Evidence on the NC Bar
Evidence questions reward precision about the purpose of a statement. Before applying a hearsay exception, name the declarant, the statement, and the purpose. If the purpose is to show effect on a listener or the declarant's state of mind, it is not hearsay at all.
Relevance and character
- Relevant evidence makes a fact of consequence more or less probable. Rule 403 excludes when probative value is substantially outweighed by unfair prejudice, confusion, or delay.
- Character evidence is inadmissible to prove conduct in civil cases and in the prosecution's case-in-chief, except limited accused and victim character evidence. Rule 404(b) permits prior acts for motive, intent, absence of mistake, identity, or plan, with notice on request.
- Habit evidence is admissible; opinion and reputation evidence prove character only when character is an essential element.
Hearsay
- Non-hearsay: verbal acts, effect on the hearer, state of mind, prior consistent statements offered for rehabilitation, prior inconsistent statements under oath.
- Rule 803: present sense impression, excited utterance, then-existing condition, medical diagnosis, recorded recollection, business records, public records, learned treatises.
- Rule 804 requires unavailability: former testimony, dying declaration (homicide or civil cases), statement against interest.
- Confrontation: testimonial statements by an unavailable declarant are barred absent a prior opportunity to cross-examine.
Worked example
A 911 caller says, 'He just ran into my house with a gun.' Offered to prove the intruder was armed, it is hearsay, but the excited utterance exception applies because the call was made under the stress of the event. Offered only to explain why police responded, it is not hearsay.
Traps
Using an 803 exception for a testimonial statement when the declarant is unavailable; forgetting that North Carolina applies its own reliability test to expert testimony (Howerton v. Arai Helmet) rather than the federal Daubert factors.