LEGISLATIVE
RESEARCH COMMISSION
EVIDENCE LAWS
REPORT TO THE
1983 GENERAL ASSEMBLY
OF NORTH CAROLINA
LEGISLATIVE
RESEARCH COMMISSION
EVIDENCE LAWS
REPORT TO THE
1983 GENERAL ASSEMBLY
OF NORTH CAROLINA
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STATE OF NORTH CAROLINA
LEGISLATIVE RESEARCH COMMISSION
STATE LEGISLATIVE BUILDING
RALEIGH 276
January 12, 1982
TO THE MEMBERS OF THE 1983 GENERAL ASSEMBLY:
The Legislative Research Commission herewith reports to the
1983 General Assembly on the laws of evidence. The report is
made pursuant to Resolution 61 (SJR 698) of the 1981 General
Assembly.
This report was prepared by the Legislative Research Commission's
Study Committee on The Laws of Evidence and is transmitted by the
Legislative Research Commission for your consideration.
M^ /j^Jh^*^^^
Respectfully submitted,
CoChairmen
Legislative Research Commission
TABLE OF CONTENTS
Page
Legislative Research Commission i
Study Coniminittee an-^ Its Activities ii
North Carolina Shoulf^ Adopt an Evidence Code iii
The Code Should Be Based op the Federal Rules of Evidence . iv
Effective Date v
Recommendation , vi
rule;
Article I. General Provisions:
Rule 101. Scope 1
Rule 102. Purpose and construction 1
Rule 103. Rulings on evidence:
(a) Effect of erroneous ruling:
(1) Objection 3
(2) Offer of proof 3
(b) Record of offer and ruling .... 3
(c) Hearing of jury 3
(d) Plain error 3
Rule 10U. Preliminary questions:
(ay Questions of admissibility
generally 4
(b) Felevancy conditioned on fact ... 5
(c) Hearing of jury 5
(d) Testimony fcy accused 5
(e) Weight and credibility 5
Rule 105.. Limited admissibility 9
Pule 106. Remainder of or related writings
or recorded statements 10
Article II. Judicial Notice:
Pule 201. Judicial notice of adjudicative
facts:
<a) Scope of rule
(b) Kinds of facts
(c) When discretionary
(d) When mandatory ..........
(e) Opportunity to be heard
(f) Time of taking notice
(g) Instructing jury
Article III. Presumptions in Civil Actions and
Procofviings:
Ruir^ 301. Presumptions in qeneral in civil
actions and proceedings ....
''ul.- 302. Applicability of State law m
civil actions and proceedings . 17
Articlfi IV. PelGvancy and Its Limits:
Rule 401. Definition of "relevant evidence" 17
RuIp 402. Relevant evidence generally
admissible; irrelevant evidence
inadmissible 20
Rule lOJ. Exclusion of relevant evidence on
grounds of preiudice, confusion,
or waste of time 21
Sule 404. Character evidence not admissible
to prove conduct; exceptions;
other crimes:
(a) Character evidence generally:
(1) Cliaracter of accused 23
(2) Character of victim ..... 23
(1) Character of witness 23
(b) Other crimes, wrongs, or acts ... 23
Rula 405. Methods of proving character:
(a) Reputation or opinion 28
(b) Specific instances of conduct ... 29
Pule 406. Habit; routine practice 31
Sule 407. Subsequent remedial measures ... 34
Pule 408. Compromise and offers to
compromise 36
Ruls 409. Payment of medical and other
expenses -. 38
Rule 410. Inadmissibility of pleas,
plea discussions, and related
statements 40
Rula 411. Liability insurance 44
Rule 412. Rape or sex offence cases;
relevance of victim's past
behavior 44
Article V. Privileges:
Rule 501. General rule 47
Article VI. Witnesses:
Rule 601. General rule of competency;
disqualification of witness . . 48
(a) General rule 48
(b) Disqualification of witness .... 48
Rule 602. Lack of personal knowledge .... 50
Rule 603. Oath or affirmation 51
Rule 604. Interpreters 51
Rule 605. Competency of judge as witness . . 52
Rule 606. Competency of juror as witness:
(a) At the trial 52
(b) Inquiry into validity of verdict or
indictment 52
Rule 607. Who may impeach 55
Ruli^ 608. Evidence of character and conduct
of witness:
(a) Opinion and reputation evidence
of cliaracter 56
(I') Specific instances of conduct ... 56
Rule 609. Impeachment by evidence of
conviction of crime:
(a) General rule 59
(b) Time limit 59
(c) Effect of pardon 60
(d) Juvenile adjudications 60
(e) Pendency of appeal 60
Rule 610. Religious beliefs or opinions . . 61
Rul3 611. Mode and order of interrogation
and presentation:
(a) Control by court 62
(b) Scope of cross-examination .... 62
(c) Leading questions 62
Rul3 612. Writing or object used to refresh
□ emory 64
(a) While testifying 64
(b) Before testifying 65
(c) Terms and conditions of production
anduse 65
Rule 613. Prior statements of witnesses . . 66
RuIp 614. Calling and interrogation of
witnesses by court:
(a) Calling by court 67
(b) Interrogation by court 67
(c) Objections 67
Rule 615. Exclusion of witnesses 68
Article VII. Opinions and Expert Testimony:
Rule 701. Opinion testimony by lay witnesses 70
Rule 702. Testimony by experts 71
Rule 703. Bases of opinion testimony by
experts 71
Pule 704. Opinion on ultimate issue .... 72
Rule 705. Disclosure of facts or data
underlying expert opinion ... 73
Rule 706. Court appointed experts:
(a) Appointment 74
(b) Compensation 75
(c) Disclosure of appointment 75
(d) Parties* experts of own selection . 75
Article VIII. Hearsay:
Rule 801. Definitions and exception for
Admissions of Party-Opponent . 76
(a) Statement 76
(b) Declarant 76
(c) Hearsay 76
(d) Exception for admissions by a
party-opponent ......... 76
Rule R02. Hearsay rule 82
Rule 803. Hearsay exceptions; availability
of declarant immaterial:
(1) Present sense impression . 82
(2) Excited utterance 83
(3) Then existing mental,
emotional, or physical
condition ........ 83
(4) Statements for purposes of
medical diagnosis or
treatment 83
(5) Recorded recollection ... 83
(6) Records of regularly
conducted activity ... 83
(7) Absence of entry in records
kept in accordance with the
provisions of paragraph
(6) 8a
(B) Public records and reports. 84
(9) Records of vital statistics 85
(10) Absence of public record or
entry 85-
(11) Records of religious
organizations 85
(12) Marriage, baptismal, and
similar certificates . . 85
(13) Family records 8€
(11) Records of documents affecting
an interest in property . 86
CS) Statements in documents
affecting an enterest in
property 86
(16) Statements an ancient
documents 86
(17) Market reports, commercial
publications 86
(18) Learned treatises 87
(19) Eeputation concerning personal
or family history .... 87
(20) Reputation concerning
boundaries or general
history 87
(21) Reputation as to character. 37
(22) (Reserved) 87
(23) Judgment as to personal,
family, or general history,
or boundaries 87
(24) Other exceptions 88
Rule 804. Hearsay exceptions; declarant
unavailable:
(a) Definition of unavailability . 102
(b) Hearsay exceptions:
(1) Former testimony . 103
(2) Statement under
belief of
impending death . 103
(3) Statement against
interest .... 103
(4) Statement of
personal or family
history 104
(5) Other exceptions . 104
Rule 305. Hearsay within hearsay 110
Rule R06. Attacking and supporting
credibility of declarant ... Ill
Article IX. Authentication and Identification:
Rule 901. Requirement of authentication or
identification:
(a) General provision ..... 113
(b) Illustrations:
(1) Testimony of
witness with
knowledge ... 114
(2) Nonexpert opinion
on handwriting . 114
(3) Comparison by trier
or expert witness 114
<U) Distinctive
characteristics
and the like . . . 114
(5) Voice identification 114
(6) Telephone
conversations . . 114
(7) Public records or
reports ..... 115
(8) Ancient documents
or data
compilations . . 115
(9) Process or system . 115
(10) Methods provided by
statute 115
Rule 902. Self-authentication:
(1) Domestic public documents
under seal 121
(2) Domestic public documents not
under seal 121
(3) Foreign public documents . . . 121
(4) Certified copies of public
records .......... 122
(5) Official publications .... 122
(6) Newspapers and periodicals . . 122
(7) Trade inscriptions and the
like 122
(8) Acknowledged documents .... 122
(9) Commercial paper and related
documents 123
(10) Presumptions created by law , 123
P.uIp 903. Subscribing witness testimony
unnecessary .......... 126
Article X. Contents of Writings, Recordings, and
Photographs:
Pul? 1001. Definitions:
(1) Writings and recordings 127
(2) Photographs 127
(3) Original 127
(4) Duplicate 129
Rule 1002. Requirement of original .... 129
Rule 1003. Admissibility of duplicates . . 130
Rule 1004. Admissibility of other
evidence of contents:
(1) Originals lost or
destroyed ....... 131
(2) Original not obtainable . . 131
(3) Original in possession of
opponent 131
(4) Collateral matters .... 131
Ful" 1005. Public records 133
Rule 1006. summaries 134
Ful? 1007. Testimony or written
admission of party 134
Rule 1008. Functions of court and 1ury . . 135
Article XI. miscellaneous Rul^is:
Pule 1101- Applicability of rules:
(a) Proceedings generally . . 13b
(b) Pules inapplicable:
(1) Preliminary
proceedings . . . 136
(2) Grand in jury . . . 136
(3) Miscellaneous
proceedings ... 137
(4) Contempt proceedings 137
Rule 1102. Short title 137
EFFECTIVE DATE 137
LEGISLATIVE RESEARCH COMMISSION
The Legislative Research Commission, created by Article
6B of Chapter 120 of the General Statutes, is authorized pursuant
to the direction of the General Assembly "to make or cause to be
made such studies of and investigations into governmental
agencies and institutions and matters of public policy as will
aid the General Assembly in perforaing its duties in the most
efficient and effective manner" and "to report to the General
Assembly the results of the studies made," which reports "may be
accompanied by the recommendations of the Commission and bills
suggested to effectuate the recommendations." G.S. 120-30.17.
The Commission is co-chaired by the Speaker of the House and the
President Pro Tempore of the Senate. The Commission consists of
the following five Representatives, who were appointed by the
Speaker, and five Senators, who were appointed by the President
Pro Tempore. G.S. 120-30. 10 (a) .
House Speaker Liston B.
Chairman
Ramsey,
Senate President Pro Tem
W. Craig Lawing, Chairman
Representative Chris S. Barker, Jr. Senator Henson P. Barnes
Representative John T. Church
Senator Carolyn Hathis
Representative Gordon H. Greenwood Senator William D. Mills
Represeutdtive John J. Hunt
Senator Russell Walker
Representative Lura S. Tally
Senator Robert W. Wynne
At the
Legislative Resea
numerous subjects
Pursuant to G. S. 1
appointed committe
to conduct the stu
Commission was d
group of studies a
the various comm
addition, one Sena
were designated Co
direction of the 1981 General Assembly, the
rch Commission has undertaken studies of
which were grouped into broad categories.
20-30. 10(b) and (c) , the Commission Co-Chairmen
es consisting of legislators and public Bembers
dies. Each member of the Legislative Research
elegated the responsibility of overseeing one
nd causing the findings and recommendations of
ittees to be reported to the Commission. In
tor and one Representative from each committee
-Chairmen.
STUDY C0MI1ITTEE fiND I'^^S ACTIVITIES
Resolution 65 (House Joint Resolution 1177) of the 1979
General Assembly authorized the Legislative Research Commission
to study the laws of evidence and to direct its efforts toward a
proposed evidence code for North Carolina. Henson Barnes, Ralph
Stockton, Charles Becton, Janes Black, Walter Brock, Kenneth
3roun, Robert Pyrd, Patricia Conner, William Hancock, Willis
Whichard, Herbert Larason, Jr., John C. Martin, McNeil Smith, R.
C. Soles, Robert S. Swain, and John B. Harlick were appointed
members of the Committee to Study the Laws of Evidence and
Comparative Negligence. Donald Hunt, A. W. Turner, and Dennis
Bryan served as counsel for the committee. The committee met 10
times and gave tentative approval to approximately one half of
the evidence code. Resolution 61 (House Joint Resolution 1292 of
the 1981 General Assembly) authorized the Legislative Research
Commission to continue its studv on the laws of evidence.
The following persons were appointed to the evidence Laws Study
Committee.
Senator Henson P. Barnes, Representative Paul Pulley,
Co-chairman Co-Chairman
Honorable Anthonv Brannon Representative Austin H. Allran
Dean Kenneth Broun Representative Joe Hackney
Senator William Gerry Hancock, Jr. Representative Parks Helms
Senator Joseph E. Johnson Representative George A. Hux
Honorable Philip 0. Redwine Honorable William H. ricMillan
Senator R. C. Soles Representative Dennis A. Wicker
The following persons served as staff for the committee.
Mr. Douald B. Hunt - Chief Counsel and Draftsman of Commentary
Miss Genie Rogers - Counsel
Professor Walker Blakey - Consultant
Judy Britt - Clnrk
The Evidence L=i ws Study Committee met eight times and reviewed
the rules tentatively approved by the prior committee as well as
rules in the areas the prior committee had not addressed.
ii
NORTH CAROLINA SHOULD ADOPT AN EVIDENCE CODE
The Evidence Laws Study Committee found that the need
for an evidence code clearly exists in North Carolina.
The most compelling reason why North Carolina should codify the
law of evidence is to make that law easier to find and to use.
K. Blakey, Moving Toward an Evidence Law of General Principles:
Several Suggestions Concerning an Evidence Code for North
Carolina, 13 N.C. Cent. L.J. 1, 5 (1981). At present the rules
of evidence are a complex and confusing morass of cases and
statutes. Id- at 5. The rules governing the introduction of
evidence often lie buried in the hundreds of volumes of North
Carolina decisions or scattered throughout the General Statutes.
M. Patrick, Toward a Codification of _the Law of Evidence in North
Carolina, 16 Wake Forest L. Rev. 669 (1980).
North Carolina evidence law has benefited a great deal
from the labors of Professor Stansbury and Dean Brandis. See D.
S tans bury. The North Carolina Law of Evidence (1st ed. 1946 & 2d
ed. 1963) ; D. Stansbury, North Carolina Evidence (Brandis rev.
1973); H. Brandis, Brandis on North Carolina Evidence (1982).
Nevertheless, trial judges must decide most evidence questions
within a few seconds. W. Blakey, supra, at 5. These treatises
cannot meet the needs of the judge or lawyer during a pressured
trial.
Even when a judge or practitioner has time to research
an evidence question at his leisure, his efforts frequently yield
no clear answer. He often finds "no lav on point or numerous
precedents seemingly at war with themselves." M. Patrick, supra,
at 669. To codify the law would alleviate this problem, giving
far greater access to the rules of evidence by putting them
together in one place and grouping them in logical order.
Furthermore, if the rules are easier to locate, presumably they
will be more predictably and uniformly applied in courts
throughout the State, and the guality of jurisprudence in North
Carolina will be improved.
Enactment of an integrated and thorough code would also
obviate the need for waiting on slowly developing case law to
fill in gaps in the law of evidence. Because the rules of
evidence in North Carolina are largely derived from decisional
law, unsettled issues are often left while the profession waits
for a case that raises them. Codification is a way of filling in
these gaps.
Another good reason for codifying the rules of evidence
is that codification can serve as a vehicle for badly needed
reform in some areas of evidence law. As Dean Brandis states:
"Although the fundamentals of most of the
judicial and statutory rules can be justified,
and while some currently unacceptable common law
rules have been modified or rejected, there is
still room for criticism. Some rules, still
sound in their general features, have acquired
artificial refinements through the accidents of
decisions in individual cases. Some originated
in a misunderstanding of previous decisions. For
a few, no understandable reason can be
discovered. ***
Important changes for the better have been
made by statute or decision, but a state of
perfection has certainly not been reached.
Popular mistrust of the efficiency of iudicial
procedure is based to a substantial extent on the
layman's experience with and observation of the
rules of evidence in operation. *** Much popular
criticism is the result of ignorance or
misunderstanding, but some is justified, and the
cure for this is intelligent reform rather than
undiscriminating defense of every feature of the
existing system." Br^ndis on North Carolina
IXi^^iice, supra, §2, at 3-U (footnotes omitted) .
Although Justice Lake asserted in State v. Vestal, 278
N.C. 561, 5fi9 (197 1), that "no branch of the law should be less
firmly bound to a past century than the rules of Evidence," it is
doubtful that needed changes will be effected through continued
reliance on the slow case-by-case approach of the common law.
According to one commentator:
"Much of the blame for this failure lies with the
dynamics of the adversary system, a system that
most often denies appellate courts the
opportunity to improve the law of evidence. The
trial lawyer's primary duty is to obtain the best
result for the client, not to risk the client's
fortunes while attempting to reform the law of
evidence. Nor will a trial judge often risk
reversal on appeal, with the resulting new trial,
merely to discard a well-established but outdated
evidence rule." M. Patrick, supra, at 673.
Even though codification would not resolve all the
disputes and correct all the mistakes in the law of evidence, the
adoption of an evidence code offers a unique opportunity to make
strides at once toward that goal while making evidence rules more
accessible.
THE CODE SHOULD BE BASED ON THE FEDERAL MLI§. OF EVIDENCE
In the view of the Evidence Laws Study Committee, an
evidence code for North Carolina should be based on the Federal
Rules of T=:vidence.
Since adoption of the Federal Rules of Evidence in 1975,
at least 19 states have adopted evidence codes based on the
Federal T?ules. The Federal Rules are already well enough known
to be understood and followed. W. Blakey, supra, at 9. Many
North Caroliua attorneys practice in tlie federal courts and nre
familiar with the Federal Rules. Adoption of a code bas<?d on the
Federal Rules would promote uniformity and greatly simplify the
task of learning evidence law for attorneys that practice in both
the State and federal courts in North Carolina.
The Federal Rules succeed at being thorough while
remaining manageable. Professor Mueller contended that
"Evidence law has come a long way when its
essence can be distilled in a readable and
acceptable form in some 62 rules, and those can
be printed in full in a pamphlet of manageable
size. Just such an achievement is the Federal
Rules of Evidence." C. Mueller, Symposium on the
Federal RuiSS of Evidence, 12 Land & Water L.
Rev. 585.
Although some practitioners who are thoroughly familiar
with current North Carolina evidence law may be concerned about
learning a new set of evidence rules, the Committee's view is
that this detriment is far outweighed by the benefits of an
evidence code. The Federal Rules are, by and large, a
restatement of general principles of existing North Carolina
evidence law. W. Blakey, supra, at 3. In the view of the
Committee, the task for the experienced attorney in becoming
familiar with the evidence code and making the transition to
practicing under the evidence code will not be difficult. In
fact, trial practice for all attorneys should be simplified under
evidence rules that are more accessible. The advantages of
evidence rules that are clear and accessible are even more
significant for attorneys who have not had extensive trial
experience.
The Evidence Law Study Committee used the Federal Rules
as a guide in drafting the Evidence Code. According to Professor
Moore, the Federal Rules are firmly rooted in tradition and
"[t]here is nothing revolutionary about them." 10 J. Moore,
Federal Practice, §1, at 5 (2d ed. ^919) . The Committee found
that most of the ftc'.c-ral rules were consistent with current North
Carolina practice. In some instances the Committee found that
the Federal rule was superior to current North Carolina law and
recommended the federal rule. In other instances, the Committee
found that the current North Carolina law was superior and
retained the North Carolina rules. The commentary beneath each
rule indicates whether the rule differs from the federal rule and
whether the rule is consistent with current North Carolina
practice.
EFFECTIVE DATE
As the commentary to the rules indicates, upon adoption
of an evidence code conforming amendments should be made to many
sections of the f^eneral Statutes. In the view of the Committee,
the Evidence Code should become effective July 1, 1984. This
would give the General Assembly sufficient time to enact
conforming amendments and give the courts and the bar sufficient
time to become familiar with the rules.
RECOMMENDATION
Carolina
Eules o
evidence
retain
superior
Accordin
to recom
Carolina
In the view
should adopt
f Evidence.
and make the
the principl
to the feder
gly, the ^vi
mend that the
Evidence Cod
of the Evidence Laws Study Committee, North
an evidence code based upon the Federal
Such a code will simplify the rules of
m more accessible. An evidence code should
es of North Carolina evidence law that are
al rules but not those that are outmoded.
dence Laws Study Committee voted unanimously
General Assembly enact the following North
Short Title: oimplify Evidence Laws. (Public)
Referred to:
A DILL TO BE ENTITLED
AN ACT TO SIMPLIFY AND CODIFY THE KOLES OF EVIDENCE.
The General Assembly of North Carolina enacts:
Section 1. A new Chapter is added to the General
Statutes to read:
"CHAPTER 8B.
"Evidence Code.
"* 8B-1. Rules of evidence. --The North Carolina Rules of
Evidence are as follows:
"ARTICLE 1.
"General Provisions.
"Rule 101. Sco£e.
These rules govern proceedings in the courts of this State to
the extent and with tl-.e exceptions stated in Rule 1101.
COMMENTARY
This rule differs from Fed- R. Evid. 101 only in that "courts
of this State" has been substituted for "courts of the United
States and before United States magistrates." Rule 1101 provides
greater details regarding the applicability of these rules in
various proceedings.
"Rule 102. Pureose and Construction.
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to
the end that the truth may be ascertained and proceedings justly
determined.
COMMENTARY
This rule is identical to Fed. R. Evid. 102. The commentary to
each rule indicates whether the rule is identical to or different
from its counterpart in the federal rules. The intent is to make
applicable, as an aid in construction, the federal decisional law
construing identical or similar provisions of the Federal Rules
of Evidence.
Of course, federal precedents are not binding on the courts of
this State in construing these rules. Nonetheless, these rules
are not adopted in a vacuum. A substantial body of law
construing these rules exists and should be looked to by the
courts for enlightenment and guidance in ascertaining the intent
of the General Assembly in adopting these rules. Oniformity of
evidence rulings in the courts of this State and federal courts
is one motivating factor in adopting these rules and should be a
goal of our courts in construing those rules that are identical.
Problems of coristruction may arise that have not been settled
by federal precedents. In these instances, our courts should
examine North Carolina cases as well as federal cases for
enlightenment.
Although these rules answer the vast majority of evidence
guestions that arise in our courts, there are some evidentiary
questions that are not within the coverage of these rules. In
these instances. North Carolina precedents will continue to
control unless changed by our courts.
The commentary to each rule indicates whether the rule is
consistent with current North Carolina practice. The discussion
of North Carolina law is included to highlight the changes made
by these rules.
Rule 102 provides that these rules shall be construed to
promote growth and development of the law of evidence. Of
course, this provision is not intended to give discretion to
construe the rnles unfettered by the language of the rules.
Rather, the language of Rule 102 permits a flexible approach tc
problems not explicitly covered by the rules.
"Rule 103. Rulings on Evidence.
(a) Kffect of Erroneous Ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, an i
(1) Ob-jection. In case the ruling is one admitting
oviitnce, a timely objection or motion to strike
api>mr:> of record, staging the specific arouna of
objection, if the specific ground was not apparent
from the context;
(2) Offer of Proof. In case the ruling is one
excluding evidence, the substance of the evidence
vas made known to the court by offer or was
apparent from the context within which questions
were asked.
(b) Record of Offer and Ruling. The court may add any other
or further statement which shows the character of the evidence,
the form in which it was offered, the objection made, and the
ruling thereon. It may direct the making of an offer in question
and answer form.
(c) Hearina of Jury. Tn jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking
questions in the hearing of the jury.
(d) Plain Error. Nothing in this rule precludes taking notice
of plain errors affecting substantial rights although they were
not brought to the attention of the court.
COMMENTARY
This rule is identical to Fed. F. Evid. 103.
Subdivision (a) adopts the "substantial rights" language used
in the majority of states in testing for harmless error. North
Carolina Civ. Pro. Rule 61 provides that no error is grounds for
reversal unless the error amounts to the denial of a substantial
right- subdivision (a) is not intended to affect the additional
requirement in criminal cases that a reasonable possibility exist
that a different result would have been reached if the error had
not been committed. See G.S. 15A-iaft3.
Subdivision (a) also provides that rulings on evidence cannot
be assigned as error unless the nature of the error was called to
the attention of the judge, so as to alert him to the proper
course of action and enable opposing counsel to take proper
corrective measures. This is in accord with North Carolina
practice. See Brandis on North Carolina Evidence *27, at 107
(1982) ; G.S. 15A-1446.
The provisions of subdivision (b) are substantially the same as
current North Carolina practice. North Carolina Civ. Pro. Fulo
43(c) and G.S. 15A-14U6(a) should be amended to conform to Pule
103.
Subdivision (c) is in accord with North Carolina practice.
Subdivision (d) adopts the "plain error" principle for both civil
and criminal cases.
G.S. 15A-1446(b) provides that even though a timely objection
was not made, an appellate court may review errors "in the
interest of justice if it determines it appropriate to do so."
G.S. 15A-ia46(d) lists grounds that may be the subject of
appellate review even though no objection was made at the trial
level.
In civil cases. North Carolina courts have held that the
admission of evidence may be reversible error even in the absence
of objection when the introduction or use of the evidence is
forbidden by statute in the furtherance of public policy.
Professor Brandis has described this rule on reversible error in
the absence of objection where a statute would exclude the
evidence as a principle in need of re-examination. Brandis on
Noitil Carolina Evidence §27 (1982). It is anticipated that in
civil cases appellate courts will rarely exercise the authority
to take notice of errors that were not brought to the attention
of the trial court.
"Rule 104. Preliminarx Questions.
(a) Questions of Admissibility Generally. Preliminary
questions concerning the gualif icati on 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 subdivision (b) . In making its determination it is
not bound by the rnles of evidence except those with respect to
privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of
evidence depends upor the fulfillment o-*" a condition of fact, the
court shall adroit it upon, or subiect to, the introduction of
evidence sufficient to support a finding of the fulfillment of
the condition.
(c) Hearim of Jury. Hearinns on the admissibility of
confessions shall in 3ll cases be conducted out of the hearing of
the jury. Hearlnc]:; on other preliminary matters shall be so
conducted when the interests of justice require or, when an
accused is a witness, if he so requests.
(d) Testimony by Accused. The accused does not, by testifying
upon a preliminary matter, subject himself to cross-examination
as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the
right of a party to introduce before the jury evidence relevant
to weight or credibility.
COMMENTARY
This rule is identical to Fed. R. Evid, 104.
Subdivision (a) states as a general rule that preliminary
questions shall be determined by the judge. This is in accord
with North Carolina practice. See H. Brandis, Brandis on North
Carolina Fvidence 5 8 (1982). The Advisory Committee's Note to
the federal rule states:
"The applicability of a particular rule of
evidence often depends upon the existence of a
condition. Is the alleged expert a qualified
physician? Is a witness whose former testimony
is offered unavailable? Has a stranger present
during a conversation between attorney and
client? In each instance the admissibility of
evidence will turn upon the answer to the
question of the existence of the condition.
Accepterl practice, incorporated in the rule,
places on the judge the responsibility for these
determinations. McCormick § 53; Morgan, Basic
Problems of Evidence U5-50 (1962).
To the entent that these inquiries are factual,
the judge acts as a trier of fact. Often,
however, rulings on evidence call for an
evaluation in terms of a legally set standard.
Thus when a hearsay statement is offered as a
declaration against interest, a decision must be
made whether it possesses the required against-
interest characteristics. These decisions, too,
are made by the judge.
In view of these considerations, this subdivision
refers to preliminary requirements generally by
the broad term 'question,' without attempt at
specif icatioii.
This subdivxsion is of general application. It
must, however, be read as subject to the special
provisions for 'conditional relevancy' in
subdivision (b) and those for confessions in
subdivision (d) . "
The second sentence of subdivision (b) provides that in
making its determination on preliminary questions, the
court is not bound by the rules of evidence except those
with respect to privileges- The Advisory Committee's Note
states:
"If the question is factual in nature, the judge
will of necessity receive evidence pro and con on
the issue. The rule provides that the rules of
evidence' in general do not apply to this process.
Mccormick ^ 53, p. 123, n. 3, points out that the
authorities are 'scattered and inconclusive," and
observes:
•Should the exclusionary law of evidence, 'the
child of the jury system' in Thayer's phrase, be
applied to this hearing before the judge? Sound
sense backs the view that it should not, and that
the judge should be empowered to hear any
relevant evidence, such as affidavits or other
reliable hearsay.'
This view is reinforced by practical necessity in
certain situations. An item, offered and
objected to, may itself be considered in ruling
on admissibility, though not yet admitted in
evidence. Thus the content of an asserted
declaration agaiust interest must be considered
in ruling whether it is against interest. ***
Another example is the requirement of Rule 602
dealing with personal knowledge. In the case of
hearsay, it is enough, if the declarant 'so far
as appears [has] had an opportunity to observe
the fact declared*. HrCormick § 10, p. 19.
If concern is felt over the use of affidavits by
the judge in preliminary hearings on
admissibility, attention is directed to the many
important -judicial determinations made on the
basis of affidavits. ***
The rules of Civil Procedure are more detailed.
Rule a3(e), dealing with motions generally,
provides:
'When a motion is based on facts not appearing of
record the court may hear the matter on
affidavits presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral or testimony or
depositions. •
. . . Fule 56 provides in detail for the entry of
summary judgment based on affidavits. Affidavits
may supply the foundation for temporary
restraining orders under Rule 65(b)."
Subdivision (b) concerns relevancy conditioned on fact.
The Advisory Committee's Note states:
"In some situations, the relevancy of an item of
evidence, in the large sense, depends upon the
existence of a particular preliminary fact. Thus
when a spoken statement is relied upon to prove
notice to X, it is without probative value unless
X heard it. Or if a letter purporting to be from
Y is relied upon to establish an admission by
him, it has no probative value unless Y wrote or
authorized it. Relevance in this sence has been
labelled 'conditional relevancy'. Morgan, Basic
Problems of Evidence 45-46 (1962). Problems
arising in connection with it are to be
distinguished from problems of logical relevancy,
e.g., evidence in a murder case that accused on
the day before purchased a weapon of the kind
used in the killing, treated in Pule 401.
If preliminary questions of conditional relevancy
were determined solely by the judge, as provided
in subdivision (1), the :Punctioning of the jurv
as a trier of fact would be greatly restricted
and in some cases virtually destroyed. These are
appropriate questions for juries. Accepted
treatment, as provided in the rule, is consistent
with that given fact questions generally. The
judge makes a preliminary determination whether
the foundation evidence is sufficient to support
a finding of fulfillment of the condition. If
so, the item is admitted. If after all the
evidence on the issue is in, pro and con, the
jury could reasonably conclude that fulfillment
of the condition is not established, the issue is
for them. If the evidence is not such as to
allow a finding, the judge withdraws the matter
from their consideration. ***
The order of proof here, as generally, is subject
to the control of the judge. "
Subdivision (b) is in accord with North Carolina
practice in making an exception to the general rule that
preliminary questions are for the court- When the
relevancy of evidence depends upon the existence of some
other fact which also requires proof, the determination of
the preliminary fact question is for the jury. Brandis on
North Carolina Evidence § 8, p. 27-28 (1982).
Subdivision (c) concerns when hearings on preliminary
questions will be out of the hearing of the jury. The
Advisory Committee's Note states:
"Preliminary hearings on the admissibility of
confessions must be conducted outside the hearing
of the jury. See Jackson v. Denno, 378 U.S. 368,
84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964). Otherwise,
detailed treatment of when preliminary matters
should be heard outside the hearing of the jury
is not feasible. The procedure is time
consuming. Not infrequently the same evidence
which is relevant to the issue of establishment
of fulfillment of a condition precedent to
admissibility is also relevant to weight or
credibility, and time is saved by taking
foundation proof in the presence of the jury.
Much evidence on preliminary questions, though
not relevant to jury issues, may be heard by the
jury with no adverse effect- A great deal must
be left to the discretion of the judge who will
act as the interests of justice require."
Subdivision (c) is in accord with North Carolina
practice.
Subdivision (d) provides that the accused does not, by
testifying upon a preliminary matter, subject himself to
cross-examination as to other issues in the case. As the
Aivisory Committer's Note states:
"The limitation upon cross-examination is
designed to encourage participation by the
accused in the determination of preliminary
matters. He may testify concerning them without
exposing himself to cross-examination generally.
The provision is necessary because of the breadth
of cross-examination under Rule 611(b).
The rule does not address itself to questions of
the subsequent use of testimony given by an
accused at a hearing on a preliminary matter.
See Haider v. United States, 347 fJ.S. 62 (1954);
Simmons v. United States, 390 U.S. 377 (1968);
Harris v. Now York, 401 U.S. 222 (1971)."
There are no North Carolina cases on this point.
Subdivision (e) makes it clear that after the court
makes its determination on a preliminary question of fact,
the party opposing the ruling is entitled to introduce
before the jury evidence that relates to the weight or
credibility of certain evidence. For example, even if the
court determines that a confession was not coerced, the
defendant may introduce evidence of coercion, since this
is relevant to the weight of the evidence.
Subdivision (e) is in accord with North Carolina
practice.
"Rule 105. Limited Admissibility.
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
COMMENTARY
This rule is identical to Fed. R. Evid. 105- The Advisory
Committee's Note states:
"A close relationship exists between this rule
and Rule 403 which requires exclusion when
•probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury.' The present
rule recognizes the practice of admitting
evidence for a limited purpose and instructing
the jury accordingly. The availability and
effectiveness of this practice must be taken into
consideration in reaching a decision whether to
exclude for unfair prejudice under Rule 403. In
Bruton V. United States, 389 n. S. 818, 88 S.Ct.
126, 19 L.Ed. 2d 70 (1968), the Court ruled that a
limiting instruction did not effectively protect
the accused against the prejudicial effect of
admitting in evidence the confession of a
codefendant which implicated him. The decision
does not, however, bar the use of limited
admissibility with an instruction where the risk
of prejudice is less serious."
Rule 105 is in accord with the general rule in North
Carolina that evidence that is inadmissible for one
purpose may be admitted for other and proper purposes.
See Brand is on North Carolina Evidence § 79 (1982).
"Rule 106. Remainder of or Related Writings or Recorded
Statements.
When a writing or recorded statement or part thereof is
introduced by e party, an adverse party may require him at that
time to introduce any other part or any other writing or recorded
statement which ought in fairness to be considered
contemporaneously with it.
COMMENTARY
This rule is identical to Fed. R. Evid. 106. The Advisory
Committee's Note states:
"The rule is an expression of the rule of
completeness. McCormick * 56. It is manifested
as to depositions in Rule 32(a) ('4) of the Federal
Rules of Civil Procedure, of which the proposed
rule is substantially a restatement.
The rule is based on two considerations. The
first is the misleading impression created by
taking matters out of context. The second is the
inadequacy of repair work when delayed to a point
later in the trial. *♦* The rule does not in any
way circumscribe the right of the adversary to
develop the matter on cross-examination or as
part of his own case.
For practical reasons, the rule is limited to
writings and recorded statements and does not
10
apply to conversations."
N. C. Civ. Pro. Rule 32(a)(5), which applies to
depositions, is similar to Rule 106.
"ARTICLE 2.
"Judicial Notice.
"Rule 201. Judicial Notice of Adjudicative Facts.
(a) Scope of Rule. This rule governs only -judicial notice of
adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is eith^^r (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice,
whether reguested or not.
(d) When ilandatory. A court shall take judicial notice if
reguested by a party and supplied with the necessary information.
(e) Opportunity to be Heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In
the absence of prior notification, the reguest may be made afher
judicial notice has oeen taken.
(f) Time of Taking Notice. Judicial notice may be taken at
any stage of the proceeding.
(g) Instructing Jury. In a civil action or proceeding, the
court shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct
11
the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed.
COMMENTARY
This rule is identical to Fed. R. Evid. 201. The Advisory
Committee's Note states:
"This is the only evidence rule on the subject of
judicial notice. It deals only with judicial
notice of 'adjudicative' facts. No rule deals
with judicial notice of 'legislative' facts, ***
The omission of any treatment of legislative
facts results from fundamental differences
between adjudicative facts and legislative facts.
Adjudicative facts are simply the facts of the
particular case. Legislative facts, on the other
hand, are those which have relevance to legal
reasoning and the lawmaking process, whether in
the formulation of a legal principle or ruling by
a judge or court or in the enactment of a
legislative body. *♦*
What, then, are 'adjudicative' facts? Davis
refers to them as those 'which relate to the
parties,' or more fully:
'When a court or an agency finds facts concerning
the immediate parties — who did what, where,
when, how, and with what motive or intent — the
court or agency is performing an adjudicative
function, and the facts are conveniently called
adjudicative facts-...
•Stated in other terms, the adjudicative facts
are those to which the law is applied in the
process of adjudication. They are the facts that
normally go to the jury in a jury case. They
relate to the parties, their activities, their
properties, their businesses.' 2 Administrative
Law Treatise 353."
Current North Carolina law does not deal with procedure
for taking judicial notice of facts. Judicial notice of
domestic and foreign law is dealt with in G. S. Chapter 8,
Article 1, which remains in force.
Subdivision (b) concerns the kinds of facts that may be
judicially noticed. The Advisory Committee's Note states:
"With respect to judicial notice of adjudicative
facts, the tradition has been one of caution in
12
requiring that the matter be beyond reasonable
controversy. This tradition of circumspection
appears to be soundly based, and no reason to
depart froip it is apparent."
Subdivision (b) is consistent with current North
Carolina practice. See Brandis on North Carolina Evidence
§ 11 (1982).
Subdivisions (c) and (d) govern when judicial notice is
discretionary and when it is mandatory. The Advisory
Committee's Note states:
"Under subdivision (c) the -judge has a
discretionary authority to take jucicial notice,
regardless of whether he is so requested by a
party. The taking of judicial notice is
mandatory, under subdivision (d) , only when a
party requests it and the necessary information
is supplied. This scheme is believed to reflect
existing practice. It is simple and workable.
It avoids troublesome distinctions in the many
situations in which the process of taking
judicial notice is not recognized as such,"
North Carolina cases have not dealt with this issue.
Subdivision (e) entitles a party, upon timely request,
to an opportunity to be heard as to the propriety of
taking judicial notice. The Advisory Committee's Note
states:
"Basic considerations of procedural fairness
demand an opportunity to be heard on the
propriety of taking judicial notice and the tenor
of the matter noticed. The rule requires the
granting of that opportunity upon request. No
formal scheme of giving notice is provided. An
adversely affected party may learn in advance
that judicial notice is in contemplation, either
by virtue of being served with a copy of a
request by another party under subdivision (d)
that judicial notice be taken, or through an
advance indication by the judge. Or he may have
no advance notice at all. The likelihood of the
latter is enhanced by the frequent failure to
recognize judicial notice as such. And in the
absence of advance notice, a request made after
the fact could not in fairness be considered
untimely. ..."
If judicial notice is taken by an appelate court, an
opportunity to be heard must be given upon timely request.
13
Subdivision (e) departs from current North Carolina
practice which generally does not require an opportunity
to be heard prior to the court taking judicial notice on
its own initiative. See Brandis on North Carolina
Evidence §11 (1982) .
With respect to notice at administrative hearings, see
G-S. 150A-30.
Subdivision (f) is in accord with North Carolina
practice in allowing judicial notice to be taken at any
stage of the proceedings, whether in the trial court or on
appeal.
Subdivision (g) concerns instructing the jury with
respect to judicially noticed facts. The Advisory
Committee's Note states:
"Within its relatively narrow area of
adjudicative facts, the rule contemplates there
is to be no evidence before the jury in disproof.
The judge instructs the jury to take judicially
noticed facts as established. This position is
justified by the undesirable effects of the
opposite rule in limiting the rebutting party,
though not his opponent, to admissible evidence,
in defeating the reasons for judicial notice, and
in affecting the substantive law to an extent and
in ways largely unforeseeable. Ample protection
and flexibility are afforded by the broad
provision for opportunity to be heard on request,
set forth in subdivision (e)."
Subdivision (g) is in accord with North Carolina
practice in civil cases by not allowing evidence to be
introduced to dispute a fact that has been judicially
noticed. See Brandis on North Carolina Evidence * 11, at
34 (1982) .
However, subdivision (g) differs from North Carolina
practice by permitting evidence to be introduced in a
criminal trial to rebut a fact that has been judicially
noticed. In adopting subdivision (g) , Congress was of the
view that a mandatory instruction to a jury in a criminal
case to accept as conclusive any fact judicially noticed
is contrary to the spirit of the right to a jury trial.
"ARTICLE 3.
"Presumptions in Civil Actions and Proceedings.
"Bule 301. Presumptions in General in Civil Actions and
Proceedings.
14
In all civil actions and proceedings when not otherwise
provided for by statute, by judicial decision, or by these rules,
a presumption imposes on the party against whom it is directed
the burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion, which remains
throughout the trial upon the party on whom it was originally
cast. The burden of going forward is satisfied by the
introduction of evidence sufficient to permit reasonable minds to
conclude that the presumed fact does not exist. If the party
against whom a presumption operates fails to meet the burden of
producing evidence, the presumed fact shall be deemed proved, and
the court shall instruct the -jury accordingly. When the burden
of producing evidence to meet a presumption is satisfied, the
court must instruct tlie jury that it may, but is not reguired to,
infer the existence of the presumed fact from the proved fact.
COMMENTARY
The first sentence of this rule is identical to Fed. R. Evid.
301, except that the phrase "by statute, by -judicial decision" is
used in lieu of the phrase "by Act of Congress." The last three
sentences of the rule, which were modeled upon Alaska Rule of
Evidence 301 (1979), clarify the effect of the rule.
A presumption is an assumption of fact resulting from a rule of
law which requires such fact to be assumed or inferred from
another fact established in the action. The terra "basic fact" is
used to designate the fact from which the assumption or inference
is made and the term "presumed fact" is used to indicate the fact
assumed or inferred.
The rule does not apply to "conclusive presumptions", which are
merely statements of substantive law and have nothing to do with
the law of evidence. See Brandis on North Carolina Evidence §
215, at 170 (1982) .
In some situations, when the basic fact has been established,
the presumed fact may (but need not) be found to exist. The
15
existence of the presumed fact is for the trier of fact to
determine from all the evidence £ro and con. The terra
"permissive presumption" is used to describe this situation. Id.
at 171. Or it is said that the basic fact is prima facie
evidence of the fact to be inferred. Rule 301 does not apply in
situations where a statute or judicial decision creates a
"permissive presumption" or merely provides that one fact shall
be "prima facie" evidence of another.
The term "mandatory presumption" is used when the presumed fact
must be found when the basic fact has been established, unless
sufficient evidence of the nonexistence of the presumed fact is
forthcoming. Id. at 171. Rule 301 is intended to qovern
mandatory presumptions.
Care should be taken to determine whether the presumption in
question is within the scope of this rule since the term
presumption is often misused. The first sentence of the rale
makes it clear that the General Assembly and the courts retain
power to create presumptions having an effect different from that
provided for in this rule. Nonetheless, a presumption created by
a prior statute or judicial decision should be construed to come
within the scope of this rule unless it is clear that the
presumption was not intended to be a "mandatory presumption".
Onder Rule 301, the presumption satisfies the burden of
producing evidence of the presumed fact. Evidence sufficient to
prove the basic fact is sufficient proof of the presumed fact to
survive a directed verdict at the end of the proponent's case-in-
chief. This is in accord with North Carolina practice.
The general rule in North Carolina is in accord with Rule 301
in that a presumption does not shift the burden of proof. Id. §
218, at 179. However, with respect to some presumptions in North
Carolina, the opponent has the burden of persuading the jury, by
a preponderance of the evidence or otherwise, that the presumed
fact does not exist. Id. If by statute or judicial decision a
particular presumption shifts the burden of proof. Rule 301 does
not apply.
Proof of the basic fact not only discharges the proponent's
burden of producing evidence of the presumed fact hut also places
upon the opponent the burden of producing evidence that the
presumed fact does not exist. If the opponent does not introduce
any evidence, or the evidence is not sufficient to permit
reasonable minds to conclude that the presumed fact does not
exist, the proponent is entitled to a peremptory instruction that
the presumed fact shall be deemed proved. This is in accord with
North Carolina practice. Id. § 222, at 189.
If the opponent introduces evidence sufficient to permit
reasonable minds to conclude that the presumed fact does not
exist, no peremptory instruction should be given. Rather, the
court must instruct the jury that it may, but is not required to.
infer the existence of the presumed fact from proof of the basic
fact.
Of course, the opponent may avoid the effect of a presumption
by proving that the basic fact does not exist.
"Rule 30 2. Applicahility of State Law in Civil Actions and
Proceedings .
In civil actions and proceedings, the effect of a presumption
respecting a fact which is an element of a claim or defense as to
which federal law supplies the rule of decision is determined in
accordance with federal law.
COMMENTARY
This rule differs from Fed. R. Evid. 302 in that "federal lav"
has been substituted for "state law." The Comment to Rule 302 of
the Uniform Rules of Evidence (1974) explains the purpose of the
change:
"Parallel jurisdiction in state and federal courts
exists in many instances. The rule prescribes that when
a federally created right is litigated in a state court,
any prescribed federal presumption shall be applied."
"ARTICLE U.
"Relevancy and Its Limits-
"Rule U01. Definition of 'Relevant Evidence' .
•Relevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
COMMENTARY
This rule is identical to Fed. R. Evid. 401. The Advisory
Committee's Note states:
"Problems of relevancy call for an answer to the
question whether an item of evidence, when tested
by the processes of legal reasoning, possesses
sufficient probative value to justify receiving
it in evidence. Thus, assessment of the
17
probative value of evidence that a person
purchased a revolver shortly prior to a fatal
shooting with which he is charged is a matter of
analysis and reasoning.
The variety of relevancy problems is coextensive
with the ingenuity of counsel in using
circumstantial evidence as a means of proof. An
enormous number of cases fall in no set pattern,
and this rule is designed as a guide for handling
them. On the other hand, some situations recur
with sufficient frequency to create patterns
susceptible of treatment by specific rules. Rule
404 and those following it are of that variety;
they also serve as illustrations of the
application of the present rule as limited by the
exclusionary principles of Bule 403-
Passing mention should be made of so-called
•conditional* relevancy. Morgan, Basic Problems
of Evidence 45-46 (1962). In this situation,
probative value depends not only upon satisfying
the basic requirement of relevancy as described
above but also upon the existence of some matter
of fact. For example, if evidence of a spoken
statement is relied upon to prove notice,
probative value is lacking unless the person
sought to be charged heard the statement. The
problem is one of fact, and the only rules needed
are for the purpose of determining the respective
functions of -judge and -jury. See Rules 104(b)
and 901. The discussion which follows in the
present note is concerned with relevancy
generally, not with any particular problem of
conditional relevancy.
Relevancy is not an inherent characteristic of
any item of evidence but exists only as a
relation between an item of evidence and a matter
properly provable in the case. Does the item of
evidence tend to prove the matter sought to be
proved? Whether the relationship exists depends
upon principles evolved by experience or science,
applied logically to the situation at hand.
James, Relevancy, Probability and the Law, 29
Calif. L. Rev. 689, 696, n. 15 (1941), in Selected
Writings on Evidence and Trial 610, 615, n. 15
(Fryer ed. 1957) . The rule summarizes this
relationship as a 'tendency to make the
existence* of the fact to be proved 'more
probable or less probable. ' Compare Uniform Rule
1(2) which states the crux of relevancy as •a
tendency in reason,* thus perhaps empliasizing
unduly the logical process and ignoring the need
18
to draw upon experience or science to validate
the general principle upon which relevancy in a
particular situtation depends.
The standard of probability under the rule is
•more . . . probable than it would be without the
evidence. ' Any more stringent requirement is
unworkable and unrealistic. As Mccormick § 152,
p. 317, says, 'A brick is not a wall,' or, as
Falknor, Extrinsic Policies Affecting
Admissibility, 10 Rutgers L.Rev. 574, 576 (1956),
quotes Professor McBaine, ». . . [ lit is not to
be supposed that every witness can make a home
run.' Dealing with probability in the language
of the rule has the added virtue of avoiding
confusion between questions of admissibility and
questions of the sufficiency of the evidence.
The rule uses the phrase 'fact that is of
consequence to the determination of the action'
to describe the kind of fact to which proof may
properly be directed. The language is that of
California Evidence Code § 210; it has the
advantage of avoiding the loosely used and
ambiguous word 'material'. **♦ The fact to be
proved may be ultimate, intermediate, or
evidentiary; it matters not, so long as it is of
consequence in the determination of the action.
Cf . Qnif orm Rule 1 (2) which reguirees that the
evidence relate to a 'material' fact.
The fact to which the evidence is directed need
not be in dispute. While situations will arise
which call for the exclusion of evidence offered
to prove a point conceded by the opponent, the
ruling should be made on the basis of such
considerations as waste of time and undue
prejudice (see Rule U03) , rather than under any
general requirement that evidence is admissible
only if directed to matters in dispute. Evidence
which is essentially background in nature can
scarcely be said to involve disputed matter, yet
it is universally offered and admitted as an aid
to understanding. Charts, photographs, views of
real estate, murder weapons, and many other items
of evidence fall in this category. A rule
limiting admissibility to evidence directed to a
controversial point would invite the exclusion of
this helpful evidence, or at least the raising of
endless questions over its admission."
While North Carolina courts have used slightly different
definitions of relevant evidence, tho rule is unlikely to
alter significantly North Carolina practice. See Braadis
19
on North Carolina Evidence § 78 (1982). Although the rule
speaks in terms of relevancy, the definition includes what
is often referred to in our courts as materiality. Id. ^
77.
"Rule 40 2- Relevant Evidence f;enerally Admissible;
Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the
Constitution of North Carolina, by Act of Congress, by Act
of the General Assembly or by these rules- Evidence which
is not relevant is not admissible.
COMMENTARY
This rule is identical to Fed. R. Evid. 402 except that the
phrases "by the Constitution of North Carolina" and "by Act of
the General Assembly" were added and the phrase "by other rules
prescribed by the Supreme Court pursuant to statutory authority"
was deleted. The Advisory Committee's Note states:
"The provisions that all relevant evidence is
admissible, with certain exceptions, and that
evidence which is not relevant is not admissible
are 'a presupposition involved in the very
conception of a rational system of evidence.'
Thayer, Preliminary Treatise on Evidence 264
(1898) . They constitute the foundation upon
which the structure of admission and exclusion
rests. ♦*♦
Not all relevant evidence is admissible. The
exclusion of relevant evidence occurs in a
variety of situations and may be called for by
these rules, by the Rules of Civil
Procedure . . ., by Act of Congress, or by
constitutional considerations.
Succeeding rules in the present article, in
response to the demands of particular policies,
require the exclusion of evidence despite its
relevancy. In addition, . . . Article VI imposes
limitations upon witnesses and the manner of
dealing with them; Article VII specifies
requirements with respect to opinions and expert
testimony; Article VIII excludes hearsay not
falling within an exception; Article IX spells
out the handling of authentication and
20
identification; and Article X restricts the
manner of proving the contents of writings and
recordings.
The Rules of Civil , . . Procedure in some
instances reguire the exclusion of relevant
evidence. For example, ... the Rules of Civil
Procedure, by imposing requirements of notice and
unavailability of the deponent, place limits on
the use of relevant depositions.
♦ ♦ ♦ ♦ *
The rule recognizes but makes no attempt to spell
out the constitutional considerations which
impose basic limitations upon the admissibility
of relevant evidence. Examples are evidence
obtained by unlawful search and seizure. Weeks v.
United States, 232 U.S. 383, 34 S.Ct. 3U1, 5B
L.Ed. 652 (1914); Katz v. United States, 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967);
incriminating statement elicited from an accused
in violation of right to counsel, Massiah v.
United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed. 2d 246 (1964) ."
Rule 402 is consistent with North Carolina practice.
"Rule 4 03. Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time.
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
COMMENTARY
This rule is identical to Fed. R. Evid- 403. The Advisory
Committee's Note states:
"The case law recognizes that certain
circumstances call for the exclusion of evidence
which is of unquestioned relevance. These
circumstances entail risks which range all the
way from inducing decision on a purely emotional
basis, at one extreme, to nothing more harmful
than merely wasting time, at the other extreme.
21
Situations in this area call for balancing the
probative value of and need for the evidence
against the harm likely to result from its
admission. *** The rules which follow in this
Article are concrete applications evolved for
particular situations. However, they reflect the
policies underlying the present rule, which is
designed as a guide for the handling of
situations for which no specific rules have been
forumlated.
Exclusion for risk of unfair prejudice, confusion
of issues, misleading the jury, or waste of time,
all find ample support in the authorities.
'Dnfair prejudice* within its context means an
undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an
emotional one.
The rule does not enumerate surprise as a ground
for exclusion, in this respect following
Wigmore*s view of the common law. 6 Higmore S
18U9. Cf. Mccormick § 152, p. 320, n. 29,
listing unfair surprise as a ground for exclusion
but stating that it is usually 'coupled with the
danger of prejudice and confusion of issues'. ***
While it can scarcely be doubted that claims of
unfair surprise may still be justified despite
procedural reguirements of notice and
instrumentalities of discovery, the granting of a
continuance is a more appropriate remedy than
exclusion of the evidence. *** Moreover, the
impact of a rule excluding evidence onthe ground
of surprise would be difficult to estimate."
The rule is substantially in accord with North Carolina
practice. See Brandis on North Carolina Evidence § 77 et
seg. (1982) . In North Carolina, unfair surprise appears
to be a ground for exclusion of evidence. Id. § 77, p.
287. However, as the Advisory Committee states, the rule
does not enumerate surprise as a ground for exclusion.
Nonetheless, surprise may be covered by unfair prejudice,
confusion of issues, or undue delay. See Wright and
Graham, Federal Practice and Procedure: Evidence § 5218,
at 298.
The Advisory Committee's Note states that:
"In reaching a decision whether to exclude on
grounds of unfair prejudice, consideration should
be given to the probable effectiveness or lack of
effectiveness of a limiting instruction. See
Rule 106 and Advisory Committee's Note
thereunder. The availability of other means of
22
proof may also be an appropriate factor."
"Rule U0 4. Character Evidence not Admissible to Prove
Conduct; Exceptions; Other Crimes.
(a) Character Evidence c^enerally. Evidence of a
person's character or a trait of his character is not
admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a
pertinent trait of his character offered by
an accused, or by the prosecution to rebut
the same;
(2) Character of Victim. Evidence of a
pertinent trait of character of the victim
of the crime offered by an accused, or by
the prosecution to rebut the same, or
evidence of a character trait of
peacefulness of the victim offered by the
prosecution in a homicide case to rebut
evidence that the victim was the first
aggressor;
(3) Character of Witness. Evidence of the
character of a witness, as provided in Rules
607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
23
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident,
COHMENTARY
This rule is identical to Fed. Evid. Pule 404.
Subdivision (a) deals with the basic question whether character
evidence should be admitted. The Advisory Committee's Note
states:
"Once the admissibility of character evidence in
some form is established under this rule,
reference must then be made to Rule 405, which
follows, in order to determine the appropriate
method of proof. If the character is that of a
witness, see Rules 608 and 610 for methods of
proof.
Character questions arise in two fundamentally
different ways. (1) Character rray itself be an
element of a crime, claim, or defense. A
situation of this kind is commonly referred to as
•character in issue.' Illustrations are: the
chastity of the victim under a statute specifying
her chastity as an element of the crime of
seduction, or the competency of the driver in an
action for negligently entrusting a motor vehicle
to an incompetent driver. No problem of the
general relevancy of character evidence is
involved, and the present rule therefore has no
provision on the subject. The only question
relates to allowable methods of proof, as to
which see Rule 405, immediately following. (2)
Character evidence is susceptible of being used
for the purpose of suggesting an inference that
the person acted on the occasion in question
consistently with his character. This use of
character is often described as 'circumstantial.'
Illustrations are: evidence of a violent
disposition to prove that the person was the
aggressor in an affray, or evidence of honesty in
disproof of a charge of theft. This
circumstantial use of character evidence raises
questions of relevancy as well as questions of
aliowablo mt.thods of proof."
The rule is consistent with North Carolina practice in that
character evidence is generally not admissible as circumstantial
evidence of conduct.
24
Subdivision (a) (1) creates an exception which permits an
accused to introduce pertinent evidence of good character, in
which event the prosecution may rebut with evidence of bad
character- The exception is consistent with North Carolina
practice except that subdivision (a)(1) speaks in terras of a
"pertinent trait of his character". This limits the exception to
relevant character traits, whereas North Carolina practice
permits use of evidence of general character. Professor Brandis
states that:
"The North Carolina rule on this subject is
unigue, and appears to have had its origin in a
misinterpretation of the earlier opinions.
In a majority of jurisdictions, character
evidence must be confined to the particular trait
of character involved in the conduct which is
being investigated: In the case of a witness,
his character for truth and veracity; of a
defendant charged with a crime of violence, his
peaceable or violent character; of an alleged
embezzler, his honesty and integrity, etc.; a few
courts will also admit evidence of general moral
character, and this view was adopted by the North
Carolina Court at an early date. For at least
eighty years it was permissible to prove either
the general character or the specific relevant
trait of character of the person in question.
When, during this period, the Court stated that
only 'general character' could be shown, it meant
that the only method of proving character was by
general reputation, as distinguished from
•particular facts and the opinion of witnesses.'
In State v. Hairston the principle of the earlier
cases seems to have been misunderstood, and the
rule was stated: «A party introducing a witness
as to character can only prove the general
character of the person asked about. The
witness, of liis own motion, may say in what
respect it is good or bad.'***
When the witness is asked whether he knows the
general 'reputation' or 'reputation and
character' of the subject, if he answers 'No' he
should be stood aside; but if he answers 'Yes' it
seems that he need not confine his testimony to
that reputation, but may testify to reputation
for some specific trait of character. This may
be highly relevant, as when witness character is
at stake and the answer deals with reputation for
veracity. However, it may deal with reputation
for liquor-selling, or horse trading, or domestic
cruelty, even though the trait is wholly
irrelevant to any issue in the case.
25
The Court recently reviewed the history of the
rule, but did not change it. It explicitly held
that it is proper for counsel to prepare his
witness by explaining the rule and that this does
not render the specific trait evidence
inadmissible unless, at counsel's suggestion, it
is false. To this writer this is convincing
proof that the rule should be scrapped. When
counsel ascertains in advance a trait which the
witness will specify, his question to elicit it
should surely not merely be allowed, but be
required to deal with that trait. In such case,
objection may be made to the question and
relevance rationally appraised. As it is, the
question is foolproof and there is no opportunity
to object until the specific trait evidence is
actually given and the damage is done." Brandis
on North Carolina Evidence §114 (1982) (footnotes
omitted) :
Brandis also notes that:
"At best the present rule requires use of an
ambiguous and misleading formula in examining
character witnesses. At worst it has positively
undesirable consequences. It opens the door to
evidence of character traits which are irrelevant
and prejudicial, and permits the prosecution,
under the guise of impeaching the defendant as a
witness, to prove traits having no relation to
veracity but which are relevant on the issue of
guilt, thus evading the rule (see * 104)
prohibiting the State from attacking the
defendant's character umless he first puts it in
issue. These consequences would be avoided, and
logic and symmetry restored, by confining the
inquiry to traits relevant for the particular
purpose and holding the witness to responsive
answers." Id. at 114, n. 91.
Subdivision (a) (2) creates an exception to permit an accused to
introduce pertinent evidence of the character of the victim and
to permit the prosecution to introduce similar evidence in
rebuttal of the character evidence. The subdivision extends the
exception recognized in North Carolina homicide and assault and
battery cases to include all criminal cases. See Brandis on
North Carolina Evidence § 106 (1982).
North Carolina practice permits evidence of the character of
the victim tending to show that the defendant had a reasonable
apprehension of death or bodily harm. Id. Such evidence when
introduced to show the reasonable apprehension of death or bodily
harm to the accused, rather than to prove that the victim acted
in conformity with his character trait on a particular occasion.
26
would not be within the ban created by subdivision (a).
North Carolina practice also permits evidence of the character
of the victim tending to show that the victim was the first
aggressor. Unlike rule 404, current North Carolina practice
permits such evidence to be introduced only if the State's
evidence is wholly circumstantial or the nature of the tranaction
is in doubt.
Subdivision (a) (2) permits proof of any pertinent trait of the
victim. North Carolina practice has confined the evidence to
character for violence. Id.
Subdivision (a) (2) is consistent with North Carolina practice
in that evidence of the character of the victim for peace and
quiet would be admissible to rebut evidence of the deceased's
character for violence and evidence of the victim's good general
character would not. Id. at 397.
The second part of subdivision (a) (2) permits introduction of
"evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut evidence
that the victim was the first aggressor." In North Carolina the
prosecution may offer evidence of the deceased's character for
peace and quiet only if the defendant has introduced evidence of
the deceased's character for violence. See Nance v. Fike, 244 N.
C. 368, 372 (1956). Thus in North Carolina the accused can
apparently claim self-defense without opening the door to
character evidence relating to the victim. Subdivision (a) (2)
would alter this practice and permit the prosecution to offer
evidence of the peacefulness of the victim to rebut any evidence
that the victim was the first aggressor.
The North Carolina exception, unlike the rule, applies to cases
of civil assault and battery. See Brandis on North Carolina
Evidence *106, at 393 (1982). The Advisory Committee's Note
states:
"The argument is made that circumstantial use of
character ought to be allowed in civil cases to
the same extent as in criminal cases, i.e.,
evidence of good (nonprejudicial) character would
he admissible in the first instance, subject to
rebuttal by evidence of bad character.*** The
difficulty with expanding the use of character
evidence in civil cases is set forth by the
California Law Revision Commission ***:
•Character evidence is of slight probative value
and may be very prejudicial. It tends to
distract the trier of fact from the main question
of what actually happended on the particular
occasion. It subtly permits the trier of fact to
reward the good man and to punish the bad man
27
becduse of their respective characters despite
what the evidence in the case shows actually
happened. ' "
Subdivision (a) (3) creates an exception to the general
rule and permits the introduction of evidence of the
character of a witness, as provided in Rules 607, 608, and
609, to prove that he acted in conformity therewith on a
particular occasion.
Subdivision (b) permits the introduction of specific
"crimes, wrongs, or acts" for a purpose other than to
prove the conduct of a person. The Advisory Committee's
Note states:
"Subdivision (b) deals with a specialized but
important application of the general rule
excluding circumstantial use of character
evidence. Coii:-i stentiy with that rule, evidence
of other crimes, wronas, or acts is not
admissible to prove character as a basis for
suggesting the inference that conduct on a
particular occasion was in conformity with it.
However, the evidence may be offered for another
purpose, such as proof of motive, opportunity,
and so on, which does not fall within the
prohibition. In this situation the rules does
not reguire that the evidence be excluded. No
mechanical solution is offered. The
determination must be made whether the danger of
undue prejudice outweigh ts the probative value of
the evidence, in view of the availability of
other means of proof and other factors
appropriate for making decisions of this kind
under Rule 403."
The list in the last sentence of subdivision (b) is
nonexclusive and the fact that evidence cannot be brought
within a category does not mean that the evidence is
inadmissible.
Subdivision (b) is consistent with North Carolina
practice.
Relevance of the complainant's past behavior in a rape
or sex offense case is governed by Rule 412.
"Rule 405. Methods of Provino[ Character.
(a) Eeputatior or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony
28
in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct. Expert
testimony on character or a trait of character is not admissible.
(b) Specific Instances of Conduct. In cases in which
character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of
specific instances of his conduct.
COMHENTARY
This rule is identical to Fed. R. Evid, 405 except for the
addition of the last sentence to subdivision (a) .
The Advisory Committee's Note states:
"The rule deals only with allowable methods of proving
character, not with admissibility of character evidence,
which is covered by Rule 40U.
Of the three methods of proving character provided by
the rule, evidence of specific instances of conduct is
the most convincing. At the same time it possesses the
greatest capacity to arouse pre-judice, to confuse, to
surprise, and to consume time. Consequently the rale
confines the use of evidence of this kind to cases in
which character is, in the strict sense, in issue and
hence deserving of a searching inquiry. When character
is used circumstantially and hence occupies a lesser
status in the case, proof may be only by reputation and
opinion. These latter methods are also available when
character is in issue. "
With respect to specific instances of conduct and reputation,
this treatment is consistent with North Carolina practice. See
Brandis on North Carolina Evidence ^110 (1982).
With respect to opinion evidence, the Advisory Committee's Note
states:
"In recognizing opinion as a means of proving
character, the rule departs from usual
contemporary practice in favor of that of an
earlier day. See 7 Wigmore §1986, pointing out
th?t the earlier practice permitted opinion and
arguing strongly for evidence based on personal
knowledge and belief as contasted with 'the
secondhand, irresponsible product of multiplied
guesses and gossip which we term 'reputation'.'
29
It seems likely that the persistence of
reputation evidence is due to its largely being
opinion in disguise. Traditionally character has
been regarded primarily in moral overtones of
good and bad: chaste, peaceable, truthful,
honest. Nevertheless, on occasion nonmoral
considerations crop up, as in the case of the
incompetent driver, and this seems bound to
happen increasingly. If character is defined as
the kind of person one is, then account must be
taken of varying ways of arriving at the
estimate.*** No effective dividing line exists
between character and mental capacity, and the
latter traditionally has been provable by
opinion."
In permitting opinion evidence as a means of proving
character, the rule departs from current North Carolina
practice. The general practice in this State is to frame
questions in terms of reputation. However, if the witness
is questioned coucerning the "general character" or the
"reputation and character" of another person, it is
understood that the real sub-ject of inquiry is reputation.
State v. Kinn* 22a N.C. 329 (19U4) ; State v. Hicks, 200
N.C. 539 (1933); State v. Cathey, 170 N-C. 794 (1916).
Professor Brandis points out that:
"If as, e.^., in the initial question in State v.
Cathey ... 'reputation' is entirely omitted from
the question, or if the question refers, as in
State V. Hicks to 'reputation and
character,' the judge and counsel may know that
the witness should confine himself to reputation,
but, in the absence of further enlightenment, it
seems most doubtful that the witness is so
legally learned. Therefore, the practical result
may well be to admit opinion evidence while
giving lip service to the prohibition against it.
Since, additionally, as a practical matter, many
witnesses will in fact give opinion in answering
a question ostensibly calling only for
reputation, it seems to the author of this
edition that it would be much more realistic for
the Court to scrap the present stated rule and
frankly admit either opinion or reputation
testimony." St^nsbury's North Carolina Evidence
(Brandis ed. ) §110, at 338, n. 99.
Since Fed. R. Fvid. 405 opens up the possibility of
proving character by means of expert witnesses, the last
sentence was added to subdivision (a) to prohibit expert
testimony on character.
The second sentence of subdivision (a) permits inquiry
30
on cross-examination into relevant specific instances of
conduct. The Advisory Committee's Note states:
"According to the great majority of cases, on
cross-examination inquiry is allowable as to
whether the reputation witness has heard of
particular instances of conduct pertinent to the
trait in question.*** The theory is that, since
the reputation witness relates what he has heard,
the inquiry tends to shed light on the accuracy
of his hearing and reporting. Accordingly, the
opinion witness would be asked whether he knew,
as well as whether he had heard. The fact is, of
course, that these distinctions are of slight if
any practical significance, and the second
sentence of subdivision (a) eliminates them as a
factor in formulating questions. This
recognition of the propriety of inguiring into
specific instances of conduct does not
circumscribe inquiry otherwise into the bases of
opirion and reputation testimony."
Under current North Carolina practice, inquiry into
specific instances of conduct on cross-examination is
available only on the cross-examination of the person
whose character is in question. Brandis on North Carolina
Evidence §§111, 115 (1982). It is not permissible in
North Carolina to ask a character witness whether he has
heard of the person in question having committed a
particular act. Id. §115. However, to some extent the
North Carolina rule may be circumvented by cross-
examination as to specific traits. Id.
Also, the Advisory Committee's Note states:
"The express allowance of inquiry into specific
instances of conduct on cross-examination in
subdivision (a) and the express allowance of it
as part of a case in chief when character is
actually in issue in subdivision (b) contemplate
that testimony of specific instances is not
generally permissible on the direct examination
of an ordinary opinion witness to character.
Similarly as to witnesses to the character of
witnesses under Pule 608(b). Opinion testimony
on direct in these situations ought in general to
correspond to reputation testimony as now given,
i.e., be confined to the nature and extent of
observation and acquaintance upon which the
opinion is based. See Pule 701."
"Rule 4 06. Habit; Routine Practice.
31
Evidence of the habit of a person or of the routine practice of
an organization, whether corroborated or not and regardless of
the presence of eyewitnesses, is relevant to prove that the
conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.
COMMENTARY
This rule is identical to Fed. R. Evid. 406.
The Advisory Committee's Note states:
"An oft-quoted paragraph, McCormick. §162, p. 340,
describes habit in terms effectively contrasting it with
character.
•Character and habit are close akin. Character is a
generalised description of one's disposition, or of
one's disposition in respect to a general trait, such as
honesty, temperance, or peacef ulness. 'Habit,* in
modern usage, both lay and psychological, is more
specific. It describes one's regular response to a
repeated specific situation. If we speak of character
for care, we think of the person's tendency to act
prudently in all the varying situations of life, in
business, family life, in handling automobiles and in
walking across the street. A habit, on the other hand,
is the person's regular practice, of meeting a particular
kind of situation with a specific type of conduct, such
as the habit of going down a particular stairway two
stairs at a time, or of giving the hand-signal for a
left turn, or of alighting from railway cars while they
are moving. The doing of the habitual acts may become
semi-aotomatic. '
Equivalent behavior on the part of a group is designated
'routine practice of an organization' in the rule.
Agreement is general that habit evidence is highly
persuasive as proof of conduct on a particular occasion.
Again quoting McCormick 4162, p. 341:
•Character may be thought of as the sum of one's habits
though doubtless it is more than this. But
unquestionably the uniformity of one's response to habit
is far greater than the consistency with which one's
conduct conforms to character or disposition. Even
though character comes in only exceptionally as evidence
of an act, surely any sensible man in investigating
whether X did a particular act would be greatly helped
in his inquiry by evidence as to whether he was in the
32
habit of doing it. •
When disagreement has appe=ired, its focus has been upon
the question what constitutes habit, and the reason for
this is readily apparent. The extent to which instances
mu<^t be multiplied and consistency of behavior
maintained in order to rise to the status of habit
inevitably gives rise to difference of opinion. Lewan,
Rationale of Habit Evidence, 16 Syracuse L-Rev. 39, U9
(1964) . While adequacy of sampling and uniformity of
rr-sponse are key factors, precise standards for
measuring their sufficiency for evidence purposes cannot
be formulated.
The rule is consistent with prevailing views. Much
evidence is excluded simply because of failure to
achieve the status of habit. Thus, evidence of
intemperate -habits' is generally excluded when offe^^ed
as proof of drunkenness in accident cases, Annot. , Hb
A L R 2d 103, and evidence of other assaults is
inadmissible to prove the instant one in a civil assault
action, Annot,. 66 A-L.R.2d 806. In Levin v. United
Staies 119 G.S.App. D.C. 156, 338 F. 2d 265 (196U)
testimony as to the religious -habits' of the accused,
offered as tending to prove that he was at home
observing the Sabbath rather than out obtaining money
through larceny by trick, was held properly excluded:
•It seems apparent to us that an individual's
religious practices would not be the type of
activities which would lend themselves to the
characterization of "invariable regularity." (1
Wigmore 520.) Certainly the very volitional
basis of the activity raises serious questions as
to its invariable nature, and hence its probative
value,' Id. at 272.
These rulings are not inconsistent with the trend
towards admitting evidence of business
transactions between one of the parties and a
third person as tending to prove that he made the
same bargain or proposal in the litigated
situation. Slough, Relevancy Onraveled, 6
Kan. L. Rev. 38-41 (1957), Nor are they
inconsistent with such cases as Whittemore v
Lockheed Aircraft Corp., ^5 Cal,App.2Q 737, 151
D 2d 670 (1944), upholding the admission of
evidence that plaintiff's intestate had on four
other occasions flown planes from defendant s
factory for delivery to his employer airline,
offered to prove that he was piloting rather than
a guest on a plane which crashed and killed all
on board while en route for delivery.
A considerable body of authority has required
that evidence of the routine practice of an
organization be corroborated as a condition
precedent to its admission in evidence. Slough,
Relevancy Unraveled, 5 Kan. L. Rev. 40U, UUS
(1957) . This requirement is specifically
rejected by the rule on the ground that it
relates to the sufficiency of the evidence rather
than admissibility. *** The rule also rejects the
requirement of the absence of eyewitnesses,
sometimes encountered with respect to admitting
habit evidence to prove freedom from contributory
negligence in wrongful death cases."
Rule 406 is consistent with North Carolina practice.
See Brandis on North Carolina Evidence * 95 (1982).
"Rule 4 07. Subsequent Remedial Measures.
When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary
measures, if those issues are controverted, or impeachment.
COMMENTAPY
This rule is identical to Fed. R. Evid- 407 except that the
phrase "those issues are" has been inserted to clarify what must
be controverted.
The Adivsory Committee's Note states:
"The rule incorporates conventional doctrine
which excludes evidence of subsequent remedial
measures as proof of an admission of fault. The
rule rests on two grounds. (1) The conduct is
not in fact an admission, since the conduct is
equally consistent with injury by mere accident
or through contributory negligence. Or, as Baron
Bramwell put it, the rule rejects the notion that
•because the world gats wiser as it gets older,
therefore it was foolish before'. Hart v.
Lancashire 6 Yorkshire R^^ Qo^, 21 L.T.R.N.S.
34
261, 263 (1869). Under ^ liberal theory of
relevancy this ground alone would not support
exclusion as the inference is still a possible
one. (2) The other, and more impressive, ground
for exclusion rests on a social policy of
encouraging people to take, or at least not
discouraging them from taking, steps in
furtherance of added safety. The courts have
applied this principle to exclude evidence of
subsequent repairs, installation of safety
devices, changes in company rules, and discharge
of employees, and the language of the present
rule is broad enough to encompass all of them.
See Falknor^ Extrinsic Policies Affecting
Admissibility, 10 Rutgers L. Rev. 57U, 590 (1956).
The second sentence of the rule directs attention
to the limitations of the rule. Exclusion is
called for only when the evidence of subsequent
remedial measures is offered as proof of
negligence or culpable conduct. In effect it
rejects the suggested inference that fault is
admitted. Other purposes are, however,
allowable, including ownership or control,
existence of duty, and feasibility of
precautionary measures, if controverted, and
impeachment. 2 Wigmore § 283; Annot., 6U A.L.R.2d
1296. Two recent federal cases are illustrative.
Boeing Airplane Co. v. Brown, 291 F. 2d 310 (9th
Cir. 196 1), an action against an airplane
manufacturer for using an allegedly defectively
designed alternator shaft which caused a plane
crash, upheld the admission of evidence of
subsequent design modification for the purpose of
showing that design changes and safeguards were
feasible. And Powers v. J- Bj. Michael S Co. ,
329 F.2d 674 (6th Cir. 1964), an action against a
road contractor for negligent failure to put out
warning signs, sustained the admission of
evidence that defendant subsequently put out
signs to show that the portion of the road in
question was under defendant's control. The
requirement that the other purpose be
controverted calls for automatic exclusion unless
a genuine issue be present and allows the
opposing party to lay the groundwork for
exclusion by making an admission. Otherwise the
factors of undue prejudice, confusion of issues,
misleading the jury, and waste of time remain for
consideration under Rule 403."
The increasing tendency of federal courts is to hold
that Rule 407 is not applicable to product liability
cases. North Carolina courts have applied the rule
35
excludinq pvidence of subsequent remedial measures in
product liability cases. See Jenkins v. Helqren, 26 N.C.
App. 653 (1975). It is the intent of the Committee that
the rule should apply to all types of actions.
Rule 407 is consistent with North Carolina practice.
See Brandis on North Carolina Evidence § 180 (198 2) .
"Rule 408. Compromise and Offers to Compromise.
Evidence of (1) furnishing or offering or promising to furnish,
or (2) accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise a claim
which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or
its amount. Evidence of conduct or evidence of statements made
in compromise negotiations is likewise not admissible. This rule
does not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course of
compromise nf^^oti ations. This rule also does not require
exclusion when the evidence is offered for another purpose, such
as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
COMMENTARY
This rule is identical to Fed. R. Evid. 408 except that the
words "evidence of" were added to the second sentence. The
addition is for the purpose of clarification and is not intended
as a material change. The Advisory Committee's Note states:
"As a matter of general agreement, evidence of an
offer to compromise a claim is not receivable in
evid»>nce as an admission of, as the case may be,
the validity or invalidity of the claim. As with
evideiice of subsequent remedial measures, dealt
with in Rule 407, exclusion may be based on two
grounds. (1) The evidence is irrelevant, since
the offer may be motivated by a desire for peace
rather than from any concession of weakness of
36
position. The validity of this position will
vary as the amount of the offer varies in
relation to the size of the claim and may also be
influenced by other circumstances. (2) A more
consistently impressive ground is promotion of
the public policy favoring the compromise and
settlement of disputes. McCormick: ^* 76, 251.
While the rule is ordinarily phrased in terms of
offers of compromise, it is apparent that a
similar attitude must be taken with respect to
completed compromise when offered against a party
thereto. This latter situation will not, of
course, ordinarily occur except when a party to
the present litigation has compromised with a
third person."
North Carolina practice is consistent with Rule 408 in
that an offer of compromise, as such, is not admissible to
prove liability for or invalidity of a claim or its
amount. See Brand is on North Carolina Evidence ^ 180
(1982). The same rule applies to an offer to settle, or
the actual settlement of, a third person's claim arising
out of the transaction in litigation. Id. at 56. The
words "the claim" in the first sentence should be
interpreted to include the claim that is the subject of
the lawsuit and any other claim arising out of the same
occurence.
The Advisory Committee's Note states:
"The policy considerations which underlie the
rule do not come into play when the effort is to
induce a creditor to settle an admittedly due
amount for a lesser sum. McCormick § 251, p.
5U0. Hence the rule requires that the claim be
disputed as to either validity or amount."
The phrase "which was disputed" should be interpreted
consistently with North Carolina decisional law concerning
what constitutes a dispute. See Wilson Count_y Board of
Education v. Lamm. 276 N.C. 487 (1970).
With respect to the second sentence of the rule, the
Advisory Committee's Note states:
"The practical value of the common law rule has
been greatly diminished by its inapplicability to
admissions of fact, even though made in the
course of compromise negotiations, unless
hypothetical, stated to be 'without prejudice,'
or so connected with the offer as to be
inseparable from it. McCormick § 251, pp. 540-
541. An inevitable effect is to inhibit freedom
of communication with respect to compromise, even
37
airong lawyers. Another effect is the generation
of controversy over whether a given statement
falls within or without the protected area.
These considerations account for the expansion of
the rule herewith to include evidence of conduct
or statements made in compromise negotiations, as
well as the offer or completed compromise
itself."
Thus Rule UOB changes the current North Carolina
practice that allows a "distinct admission of an
independent fact" made during compromise negotiations to
be received in evidence. See Srandis on North Carolina
Evidence § 180, at 56-57 (1982).
Policy reasons for the compromise rule do not apply to
evidence discoverable outside of settlement negotiations.
Thus the third sentence of Rule 408 states that evidence
otherwise discoverable need not be excluded merely because
it is presented in compromise discussions. There is not
any North Carolina case law on this point.
The Advisory Committee's Note states that:
"The final sentence of the rule serves to point
out some limitations upon its applicability.
Since the rule excludes only when the purpose is
proving the validity or invalidity of the claim
or its amount, an offer for another purpose is
not within the rule. The illustrative situations
mentioned in the rule are supported by the
authorities. As to proving bias or prejudice of
a witness, see Annot. , 161 A.L-R. 395, contra,
Fenberq v. Rosenthal. 348 111. App. 510, 109
N.E.2d 402 (1952)., and negativing a contention
of lack of due diligence in presenting a claim, 4
Wiginore ^ 1061. An effort to »buy off the
prosecution or a prosecuting witness in a
criminal case is not within the policy of the
rule of exclusion. McCormick, § 251, p. 542."
The final sentence of the rule is consistent with North
Carolina practice in that an offer for a purpose other
than to prove the validity or invalidity of the claim or
its amount is not within the rule. See Brandis on North
Carolina Evidence '& 1R0, at 55, 56 (1982),
"Rule 4 09. Payment of Medical and Other Expenses.
Evidence of furnishing or offering or promising to pay medical,
hospital, or other expenses occasioned by an injury is not
admissible to prove liability for the injury.
38
COMMENTARY
This rule is identical to Fed. R. Fvid- U09, except that the
phrase "other expenses" has been substituted for the phrase
"similar expenses. "
The Advisory Committee's Note states:
"The considerations underlying this rule parallel
those underlying Rules 407 and U08, which deal
respectively with subsequent remedial measures
and offers of compromise. As stated in Annot. ,
20 A.L.R. 2d 291, 293:
•[G]enerally, evidence of payment of medical,
hospital, or similar expenses of an injured party
by the opposing party, is not admissible, the
reason often given being that such payment or
offer is usually made from humane impulses and not
from an admission of liability, and that to hold
otherwise would tend to discourage assistance to
the injured person.'"
Under current North Carolina law, rendering aid to an
injured person or promising to render aid is not an
admission of fault. Brandis on North Carolina Evidence ^
180, at 58 (1982). Rule 409 is intended to cover rendering
aid as well as furnishing or offering or promising to pay
medical, hospital or other expenses.
Onlike the federal rule, which applies to "medical,
hospital, or similar expenses," this rule applies to
"medical, hospital, or other expenses." The phrase "other
expenses" is intended to include, but is not limited to,
lost wages and damage to property. The phrase "occasioned
by an injury" is intended to include a property injury as
well as a personal injury. The rule's coverage of
nonmedical expenses occasioned by either a personal or
property injury xs an expansion of the current North
Carolina rule. See Id.
Rule 409 is consistent with North Carolina practice in
that evidence inadmissible under the rule to prove
liability may be admissible for another purpose. See Id.
^ 180, at 58-59 (1982). The rule is also consistent with
North Carolina practice in that it does not bar evidence of
conduct and statements outside of the simple act of
furnishing or offering to pay medical expenses. As the
Advisory Committee's Note states:
"Contrary to Rule 408, dealing with offers of
compromise, the present rule does not extend to
conduct or statements not a part of the act of
furnishing or offering or promising to pay. This
39
difference in treatment arises from fundamental
differences in nature. Communication is
essential if compromises are to be effected, and
consequently broad protection of statements is
needed. This is not so in cases of payments or
offers or promises to pay medical expenses, where
factual statements may be expected to be
incidental in nature. "
"Pule 410. Inadmissibility of Pleas, Plea Discussions,
and Related Statements.
Except as otherwise provided in this rule, evidence of
the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was
a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of no contest which was later withdrawn;
(3) any statement made in the course of any proceedings
under Article 58 of General Statutes Chapter 1 5A or
comparable procedure in district court, or
proceedings under Rule 1 1 of the Federal Rules of
Criminal Procedure or comparable procedure in
another state, regarding a plea of guilty which was
later withdrawn or a plea of no contest which was
later withdrawn;
(U) any statement made in the course of plea
discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty
or which result in a plea of guilty later
withdrawn.
However, such a statement is admissible in any proceeding
wherein another statement made in the course of the same plea or
40
plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it.
COMMENTARY
This rule is identical to Fed. R. Evid. UIO, except as noted
below.
The Advisory Committee's Note states:
"Withdrawn pleas of guilty were held inadmissible
in federal prosecutions in Kercheval v. United
States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009
(1927) . The Court pointed out that to admit the
withdrawn plea would effectively set at naught
the allowance of withdrawal and place the accused
in a dilemma utterly inconsistent with the
decision to award him a trial. The New York
Court of Appeals, in People v. Spitaleri, 9
N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35
(1961) , reexamined and overturned its earlier
decisions which had allowed admission. In
addition to the reasons set forth in Kercheval,
which was quoted at length, the court pointed out
that the effect of admitting the plea was to
compel defendant to take the stand by way of
explanation and to open the way for the
prosecution to call the lawyer who had
represented him at the time of entering the plea.
State court decisions for and against
admissibility are collected in Annot-, 86
A.L.R.2d 326."
The second paragraph of Fed. R- Evid. 410 reads: "A
plea of nolo contendere". Unlike the federal rule, this
rule precludes evidence of a no contest plea only if it
was later withdrawn. Thus evidence of a no contest plea
can be admitted xn a different criminal or civil
proceeding against the defendant who made the plea.
The third paragraph differs from Fed- R. Evid. 410 by
making a reference to Article 58 of General Statutes
Chapter 15A, which specifies the procedure relating to
guilty pleas in superior court. The third paragraph also
refers to comparable procedures in district court,
although no statutory scheme regulates plea negotiations
in district court. See Official Commentary to G.S. Ch.
15A, Art. 58.
Prior to the 1979 amendments to Fed. R. Evid, 410 and
Fed. R. Crim. P. 11(e)(6), it was questionable whether an
otherwise voluntary admission to law enforcement officials
was rendered inadmissible merely because it was made in
41
hope of obtaining leniency by a plea. The Notes of the
Advisory Committee on the amendment to Fed. R. Crim. P.
11(e) (6) state that the rule:
"makes inadmissible statements made 'in the
course of any proceedings under this rule
regarding' either a plea of guilty later
withdrawn or a plea of no contest later withdrawn
and also statements 'made in the course of plea
discussions with an attorney for the government
which do not result in a plea of guilty or which
result in a plea of guilty later withdrawn. • It
is not limited to statements by the defendant
himself, and thus would cover statements by
defense counsel regarding defendant's
incriminating admissions to him. It thus fully
protects the plea discussion process ...
without attempting to deal with confrontations
between suspects and law enforcements agents,
which involve problems of quite different
dimensions . . -. This change, it must be
emphasized, does not compel the conclnsion that
statements made to law enforcement agents,
especially when the agents purport to have
authority to bargain, are inevitably admissible.
Rather, the point is that such cases . . . must
be resolved by that body of law dealing with
police interrogations. "
If there has been a plea of guilty later withdrawn or a
plea of no contest later withdrawn, the third paragraph of
Rule 410 makes inadmissible statements made in the course
of any proceedings relating to guilty pleas in the
superior or district courts. This includes, for example,
admissions by the defendant when he makes his plea in
court and also admissions made to provide the factual
basis for the plea. However, the rule is not limited to
statements made in court. If the court were to defer its
decision on a plea agreement pending examination of the
presentence report, statements made to the probation
officer in connection with the preparation of that report
would come within the third paragraph. See Notes of
Advisory Committee on the Amendment to Fed. R. Crim. P.
11(e) (6).
The last sentence of Rule U10 provides an exception to
the general rule of nonadmissibility of the described
statements. Such a statement is admissible "in any
proceedings wherein another statement made in the course
of the same plea or plea discussions has been introduced
and the statement ought in fairness be considered
contemporaneously with it."
"- . . when evidence of statements made in the
42
course of or as a consequence of a certain plea
or plea discussions are introduced under
circumstances not prohibited by this rule (e.g.,
not 'against' the person who made the plea),
other statements relating to the same plea or
plea discussions may also he admitted when
relevant to the matter at issue. For example, if
a defendant upon a motion to dismiss a
prosecution on some ground were able to admit
certain statements made in aborted plea
discussions in his favor, then other relevant
statements made in the same plea discussions
should be admissible against the defendant in the
interest of determining the truth of the matter
at issue. The language - . . follows closely
that in Fed. R. Evid. 106, as the considerations
involved are very similar." Id.
Unlike the federal rule, Rule U10 does not contain an
exception permitting a statement made by the defendant
under oath, on the record, and in the presence of counsel
to be introduced in a criminal proceeding for perjury or
false statement.
North Carolina practice in this area is governed by G.S.
15A-1025, which should be amended to conform to Pule U10.
G.S. 15A-1025 currently provides:
"The fact that the defendant or his counsel and
the prosecutor engaged in plea discussions or
made a plea arrangement may not be received in
evidence against or in favor of the defendant in
any criminal or civil action."
Onlike G.S. 15A-1025, Rule 410 does not provide that the
described evidence is inadmissible "in favor of" the
defendant.
As the Advisory Committee Note to Fed- R. Crim. P.
11 (e) (6) states:
"This is not intended to suggest, however, that
such evidence will inevitably be admissible in
the defendant's favor. Specifically, no
disapproval is intended of such decisions as
United States v. Verdoom, 528 F.2d 103 {8th Cir.
1976) , holding that the trial -judge properly
refused to permit the defendants to put into
evidence at their trial the fact the prosecution
had attempted to plea bargain with them, as
'meaningful dialogue between the parties would,
as a practical matter, be impossible if either
party had to assume the risk that plea offers
would be admissible in evidence'."
43
"Rule U11. Liability Insurance.
Evidence that a person was or was not insured against liability
is not admissible upon the issue whether he acted negligently or
otherwise wrongfully. This rule does not require the exclusion
of evidence of insurance against liability when offered for
another purpose, such as proof of agency, ownership, or control,
or bias or prejudice of a witness.
COMMENTARY
This rule is identical to Fed. P. Evid. 411. The Advisory
Committee's Note states:
"The courts have with substantial unanimity
rejected evidence of liability insurance for the
purpose of proving fault, and absence of
liability insurance as proof of lack of fault.
At best the inference of fault from the fact of
insurance coverage is a tenuous one, as is its
converse. More important, no r!oubt, has been the
feeling that knowledge of the presence or absence
of liability insurance would induce juries to
decide cases on improper grounds. McCormick §
168; Annot., H A.L.R.2d 761. The rule is drafted
in broad terms so as to include contributory
negligence or other fault of a plaintiff as well
as fault of a defendant.
The second sentence points out the limits of the
rule, using well established illustrations. Id."
Rule 411 is consistent with North Carolina practice in
barring evidence of insurance unless offered for a purpose
other than to prove negligence. See Brandis on North
Carolina Evidence § 88 (1982).
"Rule 412. Za£o or Sex Offense Cases; Relevance of
Victim's Past Behavior.
(a) As used in this rule, the term 'sexual behavior'
means sexual activity of the complainant other than the
sexual act which is at issue in the indictment on trial.
44
(b) The sexual behavior of the complainant is
irrelevant to any issue in the prosecution unless such
behavior:
(1) was between the complainant and the
defendant; or
(2) is evidence of specific instances of sexual
behavior offered for the purpose of showing that
the act or acts charged were not committed by the
defendant; or
(3) is evidence of a pattern of sexual behavior so
distinctive and so closely resembling the
defendant's version of the alleged encounter with
the complainant as to tend to prove that such
complainant consented to the act or acts charged or
behaved in such a manner as to lead the defendant
reasonably to believe that the complainant
consented; or
(4) is evidence of sexual behavior offered as the basis
of expert psychological or psychiatric opinion that
the complainant fantasized or invented the act or
acts charged.
(c) Sexual behavior otherwise admissible under this rule may
not be proved by reputation or opinion.
(d) No evidence of sexual behavior shall be introduced at any
time during the trial of a charge of rape or any lesser included
offense thereof or a sex offense or any lesser included offense
thereof, nor shall any reference to any such behavior be made in
«»5
the presence of the jury, unless and until the court has
determined that such behavior is relevant under subsection <b) .
Before any questions pertaining to sucli evidence are asked of any
witness, the proponent of such evidence shall first apply to the
court for a determination of the relevance of the sexual behavior
to which it relates. The proponent of such evidence may make
application either prior to trial pursuant to G.S. 15A-952, or
during the trial at the time when the proponent desires to
introduce such evidence. When application is made, the court
shall conduct an in-camera hearing, which shall be transcribed,
to consider the proponent's offer of proof and the arguments of
counsel, including any counsel for the complainant, to determine
the extent to which such behavior is relevant. In the hearing,
the proponent of the evidence shall establish the basis of
admissibility of such evidence. Notwithstanding subsection (b)
of Rule 10U, if the relevancy of the evidence which the proponent
seeks to offer in the trial depends upon the fulfillment of a
condition of fact, the court, at the in-camera hearing or at a
subsequent in-camera hearing scheduled for that purpose, shall
accept evidence on the issue of whether that condition of fact is
fulfilled and shall determine that issue. If the court finds
that the evidence is relevant, it shall enter an order stating
that the evidence may be admitted and the nature of the questions
which will be permitted.
(e) The record of the in-camera hearing and all evidence
relating thereto shall be open to inspection only by the parties,
the complainant, their attorneys and the court and its agents.
46
and shall be used only as necessary for appellate review. At any
probable cause hearing, the judge shall take cognizance of the
evidence, if admissible, at the end of the in-camera hearing
without the qnestions being repeated or the evidence being re-
submitted in open court.
COMMENTARY
This rule differs substantially from Fed. P. Evid. U12. Except
as noted below, the rule is the same as the current shield law,
G.S. 8-58.6.
Subdivision (c) , which is derived from the federal rule, was
added to the current shield law to make it clear that sexual
behavior otherwise admissible under this rule may not be proved
by reputation or opinion.
The next to the last sentence of subdivision (d) , which is
derived from the federal rule, was added to the shield law to
address the issue of conditional relevancy. The sentence
provides that, notwithstanding Rule 10a(b), if the relevancy of
the evidence depends upon the fulfillment of a condition of fact,
the court will hear evidence in the in camera proceeding and
decide whether the condition of fact is fulfilled. The court
should decide whether the defendant has presented sufficient
evidence for a reasonable jury to find the proposition asserted
to be true. If so, the defendant's evidence should be admitted.
If not, the evidence should be excluded. See S. Saltzburq and
K. Redden, Federal Rules of Evidence Manual, at 221 - 27 (3d ed.
1982) . Evidence should not be "admitted on behalf of the
defendant subject to connecting-up. The court should make sure,
before any evidence of prior sexual activity is admitted, that
the conditional relevance analysis has been satisfied. Id. at
90.
"ARTICLE 5.
"Privileges.
"Rule 501. General Rule.
Except as otherwise required by the Constitution of the United
States, the privileges of a witness, person, government, state,
or political subdivision thereof shall be determined in
accordance with the law of this State.
COMMENTARY
47
This rule -iiffers from Fed. R. Evid. 501. After reviewing the
rules on privilege proposed by the Supreme Court, Congress
rejected the proposal and substituted a rule that applies the
common lay of privileges in federal civil and criminal cases. In
civil actions in which state law supplies the rule of decision,
the state law on privileges applies.
The Uniform Eules of Evidence (197U) adopted the federal draft
and several states have modeled their privilege laws on the
federal draft. However, there is not a great deal of uniformity
among the federal courts and various states with respect to
privileges. Adoption of the federal draft would modify and
delete privileges currently recognized in North Carolina and add
other privileges currently not recognized in North Carolina.
Because of the extensive effort needed to clarify this confused
area, the Committee decided not to draft new rules of privilege
at this time but to continue the present statutory and common law
system. See generally Brandis on North Carolina Evidence § 54 et
seg. (1982).
"ARTICLE 6.
"Witnesses.
"Rule 601. General Rule of Competency; Disqualification of
Witness.
(a) General Rule. Every person is competent to be a witness
except as otherwise provided in these rules.
(b) Disqualification of Witness. A person is disgualified to
testify as a witness when the court determines that he is (1)
incapable of expressing himself concerning the matter as to be
understood, either directly or through interpretation by one who
can understand him, or (2) incapable of understanding the duty of
a witness to tell the truth.
COMMENTARY
Subdivision (a) is identical to the first sentence of Fed. R.
Evid. 601. The second sentence of Fed. R. Evid. 601 concerns the
application of state law in diversity cases and was omitted.
Fed. R. Evid. 601 does not contain subdivision (b) on
disqualification of a witness.
This rule eliminates ail grounds of incompetency not
I»8
specifically recognizee' in subdivision (b) or the succeedinq
rules in this Article.
The so-called Dead Man's Act, G.S. 8-51, which deals with the
incompetency of an interested person when the other party to the
transaction has since died or become insane, should be repealed
upon adoption of this rule. Professor Brandis' view is that:
"[T]he statute has fostered more injustice than
it has prevented and has led to an unholy waste
of the time and ingenuity of judges and counsel.
The situation calls for more than legislative
tinkering. What is needed is repeal of the
statute." Brandis on North Carolina Evidence §
66, at 25R, n. 62 (1982) .
At common law husband and wife were incompetent to
testify in an action to which either was a party.
However, by statute, each spouse has been competent to
testify for or against the other in all civil actions and
proceedings, with two rigidly defined exceptions. One
exception makes one spouse incompetent to testify "for or
against the other ... in any action or proceeding for or
on account of criminal conversation . . -." G.S. 8-56-
With respect to this exception Professor Brandis states:
"It is hard to find a purpose except one based on
notions of delicacy, and even this is frustrated
by permitting the plaintiff husband to testify to
his wife's improper relations with the defendant.
Danger of collusion would seem to be no greater
than in any other case, and the interest of the
state in the marriage relation, which only
doubtfully justifies extreme measures to prevent
collusion in divorce litigation, is no excuse for
a rule of incompetency in criminal conversation
actions," Brandis on North Carolina Evidence §
58, at 232, n. 28 (1982) .
The other exception bars a spouse from testifying "for
or against the other in any action or proceeding in
conseguence of adultery." G.S. 8-56. This exception is
supplemented by G.S. 50-10 which provides that in divorce
actions "neither the husband nor the wife shall be a
competent witness to prove the adultery of the other, nor
shall the admissions of either party be received as
evidence to prove such fact." With respect to this
exception. Professor Brandis notes that if the original
purpose was to prevent collusion in divorce actions, "[lit
would seem that the prohibition should have been repealed
when a relatively short period of separation was made a
ground for divorce." Brandis on North Carolina Evidence §
58, at 230, n. 20 (1982) .
49
At common law the spouse of a criminal defendant was
incompetent to testify. This incompetence was removed by
G.S. 8-57 so far as testifying for the defendant is
concerned. With respect to testimony against the other
spouse, G.S. 8-57 left in force the common law rule of
incompetence. In State v. Freeman, 302 N.C. 591 (1981),
the court removed the incompetence to testify against the
other spouse (except to the extent that it preserved the
privilege against disclosure of confidential
communications) .
Opon adoption of Rule 601, G.S. 8-56, 3-57, and 50-10
should be rewritten to make it clear that a husband or
wife are competent to testify. The privilege aaainst
disclosure of confidential communications should be
retained.
Subdivision (b) establishes a minimum standard for
competency of a witness and is consistent with North
Carolina practice. See Brandis on North Carolina Evidence
§ 55 (1932) .
"Rule 602. Lack of Personal Knowledge.
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the testimony of the witness
himself. This rule is subject to the provisions of Rule 703,
relating to opinion testimony by expert witnesses.
COMMENTARY
This rule, which is identical to Fed. R. Evid. f02, restates
the traditional common-law rule in North Carolina barring a
witness from testifying to a fact of which he has no direct
personal knowledge. See Robbins v. C^j. W^ Myers Trading Post^
Inc., 251 N.C. 663 (1960). A witness who testifies to a fact
which can be perceived by the senses must have had an opportunity
to observe and mast have actually observed the facts. The
Advisory Committee's Note states that:
"These foundation requirements may, of course, be
furnished by the testimony of the witness
himself; hence personal knowledge is not an
absolute but may consist of what the witness
thinks he knows from personal perception. *** It
will be observed that the rule is in fact a
specialized application of the provisions of Rule
50
10U{b) on cond|.^ional relevancy."
Preliminary determination of personal knowledge need not
be explicit but may be implied from the witness's
testimony.
Rule 602 applies to hearsay statements admitted under
the hearsay exception rules in that admissibility of a
hearsay statement is predicated on the foundation
requirement of the witness* personal knowledge of the
making of the statement itself. However, it is not
intended that firsthand knowledge be required where a
hearsay exception necessarily embraces secondhand
knowledge (e.g. Rules 803 (8) (C) and 803(23)).
Rule 602 is subject to Rule 703 relating to expert
witnesses.
"Rule 603. Oath or Affirmation.
Before testifying, every witness shall be required to declare
that he will testify truthfully, by oath or affirmation
administered in a form calculated to awaken his conscience and
impress his mind with his duty to do so.
COMHENTABY
This rule is identical to Fed. R. Evid. 603 and is in accord
with North Carolina practice. The Advisory Committee's Note
states that:
"The rule is designed to afford the flexibility
required in dealing with religious adults,
atheists, conscientious objectors, mental
defectives, and children. Affirmation is simply
a solemn undertaking to tell the truth; no
special verbal formula is required."
"Rule 6 04. Interpreters.
An interpreter is subject to the provisions of these rules
relating to qualification as an expert and the administration of
an oath or affirmation that he will make a true translation.
COMMENTARY
This rule is identical to Fed. R. Evid. 604. There are no
North Carolina cases on this point.
51
"Rule 605. Competency of Jud^e as Witnes ,
The judge presi'ling at the trial may not testify in that trial
as a witness. No objoction need be raade in order to preserve the
point.
COMMENTARY
This rule, which is identical to Fed. R. Evid. 605, prevents a
judge from testifying in a trial over which he is presiding. The
Advisory Committee's Note states that:
"The rule provides for an 'automatic objection".
To require an actual objection would confront the
opponent with a choice between not objecting,
with the result of allowing the testimony, and
objecting, with the probable result of excluding
the testimony but at the price of continuing the
trial before a judge likely to feel that his
integrity had been attacked by the objector."
G.S. 15A-1223 requires a judge in a criminal case to
disqualify himself if he is a witness in the case upon
motion of the State or the defendant. Hpon adoption of
Rule 605, a conforming amendment should be made to G.S.
15A-1223 to remove the requirement for a motion to
disqualify.
The question of whether a judge may testify in civil
proceedings over which he is presiding does not appear to
have arisen in North Carolina. See Brandis on North
Carolina Evidence §53, at 198 (1982).
"Rule 6 06. Competency of Juror as Witness.
(a) At the Trial. A member of the jury may not testify as a
witness before that jury in the trial of the case in which he is
sitting as a juror. If he is called so to testify, the opposing
party shall be afforded an opportunity to object out of the
presence of the jury.
(b) Inquiry Into Validity of Verdict or Indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything
52
upon his or any other juror's mind or emotions as influencing him
to assent to or dissent from the verdict or indictment or
concerning his mental processes in connection therewith, except
that a juror niay testify on the question whether extraneous
prejudicial information was improperly brought to the jury's
attention or whether any outside influence was improperly brought
to bear upon any juror. Nor may his affidavit or evidence of any
statement by him concerning a matter about which he would be
precluded from testifying be received for these purposes.
COMMENTAPY
This rulp is identical to Fed. R. Evid. 606-
Subdivision (a) provides that a juror may not testify as a
witness in the trial in which he is sitting as a juror. There
are no North Carolina cases on this point.
The Advisory Committee's Note to subdivision (a) states:
"The considerations which bear upon the
permissibility of testimony by a juror in the
trial in which he is sitting as juror bear an
obvious similarity to those evoked when the judge
is called as a witness. See Advisory Committee's
Note to Rule 605. The judge is not, however, in
this instance so involved as to call for
departure from ususal principles requiring
objection to be made; hence the only provision on
objection is that opportunity be afforded for its
making out of the presence of the jury. Compare
Rule 605. ••
Subdivision (b) concerns an inquiry into the validity of
a verdict or indictment. The Advisory Committee's Note
states:
"Whether testimony, affidavits, or statements of
jurors should be received for the purpose of
invalidating or supporting a verdict or
indictment, and if so, under what circumstances,
has given rise to substantial differences of
opinion. The familiar rubric that a juror may
not impeach his own verdict, dating from Lord
Mansfield's time, is a gross oversimplification.
The values sought to be promoted by excluding the
53
evidence include freedom of Jeliberation,
stability and firality of verdicts, and
protection of jurors against annoyance and
embarrassment. McDonald v. Pless, 238 U.S. 26U
(1915). On the other hand, simply putting
verdicts beyond effective reach can only promote
irregularity and injustice. The rule offers an
accommodation between these competing
considerations.
The mental operations and emotional reactions of
jurors in arriving at a given result would, if
allowed as a subject of inquiry, place every
verdict at the mercy of jurors and invite
tampering and harassment. *** The authorities are
in virtually complete accord in excluding the
evidence. ♦** As to matters other than mental
operations and emotional reactions of jurors,
substantial authority refuses to allow a juror to
disclose irregularities which occur in the jury
room, but allows his testimony as to
irregalariti es occurring outside and allows
outsiders to testify as to occurrences both
inside and out. ♦** However, the door of the jury
room is not necessarily a satisfactory dividing
point, and the Supreme Court has refused to
accept it for every situation. Hattox v, Onited
States, 146 U.S. 140, . . . (1892). Under the
federal decisions the central focus has been upon
insulation in the manner in which the jury
reached its verdict, and this protection extends
to each of the components of deliberation,
including arguments, statements, discussions,
mental and emotional reactions, votes, and any
other feature of the process. Thus testimony or
affidavits of jurors have been held incompetent
to show a compromise verdict, Hyde v. United
States, 225 U.S. 347, 382 (1912); a quotient
verdict, McDonald v. Pless, 238 U.S. 264,
(1915) ; speculation as to insurance coverage,
Holden v. Porter, 405 F.2d 878 (10th Cir. 1969),
Farmers Coop. Kiev. Ass'n v. Strand, 382 F.2d
224, 230 (Bth Cir. 1967), cert, denied, 389 U.S.
1014; misinterpretation of instructions. Farmers
^qo£^ Elev^ Ass'n v. Strand, supra; mistake in
returning verdict. United States v. Chereton, 309
F.2d 197 (6th Cir. 1962); interpretation of
guilty plea by one defendant as implicating
others. United States v. Crosby. 294 F.2d 928,
949 (2d Cir. 1961). The policy does not,
however, foreclose testimony by jurors as to
prejudicial extraneous information or influences
injected into or brought to bear upon the
deliberative process. Thus a juror is recognized
54
as competent to testify to statements by the
bailiff or the introduction of a prejudicial
newspapfir account into the jury room, Mattox v.
Hniigl States, 146 U.S. 140 (1892). See also
Parker v. Gladden, 385 0. S. 363 (1966)."
The exclusion is intended to encompass testimony about
mental processes and testimony about any matter or
statement occurring during the deliberations, except that
testimony of either of these two types can be admitted if
it relates to extraneous prejudicial information or
improper outside influence.
The general rule in North Carolina has been that a
juror's testimony or affidavit will not be received to
impeach the verdict of the jury. Brandis on North
Carolina Evidence %65 (1982). The North Carolina rule,
unlike Rule 606, does not apply to attempts to support a
verdict. Id. An express, though limited exception to the
anti-irapeachment rule is provided in G-S. 15A-1240, which
should be amended to conform to Rule 606.
Also, the Advisory Committee's Note states:
"This rule does not purport to specify the
substantive grounds for setting aside verdicts
for irregularity; it deals only with the
competency of jurors to testify concerning those
grounds. Allowing them to testify as to matters
other than their own inner reactions involves no
particular hazard to the values sought to be
protected. The rule is based upon this
conclusion. It makes no attempt to specify the
substantive grounds for setting aside verdicts
for irregularity."
"Rule 6 07. Who May Im.peach.
The credibility ox a witness may be attacked by any party,
including the party calling him.
COMMENTARY
This rule is identical to Fed. R. Evid. 607. The rule abandons
the traditional common law rule that a party "vouches" for a
witness by calling him and, therefore, may not impeach his own
witness. The traditional rule has been the subject of numerous
exceptions. See N.C. Civ. Pro. Rule 43(b); Brandis on North
Carolina Evidence §40 (1982). The substantial inroads into the
old rule made by statutes and decisions are evidence of doubts as
to its basic soundness and workability. As the Advisory
Committee's Note states:
55
"The traditional rule against i caching one*s
own witness is abandoned as based on false
premises. A party does not hold out his
witnesses as worthy of belief, since he rarely
has a free choice in selecting them. Denial of
the right leaves the party at the mercy of the
witness and the adversary."
The impeaching proof must be relevant within the meaning
of Rule 401 and 2ule 403 and must in fact be impeaching.
See Ordover, Surprise! That Damaging Turncoat Witness Is
Still With Us, 5 Hofstra L.Rev, 65, 70 (1976).
"Rule 608. Evidence of Character and Conduct of
Witness.
(a) Opinion and Reputation Evidence of Character. The
credibility of a witness may be attacked or supported by evidence
in the form of reputation or opinion as provided in Rule 405(a),
but subject to these limitations: (1) the evidence may refer
only to character for truthfulness or untruthfulness, and (2)
evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
his credibility, other than conviction of crime as provided in
Rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning his character for
truthfulness or untruthfulness, or (2) concerning the character
for truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.
56
The rjiving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of his privilege against
self-incrimination wh«-'n examined with respect to matters which
relate only to credibility.
COMMENTARY
This rule is identical to Fed. R. Evid. 608, except for the
addition of the phrase "as provided in Rule 405 (a)" to
subdivision (a) .
Subdivision (a) allows the credibility of a witness to be
attacked or supported by evidence in the form of reputation or
opinion. Admitting opinion evidence to prove character is a
change in North Carolina practice. See Commentary to Rule 405.
The reference to Rule 405(a) is to make it clear that expert
testimony on the credibility of a witness is not admissible.
The first limitation in subdivision (a) is that the evidence
may refer only to character for truthfulness or untruthfulness.
The rule in North Carolina has been that, except on cross-
examination, evidence of a specific trait of character of a
wintess is not admissible. The North Carolina rule is unique,
and appears to have had its origin in a misinterpretation of the
earlier opinions. Brandis on North Carolina Evidence *114
(1982).
The second limitation in subdivision (a) is that the character
of the witness for truthfulness must have been attacked "by
opinion or reputation evidence or otherwise." In North Carolina
the necessity for impeachment as a prerequisite to corroboration
has been more theoretical than real. Id^. §50. Adoption of this
rule strengthens the limitation. The Advisory Committee's Note
states that:
"Opinion or reputation that the witness is
untruthful specifically qualifies as an attack
under the rule, and evidence of misconduct,
including conviction of crime and of corruption
also fall within this category. Evidence of bias
or interest does not. McCormick ^49; 4 Wigmore
^§1106, 1107. Whether evidence in the form of
contradiction is an attack upon the character of
the witness must depend upon the circumstances.
Mccormick <^49. Cf. 4 Wigmore *§ 1108, 1109."
As to the use of specific instances on direct by an
opinion witness, see the Commentary to Rule 405, supra.
Subdivision (b) generally bars evidence of specific
instances of conduct of a witness for the purpose of
57
attacking or supporting his credibility. However, there
are two exceptions.
Conviction of a crime as a technique of impeachment is
treated in detail in Rule 609 and is merely recognized in
this rule as an exception to the general rule excluding
evidence of specific incidents for impeachment purposes.
The second exception allows particular instances of
conduct, though not the subject of criminal conviction, to
be inquired into on cross-examination of the principal
witness himself or of a witness who testifies concerning
his character for truthfulness- Current North Carolina
practice allows only inquiry concerning the specific acts
of the principal witness himself. Brandis on North
Carolina Evidence §§ 111, 115 (1982). The Advisory
Committee's Note states that:
"Effective cross-examination demands that some
allowance he made for going into matters of this
kind, but the possibilities of abuse are
substantial. Consequently safeguards are erected
in the form of specific requirements that the
instances inquired into be probative of
truthfulness or its opposite and not remote in
time. Also, the overriding protection of Rule
403 requires that the probative value not be
outweighed by danger of unfair prejudice,
confusion of issues, or misleading the jury, and
that of Rule 611 bars harassment and undue
embarassment. "
The last sentence of Rule 608 constitutes a rejection of
the doctrine of such cases as State v. Foster, 284 N.C.
259 (1973), that any past criminal act relevant to
credibility may be inquired into on cross-examination, in
apparent disregard of the privilege against self-
incrimination. As the Advisory Committee's Note states:
"While it is clear that an ordinary witness
cannot make a partial disclosure of incriminating
matter and then invoke the privilege on cross-
examination, no tenable contention can be made
that merely by testifying he waives his right to
foreclose inquiry on cross-examination into
criminal activities for the purpose of attacking
his credibility. So to hold would reduce the
privilege to a nullity. While it is true that an
accused, unlike an ordinary witness, has an
option whether to testify, if the option can be
exercised only at the price of opening up inquiry
as to any and all criminal acts committed during
his lifetime, the right to testify could scarcely
be said to possess much vitality- In Griffin v.
58
California, 380 U.S. 609, 85 S.Ct. 1229, 1U
L.M.JcT 106 (1965), the Court held that allowing
comment on the election of an accused not to
testify exacted a constitutionally impermissible
price, and so here. While no specific provision
in terms confers constitutional status on the
right of an accused to take the stand in his own
defense, the existence of the right is so
completely recognized that a denial of it or
substantial infringement upon it would surely be
of due process dimensions. See Ferguson v.
Georaia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed. 2d
783 (1961); McCormick ^ 131; 8 Wigmore § 2276
(McNaughton Rev. 1961). In any event, wholly
aside from constitutional considerations, the
provision represents a sound policy."
See flrandis on North Carolina Evidence §111, at a09, n. 28
(1982) .
"Rule 609. Im peachment by Evidence of Conviction of
Crime.
(a) General Rule. For the purpose of attacking the
credibility of a witness, evidence that he has been convicted of
a crime punishable by more than 60 days confinement shall be
admitted if elicited from him or established by public record
during cross-examination or thereafter.
(b) Time Limit, Evidence of a conviction under this rule is
not admissible if a period of more than 10 years has elapsed
since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is
the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction more than
10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written
59
notice of intent to use such evi-Jence ^ provide the adverse
party witli a fair opportunity to contest the use of such
evidence.
(c) Effect of Pardon. Evidence of a conviction is not
admissible under this rule if the conviction has been pardoned.
(d) Juvenile Adjudications. Evidence of juvenile
adjudications is generally not admissible under this rule. The
court may, l.owever, in a criminal case allow evidence of a
juvenile adjudication of a witness other than the accused if
conviction of the offense would be admissible to attack the
credibility of an adult and the court is satisfied that admission
in evidence is necessary for a fair determination of the issue of
guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom
renders evidence of a conviction inadmissible.
COMMENTARY
Subdivision (a) differs from Fed. R. Evid. 609(a), which
permits, for purposes of attacking the credibility of a witness,
evidence of conviction of a felony or a crime that involves
dishonesty or false statement. The current practice in North
Carolina is that any sort of criminal offense may be the subject
of inquiry for the purpose of attacking credibility.
Subdivision (a) provides that evidence of a crime punishable by
more than 60 days confinement shall be admissible. This is the
standard used in the Fair Sentencing Act in defining an
aggravating factor. See G. S, 1 5A-13ao. 4 (a) ( 1) (o) . This includes
convictions occurring in other states, the District of Columbia,
and the anited States even though the crime for which the
defendant was convicted would not have been a crime if committed
in this state.
Under current North Carolina practice a witness' denial of a
prior conviction "may not be contradicted by introducing the
record of his conviction or otherwise proving by other witnesses
that he was, in fact, convicted." However, this prohibition has
often been circumvented. Brandis on North Carolina Evidence
§112, at 414 (1982). Subdivision (a) allows the record of the
60
conviction to be introduced.
Subdivision (b) is identical to Fed. R. Evid. 609 (b) and
departs from the common law in North Carolina in providing a time
limit on the use of prior convictions. Generally, evidence of ?
prior conviction is not admissible under subdivision (b) if more
than 10 years has elapsed since the date of the conviction or of
the release of the witness from confinement imposed for that
conviction, whichever is the later date. Evidence of such a
conviction is admissible, however, if the court determines, in
the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. A party must
give written notice if he intends to use a conviction falling
outside the 10-year period.
Subdivision (c) differs from Fed. R. Evid. 609(c) and provides
an absolute prohibition of evidence of a conviction that has been
pardoned. Current North Carolina practice does not prohibit
evidence of such convictions.
Subdivision [d) is identical to Fed. R. Evid. 609(d) and
provides that evidence of a juvenile adjudication is generally
inadmissible. However, the court in a criminal case may "allow
evidence of a juvenile adjudication of a witness other than the
accused if conviction of the offense would be admissible to
attack the credibility of an adult and the court is satisfied
that admission in evidence is necessary for a fair determination
of the issue of guilt or innocence." This is intended to satisfy
the reguirement of Davis v. Alaska, 415 U.S. 308 (1974). G.S.
7A-677, which provides that the defendant or another witness in a
criminal case may be ordered to testify with respect to whether
he was adjudicated delinquent, should be amended to conform to
this subdivision. Conforming amendments also should be made to
G.S. 15-223(b), G.S. 90-96, and G.S. 90-113.14.
Subdivision (e) differs from Fed. R. Evid. 609(e) and current
North Carolina practice by providing that the pendency of an
appeal from a conviction renders evidence of the conviction
inadmissible. See Drandis on North Carolina Evidence §112, at
411 (1982).
"Rule 610. Religious Beliefs or Opinions.
Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by
reason of their nature his credibility is impaired or enhanced;
provided, however, such evidence may be admitted for the purpose
of showing interest or bias.
COMMENTARY
61
This rule is identical to Fed. R. E\ ^. 610 except for the
proviso that explicitly states that evidence of religious beliefs
or opinions may be admitted to show interest or bias. The rule
clarifies unsettled law in North Carolina concerning whether, for
impeachment purposes, a witness may be cross-examined as to his
religious beliefs. See Brandis on North Carolina Evidence § 55,
at 205 (1982) . Evidence probative of something other than
veracity is not prohibited by the rule.
"Rule 611. liode and Order of Interrogation and Presentation.
(a) Control by Court. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.
(b) Scope of Cross-examination. A witness may be cross-
examined on any matter relevant to any issue in the case,
including credibility.
(c) Leading Questions. Leading guestions should not be used
on the direct examination of a witness except as may be necessary
to develop his testimony. Ordinarily leading guestions should be
permitted on cross-examination. when a party calls a hostile
witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
COMMENTARY
This rule, except for subdivision (b) , is identical to Fed. S.
Evid. 611.
The rule sets forth the objectives the court should seek to
obtain rather than spelling out detailed rules. Specific
statutes relating to the mode and order of interrogating
witnesses and presenting evidence, e.g., G.S- 15A-1226 dealing
with when rebuttal evidence may be presented, will not be
overridden by the general guidelines set by this rule.
The Advisory Committee's Note says that:
62
"Item (1) restates in broad terms the power and
obligation of the judge as developed under common
law principles. It covers such concerns as
whether testimony shall be in the form of a free
narrative or responses to specific questions,
Mccormick §5, the order of calling witnesses and
presenting evidence, 6 Wigmore ^ 1867, the use of
demonstrative evidence, McCormick § 179, and the
many other questions arising during the course of
a trial which can be solved only by the -judge's
common sense and fairness in view of the
particular circumstances.
Item (2) is addressed to avoidance of needless
consumption of time, a matter of daily concern in
the disposition of cases. A companion piece is
found in the discretion vested in the iudqe to
exclude evidence as a waste of time in Rule
403(b).
Item (3) calls for a judgment under the
particular circumstances whether interrogation
tactics entail harassment or undue embarrassment.
Pertinent circumstances include the importance of
the testimony, the nature of the inquiry, its
relevance to credibility, waste of time, and
confusion. McCormick § 42. In Alford v. Oni^ed
States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L- Ed.
624 (1931), the Court pointed out that, while the
trial judge should protect the witness from
questions which 'go beyond the bounds of proper
cross-examination merely to harass, annoy or
humiliate,' this protection by no means
forecloses efforts to discredit the witness.
Reference to the transcript of the prosecutor's
cross-examination in Berqer v. United States,
295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935),
serves to lay at rest any doubts as to the need
for judicial control in this area.
The inquiry into specific instances of conduct of
a witness allowed under Rule 608(b) is, of
course, subject to this rule."
Subdivision (b) deals with the scope of cross-
examination. "In North Carolina the substantive cross-
examination is not confined to the subject matter of
direct testimony plus impeachment, but may extend to any
matter relevant to the issues." Brandis on North Carolina
Evidence §35, at 143 (1982). Subdivision (b) rejects the
more restricted approach to cross-examination found in
Fed. R. Evid. 611(b) and adopts the current North Carolina
wide-open cross-examination rule.
63
Subdivisior (c) continues the traditiona . view that the
suggestive powers of the leading question are as general
propositions undesirable. Within this tradition numerous
exceptions have achieved recognition: The witness who is
hostile, unwilling or biased; the child witness or the
adult with communication problems; the witness whose
recollection is exhausted; and undisputed preliminary
matters. 3 Wigmore «^ 774-778; State v. Greene, 285 N.C.
U82 (1974). As the Advisory Committee's Note points out:
"The matter clearly falls within the area of control by
the judge over the mode and order of interrogation and
presentation and accordingly is phrased in words of
suggestion rather than command. "
The Note states that:
"The rule also conforms to tradition in making
the use of leading questions on cross-examination
a matter of right. The purpose of the
qualification 'ordinarily* is to furnish a basis
for denying the use of leading questions when the
cross-examination is cross-examination in form
only and not in fact, as for example the 'cross-
examination* of a party by his own counsel after
being called by the opponent (savoring more of
redirect) or of an insured defendant who proves
to be friendly to the plaintiff."
The last sentence of subdivision (c) deals with
categories of witnesses automatically regarded and treated
as hostile. N.C. Civ. Pro. Rule 43(b) permits leading
questions to "an adverse party or an agent or employee of
an adverse party, or an officer, director, or employee of
a private corporation or of a partnership or association
which is an adverse party, or an officer, agent or
employee of a state, county or municipal government or
agency thereof which is an adverse party." The phrase of
the rule "witness identified with" an adverse party is
designed to enlarge the category of witnesses who may
safely be regarded as hostile without further
demonstration. Upon adoption of this rule, N.C. Civ. Pro.
Rule 43(b) should be repealed. N.C. Civ. Pro. Rule 30
should be amended to state that depositions are subject to
the North Carolina Rules of Evidence.
"Rule 612. Writinr[ or Object Used to Refresh Memory.
(a) While Testifying. If, while testifying, a witness uses a
writing or object to refresh his memory, an adverse party is
entitled to have the writing or object produced at the trial,
hearing, or deposition in which the witness is testifying.
64
(b) Before Testifying. If, before testifying, a witness uses
a writing or object to refresh his memory for the purpose of
testifying and the court in its discretion determines that the
interests of justice so require, an adverse party is entitled to
have the writing or object produced, if practicable, at the
trial, hearinq, or deposition in which the witness is testifying.
(c) Terms and Conditions of Production and Use. A party
entitled to have a writing or object produced under this rule is
entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the
testimony of the witness. If production of the writing or object
at the trial, hearing, or deposition is impracticable, the court
may order it made available for inspection. If it is claimed
that the writing or object contains matters not related to the
subject matter of the testimony, the court shall examine the
writing or object in camera , excise any portions not so related,
and order delivery of the remainder to the party entitled
thereto. Any portion withheld over objections shall be preserved
and made available to the appellate court in the event of an
appeal. If a writing or object is not produced, made available
for inspection, or delivered pursuant to order under this rule,
the court shall make any order justice requires, but in criminal
cases if the prosecution elects not to comply, the order shall be
one striking the testimony or, if justice so require, declaring a
mistrial.
COMMENTARY
This rule is identical to Rule 612 of the Oniform Rules of
Evidence. The rule is a reorganization of Fed. R. Evid. 612 and
65
differs substantively from the federal l _j.e in four ways. The
rule omits a reference to the Jencks Act. Also, the rule states
explicitly that it applies to trials, hearings and depositions
and that it applies to objects as well as writings. The rule
explicitly provides for inspection of the writing or object if
production of the object or writing at the trial is
impracticable.
If the writing is used by the witness while testifying to
refresh his memory, the adverse party is entitled to production.
If the writing is used before testifying for the purpose of
testifying, disclosure is in the discretion of the court.
Requiring disclosure of writings used before testifying is a
change in North Carolina practice. See, e.g.. State v. Cross,
293 N.C. 296 (1977).
As the Advisory Committee's Note points out:
"The purpose of the phrase 'for the purpose of
testifying' is to safeguard against using the
rule as a pretext for wholesale exploration of an
opposing party's files and to insure that access
is limited only to those writings which may
fairly be said in fact to have an impact upon the
testimony of the witness."
Exculpatory writings are available to criminal
defendants irrespective of Rule 612. See Brady v.
flaryland, 373 U.S. 83 (1963); State v. Hardy, 293 N.C.
105 (1977).
"Rule 613. Prior Statements of Witnesses.
In examining a witness concerning a prior statement made by
him, whether written or not, the statement need not be shown nor
its contents disclosed to him at that time, but on request the
same shall be shown or disclosed to opposing counsel.
COMMENTARY
This rule is identical to subdivision (a) of Fed. R- Evid.
613. There are no North Carolina cases on the subject matter of
subdivision (a) .
The Advisory Committee's Note states:
"The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep.
976 (1820), laid t^own the requirement that a
cross-examiner, prior to questioning the witness
about his own prior statement in writing, must
first show it to the witness. Abolished by
66
statute in the country of its origin, the
requirement nevertheless gained currency in the
United States. The rule abolishes this useless
impediment to cross-exanination. *** Both oral
and written statements are included.
The provision for disclosure to counsel is
designed to protect against unwarranted
insinuations that a statement has been made when
the fact is to the contrary.
The rule does not defeat the application of Rule
1002 relating to production of the original when
the contents of a writing are sought to be
proved. Nor dops it defeat the application of
Rule 26(b) ('3) of the Rules of Civil Procedure, as
revised, entitling a person on request to a copy
of his own statement, though the operation of the
latter may be suspended temporarily."
The federal rule includes a subdivision (b) barring
evidence of a prior inconsistent statement unless the
witness has been given an opportunity to explain or deny
it. Since subdivision (b) is omitted, foundation
requirements for admitting inconsistent statements will be
governed by case law. See Brandis on North Carolina
Evidence *48 (1982).
"Rule 61 a. Calling and Interrogation of Witnesses bi
Court.
(a) Calling by Court. The court may, on its own motion or at
the suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.
(b) Interrogation by Court. The court may interrogate
witnesses, whether called by itself or by a party.
(c) Objections. No objections are necessary with respect to
the calling of a witness by the court or to questions propounded
to a witness by the court but it shall be deemed that proper
objection has been made and overruled.
COMMENTARY
Subdivisions (a) and (b) of this rule are identical to Fed. E.
Evid. 614(a) and (b) .
67
Subdivision (a) authorizes the court to ^all witnesses and is
consistent with North Carolina practice. See Brandis on North
Carolina Evidence §37 (1982).
Subdivision (b) authorizes the court to examine witnesses,
whether called by itself or by a party, and is consistent with
North Carolina practice. Id.
It is anticipated that the court will exercise its authority to
call or interrogate a witness only in extraordinary
circumstances.
The court may not in calling or interrogating a witness do so
in a manner as to suggest an opinion as to the weight of the
evidence or the credibility of the witness in violation of G.S.
15A-1222 or G.S. 1A-1, Rule 51(a). Id.
Subdivision (c) differs from Fed. R. Evid. 614 (c) by providing
for an automatic objection to the calling or interrogation of
witnesses by the court. Subdivision (c) is consistent with N- C.
Civ. Pro. Rule 46(a) (3) which provides that no objections are
necessary with respect to questions propounded to a witness by
the court.
"Rule 615. Exclusion of Witnesses.
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion. This
rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party that is not a
natural person designated as its representative by its attorney,
or (3) a person whose presence is shown by a party to be
essential to the presentation of his cause, or (4) a person whose
presence is determined by the court to be in the interest of
justice.
COMMENTARY
This rule is identical to Fed. R. Evid. 615 except that the
phrase "a person whose presence is determined by the court to be
in the interest of justice" has been added as a fourth exception.
In North Carolina the usual practice has been to separate
witnesses and send them out of the hearing of the court when
68
requested, but this has been discretionary with the trial iudqe
and not a matter of right." See Brandis on North Carolina
Evidence § 20 (1982). G.S. 15A-1225, which codifies this
practice, should be amended to conform to Rule 615.
The Advisory Committee's Note states:
"The efficacy of excluding or sequestering
witnesses h=ts long been recognized as a means of
discouraging and exposing fabrication, inaccuracy
and collusion. 6 Higmore §§ 1837-1838. The
authority of the judge is admitted, the only
question being whether the matter is committed to
his discretion or one of right. The rule takes
the latter position. No time is specified for
making the request.
Several categories of persons are excepted. (1)
Exclusion of persons who are parties would raise
serious problems of confrontation and due
process. Under accepted practice they are not
subject to exclusion. 6 Wigmore § 1841. (2) As
the equivalent of the right of a natural- person
party to be present, a party which is not a
natural person is entitled to have a
representative present. Most of the cases have
involved allowing a police officer who has been
in charge of an investigation to remain in court
despite the fact that he will be a witness. ***
Designation of the representative by the attorney
rather than by the client may at first glance
appear to be an inversion of the attorney-client
relationship, but it may be assumed that the
attorney will follow the wishes of the client,
and the solution is simple and workable. **♦ (3)
The category contemplates such persons as an
agent who handled the transaction being litigated
or an expert needed to advise counsel in the
management of the litigation. See 6 Wigmore §
1841, n. 4"
A government investigative agent would be within the
second exception. See S. Rept. No. 93-1277, 93d Cong.,
2d Sess. (1974) .
A fourth exception to Rule 615 was added to provide that
the rule does not authorize the exclusion of a person
whose presence is determined by the court to be in the
interest of justice. For example, when a minor child is
testifying the court may determine that it is in the
interest of justice for the parent or guardian to be
present even though the parent or guardian is to be called
subsequently. When this exception is relied upon the
court should state the reasons supporting its
69
determination that the presence of the pert .u is in the
interest of justice.
"AFTICLK 7.
"Opinions and Expert Testimony.
"Rule 7 01. Opinion Testimony by Lay Witness.
If the witness is not testifying as an expert, his testimony in
the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.
COMMENTARY
This rule is identical to Fed. P. Evid. 701-
Liraitation (a) retains the traditional reguirement that lay
opinion be based on firsthand knowledge or observation. See
Brandis on North Carolina Evidence §122, at U68 (1982).
Limitation (b) is phrased in terms of requiring testimony to be
helpful in resolving issues. This is a different test from the
more traditional "collective facts exception" which allows lay
opinions or inferences only where a shorthand expression is
"necessary" because articulation of more primary components is
impossible or highly impracticable. P. Rothstein, Rules of
Evidence for United States Courts and Magistrates, at 257 (1980).
See Brandis on North Carolina Evidence §125, at 474-76 (1982).
Nothing in the rule would bar evidence that is commonly referred
to as a "shorthand statement of fact." Id. at 476.
As the Advisory Committee's Note points out:
"[N]ecessity as a standard for permitting
opinions and conclusions has proved too elusive
and too unadaptable to particular situations for
purposes of satisfactory judicial administration.
The rule assumes that the natural characteristics
of the adversary system will generally lead to an
acceptable result, since the detailed account
carries more conviction than the broad assertion,
and a lawyer can be expected to display his
witness to the best advantage. If he fails to do
so, cross-examination and argument will point up
the weakness. ♦** if, despite these
considerations, attempts are made to introduce
meaningless assertions which amount to little
70
more than choosing up sides, exclusion for lack
of helpfulness is called for by the rule."
"Rule 702. Testimony by Experts.
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
COMMENTARY
The rule is identical to Fed. P. Evid. 702.
The rule is identical to G.S. 8-58.13, which should be repealed
when Rule 702 becomes effective, except for the words "or
otherwise" at the end of Rule 702. The rule is consistent with
North Carolina practice. Brandis on North Carolina Evidence ^
13U, at S20, n. 25 (1982). The Advisory Committee's Note states
that:
"The rule . . . recognizes that an expert on the
stand may give a dissertation or exposition of
scientific or other principles relevant to the
case, leaving the trier of fact to apply them to
the facts. Since much of the criticism of expert
testimony has centered upon the hypothetical
question, it seems wise to recognize that
opinions are not indispensable and to encourage
the use of expert testimony in non-opinion form
when counsel believes the trier can itself draw
the requisite inference . . .."
"Rule 7 03. Bases of Opinion Testimony by Experts.
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to him at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need
not be admissible in evidence,
COMMENTARY
This rule i.s identical to Fed. R. Evid. , u3-
Under the rule, facts or data upon which an expert bases an
opinion may be derived from three possible sources. The first is
the personal observation of the witness. The second source is
presentation at trial by a hypothetical question or by having the
expert attend the trial and hear the testimony establishing the
facts. The third source consists of presentation of data to the
expert outside of court. See Comment, Expert Medical Testimony:
Differences Between the North Carolina Rules and the Federal
Rules of Evidence 12 W.F.L.R 833, 837 (1976).
In State v. Wade, 296 N.C. 454 (1978), the Court stated that a
"physician, as an expert witness, may give his opinion, including
a diagnosis, based either on personal knowledge or observation or
on information supplied him by others, including the patient, if
such information is inherently reliable even though it is not
independently admissible into evidence." Although the rule
requires that the facts or data "be of a type reasonably relied
upon by experts in the particular field" rather than that they be
"inherently reliable," the thrust of State v. Wade is consistent
with the rule. See W. Blakey, Examination of Expert Witnesses in
North Carolina, 61 N.C-L.Rev. 1, 20-32 (1982).
The rule provides that the facts or data need not be admissible
in evidence if of a type reasonably relied upon by experts in the
particular field. In State v. Wade the Court stated that: "If
his opinion is admissible the expert may testify to the
information he relied on in forming it for the purpose of showing
the basis of the opinion." Thus an expert may testify as to the
facts upon which his opinion is based, even though the facts
would not be admissible as substantive evidence.
"Rule 704. Opinion on Ultimate Issue.
Testimony in the form of an opinion or inference is not
objectionable because it embraces an ultimate issue to be decided
by the trier of fact.
COMMENTiPY
This rule is identical to Fed. R. Evid. 704.
The rule would abrogate the doctrine that excludes evidence in
the form of an opinion if it purports to resolve the "ultimate
issue" to be decided by the trier of fact.
In State v. Wilkerson, 295 N.C. 559 (1978), the Court held that
admissibility of expert opinion depends not on whether it would
invade the jury's province, but rather on "whether the witness .
. . is in a better position to have an opinion . . . than is the
trier of fact." Professor Brandis states that: "It is hoped
72
that a comparable reexamination of the rule as applied to lay
testimony will be forthcoming. The rule has been condemned by
thoughtful commentators, and judicial expressions of doubt are
not wanting." Bran^is on North Carolina Evidence §126, at 480-81
(1982) (footnotes omitted).
The Advisory Committee's Note states:
"The abolition of the ultimate issue rule does
not lower the bars so as to admit all opinions.
Under Rules 701 and 702, opinions must be helpful
to the trier of fact, and Rule U03 provides for
exclusion of evidence which wastes time. These
provisions afford ample assurance against the
admission of opinions which would merely tell the
jury what result to reach, somewhat in the manner
of the oath-helpers of an earlier day. They also
stand ready to exclude opinions phrased in terms
of inadequately explored legal criteria. Thus
the question, »Did T have capacity to make a
will?' would be excluded, while the question,
'Did T have sufficient mental capacity to know
the nature and extent of his property and the
natural objects of his bounty and to formulate a
rational scheme of distribution?' would be
allowed. McCormick §12."
"Rule 705. Disclosure of Facts or Data Underlying
Expert Opinion.
The expert may testify in terms of opinion or inference
and give his reasons therefor without prior disclosure of
the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-
examination. There shall be no requirement that expert
testimony be in response to a hypothetical question.
COMMENTARY
This rule is identical to Fed. R. Evid. 705 except for the last
sentence which is identical to G.S. 8-58.12, which should be
repealed upon enactment of this rule. G.S. 8-58.12 provides that
hypothetical questions may no longer be required, though it does
not prohibit their voluntary use.
Prior to 1982, when the facts upon which an opinion was based
73
were within the expert's own knowledge, the -ourt had discretion
to permit the expert to give his opinion first and leave the
facts to be brought out by cross-examination. Brandis on North
Carolina Evidence 5136 (1982). Facts not within the personal
knowledge of the expert had to be incorporated into a
hypothetical question and thus disclosed prior to the opinion.
Id. The 1981 legislation eliminated the requirement of the
hypothetical question and allowed the expert to give his opinion
without prior disclosure of the underlying facts unless an
adverse party requests otherwise. G. S. 8-58. Tt. Dpon the
request of an adverse party, the -judge must require the expert to
disclose the underlying facts oa direct examination or voir dire
before stating the opinion.
The voir dire procedure results in duplication of testimony and
needless consumption of time. Accordingly, the first sentence of
Rule 705 leaves it to the court, rather than opposing counsel, to
determine whether to require prior disclosure of the underlying
facts.
The second sentence of Pule 705 gives the opposing side the
right to require disclosure of the underlying facts or data on
cross-examination. The cross-examiner is under no compulsion to
bring out any facts or data except those unfavorable to the
opinion. N-C. Civ. Pro. Pule 26(b)(4) provides for substantial
discovery of the facts underlying the opinion prior to trial.
Dnder Rule 611, the court exercises control over the mode and
order of interrogating witnesses and presenting evidence. The
court may allow the opposing party to cross-examine concerning
the factual basis of the opinion immediately after the opinion is
given rather than at a later point in the trial.
This rule eliminates the requirement that the basis of an
expert opinion must be stated. However, the requirement that
there must be a basis for the expert opinion would not be
abolished. See W. Blakey, Examination of Expert Witnesses in
North Carolina, 61 N.C.L.Rev. 1, 9 (1982).
"Rule 706. Court Appointed Experts.
(a) Appointment. The court may on its own motion or on the
motion of any party enter an order to show cause why expert
witnesses should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witnesses
agreed upon by the parties, and may appoint witnesses of its own
selection. An expert witness shall not be appointed by the court
unless he consents to act. A witness so appointed shall be
7U
informed of his duties by thp court in writing, a copy of which
shall be filed with the clerk, or at a conference in which the
parties shall havp opportunity to participate. A witness so
appointed shall advise the parties of his findings, if any; his
deposition may be taken by any party; and he may be called to
testify by the court or any party. He shall be subject to cross-
examination by each party, including a party calling him as a
witness.
(b) Compensation. Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the court may allow.
The compensation thus fixed is payable from funds which may be
provided by law in criminal cases and civil actions and
proceedings involving just compensation for the taking of
property. In other civil actions and proceedings the
compensation shall be paid by the parties in such proportion and
at such time as the court directs, and thereafter charged in like
manner as other costs.
(c) Disclosure of Appointment. In the exercise of its
discretion, the court may authorize disclosure to the jury of the
fact that the court appointed the expert witness.
(d) Parties' Experts of Own Selection. Nothing in this rule
limits the parties in calling expert witnesses of their own
selection.
com:ientary
This rule is identical to Fed. P. Evid. 706 except that "for
the taking of property" has been inserted in subdivision (b) in
lieu of "under the Fifth Amendment".
A trial judge has the discretion to call an expert witness.
State V. Horne, 171 N.C. 787 (1916). This rule provides the
75
procedure for calling such a witness.
Subdivision (b) provides the method of compensating experts
called by the court but does not require an additional
appropriation.
"ARTICLE 3.
"Hearsay-
"Rule 801. Definitions and Exception for Admissions of a
Party-Opponent .
The following definitions apply under this Article:
(a) Statement. A 'statement' is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended
by him as an assertion.
(b) Declarant. A 'declarant' is a person who makes a
statement.
(c) Hearsay. 'Hearsay' is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
(d) Exception for Admissions by a Party-Opponent. A statement
is admissible as an exception to the hearsay rule if it is
offered against a party and it is (A) his own statement, in
either his individual or a representative capacity, or (B) a
statement of which he has manifested his adoption or belief in
its truth, or (C) a statement by a person authorized by him to
make a statement concerning the subject, or (D) a statement by
his agent or servant concerning a matter within the scope of his
agency or employment, made during the existence of the
relationship or (E) a statement by a coconspirator of such party
during the course and in furtherance of the conspiracy.
COMMENTARY
76
This rule is identical to Fed. R. Evid. 801, except for
subdivision (d) which is discussed below.
Subdivision (a) defines "statement" for purposes of the hearsay
rule. The Advisory Committee's Note states:
"The definition of •statement' assumes importance
because the term is used in the definition of
hearsay in subdivision (c) . The effect of the
definition of 'statement' is to exclude from the
operation of the hearsay rule all evidence of
conduct, verbal or nonverbal, not intended as an
assertion. The key to the definition is that
nothing is an assertion unless intended to be
one.
It can scarcely be doubted that an assertion made
in words is intended by the declarant to be an
assertion. Hence verbal assertions readily fall
into the category of 'statement'. Whether
nonverbal conduct should be regarded as a
statement for purposes of defining hearsay
requires further consideration. Some nonverbal
conduct, such as the act of pointing to identify
a suspect in a lineup, is clearly the equivalent
of words, assertive in nature, and to be regarded
as a statement. Other nonverbal conduct,
however, may be offered as evidence that the
person acted as he did because of his belief in
the existence of the condition sought to be
proved, from which belief the existence of the
condition may be inferred. This sequence is,
arguably, in effect an assertion of the existence
of the condition and hence properly includable
within the hearsay concept. *** Admittedly
evidence of this character is untested with
respect to the perception, memory, and narration
(or their equivalents) of the actor, but the
Advisory Committee is of the view that these
dangers are minimal in the absence of an intent
to assert and do not justify the loss of the
evidence on hearsay grounds- No class of
evidence is free of the possibility of
fabrication, but the likelihood is less with
nonverbal than with assertive verbal conduct.
The situations giving rise to the nonverbal
conduct are such as virtually to eliminate
questions of sincerity. Motivation, the nature
of the conduct, and the presence or absence of
reliance will bear heavily upon the weight to be
given the evidence. *** Similar considerations
govern nonassertive verbal conduct and verbal
conduct which is assertive but offered as a basis
for inferring something other than the matter
77
asserted, also excluded from t^ definition of
hearsay by the language of subdivision (c) . "
Subdivision <a) differs from current North Carolina law
by excluding from the hearsay rale all evidence of
conduct, verbal or nonverbal, not intended as an
assertion. Some North Carolina cases have barred evidence
of conduct even though the conduct was nonassertive. In
other cases, comparable evidence has been admitted, either
as nonhearsay or without noticing its possible hearsay
nature. Brandis on North Carolina Evidence § 142 (1982).
With respect to subdivision (a) , the Advisory
Committee's Note also states:
"When evidence of conduct is offered on the
theory that it is not a statement, and hence not
hearsay, a preliminary determination will be
required to determine whether an assertion is
intended. The rule is so worded as to place the
burden upon the party claiming that the intention
existed; ambiguous and doubtful cases will he
resolved against him and in favor of
admissibility. The determination involves no
greater difficulty than many other preliminary
questions of fact. "
Subdivision (b) , which defines declarant as a person who
makes a statement, is consistent with North Carolina
practice.
Subdivision (c) defines hearsay as a statement, other
than one made by the declarant while testifying at the
trial or hearing, offered to prove the truth of the matter
asserted. The Advisory Committee's Note states:
"The definition follows along familiar lines in
including only statements offered to prove the
truth of the matter asserted. McCormick § 225; S
Wigmore § 1361, 6 id. §1766. If the significance
of an offered statement lies solely in the fact
that it was made, no issue is raised as to the
truth of anything asserted, and the statement is
not hearsay. **♦ The effect is to exclude from
hearsay the entire category of 'verbal acts' and
•verbal parts of an act,' in which the statement
itself affects the legal rights of the parties or
is a circumstance bearing on conduct affecting
their rights.
The definition of hearsay must, of course, be
read with reference to the definition of
statement set forth in subdivision (a) .
78
Testimony given by a witness in the course of
court proceedings is excluded since there is
compliance with all the ideal conditions for
testifying. "
This definition of hearsay is consistent with the
definitions used by North Carolina courts. See Brandis on
North Carolina Evidence § 138 (19B2). With respect to the
definition of hearsay excluding "verbal acts" from the
hearsay ban, see Brandis, § 141.
Subdivision <d)(1) of Fed. R. Evid. 801 departs markedly
from the common law in North Carolina by excluding from
the hearsay ban several statements that come within the
common law definition of hearsay. Accordingly, the
language of Fed. R. Evid. 801(d), which provides that in
certain circumstances prior inconsistent statements, prior
consistent statements, and out-of-court identifications
are not hearsay, was deleted. See Brandis on North
Carolina Evidence § 46 (prior inconsistent statements) , §§
51 and 52 (prior consistent statements) ; State v. Neville.
175 N.C- 751 (1918) (identification).
Subdivision (d) (2) of Fed. R. Evid. 801 excludes certain
admissions of a party-opponent from the hearsay ban by
stating that such statements are not hearsay. Subdivision
(d) of Rule 801 achieves the same result in a manner
consistent with current North Carolina practice by
providing that such a statement may be admitted as an
exception to the hearsay rule.
Subdivision (d) specifies five categories of statements
for which the responsibility of a party is considered
sufficient to justify reception in evidence against the
party.
With respect to category (A) , the Advisory Committee's
Note states:
"A party's own statement is the classic example
of an admission. If he has a representative
capacity and the statement is offered against him
in that capacity, no inquiry whether he was
acting in the representative capacity in making
the statement is required; the statement need
only be relevant to representative affairs."
This is in accord with North Carolina practice. See
Brandis on North Carolina Evidence § 167 (1982).
With respect to category (B) , the Advisory Committee's
Note states:
"Dnder established principles an admission may be
79
made by af^loptinq ov acquifiscinq ii. .h*? statement
of anoth'.r. Whi lo knowlodqr.' of contents would
ordinarily be essential, this is not inevitably
so: 'X is a r«jiiabie person anr! knows what he is
talking about.' Seo McCormick § 246, p. ^^27, n.
15. Adoption or acquiescence may be manifested
in any appropriate manner. When silence is
relied upon, the theory is that the person would,
under the circumstances, protest the statement
made in his presence, if untrue. The decision in
each case calls for an evaluation in terms of
probable human behavior. In civil cases, the
results have generally been satisfactory. In
criminal cases, however, troublesome questions
have been raised by decisions holding that
failure to deny is an admission: the inference is
a fairly weak one, to begin with; silence may be
motivated by advice of counsel or realization
that ' anything you say may be used against you' ;
unusual opportunity is afforded to manufacture
evidence; and encroachment upon the privilege
against self-incrimination seems inescapably to
be involved. However, recent decisions of the
Supreme Court relating to custodial interrogation
and the right to counsel appear to resolve these
difficulties. Hence the rule contains no special
provisions concerning failure to deny in criminal
cases. "
Admission of a statement of which a party has adopted is
in accord with North Carolina practice. See Brandis on
North Carolina Evidence § 179 (1982).
With respect to category (C) , the Advisory Committee's
Note states:
"No authority is required for the general
proposition that a statement authorized by a
party to be made should have the status of an
admission by the party. However, the question
arises whether only statments to third persons
should be so regarded, to the exclusion of
statements by the agent to the principal. The
rule is phrased broadly so as to encompass both.
While it may be argued that the agent authorized
to make statement to his principal does not speak
for him, Morgan, Basic Problems of Evidence 273
(1962), communication to an outsider has not
generally been thought to be an essential
characteristic of an admission. Thus a party's
books or records are usable against him, without
regard to any intent to disclose to third
persons. 5 Wigmore § 1557. See also McCormick §
78, pp. 159-161."
North Carolina courts currently admit statements when an
agent is, in fact, authorized to speak for the principal.
Erandis on North Carolina Evidence § 169, at 15 (1982).
However, it is unclear whether such statements are
admissible when the statement was made only to the
principal. Id. at 17. The rule would clarify North
Carolina law by encompassing statements by an agent to the
principal or to a third party.
With respect to category (D) , the Advisory Committee's
Note states:
"The tradition has been to test the admissibility
of statement by agents, as admissions, by
applying the usual test of agency. Was the
admission made by the agent acting in the scope
of his employment? Since few principals employ
agents for the purpose of makinq damaging
statements, the usual result was exclusive of the
statement. Dissatisfaction with this loss of
valuable and helpful evidence has been
increasing. A substantial trend favors admitting
statements related to a matter within the scope
of the agency or employment. "
In Hubbard v. R.R. , 203 N.C. 675 (1932) , the Court states:
"What an agent or employee says relative to an
act presently being done by him within the scope
of his agency or employment is admissible . . .
against the principal or employer, but what he
says afterwards, and merely narrative of a past
occurrence, though his agency or employment may
continue as to other matters, or generally, is
only hearsay and is not competent as against the
principal or employer."
The North Carolina rule has been the subject of several
dissenting opinions and has been criticized by Professor
Brandis. See Branch v. Dempsey, 265 N.C. 733 (1965)
(Sharp, J., dissenting); Pearce v. Telephone Co. , 299
N.C. 64 (1980) (Copeland, Carlton and Exum, J. J.,
dissenting) ; Brandis on North Carolina Evidence § 169
(1982). Rule 801(d)(D) would change North Carolina
practice and make admissible any statements related to a
matter within the scope of the agency or employment. The
only additional requirement is that the statement be made
during the existence of the relationship.
With respect to category (E) , the Advisory Committee's
Note states:
"The limitation upon the admissibility of
statement of co-conspirators to those made
81
•during thp course and in fui _erance of the
conspiracy' is in the accpeted pattern. While
the broadened view of agency taken in item (iv)
might suggest wider admissibility of statements
of co-conspirators, the agency theory of
conspiracy is at best a fiction and ought not to
serve as a basis for admissibility beyond that
already established. *** The rule is consistent
with the position of the Supreme Court in denying
admissibility to statements made after the
objectives of the conspiracy have either failed
or been achieved- Krulewitch v. United States,
336 U.S. H^0, 69 S.Ct. 716, 93 L.Ed. 790 (1949);
Wona[ Sun v. United States, 371 U.S. 471, 490, 83
S.Ct. 407, 9 L.Ed. 2d 441 (1963)."
Rule 801 (d) (E) is in accord with North Carolina practice.
See Brandis on North Carolina Evidence § 173 (1982).
"Rule 802. Hearsay Rule.
Hearsay is not admissible except as provided by statute or by
these rules.
COMMENTARY
This rule is identical to Fed. R. Evid. 802 except that the
phrase "by statute or by these rules" is used in lieu of the
phrase "by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of
Congress. "
Rule 802 provides for the standard exclusion of hearsay
evidence; hearsay is simply inadmissible unless an exception is
applicable. This is in accord with North Carolina practice.
Unless an exception to the hearsay rule is provided in these
rules, the courts are not free to create new hearsay exceptions
by adjudication. Rules 803(24) and 804(b)(5) allow for the
admission of evidence in particular cases, but not for more
general policy formulation.
"Rule 80 3. Hearsay Exceptions; Availability of Declarant
Immaterial.
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or
explaining an <?vent or condition made while the declarant was
82
perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling
event or condition made while the declarant was under the stress
of excitement caused hy the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A
statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health) , but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(U) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning
a matter about which a witness once had knowledge but now has
insufficient recollection to enable him to testify fully and
accurately, shown to have been made or adopted by the witness
when the matter was fresh in his memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may
be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum,
report, record, or data compilation, in any form, of acts.
83
events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by* a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or
other qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term 'business' as used in this paragraph
includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted
for profit.
(7) Absence of Entry in Records Kept in Accordance with the
Provisions of Paragraph (6) . Evidence that a matter is not
included in the memoranda, reports, records, or data
compilations, in any form, kept in accordance with the provisions
of paragraph (6) , to prove the nonoccurrence or nonexistence of
the matter, if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made and
preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Records, reports, statements,
or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law
84
enforcement personnel, or (C) in civil actions and proceedings
and against the State in criminal cases, factual findings
resulting frow an investigation made pursuant to authority
granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data
compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office
pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence
of a record, report, statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a matter of which a
record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with Pule
902, or testimony, that diligent search failed to disclose the
record, report, statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of
births, carriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of
personal or family history, contained in a regularly kept record
of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates.
Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization
85
or by law to [)erforin t.ho act certifierl, and purporting to have
lu'tn is.suptl nt th<> time of th«- act or within a roasonable time
thereafter.
(13) Family Records. Statements of fact concerning personal
or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property.
The record of a document purporting to establish or affect an
interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorizes
the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in
Property. A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings with
the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a
document in existence 20 years or more the authenticity of which
is established.
(17) Market Reports, Commercial Publications. Market
quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by
persons in particular occupations.
86
(18) Learned Treatises. To the extent called to the attention
of an expert witness upon cross-examination or relied upon by him
in direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history,
medicine, or other science or art, established as a reliable
authority by the testimony or admission of the witness or by
other expert testimony or by judicial notice. If admitted, the
statements may be read into evidence but may not be received as
exhibits.
(19) Reputation Concerning Personal or Family History.
Reputation among members of his family by blood, adoption, or
marriage, or among his associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of his personal or family
history.
(20) Reputation Concerning Boundaries or General History.
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the
community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's
character among his associates or in the community.
(22) (Reserved) .
(23) Judgment as to Personal, Family or General History, or
Boundaries. Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the
87
same would be provable by evidence of reput ,ion.
(24) Other Exceptions. A statement not specifically covered
by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception
unless the proponent of it gives written notice stating his
intention to offer the statement and the particulars of it,
including the name and address of the declarant, to the adverse
party sufficiently in advance of offering the statement to
provide the adverse party with a fair opportunity to prepare to
meet the statement.
COMMENTARY
This rule is identical to Fed. R- Evid- 803, except as noted
below. The Advisory Committee's Note states:
"The exceptions are phrased in terms of
nonapplication of the hearsay rule, rather than
in positive terms of admissibility, in order to
repel any implication that other possible grounds
for exclusion are eliminated from consideration.
The present rule proceeds upon the theory that
under appropriate circumstances a hearsay
statement may possess circumstantial guarantees
of trustworthiness sufficient to iustify
nonproduction of the declarant in person at the
tiral even though he may be available. The
theory finds vast support in the many exceptions
to the hearsay rul^^ developed by the common law
in which unavailability of the declarant is not a
relevant factor. The present rule is a synthesis
of them, with revision where modern developments
and conditions are believed to make that course
appropriate.
In a hearsay situation, the declarant is, of
course, a witness, and neither this Rule nor Rule
804 dispenses with the requirement of firsthand
knowledge. It may appear from his statement or
be inferable from circumstances. See Rule 602."
As the Advisory Committee's Note indicates, the
exceptions are phrased in terms of nonapplication of the
hearsay rule. Evidence that is otherwise inadmissible may
be stricken from a writing.
Exception (1) concerns present sense impressions and Exception
(2) concerns excitod utterances. The Advisory Committee's Note
states:
"In considerable measure these two examples
overlap, though based on somewhat different
theories. The most significant practical
difference will lie in the time lapse allowable
between event and statement.
The underlying theory of Exception (1) is that
substantial contemporaneity of event and
statement negative the likelihod of deliberate or
conscious misrepresentation. Moreover, if the
witness is the declarant, he may be examined on
the statement. If the witness is not the
declarant, he may be examined as to the
circumstances as an aid in evaluating the
statement . ***
The theory of Exception (2) is simply that
circumstances may produce a condition of
excitement which temporarily stills the capacity
of reflection and produces utterances free of
conscious fabrication. 6 Wigmore *17U7, p. 135.
Spontaneity is the key factor in each instance,
though arrived at by somewhat different routes.
Both are needed in order to avoid needless
niggling.
With respect to the time element. Exception (1)
recognizes that in many, if not most, instances
precise contemporaneity is not possible, and
hence a slight lapse is allowable. Onder
Exception (2) the standard of measurement is the
duration of the state of excitement. 'How long
c^n excitement prevail? Obviously there are no
pat answers and the character of the transaction
89
or event will largely determine t significance
of the time factor.*"
North Carolina courts have recognized a hearsay exception for
spontaneous utterances that is substantially the same as
Exception (2) . See Brandis on North Carolina Evidence §16U
(1982). Exception (2) would clarify discordant rulings in this
area, particularly as to the element of time. Id. at 650.
Exception (1) would be a new exception to the hearsay rule in
North Carolina. Id. at 653.
Exception (3) concerns statements of the declarant's then
existing mental, emotional or physical condition. The Advisory
Committee's Note states:
"The exclusion of 'statements of memory or belief
to prove the fact remembered or believed' is
necessary to avoid the virtual destruction of the
hearsay rule which would otherwise result from
allowing state of mind, provable by a hearsay
statement, to serve as the basis for an inference
of the happening of the event which produced the
state of mind."
Exception (3) is similar to the corresponding North Carolina
exception to the hearsay rule. See Brandis on North Carolina
Evidence §161 (1982). However, the North Carolina exception
differs from Exception (3) in that in North Carolina declarations
that are made in a criminal case after the commission of the
crime are generally not included within the exception for fear
that admissibility would permit the defendant to create evidence
for himself. Id. at 636.
The exception should be construed to limit the doctrine of
Mutual Life Insurance Co. v. Hillmon, 145 O.S. 285, 295-300
(1892), so as to render statements of intent by a declarant
admissible only to prove his future conduct, not the conduct of
another person. This construction is consistent with State v.
Vestal, 278 N.C. 561, 589 (1971).
In North Carolina, when the issue is one of undue influence or
fraud with respect to the execution of a will, the declarations
of a testator are admitted only as corroborative evidence and are
not alone sufficient to establish the previous conduct of another
person by means of which the alleged fraud was perpetrated or the
undue influence exerted. Brandis on North Carolina Evidence
§163, at 647-48. Exception (3) would change this result and
permit such declarations to be admitted as substantive proof.
Exception (4) concerns statements made for purposes of medical
diagnosis and treatment. The Advisory Committee's Note states:
"Even those few jurisdictions which have shied
away from generally admitting statements of
90
present condition have allowed them if made to a
physici^T; for purpoi^es o^ diagnosis and treatment
in view of tl'e patient' 3 stronq motivation to be
truthful.*** The Eame guarantee of
trustworthiness extends to statements of past
conditions and medical history, made for purposes
of diagnosis or treatment. It also extends to
statements as to causation, reasonably pertinent
to the same purposes, in accord with the current
trend.*** Statements as to fault would not
ordinarily qualify under this latter language.
Thus a patient's statement that he was struck by
an automobile would qualify but not his statement
that the car was driven through a red light.
Under the exception the statement need not have
been made to a physician. Statements to hospital
attendants, ambulance drivers, or even members of
the family might be included."
Under current North Carolina practice, statements of past
condition made by a patient to a treating physician or
psychiatrist, when relevant to diagnosis or treatment and
therefore inherently reliable, are admissible to show the basis
for the expert's opinion. Brandis on North Carolina Evidence
§161, at 635 (1982). In some instances, a statement to a
nontreating physician is currently admissible. State v. Franks,
300 N.C. 1 (1980). Professor Brandis states that when qualifying
as basis for the expert's opinion statements of past condition
"should be (though, as yet, they are not) admissible as
substantive evidence as an exception to the hearsay rule."
Brandis, supra, at 636.
Exception (S) concerns past recollection recorded, which is
currently admissible in North Carolina. See Brandis on North
Carolina Evidence §33 (1982).
The phrase "or adopted by a witness" was added by Congress to
make it clear that statements adopted by a witness would come
within the Rule. The language chosen by Congress may be read to
suggest that the statement does not qualify for admission unless
the witness made the recordation himself or actually adopted the
recordation of another. The exception should be construed so as
not to require that the recordation of another be actually
adopted by the witness. Thus the statement may be one that was
made by the witness, one that was adopted by the witness, or one
that was made by the witness and recorded by another. This
construction would be in accord with North Carolina practice
which permits use of the recorded statement if the witness is
able to testify that he saw it at a time when the facts were
fresh in his memory, and that it actually represented his
recollection at the time. See Brandis, supra, at 127.
To prevent a "jury from giving too much weight to a written
statement that cannot be effectively cross-examined, the last
91
sentence of Exception (5) provides that th nemorandum or record
may be read into evidence but may not be received as an exhibit
unless offered by an adverse party. Current North Carolina
practice apparently permits the writing itself, or a readira
thereof by the authenticating witness, to be admitted. Brandis,
supra, at 126, n. 75.
Exception (fi) concerns records of regularly conducted activity.
The exception is deri^red from the traditional business records
exception. The exception is limited to business records, but
business is defined to include the records of institutions and
associations like schools, churches and hospitals. This appears
to be a slight expansion of the current North Carolina business
records exception. See Brandis, supra, §155.
The exception is consistent with North Carolina practice in
that the person making the record is not required to have
personal knowledge of the tranactions entered. See Brandis,
supra, §155, at 617. However, it must be shown that the record
was actually based (or it was the regular practice of the
activity to base the record) upon a person with knowledge acting
pursuant to a regularly conducted activity.
The exception specifically includes both diagnoses and
opinions, in addition to acts, events and conditions, as proper
subjects of admissible entries. See State v. DeGregory, 285 N.C-
122 (1977).
In addition, the Advisory Committee's Note states that:
"Problems of the motivation of the informant have
been a source of difficulty and disagreement.
*****
The formulation of specific terms which would
assure satisfactory results in all cases is not
possible. Consequently the rule proceeds from
the base that records made in the course of a
regularly conducted activity will be taken as
admissible but subject to authority to exclude if
•the sources of information or other
circumstances indicate lack of trustworthiness.'"
Apparently, th.^re are no North Carolina cases on this point.
The rule is in accord with North Carolina practice in that it
includes computer storage. Brandis, supra, §155, at 619.
Exception (7) concerns the absence of an entry in the records
of regularly conducted activity. As the Advisory Committee's
Note states: "Failure of a record to mention a matter which
would ordinarily be mentioned is satisfactory evidence of its
nonexistence." There are no North Carolina cases on this point
although the exception is a logical extension of the business
records exception.
92
Exception (8) differs from Fe^.. R. Evid. 803(8) in that the
word "State" is used in liea of the word "government".
Part (A) of tho exception is for records, reports, statements
or data compiLations setting forth the activities of the public
office or agency. Part (A) is in accord with North Carolina
practice. See Prandis on North Carolina Evidence §1*53 (1982).
Part (B) covers matters observed pursuant to duty imposed by
law when there is also a duty to report. Part (B) is in general
accord with North Carolina practice. Id. In criminal cases.
Part (B) does not cover matters observed by police officers and
other law enforcement personnel. Note that the right to
confrontation may exclude evidence in criminal cases even if the
matter is not one observed by law enforcement personnel.
Part (C) covers factual findings resulting from an
investigation made pursuant to legal authority. The term
"factual findings" is not intended to preclude the introduction
of evaluative reports containing conclusions or opinions.
Apparently North Carolina courts currently exclude statements in
reports that only amount to an expression of opinion. Id. at
The Advisory Committee's Note states:
"Factors which may be of assistance in passing
upon the admissibility of evaluative reports
include: (1) the timeliness of the
investigation . - . ; (2) the special skill or
experience of the official . . . ; (3) whether a
hearing was held and the level at which
conducted; (H) possible motivation problems
suggested by Palmer v. Hoffman, 318 U.S. 109 .
. (1943). Others no doubt could be added.
The formulation of an approach which would give
appropriate weight to all possible factors in
every situdcion is an obvious impossibility.
Hence the rule, as in Exception (6) , assumes
admissibility in the first instance but with
ample provision for escape if sufficient negative
factors are present. In one respect, however,
the rule with respect to evaluative reports under
item (c) is very specific: they are admissible
only in civil cases and against the government in
criminal cases in view of the almost certain
collision with confrontation rights which would
result from their use against the accused in a
criminal case."
The phrase "unless the sources of information or other
circumstances ir.dicate lack of trustworthiness" applies to all
three parts of the exception-
93
Public records and reports that are .v^t admissible under
Exception (8) are not admissible as business records under
Exception (6) .
Exception (9) excludes from the hearsay ban recor-^s of vital
statistics and is similar to G-S. 130-49 and G.S. 130-66.
One purpose of the exception is to admit a death certificate to
prove that a death occurred. G.S. 130-66 also provides that a
death certificate is prima facie evidence of the cause of death.
However, in State v. Watson, 281 N. C. 221 (1972), the Court held
that the admission of the "hearsay and conclusory statement" of
the cause of death in the victim's death certificate violated the
right to confrontation. Exception (9) is not intended to permit
the use of statements of the cause of death in a death
certificate against a defendant in a criminal case.
Exception (10) concerns the absence of a public record or
entry. The Advisory Committee's Note states:
"The principle of proving nonoccurrence of an
event by evidence of the absence of a record
which would regularly be made of its occurrence,
developed in Exception (7) with respect to
regularly conducted activities, is here extended
to public records of the kind metioned in
Exceptions (8) and (9). 5 Higmore §1633(6), p.
519. Some harmless duplication no doubt exists
with Exception (7).***
The rule includes situations in which absence of
a record may itself be the ultimate focal point
of inquiry, e.^-* People v. Love, 310 111. 558,
142 N.E.204 (1923), certificate of secretary of
state admitted to show failure to file documents
required by Securities Law, as well as cases
where the absence of a record is offered as proof
of the nonoccurrence of an event ordinarily
recorded. "
Exception (10) is similar to G.S. lA-1, Civ. Pro. Rules 4U (b) and
U4(c). See also Brandis on North Carolina Evidence ^153, at 610
(1982).
Exception (11) concerns records of religious organizations.
The Advisory Committee's Note states:
"Records of activities of religious organizations
are currently recognized as admissible at least
to the extent of the business records exception
to the hearsay rule, 5 Wigraore ^1523, p. 371, and
Exception (6) would be applicable. However, both
the business record doctrine and Exception (6)
require that the person furnishing the
94
information be one in the business or activity.
The result is such decisions as Daily v. Grand
Lodge, 311 111. 184, 14? N.E. 478 (1924), holding
a church record admissible to prove fact, date,
and place of baptism, but not age of child except
that he had at least been born at the time. In
view of the unlikelihood that false information
would be furnished on occasions of this kind, the
rule contains no requirement that the information
be in the course of the activity."
Currently in North Carolina records of activities of religious
organizations are admissible to the extent of the business
records exception to the hearsay rule. See Brandis on North
Carolina Evidence ^15 5 (1982).
Exception (12) concerns marriage, baptismal, and similar
certificates. The Advisory Committee's Note states:
"The principle of proof by certification is
recognized as to public officials in Exceptions
(8) and (10), and with respect to authentication
in Rule 902. The present exception is a
duplication to the extent that it deals with a
certificate by a public official, as in the case
of a judge who performs a marriage ceremony. The
area covered by the rule is, however,
substantially larger and extends the
certification procedure to clergymen and the like
who perform marriages and other ceremonies or
administer sacraments. Thus certificates of such
matters as baptism or confirmation, as well as
marriage, are included. In principle they are as
acceptable evidence as certificates of public
officers. See 5 Wigmore <i164S, as to marriage
certificates. When the person executing the
certificate is not a public official, the self-
authenticating character of documents purporting
to emanate from public officials, see Rule 902,
is lacking and proof is reguired that the person
was authorized and did make the certificate. The
time element, however, may safely be taken as
supplied by the certificate, once authority and
authenticity are established, particularly in
view of the presumption that a document was
executed on the date it bears. "
Under current North Carolina practice, these items are
admissible only to the extent they are part of a public record.
Exception (13) concerns family records.
The North Carolina exception for family records is more
restrictive in that statements of family history and pedigree are
95
admissible only if the declarant (1) ir ana\ ..a.lable; (2) made the
statement before the beginning of the controversy; and (3) bore a
relationship to the family such that he was lik'9ly to have known
the truth. Prandis on North Carolina Eyidencg §1U9 (1982).
Exception (14) concerns records of documents affecting an
interest in property. The Advisory Committee's Note states:
"The recording of title documents is a purely
statutory development. Under any theory of the
admissibility of public records, the records
would be receivable as evidence of the contents
of the recorded document, else the recording
process would be reduced to a nullity. When,
however, the record is offered for the further
purpose of proving execution and delivery, a
problem of lack of firsthand knowledge by the
recorder, not present as to contents, is
presented. This problem is solved, seemingly in
all jurisdictions, by qualifying for recording
only those documents shown by a specified
procedure, either acknowledgement or a form of
probate, to have been executed and delivered. 5
Wigmore <% §1647-1651 . "
Exception (14) is consistent with North Carolina practice. See
G.S. 47-20 through 47-20.4; G.S. 47-14; and G.S. 47-17.
Exception (15) concerns statements in documents affecting an
interest in property. The Advisory Committee's Note states:
"Dispositive documents often contain recitals of
fact. Thus a deed purporting to have been
executed by an attorney in fact may recite the
existence of the power of attorney, or a deed may
recite that the grantors are all the heirs of the
last record owner. Under the rule, these
recitals are exempted from the hearsay rule. The
circumstances under which dispositive documents
are executed and the requirement that the recital
be germane to the purpose of the document are
believed to be adequate guarantees of
trustworthiness, particularly in view of the
nonapplicability of the rule if dealings with the
property have been inconsistent with the
document. Tiie age of the document is of no
significance, though in practical application the
document will most often be an ancient one."
The extent to which recitals of fact in a deed or other
dispositive documents are admissible in North Carolina is not
entirely certain. Brandis on North Carolina Evidence §152
(19«2). Adoption of Exception (15) would somewhat expand
admissibility and clarify North Carolina law in this area.
96
Exception (16) concerns statements in ancient documents. The
Advisory Committee's Note states:
"Authenticating a document as ancient,
essentially in the pattern of the common law, as
provided in Rule 901(b) (8), leaves open as a
separate question the admissibility of assertive
statements contained therein as against a hearsay
objection. 7 Higmore §2145a. Hiqmore further
states that the ancient document technique of
authentication is universally conceded to apply
to all sorts of documents, including letters,
records, contracts, maps, and certificates, in
addition to title documents, citing numerous
decisions. Id. §2^^5. Since most of these items
are significant evidentially only insofar as thev
are assertive, their admission in evidence must
be as a hearsay exception. But see 5 id §1573,
p. 429, referring to recitals in ancient deeds as
a 'limited* hearsay exception. The former
position is believed to be the correct one in
reason and authority. As pointed out in
McCormick §298, danger of mistake is minimized by
authentication reguirements, and age affords
assurance that the writing antedates the present
controversy. "
North Carolina courts currently recognize as exceptions to the
hearsay rule recitals in deeds more than 30 years old. "The
North Carolina cases have involved deeds, but it may be assumed
that the rule extends here, as it does elsewhere, to other
dispositive instruments such as wills and powers of attorney."
Brandis on North Carolina Evidence §152, at 604 (1982),
Exception (16) would expand the North Carolina exception to
include statements in many types of documents more than 20 years
old.
Exception (17) concerns market reports and commercial
publications. The Advisory Committee's Note states:
"Ample authority at common law supported the
admission in evidence of items falling in this
category. While Kigmore's text is narrowly
oriented to lists, etc., prepared for the use of
a trade or profession, 6 Wiginore §1702,
authorities are cited which include other kinds
of publications, for example, newspaper market
reports, telephone directories, and city
directories. Id. §§1702-1706. The basis of
trustworthiness is general reliance by the public
or by a particular segment of it, and the
motivation of the compiler to foster reliance by
being accurate."
97
North Carolina courts have admitted into .idence a variety of
published compilations used or relied on by the public or
particular professions. See Brandis on North Carolina Evidence
§165 (1982) .
Exception (18) concerns learned treatises. The Advisory
Committee's Note states:
"The writers have generally favored the
admissibility of learned treatises ...» but the
great weight of authority has been that learned
treatises are not admissible as substantive
evidence though usable in the cross-examination
of experts. The foundation of the minority view
is that the hearsay objection must be regarded as
unimpressive when directed against treatises
since a high standard of accuracy is engendered
by various factors: the treatise is written
primarily and impartially for professionals,
subject to scrutiny and exposure for inaccuracy,
with the reputation of the writer at stake.***
Sound as this position may be with respect to
trustworthiness, there is, nevertheless, an
additional difficulty in the likelihood that the
treatise will be misunderstood and misapplied
without expert assistance and supervision. This
difficulty is recognized in the cases
demonstrating unwillingness to sustain findings
relative to disability on the basis of judicially
noticed medical texts.*** The rule avoids the
danger of misunierstanding and misapplication by
limiting the use of treatises as substantive
evidence to situations in which an expert is on
the stand and available to explain and assist in
the application of the treatise if desired. The
limitation upon receiving the publication itself
physically in evidence, contained in the last
sentence, is designed to further this policy.
*****
The rule does not require that the witness rely
upon or recognize the treatise as authoritative,
thus avoiding the possibility that the expert may
at the outset block cross-examination by refusing
to concede reliance or authoritati veness. ***
Moreover, the rule avoids the unreality of
admili ing evidence fo the purpose of impeachment
only, with an instruction to the jury not to
consider it otherwise. "
Exception (18) is substantially the same as G. S. 8-40-1.
Although G.S. 8-40.1 was modeled after Exception (18), there has
been some doubt whether the statements, once received, are
substantive evidence or are merely for impeachment or
corroboration. Brandis on North Carolina Evidence § 136, at 543
98
(19R2) . It is intended that Exception (1R) authorize admission
of such statements as substantive evidence.
The last sentence of G.S. 8-UO. 1 differs from Exception (18) by
providing that the statements may not be received as exhibits
"unless agreed to by counsel for the parties." The quoted
language was viewed as superfluous since evidence excluded by
this rule and other rules may be admitted upon stiputation by
counsel for the parties.
Exception (19) concerns matters of personal and family history.
The advisory Committee's Note states:
"Marriage is universally conceded to be a proper
subject of proof by evidence of reputation in the
community. *** As to such items as legitimacy,
relationship, adoption, birth, and death, the
decisions are divided. *** All seem to be
susceptible to being the subject of well founded
repute. The 'world' in which the reputation may
exist may be family, associates, or community.
This world has proved capable of expanding with
changing times from the single uncomplicated
neighborhood, in which all activities take place,
to the multiple and unrelated worlds of work,
religious affiliation, and social activity, in
each of which a reputation may be generated."
Under current North Carolina law only reputation among
family members is admissible concerning matters of family
history and pedigree, except for marriage which may be
proved by both family and community reputation. Brandis
on North Carolina Evidence ^ 149, at 599 (1982).
Exception (19) would permit proof by reputation among
family and associates, or in the community.
Exception (20) concerns reputation as to land boundaries
or general history. The Advisory Committee's Note states:
"The first portion of Exception (20) is based
upon the general admissibility of evidence of
reputation as to land boundaries and land
customs, expanded in this country to include
private as well as public boundaries. HcCormick
§ 299, p. 625. The reputation is required to
antedate the controversy, though not to he
ancient. The second portion is likewise
supported by authority, id., and is designed to
facilitiate proof of events when judicial notice
is not available. The historical character of
the subject matter dispenses with any need that
the reputation antedate the controversy with
respect to which it is offered."
99
Exception (20) is in accord with North Car> .^na practice.
See Brandis on North Carolina Evidence ^ 150 (1982).
Exception (21) concerns reputation as to character. The
Advisory Committee's Note states:
"Exception (21) recognizes the trar'itional
acceptance of reputation evidence as a means of
proving human character. McCormick §§ 44, 158.
The exception deals only with the hearsay aspect
of this kind of evidence. Limitations upon
admissibility based on other grounds will be
found in Rules 404, relevancy of character
evidence generally, and 608, character of
witness. The exception is in effect a
reiteration, in the context of hearsay, of Rule
405(a) ."
Exception (21) is consistent with North Carolina practice.
Exception (22) is reserved for future codification. Fed- B.
Evid. 803(22) concerns use of a iudgment of previous conviction
to prove a fact essential to sustain the judgment. Under current
North Carolina practice, the -judgment or finding of a court
generally cannot be used in another case as evidence of the fact
found, except where the principle of res judicata is involved.
Brandis on North Carolina Evidence s 143 (1982). By not adopting
a hearsay exception for judgments of previous conviction, it is
intended that North Carolina practice with respect to previous
convictions remain the same.
Exception (23) concerns a judgment as proof of matters of
personal, family or general history, or boundaries. The Advisory
Committee's Note states:
"A hearsay exception in this area was originally
justified on the ground that verdicts were
evidence of reputation. As trial by jury
graduated from the category of neighborhood
inquests, this theory lost its validity. It was
never valid as to chancery decrees. Nevertheless
the rule persisted, though the judges and writers
shifted ground and began saying that the judgment
or decree was as good evidence as reputation. ***
The shift appears to be correct, since the
process of inquiry, sifting, and scrutiny which
is relied upon to render reputation reliable is
present in perhaps greater measure in the process
of litigation. While this might suggest a
broader area of application, the affinity to
reputation is strong, and paragraph (23) goes no
further, not even including character."
A judgment admitted under this exception is some
100
evidence of the matter essential to the judgment, but is
not a binding determination of the matter for purposes of
the current proceeding.
Generally, a judgment cannot be used under current North
Carolina practice to prove a fact essential to the
judgment, except where the principle of res judicata is
involved. Brandis on North Carolina Evidence § 143
(1932) .
Exception {24) differs from Fed. R. Evid. 803 (2U) in
that the last sentence of the federal rule does not
require written notice. Also, Exception (24) requires the
notice to be given sufficiently in advance of offering the
statement while Fed. R. Evid. 803(24) requires the notice
to be given sufficiently in advance of the trial or
hearing.
This exception makes admissible a hearsay statement not
specifically covered by any of the previous twenty-three
exceptions if the statement has equivalent circumstantial
guarantees of trustworthiness and the court makes the
determinations required by the rule. This exception does
not contemplate an unfettered exercise of judicial
discretion, but it does provide for treating new and
presently unanticipated situations which demonstrate a
trustworthiness within the spirit of the specifically
stated exceptions.
Writing for the majority in State v. Vestal 278 N.C-
561, 589 (1971), Justice Lake stated that:
"No branch of the law should be less firmly bound
to a past century than the rules of evidence.
The purpose of the rules of evidence is to assist
the jury to arrive at the truth. Exceptions to
the hearsay rule, evolved by the experience and
wisdom of our predecessors for that purpose,
should not be transformed by us into rigid molds
precluding all testimony not capable of being
squeezed neatly into one of them."
North Carolina courts have admited hearsay evidence in
many instances on the ground that the evidence was part of
the "res gestae" . The res gestae formula has been
frequently resorted to in cases that would seem to be more
appropriately governed by independent hearsay rules. See
Brandis on North Carolina Evidence § 158 (1982). The
phrase res gestae "has been accountable for so much
confusion that it had best be denied any place whatever in
legal terminology." U^S. v. Matot, 146 F.2d- 197 (2d.Cir.
1944) (Learned Hand) . Although evidence previously
governed by the res gestae formula may now fall within the
specific hearsay exceptions or the catch-all in Exception
24, the res gestae formula should not be r. ^ed on by the
courts.
"Rule 8 04. iif^rsaY Exceptions; Declarant Unavailable.
(a) Definition of Unavailability. •Unavailability as a
witness* includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject
matter of his statement; or
(2) Persists in refusing to testify concerning the
subject matter of his statement despite an order of
the court to do so; or
(3) Testifies to a lack of memory of the subject matter
of his statement; or
(4) Is unable to be present or to testify at the
hearing because of death or then existina physical
or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of his
statement has been unable to procure his attendance
(or in the case of a hearsay exception under
subdivision (b) (2) , (3) , or (4) , his attendance or
testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption,
refusal, claim of lack of memory, inability, or absence is due to
the procurement or wrongdoing of the proponent of his statement
for the purpose of preventing the witness from attending or
testifying.
(b) Hearsay Exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
102
(1) Former Testimony. Testimony given as a witness at
another hearing of the same or a different
proceeding, or in a deposition taken in compliance
with law in the course of the same or another
proceeding, if the party against whom the testimony
is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the
testimony by direct, cross, or redirect
examination.
<2) Statement Onder Belief of Impending Death. A
statement made by a declarant while believing that
his death was imminent, concerning the cause or
circumstances of what he believed to be his
impending death.
(3) Statement Against Interest. A statement which was
at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or
so far tended to subject him to civil or criminal
liability, or to render invalid a claim by him
against another, that a reasonable man in his
position would not have made the statement unless
he believed it to be true. A statement tending to
expose the declarant to criminal liability is not
admissible in a criminal case unless corroborating
circumstances clearly indicate the trustworthiness
of the statement.
(U) statement of Personal or F .ily History. (A) A
statement concerning the declarant's own birth,
adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or
family history, even though declarant had no means
of acquiring personal knowledge of the matter
stated; or (B) a statement concerning the foregoing
matters, and death also, of another person, if the
declarant was related to the other by blood,
adoption, or marriage or was so intimately
associated with the other's family as to be likely
to have accurate information concerning the matter
declared.
(5) Other Exceptions. A statement not specifically
covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material
fact; (D) the statement is more probative on the
point for which it is offered than any other
evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best
be served by admission of the statement into
evidence. However, a statement may not be admitted
under this exception unless the proponent of it
104
gives written notice stating his intention to offer
the statement and the particulars of it, including
the name and address of the declarant, to the
adverse party sufficiently in advance of offering
the statement to provide the adverse party with a
fair opportunity to prepare to meet the statement.
COMMENTARY
This rule is identical to Fed. R. Evid. 80U except for the last
sentence of Exception (3) , which is discussed below.
Subdivision (a) defines unavailability. The Advisory
Committee's Notf states:
"The definition of unavailablity implements the
division of hearsay exceptions into two
categories by Rules 803 and 804 (b) .
At common law the unavailability requirement was
evolved in connection with particular hearsay
exceptions rather than along general lines. ***
However, no reason is apparent for making
distinctions as to what satisfies unavailability
for the different exceptions. The treatment in
the rule is therefore uniform.***
Five instances of unavailability are specified:
(1) Substantial authority supports the position
that exercise of a claim of privilege by the
declarant satisfies the requirement of
unavailability (usually in connection with former
testimony).*** A ruling by the judge is
required, which clearly implies that an actual
claim of privilege must be made.
(2) A witness is rendered unavailable if he
simply refuses to testify concerning the subject
matter of his statement despite judicial
pressures to do so, a position supported by
similar considerations of practicality.***
(3) The position that a claimed lack of memory
by the witness of the subject matter of his
statement constitutes unavailability likewise
finds support in the cases, though not without
dissent. If the claim is successful, the
practical effect is to put the testimony beyond
105
reach, as in the other instan^ j. Ir this
instance, however, it will be noted that the lack
of memory roust be established by the testimony of
the witness himself, which clearly contemplates
his production and subjection to cross-
examination.
(4) Death and infirmity find general recognition
as grounds.***
(5) Absence from the hearing coupled with
inability to compel attendance by process or
other reasonable means also satisfies the
requirement. ♦*♦
If the conditions otherwise constituting
unavailability result from the procurement or
wrongdoing of the proponent of the statement, the
requirement is not satisfied. The rule contains
no reguirement that an attempt be made to take
the deposition of a declarant."
Under North Carolina law the unavailability requirement varies
with respect to particular hearsay reguirements.
Under the hearsay exception for former testimony. North
Carolina courts recogni:ze grounds (1) , (4) , and (5) . Brandis on
North Carolina Evidence §1U5 (1982). Although grounds (2) and
(3) are not explicitly accepted or rejected by existing North
Carolina precedents. Professor Brandis asserts that they should
be accepted when occasion arises. Id^. at 575.
Under the hearsay exception for dying declarations, G.S. 8-51.1
requires that the declarant be dead.
Under the exception for statements against interest, apparently
any legitimate reason for unavailability is sufficient. Brandis
on North Carolina Evidence §147, at 589, n. 80 (1982).
With respect to statements of family history, it was said in
the older cases that the declarant must be dead. However,
Professor Brandis asserts that any legitimate reason for
unavailability should be acceptable. Id. at 597.
The Advisory Committee's Note states:
"If the conditions otherwise constituting
unavailability result from the procurement or
wrongdoing of the proponent of the statement, the
requirement is not satisfied. The rule contains
no requirement that an attempt be made to take
the deposition of a declarant."
Exception (1) concerns former testimony.
106
In North Carolina, the "testimony must have been given at a
former trial of the same cause, or a preliminary stage of the
same cause, or the trial of another cause involving the issue and
subject matter to which the testimony is directed at the current
trial." Brandis on North Carolina Evidence §115, at 575-76
(1982) (footnotes omitted). The Advisory Committee's Note states:
"The common law did not limit the admissibility
of former testimony to that given in an earlier
trial of the same case, although it did require
identity of issues as a means of insuring that
the former handling of the witness was the
equivalent of what would now be done if the
opportunity were presented. Modern decisions
reduce the requirement to 'substantial' identity.
McCormick §233. Since identity of issues is
significant only in that it bears on motive and
interest in developing fully the testimony of the
witness, expressing he matter in the latter terms
is preferable. Id."
Also, the Advisory Committee's Note states:
"Under the exception, the testimony may be
offer*^d (1) against the party against whom it was
previously offered or (2) against the party hj^
whom it was previously offered. In each instance
the question resolves itself into whether
fairness allows imposing, upon the party against
whom now offered, the handling of the witness on
the earlier occasion. (1) If the party against
whom now offered is the one against whom the
testimony was offered previously, no unfairness
is apparent in requiring him to accept his own
prior conduct of cross-examination or decision
not to cross-examine. Only demeanor has been
lost, and that is inherent in the situation. (2)
If the party against whom now offered is the one
by whom the testimony was offered previously, a
satisfactory answer becomes somewhat more
difficult. One possibility is to proceed
somewhat along the line of an adoptive admission,
i.e., by offering the testimony proponent in
effect adopts it. However, this theory savors of
discarded concepts of witnesses' belonging to a
party, of litigants' ability to pick and choose
witnesses, and of vouching for one's own
witnesses. ♦*♦ A more direct and acceptable
approach is simply to recognize direct and
redirect examination of one's own witness as the
equivalent of cross-examining an opponent's
witness. *** Allowable techniques for dealing
with hostile, double-crossing, forgetful, and
mentally deficient witnesses leave no substance
to a claim that one could not a-leq ^cely c^evelop
his own witness at the former hearing. An even
less appealing argument is presented when failure
to develop fully was the result of a deliberate
choice. "
North Carolina practice currently permits testimonv against the
party against whom it was offered. Brandis on North Carolina
Evidence §145, at 577 (1982). There are no North Carolina cases
concerning testimony offered against the party b^ whom it was
previously offered.
With respect to identity of the parties, the Advisory
Committee's Note states:
"As a further assurance of fairness in thrusting
upon a party the prior handling of the witness,
the common law also insisted upon identity of
parties, deviating only to the extent of allowing
substitution of successors in a narrowly
construed privity. Mutuality as an aspect of
identity is now generally discredited, and the
requirement of identity of the offering party
disappears except as it might affect motive to
develop the testimony. *** The question remains
whether strict identity, or privity, should
continue as a requirement with respect to the
party against whom offered."
North Carolina practice apparently departs from the privity
requirement to the extent of allowing former testimony "if the
party against whom it was admitted had not merely an opportunity
for cross-examination but the same motive for cross-examination
as the party against whom it is offered." Brandis on North
Carolina Evidence §1US, at 577 (1982) . Exception (1) permits
former testimony in civil cases if a predecessor in interest had
an opportunity and similar motive to develop the testimony.
Under certain circumstances. Exception (1) permits a broader
use of depositions than does N.C. Civ. Pro. Rule 32. See also
G.S. 8-83.
Exception (2) differs from Fed. R. Evid. 804(b)(2) in that it
omits the phrase "In a prosecution for homicide or in a civil
action or proceeding".
The exception is similar to G.S. 8-51.1. Unlike Fed. R. Evid.
804(b)(2) which limits admissibility of
108
Exception (3) concerns statements against interest and differs
from Fed. R. Evid. 804(b)(3) as noted below. The Advisory
Committee's Note states:
"The circumstantial guaranty of reliability for
declarations against interest is the assumption that
persons do not made statements which are damaging to
themselves unless satisfied for good reason that they are
true. **♦ If the statement is that of a party, offered by
his opponent, it comes in as an admission, *♦* and there
is no occasion to inquire whether it is against interest,
thin not being a condition precedent to admissibility of
admissions by opponents."
North Carolina cases have recognized declarations against
pecuniary or proprietary interest as an exception to the hearsay
rule. See Brand is on North Carolina Evidence §147 (1982). In
State V. Haywood, 295 N.C. 709, the North Carolina Supreme Court
abandoned the Court's previous approach that excluded from the
exception declarations against penal interest.
The last sentence of Fed. R. Evid. 804(b) (3) provides that: "A
statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness
of the statement." Requiring corroborating circumstances to
indicate clearly the trustworthiness of statements exculpating
the accused while imposing no such requirement with respect to
statements inplicating the accused raises serious constitutional
questions. Accordingly, Exception (3) differs from Fed. R. Evid.
804(b)(3) in that it imposes the requirement of corroborating
circumstances with respect to both exculpating and implicating
statements.
In Haywood, the Court listed several very restrictive
requirements that a declaration against penal interest must meet.
The exception should not be construed to add requirements in
addition to the requirement that "corroharating circumstances
clearly indicate the trustworthiness of the statement." As the
Advisory Committee's Note states: "The requirement of
corroboration should be co^astrued in such a manner as to
effectuate its purpose of circumventing fabrication."
Declarations against penal interests are admissible in both
criminal and civil cases. However, the requirement of
corroborating circumstances applies only in criminal cases.
The exception does not purport to deal with questions of the
right to confrontation.
Exception (4) concerns statements of personal or family
history.
The common law requirement in North Carolina that a declaration
109
in this area must have been made before t: beginning of the
controversy was dropped in Fed. R. Evid. 804(b)(3), which is
identical to this exception, as bearing more appropriately on
weight than admissibility. See Brandis on North Carolina
Evidence §1UQ (1982); Advisory Committee's Note. Unlike North
Carolina law that reguires that the declarant be dead. Rule 804
merely requires that the declarant be unavailable. See Brandis,
supra.
The first part of the rule specifically disclairr'.s any need of
firsthand knowledge respecting declarant's own personal history.
Advisory Committee's Note.
The second part of the rule deals with declarations concerning
the history of another person. North Carolina common law
provides that the declarant is qualified if related by blood or
marriage. Brandis , supra. In addition, and contrary to the
common law in North Carolina, the declarant qualifies under the
exception by virtue of intimate association with the family.
The Advisory Committee's Note states that: "The requirement
sometimes encountered that when the subject of the statement is
the relationship between two other persons the declarant must
qualify as to both is omitted. Relationship is reciprocal."
There are no North Carolina cases on this point.
Exception (5) is identical to Rule 803(24) and differs from the
federal rule. See commentary to Rule 803 (24) .
"Rule 80 5- Hearsay Within Hearsay.
Hearsay included within hearsay is not excluded under the
hearsay rule if e=\ch part of the combined statements conforms
with an exception to the hearsay rule provided in these rules.
COMMENTARY
This rule is identical to Fed. R- Evid. 805. The Advisory
Committee's Note states:
"On principle it scarcely seems open to doubt
that the hearsay rule should not call for
exclusion of a hearsay statement which includes a
further hearsay statement when both conform to
the requirements of a hearsay exception. Thus a
hospital record might contain an entry of the
patient's age based on information furnished by
his wife. The hospital record would qualify as a
regular entry except that the person who
furnished the information was not acting in the
routine of the business. However, her statement
110
inriependently qualifies as a statement of
pediqcf^e (if she is unavailable) or as a
statement made for purposes of diagnosis or
treatment, and hence each link in the chain falls
under sufficient assurance. Or, further to
illustrate, a dying declaration may incorporate a
declaration against interest by another
declarant. See McCormick § 290, p. 611."
Rule 805 is consistent with North Carolina practice.
See, e.g.. State v. Connley, 295 N.C. 327 (197B).
"Rule 80 6. At tacking and Supporting Credibility of
Declarant.
When a hearsay statement has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may
be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time, inconsistent
with his hearsay statement, is not subject to any requirement
that he may have been afforded an opportunity to deny or explain.
If the party against whom a hearsay statement has been admitted
calls the declarant as a witness, the party is entitled to
examine him on the statement as if under cross-examination.
COMMENTARY
This rule is identical to Fed. R. Evid. 806 except that the
phrase "or a statement defined in 801 (d) (2) (C) , (D) , or (E) " has
been omitted from the first sentence. Fed. R. Evid. 801 treats
admissions by a party-opponent as statements that are not
hearsay. Since Rule 801 treats such statements as exceptions to
the hearsay rule, the above phrase is superfluous.
The Advisory Committee's Note states:
"The declarant of a hearsay statement which is
admitted in evidence is in effect a witness. His
credibility should in fairness be sub-ject to
impeachment and support as though he had in fact
testified. See Rules 608 and 609. There are
however, some special aspects of the impeaching
of a hearsay declarant which reguire
consideration. These special aspe .3 center upon
impeachment by inconsistent statement, arise from
factual differences which exist between the use
of hearsay and an actual witness and also between
various kinds of hearsay, and involve the
question of applying to declarants the general
rule disallowing evidence of an inconsistent
statement to impeach a witness unless he is
afforded an opportunity to deny or explain. ***
The principal difference between using hearsay
and an actual witness is that the inconsistent
statement will in the case of the witness almost
inevitably of necessity in the nature of things
be a prior statement, which it is entirely
possible and feasible to call to his attention,
while in the case of hearsay the inconsistent
statement may well be a susequent one, which
practically precludes calling it to the attention
of the declarant. The result of insisting upon
observation of this impossible requirement in the
hearsay situation is to deny the opponent,
already barred from cross-examination, any
benefit of this important technique of
impeachment. The writers favor allowing the
subsequent statement. McCormick § 37, p. 69; 3
Wigmore § 1033. ***
When the impeaching statement was made prior to
the hearsay statement, differences in the kinds
of hearsay appear which arguably may justify
differences in treatment. If the hearsay
consisted of a simple statement by the witness,
e.g., a dying declaration or a declaration
against interest, the feasibility of affording
him an opportunity to deny or explain encounters
the same practical impossibility as where the
statement is a subsequent one, just discussed,
although here the impossibility arises from the
total absence of anything resembling a hearing at
which the matter could be put to him. The courts
by a large majority have ruled in favor of
allowing the statement to be used, under these
circumstance. McCormick § 37, p. 69; 3 Wigmore §
1033. If, however, the hearsay consists of
former testimony or a deposition, the possibility
of c=\lling the prior statement to the attention
of the witness or deponent is not ruled out,
since the opportunity to cross-examine was
available. It might thus be concluded that with
former testimony or depositions the conventional
foundation should be insisted upon. Most of the
cases involve depositions, and Wigmore describes
them as divided. 3 Wigmore § 1031. Deposition
112
procedures at best are cumbersome and expensive,
and to require the laying of the foundation may
impose an undue burden. Under the federal
practice, there is no way of knowing with
certainty at the time of taking a deposition
whether it is merely for discovery or will
ultimately end up in evidence. With respect to
both former testimony and depositions the
possibility exists that knowledge of the
statement might not be acquired until after the
time of the cross-examination. Moreover, the
expanded admissibility of former testimony and
depositions under Rule 80U(b)(1) calls for a
correspondingly expanded approach to impeachment.
The rule dispenses with the requirement in all
hearsay situations, which is readily administered
and best calculated to lead to fair results. "
In Hooper v. Moore, 48 N.C. U2B (1856), the court stated
that in order to impeach the credibility of a declarant by
showing an inconsistent statement made before the time
when a deposition was taken, the declarant must be given
an opportunity to explain. Professor Brandis is uncertain
whether the requirement of an opportunity to explain bars
proof of statements or conduct showing bias on the part of
a hearsay declarant not present to testify; but in his
view it should not. Brandis on North Carolina Evidence §
48, p. 183 (1982).
The provision for cross-examination of a declarant upon
his hearsay statement is a corollary of general principles
of cross-examination and is consistent with North Carolina
practice. See N.C. Civ. Pro. Rule 32(c),
"ARTICLE 9.
"Authentication and Identification.
"Rule 901. Requirement of Authentication or Identification.
(a) General Provision. The requirement of authentication or
identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by
way of limitation, the following are examples of authentication
or identification conforming with tne requirements of this rule:
113
(1) Testimony of Witness with nowledge. Testimony
that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert
opinion as to the genuineness of handwriting, based
upon familiarity not acguired for purposes of the
litigation.
(3) Comparison by Trier or Expert Witness. Comparison
by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(t|) Distinctive Characteristics and the Like.
Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in
conjunction with circumstances.
(5) Voice Identification. Identification of a voice,
whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion
based upon hearing the voice at any time under
circumstances connecting it with the alleged
speaker.
(6) Telephone Conversations. Telephone conversations,
by evidence that a call was made to the number
assigned at the time by the telephone company to a
particular person or business, if (A) in the case
of a person, circumstances, including self-
identification, show the person answering to be the
one called, or (B) in the case of a business, the
call was made to a place of business and the
114
conversation related to business reasonably
transacted over the telephone.
(7) Public Records or Reports. Evidence that a writing
authorized by law to be recorded or filed and in
fact recorded or filed in a public office, or a
purported public record, report, statement, or data
compilation, in any form, is from the public office
where items of this nature are kept.
(8) Ancient Documents or Data Compilations. Evidence
that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion
concerning its authenticity, (B) was in a place
where it, if authentic, would likely be, and (C)
has been in existence 20 years or more at the time
it is offered.
(9) Process or System. Evidence describing a process
or system used to produce a result and showing that
the process or system produces an accurate result.
(10) Methods Provided by Statute. Any method of
authentication or identification provided by
statute.
COMMENTARY
This rule is identical to Fed. R. Evid. 901 except that in
example (10) the word "statute" is inserted in lieu of the phrase
"Act of Congress or by other rules prescribed by the Supreme
Court pursuant to statutory authority."
The Advisory Committee's Note states:
"Subdivision (a) . Authentication and
identification represent a special aspect of
relevancy. *** Thus a telephone conversation may
be irrelevant because on an unrel _ad topic or
because the speaker is not identified. The
latter aspect is the one here involved. Wigmore
describes the need for authentication as "an
inherent logical necessity." 7 Wiqmore ^ 2129, p.
56a.
This requirement of showing authenticity or
identity falls in the category of relevancy
dependent upon fulfillment of a condition of fact
and is governed by the procedure set forth in
Rule 104(b) .
The common law approach to authentication of
documents has been criticized as an 'attitude of
agnosticism,' Mccormick, Cases on Evidence 388,
n- 4 (3rd ed. 1956) , as one which 'departs
sharply from men's customs in ordinary affairs,'
and as presenting only a slight obstacle to the
introduction of forgeries in comparison to the
time and expense devoted to proving genuine
writings which correctly show their origin on
their face, McCormick ^ 1R5, pp. 395, 396.
Today, such available procedures as requests to
admit and pretrial conference afford the means of
eliminating much of the need for authentication
or identification. Also, significant inroads
upon the traditional insistence on authentication
and identification have been made by accepting as
at least prima facie genuine items of the kind
treated in Rule 902, infra. However, the need
for suitable methods of proof still remains,
since criminal cases pose their own obstacles to
the use of preliminary procedures, unforeseen
contingencies may arise, and cases of genuine
controversy will still occur."
Subdivision (a) is in accord with North Carolina practice.
With respect to subdivision (b) , the Advisory
Committee's Note states:
"The treatment of authentication and
identification draws largely upon the experience
embodied in the common law and in statutes to
furnish illustrative applications of the general
principle set forth in subdivision (a) . The
examples are not intended as an exclusive
enumeration of allowable methods but are meant to
guide and suggest, leaving room for growth and
development in this area of the law.
The examples relate for the most part to
documents, with some attention given to voice
116
communications and computer printouts. As
Wigmorp noted, no special rules have been
developed for authenticating chattels. Higmore,
Code of Evidence § 2086 {3rd ^d. 1942).
It should be observed that compliance with
requirements of authentication or identification
by no means assures admission of an item into
evidence, as other bars, hearsay for example, may
remain.
Example (1) contemplates a broad spectrum ranging
from testimony of a witness who was present at
the signing of a document to testimony
establishing narcotics as tsken from an accused
and accounting for custody through the period
until trial, including laboratory analysis."
Example (1) is in accord with North Carolina practice.
The Advisory Committee's Note states:
Example (2) states conventional doctrine as to
lay identification of handwriting, which
recognizes that a sufficient familiarity with the
handwriting of another person may be acquired by
seeing him write, by exchanging correspondence,
or by other means, to afford a basis for
identifying it on subsequent occasions.
Mccormick § 189. *** Testimony based upon
familiarity acquired for purposes of the
litigation is reserved to the expert under the
example which follows."
Example (2) is in accord with North Carolina practice.
See Brand is on North Carolina Evidence § 197 (1982).
Example (3) is comparison by the trier of fact or by
expert witnesses with specimens that have been
authenticated. In State v. LeDuc, 306 N.C. 62 (19«2) ,
the Court permitted handwriting comparisons by the jury
unaided by lay or expert testimony. G.S. 8-40, which
should be repealed upon enactment of this rule, requires
that the exemplar used for comparison be "proved to the
satisfaction of the nudge to he genuine". However, the
Advisory Committee's Note states:
"The history of common law restrictions upon the
technique of proving or disproving the
genuineness of a disputed specimen of handwriting
through comparison with a genuine specimen, by
either the testimony of expert witnesses or
direct viewing by the triers themselves, is
detailed in 7 Wigmore §§ 1991-1994- In breaking
away, the English Common Law Pro dure Act of
185U, 17 and 18 Vict., c. 125, §27, cautiously
allowed expert or trier to use exemplars 'proved
to the satisfaction of the judge to be genuine'
for purposes of comparison. The language found
its way into numerous statutes in this country,
e.g., California Evidence Code §§ 1U17, 1418.
While explainable as a measure of prudence in the
process of breaking with precedent in the
handwriting situation, the reservation to the
judge of the question of the genuineness of
exemplars and the imposition of an unusually high
standard of persuasion are at variance with the
general treatment of relevancy which depends upon
fulfillment of a condition of fact. Rule 10U(b).
No similar attitude is found in other comparison
situations, e.g., ballistics comparison by jury
... or by experts ... and no reason appears for
its continued existence in handwriting cases-
Consequently Example (3) sets no higher standard
for handwriting specimens and treats all
comparison situations alike, to be governed by
Rule 104(b).
Precedent supports the acceptance of visual
comparison as sufficiently satisfying preliminary
authentication requirements for admission in
evidence. ***
Example (4) . The characteristics of the offered
item itself, considered in the light of
circumstances, afford authentication techniques
in great variety. Thus a document or telephone
conversation may be shown to have emanated from a
particular person by virtue of its disclosing
knowledge of facts known peculiarly to him...;
similarly, a letter may be authenticated by
content and circumstances indicating it was in
reply to a duly authenticated one. *** Language
patterns may indicate authenticity or its
opposite. "
Example (4) is in accord with North Carolina practice.
See generally Brandis, supra, §^ 19 5, 236.
The Advisory Committee's Note states:
Example (5) . Since aural voice identification is
not a subject of expert testimony, the requisite
familiarity may be acquired either before or
after the particular speaking which is the
subject of the identification, in this respect
resembling visual identification of a person
rather than identification of handwriting. Cf.
118
ExanplG (2), supra. "
Example (5) is in accord with North Carolina practice.
See qenerally Brandis, supra, § 96.
The Advisory Committ«e«s Note states:
Example (6) . The cases are in agreement that a
mere assertion of his identity by a person
talking on the telephone is not sufficient
evidence of the authenticity of the conversation
and that additional evidence of his identity is
required. The additional evidence need not fall
in any set pattern. Thus the content of his
statements or the reply technique, under Example
(4), supra, or voice identification, under
Example (S) , may furnish the necessary
foundation. Outgoing calls made by the witness
involve additional factors bearing upon
authenticity. The calling of a number assigned
by the telephone company reasonably supports the
assumption that the listing is correct and that
the number is the one reached. If the number is
that of a place of business, the mass of
authority allows an ensuing conversation if it
relates to business reasonably transacted over
the telephone, on the theory that the maintenance
of the telephone connection is an invitation to
do business without further identification.
Otherwise, some additional circumstance of
identification of the speaker is required. The
authorities divide on the question whether the
self-identifying statement of the person
answering suffices. Example (6) answers in the
affirmative on the assumption that usual conduct
respecting telephone calls furnish adeguate
assurances of regularity, bearing in mind that
the entire matter is open to exploration before
the trier of fact. "
Part (A) of Example (6) is in accord with North Carolina
practice. See Rrandis, supra, § 96. Part (B) permits
identity to be established by evidence that the call was
made to a place of business and the conversation related
to business reasonably transacted over the telephone.
There are no North Carolina cases directly on this point.
The Advisory Committee's Note states:
Example (7) . Public records are regularly
authenticated by proof of custody, without more.
Mccormick <* 191; 7 Wigmore §<^ 2158, 2159. The
example extends the principle to include data
stored in computers and similar methods, of which
increasing use in the public recoT' area may be
expected. "
Example (7) is in accord with North Carolina practice.
See Brand is, supra, § 19 5.
The Advisory Committee's Note States
Example (P) . The familiar ancient document rule
of the common law is extended to include data
stored electronically or by other similar means.
Since the importance of appearance diminishes in
this situation, the importance of custody or
place where found increases correspondingly.
This expansion is necessary in view of the
widespread use of methods of storing data in
forms other than conventional written records.
Any time period selected is bound to be
arbitrary. The common law period of 30 years is
here reduced to 20 years, with some shift of
emphasis from the probable unavailability of
witnesses to the unlikeliness of a still viable
fraud after the lapse of time. ***
The application of Example (8) is not subject to
any limitation to title documents or to any
requirement that possession, in the case of a
title document, has been consistent with the
document. See McCormick § 190."
Example (8) is in accord with North Carolina practice,
except that the period of 30 years is reduced to 20 years.
See Brand is, supra, § 196.
The Advisory Committee's Note states:
Example (9) is designed for situations in which
the accuracy of a result is dependent upon a
process or system which produces it. X-rays
afford a familiar instance. Among more recent
developments is the computer.... Example (9) does
not, of course, foreclose taking judicial notice
of the accuracy of the process or system."
Example (9) is in accord with North Carolina practice.
Example (10) makes clear that methods of authentication
provided by the Rules of Civil Procedure or other statutes
are not intended to be superseded. Illustrative are the
provisions for authentication of official records in Civil
Procedure Rule 44 and for the authentication of
depositions in Civil Procedure Rule 30(f).
120
"Rule 902. Self -Authentication.
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing
a seal purporting to be that of the United States, or of any
state, district, commonwealth, territory or insular possession
thereof, or the Trust Territory of the Pacific Islands, or of a
political subdivision, department, officer, or agency thereof,
and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document
purporting to bear the signature in his official capacity of an
officer or employee of any entity included in paragraph (1)
hereof, having no seal, if a public officer having a seal and
having official duties in the district or political subdivision
of the officer or employee certifies under seal that the signer
has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be
executed or attested in his official capacity by a person
authorized by the laws of a foreign country to make the execution
or attestation, and accompanied by a final certification as to
the genuineness of the signature and official position (A) of the
executing or attesting person, or (B) of any foreign official
whose certificate of genuineness of signature and official
position rp>lates to the execution or attestation or is in a chain
of certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification
may be made by a secretary of embassy or legation, consul
121
general, consul, vice consul, or consular . ,ont of the United
States, or n diplomatic or consular official of the foreign
country assigned or accredited to the United States. Tf
reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents,
the court may, for good cause shown, or>^er that they be treated
as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified
as correct by the custodian or other person authorized to make
the certification, by certificate complying with paragraph (1),
(2) , or (3) or complying with any law of the United States or of
this State.
(5) Official Publications. Books, pamphlets, or other
publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting
to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs,
tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a
certificate of acknowledgment executed in the manner provided by
law by a notf.ry public or other officer authorized by law to take
122
acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper,
signatures thereon, and documents relating thereto to the extent
provided by qoneral commercial law.
(10) Presumptions Created by Law. Any signature, document, or
other matter declared by any law of the United States or of this
State to be presumptively or prima facie genuine or authentic-
COHMENTARY
This rule differs from Fed. R. Evid. 902 in that the phrase "or
the Panama Canal Zone" has been deleted from paragraph (1).
Paragraph (4) differs from the federal rule in that the phrase
"any law of the United States or of this State" has been
substituted in lieu of the phrase "of this Rule or complying with
any Act of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority." Paragraph (10) differs from
the federal rule in that the phrase "any law of the United States
or of this State" is used in lieu of the phrase "Act of
Congress".
The Advisory Committee's Note states:
"Case law and statutes have, over the years,
developed a substantial body of instances in
which authenticity is taken as sufficiently
established for purposes of admissibility without
extrinsic evidence to that effect, sometimes for
reasons of policy but perhaps more often because
practical considerations reduce the possibility
of unauthenticity to a very small dimension. The
present rule collects and incorporates these
situations, in some instances expanding them to
occupy a larger area which their underlying
considerations justify. In no instance is the
opposite party foreclosed from disputing
authenticity. "
Paragraph (1) provides that a document bearing the seal
of an officer of the government and a signature purporting
to be an attestation or execution does not require
extrinsic evidence of authenticity as a condition
precedent to admissibility. See Brandis on North Carolina
Evidence §153, at 610 (1982). The Advisory Committee's
Note states:
"The acceptance of documents bearing a public
seal and signature, most often encountered in
123
practice in the form of acki ..leqments or
certificates authenticating copies of public
records, is actually of broad application.
Whether theoretically based in whole or in part
upon judicial notice, the practical underlying
considerations are that forgery is a crime and
detection is fairly easy and certain. 7 Wiqmore
§2161, p. 638 '•
Paragraph (2) is derived from Federal Civil Procedure
Rule 44. North Carolina Civil Procedure Fule 44, which is
similar, should be amended to conform to Rule 902-
Paragraph (2) applies to documents as well as public
records. The Advisory Committee's Note states:
"While statutes are found which raise a
presumption of genuineness of purported official
signatures in the absence of an official seal, 7
Wigmore §2167 ... the greater ease of effecting a
forgery under these circumstances is apparent.
Hence this paragraph of the rule calls for
authentication by an officer who has a seal-
Notarial acts by members of the armed forces and
other special situations are covered in paragraph
(10)."
Paragraph (3) is derived from Federal Civil Procedure
Rule 44(a) (2), which was amended in 1*^66 to provide for
greater clarity, efficiency, and flexibility in the
procedure for authenticating copies of foreign official
records. North Carolina Civil Procedure Rule 44 should be
amended to conform to Rule 902. Paragraph (3) applies to
public documents rather than being limited to public
records.
Paragraph (4) is confined to official records and
reports, and documents authorized to be recorded or filed
and actually recorded or filed. The Advisory Committee's
Note states:
"The common law and innumberable statutes have
recognized the procedure of authenticating copies
of public records by certificate. The
certificate qualifies as a public document,
receivable as authentic when in conformity with
paragraph (1), (2), or (3). ♦** It will be
observed that the certification procedure here
provided extends only to public records, reports,
and recorded documents, all including data
compilations, and does not apply to public
documents generally. Hence documents provable
when presented in original form under paraqraphs
(1), (2), or (3) may not be provable by certified
copy under paragraph (4)."
124
G.S. 1A-1, Rule 44, G.S. 8-3U, G.S. 8-35, G.S, 8-18,
G.S. 8-20, G.S. 47-31, and G.S. 47-34 should be amended to
conform to Rule 90 2.
Paragraph {5) has the same effect as North Carolina
Civil Procedure Rule 44(a), which should be amended to
conform to Rule 902. The Advisory Committee's Note
states:
"Dispensing with preliminary proof of the
genuineness of purportedly official publications,
most commonly encountered in connection with
statutes, court reports, rules, and regulations,
has been greatly enlarged by statutes and
decisions. 5 Wigmore § 1684. Paragraph (5) , it
will be noted, does not confer admissibility upon
all official publications; it merely provides a
means whereby their authenticity may be taken as
established for purposes of admissibility. Rule
44(a) of the Rules of Civil Procedure has been to
the same effect."
Paragraph (6) changes North Carolina practice by
providing that printed materials purporting to be
newspapers or periodicals are self-authenticating. The
Advisory Committee's Note states:
"The likelihood of forgery of newspapers or
periodicals is slight indeed. Hence no danger is
apparent in receiving them. Establishing the
authenticity of the publication may, of course,
leave still open questions of authority and
responsibility for items therein contained. See
7 Higmore § 2150."
Paragraph (7) changes North Carolina practice by
providing that inscriptions, signs, tags, or labels
purporting to have been affixed in the course of business
and indicating ownership, control, or origin are self-
authenticating. The Advisory Committee's Note states:
"Several factors justify dispensing with
preliminary proof of genuineness of commercial
and mercantile labels and the like. The risk of
forgery is minimal. Trademark infringement
involves serious penalties. Great efforts are
devoted to inducing the public to buy in reliance
on brand names, and substantial protection is
given them."
Paragraph (8) extends the exception for acknowledged
title documents to include other acknowledged documents.
The Advisory Committee's Note states:
"In virtually every state, acki .wledged title
documents are receivable in evidence without
further proof. Statutes are collected in 5
Higmore § 1676. If this authentication suffices
for documents of the importance of those
affecting titles, logic scarcelv permits denying
this method when other kinds of documents are
involved. "
Paragraph (9) provides that commercial paper, signatures
thereon, and documents relating thereto are authenticated
to the extent provided by general commercial law. The
term "general commercial law" refers to the Uniform
Commercial Code, except that federal commercial law will
apply when federal commercial paper is involved.
Pertinent provisions of the Uniform Commercial Code are
G.S. 25-1-202, 25-3-307, and 25-3-510, dealing with third-
party documents, signatures on negotiable instruments,
protests, and statements of dishonor.
Paragraph (10) provides for the authentication of any
signature, document, or other matter declared by any
federal or North Carolina statute to be presumptively or
prima facie genuine or authentic.
"Rule 903. Subscribing Witness* Testimony Unnecessary.
The testimony of a subscribing witness is not necessary to
authenticate a writing unless reguired by the laws of the
jurisdiction whose laws govern the validity of the writing,
COMMENTARY
This rule is identical to Fed. R. Evid. 903.
The Advisory Committee's Note states:
"The common law required that attesting witnesses
be produced or accounted for. Today the
requirement has generally been abolished except
with respect to documents which must be attested
to be valid, e.g,, wills in some states."
The requirement of proof by the attesting witness was
abolished by G.S. R-38, which should be repealed upon
enactment of Rule 903. Rule 903 is not intended to affect
the method and manner of proving instruments for
registration.
"ARTICLE 10.
"Contents of Writings, Recordings and Photographs.
126
"Rule inoi. Definitions.
For the purposes of this Article the following definitions are
applicable:
(1) Writings and Recordings. 'Writings' and 'recordings'
consist of letters, words, sounds, or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.
(2) Photographs. 'Photographs' include still photographs, x-
ray films, video tapes, and motion pictures.
(3) Original. An 'original' of a. writing or recording is the
writing or recording itself or any counterpart intended to have
the same effect by a person executing or issuing it. An
•original' of a photograph includes the negative or any print
therefrom. If data are stored in a computer or similar device,
any printout or other output readable by sight, shown to reflect
the data accurately, is an 'original'.
(4) Duplicate. A 'duplicate' is a counterpart produced by the
same impression as the original, or from the same matrix, or by
means of photography, including enlargements and miniatures, or
by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately
reproduce the original.
COMMENTARY
This rule is identical to Fed. R. Evid. 1001 except that the
word "sounds" has been added to paragraph (1) between "words" and
"or numbers".
The Advisory Committee's Note states:
127
"Paragraph (1) . Traditionally the ...le requiring
the original centered upon accumulations of data
and expressions affecting legal relations set
forth in words and figures. This meant that the
rule was one essentially related to writings.
Present dav techniques have expanded methods of
storing data, yet the essential form which the
information ultimately assumes for usable
purposes is words and figures. Hence the
considerations underlying the rule dictate its
expansion to include computers, photographic
systems, and other modern developments."
Paragraph (1) clarifies North Carolina law by providing
that the best evidence rule applies to recordings and
photographs. See Brandis on North Carolina Evidence § 190
(1982).
With respect to Paragraph (3) , the Advisory Committee's
Note states:
"In most instances, wnat is an original will be
self-evident and further refinement will be
unnecessary. However, in some instances
particularized definition is required. A carbon
copy of a contract executed in duplicate becomes
an original, as does a sales ticket carbon copy
given to a customer. While strictly speaking the
original of a photograph might be thought to be
only the negative, practicality and common usage
require that any print from the negative be
regarded as an original. Similarly, practicality
and usage confer the status of original upon any
computer printout. "
Paragraph (3) is substantially in accord with North
Carolina practice. See Brandis, supra, <* 190; G. S. 55-
37.1 and G. S. 55A-27, 1.
With respect to Paragraph (4), the Advisory Committee's
Note states:
"The definition describes 'copies' produced by
methods possessing an accuracy which virtually
eliminates the possibility of error. Copies thus
produced are given the status of originals in
large measure by Rule 1003, infra. Copies
subsequently produced manually, whether
handwritten or typed, are not within the
definition. It should be noted that what is an
original for some purposes may be a duplicate for
others. Thus a bank's microfilm record of checks
cleared is the original as a record. However, a
print offered as a copy of a check whose contents
128
are In controversy is a duplicate. "
"Rule 100 2. Requirement of Original.
To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is reguired,
except as otherwise provided in these rules or by statute.
COMHENTAEY
This rule is identical to Fed. R. Evid. 1002.
The rule is the familiar "best evi-^encp rule" expanded to
include explicitly writings, recordings, and photographs, as
defined in Rule 1001(1) and (2), supra. See Brandis on North
Carolina Evidence §190, at 100 (1982). However, the reguirement
for the original is overridden in many instances by other rules
such as Rule 1003, which allows duplicates to be admitted.
The rule in North Carolina is consistent with Rule 1002 in that
it requires the original of a writing only when its content is
sought to be proved. Id.
The Advisory Committee's Note states:
"Application of the rule requires a resolution of
the question whether contents are sought to be
proved. Thus an event may be proved by non-
documentary evidence, even though a written
record of it was made. If, however, the event is
sought to be proved by the written record, the
rule applies. For example, payment may be proved
without producing the written receipt which was
given. Earnings may be proved without producing
books of account in which they are entered. ***
Nor does the rule apply to testimony that books
or records have been examined and found not to
contain any reference to a designated matter.
The assumption should not be made that the rule
will come into operation on every occasion when
use is made of a photograph in evidence. On the
contrary, the rule will seldom apply to ordinary
photographs. In most instances a party wishes to
introduce the item and the question raised is the
propriety of receiving it in evidence. Cases in
which an offer is made of the testimony of a
witness as to what he saw in a photograph or
motion picture, without producing the same, are
most unusual. The usual course is for a witness
on the stand to identify the photograph or motion
picture as a correct representation of events
129
which he saw or of a scene with which he is
familiar. In fact he adopts the picture as his
testimony, or, in common parlance, uses the
picture to illustrate his testimony. Under these
circumstances, no effort is made to prove the
contents of the picture, and the rule is
inapplicable. ♦**
On occasion, however, situations arise in which
contents are sought to be proved. Copyright,
defamation, and invasion of privacy by photograph
or motion picture fall in this category.
Similarly as to situations in which the picture
is offered as having independent probative value,
e.3. , automatic photograph of bank robber. ***
The most commonly encountered of this latter
group is of coarse, the X-ray, with Substantial
authority calling for production of the original.
It should be noted, however, that Rule 703,
supra, allows an expert to give an opinion based
on matters not in evidence, and the present rule
must be read as being limited accordingly in its
application. Hospital records which may be
admitted as business records under Rule 803(6)
cowmonly contain reports interpreting X-rays by
the staff radiologist, who gualifies as an
expert, and these reports need not be excluded
from the records by the instant rule."
"Rule 1003. Admissibility of Duplicates.
A duplicate is admissible to the same extent as an original
unless (1) a genuine guestion is raised as to the authenticity
of the original or (2) in the circumstances it would be unfair
to admit the duplicate in lieu of the original.
COMMENTARY
This rule is identical to Fed. E. Evid. 1003.
Rule 1003 departs from the common law in North Carolina and
other jurisdictions by providing that a duplicate is admissible
to the same extent as an original unless a genuine guestion as to
the authenticity of the original is raised or it would be unfair
to admit the duplicate in the particular case. Traditionally, in
North Carolina no special showing has been necessary in order to
require production of the original.
The Advisory Committee's Note states:
130
"When the only concern is with getting the words
or other contents before the court with accuracy
and precision, then a counterpart serves equally
as well as the original, if the counterpart is
the product of a method which insures accuracy
and genuineness. By definition in Pule 1001(4),
supra, a * duplicate* possesses this character.
Therefore, if no genuine issue exists as to
authenticity and no other reason exists for
requiring the original, a duplicate is admissible
under the rule. Other reasons for requiring the
original may be present when only a part of the
original is reproduced and the remainder is
needed for cross-examination or may disclose
matters qualifying the part offered or otherwise
useful to the opposing party."
Courts should be liberal in permitting questions of genuineness
to be raised. The court should examine the quality of the
duplicate, the specificity and sincerity of the challenge, the
importance of the evidence to the case, and the burdens of
producing the original before determining whether a genuine
question of authenticity is raised.
"Rule 1004. Admissibility of Other Evidence of Contents.
The original is not required, and other evidence of the
contents of a writing, recording, or photograph is admissible if:
(1) Originals Lost or Destroyed. All originals are lost or
have been destroyed, unless the proponent lost or destroyed them
in bad faith; or
(2) Original Not Obtainable. No original can be obtained by
any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an
original was under the control of a party against whom offered,
he was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and he does
not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph
is not closely related to a controlling issue.
COMMENTARY
131
This rule is identical to Fed. R. Evid. 1 }.
The Advisory Committee's Note states:
"Basically the rule requiring the production of
the original as proof of contents has developed
as a rule of preference: if failure to produce
the original is satisfactorily explained,
secondary evidence is admissible. The instant
rule specifies the circumstances under which
production of the original is excused.
The rule recognizes no 'degrees' of secondary
evidence. "
Paragraph (1) provides that loss or destruction of the
original, unless due to bad faxth of the proponent, is a
satisfactory explanation of nonproduction. See McCormick. §201.
This paragraph is consistent with current North Carolina
practice. See Brandis on North Carolina Evidence §192 (1982).
Paragraph (2) provides that when the original is in the
possession of a third person, inability to procure it from him by
resort to process or other judicial procedure is a sufficient
explanation of nonproduction. The Advisory Committee's Note
states that: "Judicial procedure includes subpoena duces tecum
as an incident to the taking of a deposition in another
jurisdiction. No further showing is required. See McCormick
§202." Extreme expense and inconvenience in obtaining the
document will not constitute unavailability.
Paragraph (3) is consistent with North Carolina practice in
that secondary evidence of the contents of a writing is
admissible if the opponent who is in possession of the original
fails, after notice, to produce it at the trial. See Brandis on
North Carolina Evidence §193 (1982). The Advisory Committee's
Mote states:
"A party who has an original in his control has
no need for the protection of the rule if put on
notice that proof of contents will be made. He
can ward off secondary evidence by offering the
original. The notice procedure here provided is
not to be confused with orders to produce or
other discovery procedures, as the purpose of the
procedure under this rule is to afford the
opposite party an opportunity to produce the
original, not to compel him to do so. McCormick
§203."
Under the rule, notice may be given by the pleadings. There
are no North Carolina cases on this point.
Paragraph (U) is consistent with North Carolina cases in that
132
production of the original is not required if the writing is only
collaterally involved in the case. See Brandis on North Carolina
Evidence §191 (1982). The Advisory Committee's Note states:
"While difficult to define with precision,
situations arise in which no good purpose is
served by production of the original. Examples
are the newspaper in an action for the price of
publishing defendant's advertisement, Foster-
Holcomb Investment Co. v. Little Rock Publishing
Co., 151 Ark. 4^9, 236 S.H. 597 (1922), and the
streetcar transfer of plaintiff claiming status
as a passenger, Chicago City R^. Co. v. Carroll,
206 111. 318, 68 N.E. 1087 (1903). Numerous
cases are collected in McCormick §200, p. 412, n.
1."
"Rule 1005. Public Records.
The contents of an official record, or of a document authorized
to be recorded or filed and actually recorded or filed, including
data compilations in any form, if otherwise admissible, may be
proved by copy, certified as correct in accordance with Rule 902
or testified to be correct by a witness who has compared it with
the original. If a copy which complies with the foregoing cannot
be obtained by the exercise of reasonable diligence, then other
evidence of the contents may be given.
COMMENTARY
This rule is identical to Fed. R. Evid- 1005.
Admission of certified copies of registered instruments and
official records are currently governed by G. S. 8-18, G.S. 8-34,
and G.S. lA-1, Rule 44.
The Advisory Committee's Note states:
"Public records call for somewhat different
treatment. Removing them from their usual place
of keeping would be attended by serious
inconvenience to the public and to the custodian.
As a consequence judicial decisions and statutes
commonly hold that no explanation need be given
for failure to produce the original of a public
record. McCormick §204; 4 Wigmore §§1215-1228.
This blanket dispensation from producing or
accounting for the original wouir. ^pen the door
to the intorduction of every kind of secondary
evidence of contents of public records were it
not for the preference given certified or
compared copies. Recognition of degrees of
secondary evidence in this situation is an
appropriate quid pro quo for not applying the
requirement of producing the original. "
"Pule 1006. Summaries.
The contents of voluminous writings, recordings, or photograohs
which cannot conveniently be examined in court may be presented
in the form of a chart, summary, or calculation. The originals,
or duplicates, shall be made available for examination or
copying, or both, by other parties at a reasonable time and
place. The court may order that they be produced in court.
COMMENTARY
This rule is identical to Fed. F. Evid. 1006.
Where documents are so voluminous that it would be
impracticable to produce and examine them in court. North
Carolina Courts have allowed a qualified witness to testify to
the results of his examination of the documents. Brandis on
North Carolina Evidence 5192 (1982).
"Rule 1007- Testimony or Written Admission of Party.
Contents of writings, recordings, or photographs may be proved
by the testimony or deposition of the party against whom offered
or by his written admission, without accounting for the
nonproduction of the original.
COMMENTARY
This rule is identical to Fed. R. Evid. 1007.
This rule is consistent with North Carolina practice in that
the original writing need not be produced where the opponent
admits that the copy offered in evidence is correct. See Brandis
pn North Carolina Evidence §192, at 113 (1982). The rule
clarifies North Carolina law by not allowing proof of contents by
oral evidence of an oral admission. See Norcum v. Savage, 140
N.C. 472 (1906). The Advisory Committee's Note states:
134
"While the parent case, Slatterie v. Pooley, 6 M.
6 K. 664, 151 Eng, Rep. 579 (Exch. 18U0) , allows
proof of contents by evidence of an oral
admission by the party against whom offered,
without accounting for nonproduction of the
original, the risk of inaccuracy is substantial
and the decision is at odds with the purpose of
the rule giving preference to the original. See
4 Wigmore §1255. The instant rule follows
Professor McCormick's suggestion of limiting this
use of admissions to those made in the course of
giving testimony or in writing. McCormick §208,
p. 424. The limitation, of course, does not call
for excluding evidence of an oral admission when
nonproduction of the original has been accounted
for and secondary evidence generally has become
admissible. Rule 1004, supra."
"Pule 1008, Functions of Court and Jury.
When the admissibility of other evidence of contents of
writings, recordings, or photographs under these rules depends
upon the fulfillment of a condition of fact, the guestion whether
the condition has been fulfilled is ordinarily for the court to
determine in accordance with the provisions of Rule 104.
However, when an issue is raised (a) whether the asserted writing
ever existed, or (b) whether another writing, recording, or
photograph produced at the trial is the original, or (c) whether
other evidence of contents correctly reflects the contents, the
issue is for the trier of fact to determine as in the case of
other issues of fact.
COMMENTARY
This rule is identical to Fed. R. Evid. 1008.
The Advisory Committee's note states:
"Most preliminary guestions of fact in connection
with applying the rule preferring the original as
evidence of contents are for the judge, under the
general principles announced in Rule 104, su£ra-
Thus, the guestion whether the loss of the
originals has been established, or of the
fulfillment of other conditions s^ jified in Rale
100U, supra, is for the judge. However,
questions may arise which go beyond the mere
administration of the rule preferring the
original and into the merits of the controversy.
For example, plaintiff offers secondary evidence
of the contents of an alleged contract, after
first introducing evidence of loss of the
original, and defendant counters with evidence
that no such contract was ever executed. If the
judge decides that the contract was never
executed and excludes the secondary evidence, the
case is at an end without ever going to the jury
on a central issue. Levxn, Authentication and
Content of Writings, 10 Rutgers I. Rev. 632, 6'4U
(1956) . The latter portion of the instant rule
is designed to insure treatment of these
situations as raising jury questions. The
decision is not one for uncontrolled discretion
of the jury but is subject to the control
exercised generally by the judge over jury
determinations. See Rule 104 (b), supra. "
Although there are no North Carolina cases directly on
point. Rule 1008 follows the division of function between
the court and the jury with respect to competency and
conditional relevancy. See Brandis on North Carolina
Evidence § 8 (1982) .
"ARTICLE 11.
"Hiscellaneous Rules.
"Rule 1101. Applicability of Rules.
(a) Proceedings Generally- Except as otherwise provided in
subdivision (b) or by statute, these rules apply to all actions
and proceedings in the courts of this State.
(b) Rules Inapplicable. The rules other than those with
respect to privileges do not apply in the following situations:
(1) Preliminary Questions of Fact. The determination
of questions of fact preliminary to admissibility
of evidence when the issue is to be determined by
the court under Rule 104(a).
(2) Grand Jury. Proceedings before granr^ juries.
136
(3) Miscellaneous Proceedings. Proceedings for
extradition or rendition; first appearance before
district court judge on probable caase hearing in
criminal cases; sentencing, or granting or revoking
probation; issuance of warrants for arrest,
criminal summonses, and search warrants; and
proceedings with respect to release on bail or
otherwise.
(U) Contempt Proceedings. Contempt proceedings in
which the court is authorized by law to act
summarily.
COMMENTARY
This rule resembles Fed. R. Evid. 1101 with appropriate
modifications.
Subdivision (b)(1) restates, for convenience, the provisions of
the second sentence of Rule 104(a), supra. See Advisory
Committee's Note to that rule.
Current North Carolina practice with respect to voir dire,
sentencing hearings, and probation revocation hearings is not
meant to be changed by adoption of these rules.
"Rule 1102. Short Title.
These rules shall be known and may be cited as the 'North
Carolina Rules of Evidence'."
Sec. 2. This act shall become effective July 1, 1934,
and shall apply to actions and proceedings commenced after that
date. This act shall also apply to further procedure in actions
and proceedings then pending, except to the extent that
application of the act would not be feasible or would work
injustice, in which event former evidentiary principles apply.
137
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