by circumstantial evidence.¹³⁹ Cell phone records typically may be authenticated by the testimony of a custodian of records of the cell phone company.¹⁴⁰

Polygraph (Lie Detector) Evidence

Polygraph-testing evidence is not admissible in North Carolina courts for any purpose, although officers may use polygraph testing as an investigative tool.¹⁴¹ If a defendant confesses during or after polygraph testing, the confession is admissible as long as the test results are not presented to the jury.¹⁴²

Hypnotically Refreshed Testimony

Although officers may hypnotize a person for investigative purposes, testimony about the hypnotic session and any hypnotically refreshed testimony (that is, testimony given after a person has been hypnotized) is generally inadmissible in North Carolina courts.¹⁴³ When a party attempts to offer testimony by a person who previously has been hypnotized, that party has the burden of proving that the person is relating information that he or she knew before the hypnotic session.¹⁴⁴ Thus, officers need to record carefully a person’s statements before he or she is hypnotized.

Officers should consider consulting a prosecutor or their agency’s legal advisor before placing a person under hypnosis.

Admissibility of a Defendant’s Written Confession

A law enforcement officer may orally testify about what a defendant told the officer during a confession, including a confession that was later reduced to writing. However, before the State may introduce into evidence a written document containing a defendant’s confession,¹⁴⁵ the State must show that the written document (1) was read to or by the defendant and signed or otherwise acknowledged to be correct or (2) is a verbatim record of the questions asked by the officer and the answers given by the defendant.¹⁴⁶

Best Evidence Rule

The best evidence rule applies only to writings, recordings, and photographs, which includes still photographs, x-ray films, videotapes, and motion pictures. It does not apply to physical evidence, for example. Thus, a witness may testify about a shotgun in a murder case without the shotgun being introduced into evidence.

The best evidence rule provides that to prove the contents of a writing, recording, or photograph, the original is required, except as provided by other rules or statutes.¹⁴⁷ An officer who listens to and records—by audiotape or videotape—a defendant’s confession may testify about the confession without producing the recording because the State is not attempting to prove the contents of the recording.¹⁴⁸ The State is only proving the contents of the confession. Similarly, the best evidence rule does not apply to a photograph that a witness is using solely to illustrate his or her testimony, because proof of its contents is not involved.

If a party is seeking to prove the contents of a writing, recording, or photograph, the rule allows many alternatives to the original. For example, (1) an original of a photograph is defined to include the negative or any print from the negative and (2) an original of computer data includes any printout readable by sight that accurately reflects the data. Duplicates of the original are admissible to the same extent as an original, with limited exceptions.¹⁴⁹ Thus, photocopies of written confessions and search warrants and copies of audiotapes and videotapes are admissible at trial to prove their contents just as if they were the originals—unless, of course, there is a genuine question about their authenticity. Therefore, officers should consider making copies of important writings, recordings, and photographs.

Testimony about an original to prove its contents is admissible when all originals have been lost or destroyed, unless the party offering the testimony lost or destroyed them in bad faith.¹⁵⁰ For example, a witness may testify about the contents of letters that have not been lost in bad faith.¹⁵¹

Proof of Local Ordinances

In charging a violation of a city or county ordinance, the criminal pleading (arrest warrant, criminal summons, citation, or magistrate’s order) must allege the section number and caption—for example, “Livingston City Code, Section 7. No Loitering for Purpose of Selling Drugs.” If the ordinance has not been codified, it must be pleaded by its caption. At trial, the State must prove the validity of the ordinance, usually by offering the city or county code book containing the ordinance or by a certified copy of the ordinance.¹⁵²

Return of Property to Owner

North Carolina law provides a procedure for property owners to apply to a court for return of their property (even before trial) if a district attorney refuses to release it.¹⁵³ The court must hold a hearing after notice to all parties, including the defendant. The court may order the property returned to the lawful owner under conditions that assure that it will be available for use at trial and will otherwise protect the rights of all parties.

Links to previous versions of this chapter:
June 15, 2022