About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed. Continue reading
Tag Archives: Evidence
The court of appeals recently decided State v. Ford, a case about the authentication of social media evidence. This is the first North Carolina appellate case to give careful consideration to the issue, and the opinion sets a relatively low bar for authentication. Because this type of evidence is increasingly prevalent, the case is an important one. Continue reading →
The state supreme court recently reversed a death sentence and a first-degree murder conviction because the State presented “an excessive amount” of otherwise admissible Rule 404(b) evidence. How much is too much? Continue reading →
One of my all-time favorite emails was received from a prosecutor who was handling a drug trafficking case. The email included a picture, plucked from what purported to be the defendant’s Facebook page, showing the defendant sitting on a pile of cash (later determined to be $1.6 million!), holding an AK-47. Jeff has written (here) about authenticating photographs from social media sites. But what of the other evidence that is mined from social media—how is that authenticated? A recent Second Circuit case adheres to the line that the relevant standard isn’t particularly high but finds that the prosecution didn’t meet it in this case. Continue reading →
In some states, theft of an automobile is a felony regardless of the value of the vehicle. See, e.g., Fla. Stat. § 812.014. Not so in North Carolina. Motor vehicles don’t have any special status under our larceny statute, G.S. 14-72. Therefore, theft of an automobile is a misdemeanor unless the vehicle is worth more than $1,000, or the theft falls under one of the other felony provisions of G.S. 14-72(b).
In this post, I’ll summarize the appellate cases that consider whether there was sufficient evidence that a vehicle was worth more than $1,000.
No presumption that motor vehicles are worth more than $1,000. If the State presents no evidence of a vehicle’s value, that is insufficient to sustain a felony conviction. In other words, there’s no presumption that a motor vehicle is worth more than $1,000. State v. McRae, __ N.C. App. __, 752 S.E.2d 731 (2014) (reversing a conviction based on felony larceny of a vehicle because the State introduced no evidence of the vehicle’s value; the vehicle belonged to a high school student and the indictment alleged that it was worth $2500). Cf. In re Mecklenburg County, 191 N.C. App. 246 (2008) (vacating a juvenile adjudication based on an admission to felony larceny; while the juvenile acknowledged stealing a truck, the “prosecutor’s statement of facts does not contain any statement or evidence that the pickup truck was worth more than $1,000,” so there was no factual basis for the felony admission).
Evidence that an older vehicle is well-kept is not sufficient. In State v. Holland, 318 N.C. 602 (1986), the state supreme court found insufficient evidence of value where “the State offered no direct evidence of the [stolen] Cordoba’s value,” even though there was “evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed,” and “a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft.” Interesting aside: I checked Hemmings Motor News and a couple of other websites, and a 1975 Cordoba in good condition could be worth $10,000 today.
Evidence that a vehicle is shiny and new is sufficient. By contrast, in State v. Dobie, 2014 WL 3824257 (N.C. Ct. App. Aug. 5, 2014) (unpublished), the court of appeals ruled that there was sufficient evidence of felony larceny where photographs of the vehicle in question showed that it was a “late model BMW sedan that ha[d] no exterior defects.” The holding makes sense on the facts presented, but I wonder how far it extends. I have a previous-generation Toyota Camry that looks pretty good except for some scuffing on the trunk lid. Does that count? How about my wife’s minivan, which runs well but has several dents and is missing a hubcap?
The owner’s testimony regarding the vehicle’s value may be sufficient. The owner may testify to the value of a vehicle under State v. Huggins, 338 N.C. 494 (1994). But note State v. Haney, 28 N.C. App. 222 (1975), where the court made clear that value means fair market value, not the price at which the owner would be willing to sell the vehicle. The court suggested that testimony that owner would not sell a vehicle for less than $2000 was “[i]ncompetent,” though sufficient given that defendant did not object to it.
Evidence of the price the owner paid for the vehicle may be sufficient. Evidence of a recent sale above the threshold amount may be adequate. State v. Rascoe, 170 N.C. App. 198 (2005) (evidence of purchase price months or years before the theft may be sufficient evidence of value where there is no reason to believe that “extraordinarily rapid depreciation” had greatly reduced the vehicle’s value).
Blue book value may be sufficient. Finally, under State v. Dallas, 205 N.C. App. 216 (2010), the NADA Guide and similar references are admissible evidence on the value of a vehicle. I glanced at cases from other jurisdictions and it appears that other states generally agree. See, e.g., Walker v. Com., 704 S.E.2d 124 (Va. 2011) (rejecting Confrontation Clause argument because such guides are not testimonial); State v. Erickstad, 620 N.W.2d 136 (S.D. 2000) (collecting cases and ruling that such guides fall within the hearsay exception for market reports and commercial publications). This seems like a sure and simple course for the State in most cases.
On another topic, regular readers may have noticed that there was no post yesterday. I’m sorry. I was caught up in other matters and just didn’t get to it. We should be back on track now.
During the second phase of a capital trial, the jury must decide whether to sentence the defendant to death or to life in prison. The jury’s perception of prison life may influence that decision. If the jury believes that prison life is comfortable, it may be more inclined to impose a death sentence, while if it believes that prison life is difficult, it may be more likely to return a verdict of life in prison. But is the quality of prison life relevant to any aggravating or mitigating circumstance? Should the parties be permitted to introduce evidence about, and to argue about, what prison life is like? This post tackles those questions.
What is prison life evidence? Prison life evidence concerns the quality of life in prison, including the amenities and activities that are available, or are not available, to inmates. Either party may seek to introduce such evidence, and the witnesses through whom it might be introduced include correctional officials, prison consultants, and inmates. As noted at the end of this post, prison life evidence is not the same as evidence about the defendant’s ability to adapt to prison life.
Is it admissible? Courts generally have ruled that prison life evidence is not admissible. At a capital sentencing hearing, the rules of evidence don’t apply, and any evidence that is “probative” may be admitted. G.S. 15A-2000(a)(3). The jury’s task is to identify and weigh aggravating and mitigating circumstances, so “probative” evidence means evidence that is relevant to one or more such circumstances. Prison life evidence doesn’t bear on any of the enumerated aggravating factors in the statute, so I don’t see any basis for the State to introduce such evidence. Nor does such evidence relate to any of the enumerated mitigating circumstances. And although the statute contains a catchall mitigating circumstance, G.S. 15A-2000(f)(9) (“Any other circumstance arising from the evidence which the jury deems to have mitigating value.”), prison life evidence doesn’t seem to fit there, either. The Supreme Court has held that a defendant is entitled to present, as a mitigating circumstance, “any aspect of a defendant’s character or record and any of the circumstances of the offense” that may serve to support a sentence less than death. Lockett v. Ohio, 438 U.S. 586 (1978). But prison life evidence has nothing to do with the defendant’s character or record or the circumstances of the offense, and so appears to fall outside the scope of mitigation.
I am not aware of a North Carolina case on point, but courts in at least three other states have addressed this issue, and all have ruled that evidence about prison life is inadmissible:
- State v. Kleypas, 40 P.3d 139 (Kan. 2001) (trial court correctly excluded “evidence regarding the conditions and effects of a life sentence in the Kansas correctional system”; such evidence was not mitigating in itself and was “too far removed” from the defendant’s ability to adapt to prison life to be admissible in support of that mitigating circumstance; the court did note that “[s]uch evidence might be admissible in rebuttal to counter . . . evidence produced by the State showing that life in prison is . . . easy”)
- People v. Ervin, 990 P.2d 506 (Cal. 2000) (citing previous California precedents and ruling that the trial court correctly excluded testimony from a “prison consultant” concerning “the security, classification, and management of inmates sentenced to prison for life without possibility of parole”)
- Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999) (defendant sought to introduce evidence regarding “the general nature of prison life” through “an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence”; the trial court properly excluded this evidence as “not relevant mitigation evidence”)
A few readers may be interested in this motion in limine by the prosecution in a Colorado case, seeking to exclude prison life evidence.
What about arguments related to prison life? There are a number of North Carolina cases about the propriety of closing arguments referring to the quality of prison life. All of the cases I found concern remarks made by the prosecutor, though the courts’ rulings appear to apply equally to remarks by defense counsel. I’ve summarized the cases below, but in general, (1) arguments about prison life that aren’t supported by the evidence are improper, and (2) absent an objection, they aren’t normally so improper as to require the trial judge to intervene or to require reversal on appeal.
My sense is that the more detailed the arguments are, and the more they refer to specific activities and amenities, or to specific privations and hardships, that are not in evidence, the more troubling they are. General remarks that are obviously true are not very concerning. For example, an argument by the State that “in prison, the defendant will enjoy nutritious meals and an opportunity to interact with other inmates” is relatively benign, as is a defense argument that “in prison, the defendant will be behind bars, locked away from the free world with time to think about what he has done.” On the other hand, detailed and possibly erroneous recitations of leisure activities that will be available to the defendant, or of difficulties that the defendant will face, are more likely to be objectionable.
Here are the cases on point, from older to newer. The newer cases seem to reflect a bit more skepticism about arguments about prison life.
- State v. Reeves, 337 N.C. 700 (1994) (during closing argument, the prosecutor stated that if the defendant were sentenced to life in prison, he would enjoy a “cozy little prison cell” with television, “air conditioning and three meals a day”; the defendant did not object at trial but on appeal argued that there was no evidence in the record to support these claims; the supreme court ruled that “[t]he prosecuting attorney was arguing that the defendant would lead a comfortable life in prison” and that “[i]f he used some hyperbole to describe that life it was not so egregious as to require the court to intervene ex mero motu”)
- State v. Alston, 341 N.C. 198 (1995) (during closing argument, the prosecutor denigrated life in prison by stating that it is “difficult to be penitent with televisions, and basketball courts, and weight rooms”; this was not improper and simply “emphasized the prosecution’s position that life in prison was not an adequate punishment”)
- State v. Holden, 346 N.C. 404 (1997) (at a capital resentencing hearing, “a prison guard testified that defendant was permitted to watch television, play cards, lift weights, play basketball, go to the music room, and eat lunch with other inmates”; the admissibility of this evidence was not addressed in the opinion; at closing argument, over a defense objection that the argument was irrelevant and speculative, the prosecutor contended that “if the jury recommended life imprisonment, defendant would be able to watch television, play cards, play basketball, listen to music, and eat lunch with fellow inmates”; the supreme court found the argument permissible under Alston and stated that it was reasonable to infer that the defendant would continue to enjoy the privileges to which the guard testified)
- State v. Smith, 347 N.C. 453 (1998) (briefly, citing Alston, the supreme court ruled that the trial judge did not err by failing to intervene ex mero motu when the prosecutor argued “that if defendant were sentenced to life in prison, he would spend his time comfortably doing things such as playing basketball, lifting weights, and watching television”)
- State v. May, 354 N.C. 172 (2001) (citing Smith and Alston, the supreme court ruled that although “the prosecutor improperly argued facts not in the record” by asserting that the defendant would play cards, go the gym, and watch TV while in prison, the impropriety was not so severe as to require the trial judge to intervene without a defense objection)
- State v. Taylor, 362 N.C. 514 (2008) (although the prosecutor argued facts outside the record by remarking “that defendant would potentially be able to do the following while in prison: visit with his mother and sisters, eat his meals and drink his coffee, watch the sun rise, exercise, watch television, read, draw, receive an education, and enjoy the fresh air,” the comments were not so grossly improper as to require ex mero motu intervention by the trial judge)
Ability to adapt to prison life is a separate question. Evidence of the defendant’s ability to adapt to prison life is admissible generally is admissible in mitigation. Skipper v. South Carolina, 476 U.S. 1 (1986) (explaining that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination”); State v. Green, 336 N.C. 142 (1994) (trial court erred in refusing to submit the nonstatutory mitigating circumstance that the defendant “will continue to adjust well to prison life and be a model prisoner”). Some facts about prison life might be admissible in support of this mitigating circumstance, but this post doesn’t attempt to identify or classify the facts that would be admissible for that purpose.
I’ve had more and more questions about introducing GPS tracking data in criminal trials. When I think about digital evidence, I think about authentication as the first hurdle. This post summarizes the law regarding the authentication of GPS data.
GPS data may come into criminal cases in several ways: because law enforcement placed a tracking device on a suspect’s vehicle; because a suspect was wearing a GPS tracking bracelet as a condition of probation or pretrial release; because law enforcement seized a cell phone or other device containing GPS data from a suspect; and so on. Although each situation presents slightly different considerations, it should often be possible to authenticate such data under Rule 901(b)(1) (testimony of a witness with knowledge that the data is what it is claimed to be), Rule 901(b)(9) (concerning “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result”), or some combination of the two.
The leading case in North Carolina is State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013). The defendant committed a sexual assault while wearing a GPS tracking device as a condition of his pretrial release. The supervisor of the electronic monitoring unit testified regarding how the tracking device worked. The defendant argued that the tracking data was not properly authenticated, but the court of appeals ruled to the contrary. However, the court did not analyze the authentication issue in detail — instead focusing mainly on whether the data were inadmissible hearsay — so the opinion is useful mainly for cases that have similar facts.
A few cases from other jurisdictions provide more general guidance. Most courts seem satisfied if a witness with a working familiarity with the GPS system explains how it works, how the data were collected, and what the data mean. See United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012) (ruling that data taken from GPS device seized from boat used for drug trafficking were properly authenticated by the testimony of the lab analyst who examined the device; the analyst provided a “good amount of testimony about the processes employed by the GPS,” allowing the court to apply Fed. R. Evid. 901(b)(9), which permits a witness to describe a process or system and thereby authenticate the result of the process or system; the court ruled that expert testimony was not required to authenticate the data, noting that the analyst was “knowledgeable, trained, and experienced in analyzing GPS devices”).
Several cases have focused on the qualifications and experience necessary to authenticate the data. Courts generally have ruled that the witness need not be an expert so long as the witness is familiar with the technology. Id. See also United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the trial judge properly took judicial notice of the “accuracy and reliability of GPS technology” generally, and the testimony of an employee of the security company that supplied the device was sufficient to admit the data generated by the device in question; although the witness apparently lacked a “scientific background,” he had worked for the company for 18 years, “had been trained by the company . . . knew how the device worked, and . . . had demonstrated the device for customers dozens of times”); United States v. Thompson, 393 Fed. Appx. 852 (3d Cir. 2010) (unpublished) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the GPS data was authenticated at trial by an employee of the security company that supplied the device; he explained how the device worked, and he was properly permitted to testify as a lay witness rather than an expert given that his knowledge was based on his personal experience with such devices).
I’m interested in readers’ thoughts about this issue and experiences with different kinds of witnesses used to authenticate GPS data.
Suppose that the defendant is charged with a gang-related murder. The State seeks to establish that the defendant is a gang member by introducing a photograph that a detective found on the defendant’s Facebook page. The photograph shows the defendant flashing gang signs. The defendant argues that the picture can’t be authenticated, because digital photographs can easily be altered, and because the State does not have a witness who was present when the picture was taken and who can testify that the image is a fair and accurate representation. Is the picture admissible?
The usual ways of authenticating photographs won’t work here. Photographs are usually introduced to illustrate a witness’s testimony, based on the witness’s recitation that the witness was present when the photographs were taken and that the photographs “fairly and accurately depict” what the witness saw. See, e.g., State v. Vick, 341 N.C. 569 (1995). When such a witness is available, this foundation is sufficient for digital photographs just as it is for film photography. G. Michael Fenner, The Admissibility of Web-Based Evidence, 47 Creighton L. Rev. 63 (2013) (“A photograph from a Facebook page showing the criminal defendant half-dressed and fully-drunk at a party during the thirty-one days when she had not yet reported that her nearly-three-year-old daughter was missing, or during the five months between the time her daughter was reported missing and the little girl’s body was found, can be authenticated by someone who was at the party, remembers when the party occurred, and can identify the defendant from the photo. It does not matter where the photo was found: on Facebook, on a camera’s flash memory card, or in a shoebox. They are all just photos and can be authenticated in the ordinary, old-fashioned way. When it is irrelevant whether the Facebook page was the source of the photo, then just because it was found on the web does not make authentication any more complicated.”) However, in our hypothetical, that method of authentication isn’t available to the State.
Sometimes it is possible to authenticate photographs even when there is no witness who has first-hand knowledge of the accuracy of the images. An analogous issue often arises with video recordings, and there is a body of case law concerning when surveillance videos may be admitted as “silent witnesses” despite the lack of a human witness who can confirm the recordings’ accuracy. In general, authentication requires testimony from someone familiar with the surveillance system about how it worked, how the camera was functioning at the time of the recording, and how the video was copied from the system and preserved unaltered for trial. See generally Bowman v. Scion, __ N.C. App. __, 737 S.E.2d 384 (2012). A similar foundation could authenticate a surveillance photograph, but in our hypothetical, the State doesn’t know how the picture was taken, and so can’t authenticate the picture in this way either.
But other methods of authentication may be possible. Under Rule 901(a), “[t]he requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Rule lists several methods of authentication, but they are “[b]y way of illustration only, and not by way of limitation.” N.C. R. Evid. 901(b). In our hypothetical, there are a few avenues the State might pursue to authenticate the photograph.
The fact that the picture was posted to the defendant’s account. With electronic communications like emails and text messages, the key to authentication is establishing who likely authored the communication, and it is powerful evidence of authorship when a communication comes from an account linked to a specific person. By contrast, with a photograph, it doesn’t really matter who took the picture, and the fact that the picture was posted to the defendant’s account doesn’t shed much light on who took it anyhow. But the State still has a reasonable argument that the fact that the picture was on the defendant’s Facebook page tends to support its authenticity. Courts have noted that digital images can be altered. People v. Lenihan, 30 Misc.2d 289 (N.Y. Sup. 2010) (defendant properly was barred from cross-examining prosecution witnesses about “photographs that [the defendant’s] mother downloaded from [MySpace]” suggesting that the witnesses were gang members; “[i]n light of the ability to ‘photo shop’, edit photographs on the computer, defendant could not authenticate the photographs”). However, the fact that the defendant chose to display the picture on his own page suggests that he didn’t think the picture was misleading or falsified, and tends to support its genuineness.
The context in which the picture is placed. The relationship between the picture and the other content on the defendant’s Facebook page is also relevant. If the page is devoted to the defendant’s love of puppetry and ceramic unicorns, and the picture at issue is the only thing on the page suggestive of gang affiliation, it is more likely that the picture is satirical, misleading, or was planted on the page by a nefarious interloper. If the page is an unbroken string of drug and gang references, the picture is more likely to be genuine. People v. Valdez, 201 Cal. App. 4th 1429 (Cal. Ct. App. 4th Dist. 2011) (the prosecution adequately authenticated photographs printed from the defendant’s MySpace page that showed him making gang signs; the overall content of the page, including the interests reflected there and responses by the defendant’s friends and family, “suggested the page belonged to [the defendant] rather than someone else by the same name, who happened to look just like him”; and the photograph was in keeping with the gang-related theme of the page, which tended to support its authenticity).
Metadata. Finally, digital photographs often contain metadata – embedded information about when a picture was taken, where it was taken, and the camera with which it was taken. In some instances, metadata might be relevant to authentication. If a witness with the proper expertise were able to review the metadata and to testify that the metadata revealed that the picture had not been altered, that also would tend to support authentication. Cf. People v. Buckley, 185 Cal. App. 4th 509 (Cal. Ct. App. 2nd Dist. 2010) (prosecution was wrongly allowed to introduce a photograph, obtained from a witness’s MySpace page, of the witness flashing gang signs; however, based on prior case law, the court suggested that the picture may have been admissible with “evidence of when and where the picture was taken” and testimony from “a photographic expert . . . that the picture was not a composite and had not been faked”).
How high a hurdle is authentication? The hypothetical at the beginning of this post didn’t include any information about metadata or the other contents of the defendant’s Facebook page. Plus, the law isn’t settled in this area, particularly in North Carolina. Therefore, I don’t have a conclusive answer to my own question, but as a practical matter, the answer may hinge in part on how certain a court must be about authenticity before it will allow the evidence to be introduced. The black-letter law is that authentication is a relatively low hurdle. State v. Mercer, 89 N.C. App. 714 (1988) (noting approvingly that “federal courts have held that a prima facie showing, by direct or circumstantial evidence, such that a reasonable juror could find in favor of authenticity, is enough”). But courts around the country seem to be approaching digital evidence carefully, and perhaps requiring greater certainty about the nature of digital evidence before admitting it.
In this, my last post in a long series on hearsay exceptions, I’ll address the Rule 804 exception for statements against penal interest.
Rule 804(b)(3) creates a hearsay exception for 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.” It further provides that 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.” N.C. R. Evid. 804(b)(3); State v. Levan, 326 N.C. 155, 164 (1990) (noting that this requirement is designed to avoid fabrication of statements against penal interest which might exculpate a defendant). The courts have repeatedly stated that to be admitted under this exception, a statement concerning criminal liability:
- must be against the declarant’s penal interest, and
- corroborating circumstances must insure the statement’s trustworthiness.
See, e.g., State v. Dewberry, 166 N.C. App. 177, 181 (2004); State v. Choudhry, 206 N.C. App. 418, 422 (2010) (quoting Dewberry). The subsections below explore these requirements.
Against the Declarant’s Penal Interest. By its terms, the Rule requires that the statement “so far tended to subject [the declarant] to . . . criminal liability . . . , that a reasonable man in his position would not have made the statement unless he believed it to be true.” N.C. R. Evid. 804(b)(3). The statement must actually subject the declarant to criminal liability. See State v. Eggert, 110 N.C. App. 614, 620 (1993) (where the declarant did not admit that contraband belonged to him, his statement about it was not against his penal interest; State v. Singleton, 85 N.C. App. 123, 129 (1987) (statement that the declarant took nude pictures with another person did not subject him to criminal liability). There is no requirement that the statement must subject the declarant to criminal liability for the offense currently being tried. State v. Tucker, 331 N.C. 12, 26 (1992). Nor is there a requirement that the statement be made in the presence of law enforcement officers. Eggert, 110 N.C. App. at 619. However, a statement is not against penal interest when the declarant had entered a guilty plea and already was serving a sentence for the admitted-to conduct. State v. Pickens, 346 N.C. 628, 642 (1997). Also, an anonymous letter does not satisfy this requirement because a declarant who conceals his or her identity does not tend to expose himself or herself to criminal liability. Tucker, 331 N.C. at 25.
The statement must be such that the declarant would understand its damaging potential. Tucker, 331 N.C. at 25; see, e.g., State v. Barnes, 345 N.C. 184, 215 (1997) (the declarant “no doubt knew the consequences of acknowledging his involvement in an attack on a law enforcement officer”). Some courts have held that statements made to law enforcement officers or prosecutors as part of plea bargain negotiations do not meet this element because a reasonable person would not believe that statements made in this context will subject the declarant to criminal liability. Tucker, 331 N.C. at 25 (1992) (not deciding the issue because there was no evidence that plea negotiations were underway).
In State v. Wilson, 322 N.C. 117, 133-34 (1988), the North Carolina Supreme Court held that statements that are not directly self-inculpatory are admissible as statements against penal interest when they are part of the same narrative as a statement that was against interest. In Wilson, the defendant acknowledged that the portion of the declarant’s statement implicating himself in a robbery was covered by the exception. He argued however that the declarant’s statements that the defendant also participated in the robbery and later threatened to kill the declarant if he told anyone, were “collateral” to the declarant’s statement against interest and thus should have been excluded. Looking for guidance to federal law, the court rejected this argument, concluding: “[W]e adopt the view of several federal courts that such collateral statements are admissible even though they are themselves neutral as to the declarant’s interest if they are integral to a larger statement which is against the declarant’s interest.” Id. at 133; see also State v. Levan, 326 N.C. 155, 164 (1990) (citing Wilson for the proposition that non-incriminating collateral statements are admissible). As pointed out by one treatise, Robert P. Mosteller et al., North Carolina Evidentiary Foundations 11-81 n.55 (2nd ed. 2009), the United States Supreme Court subsequently interpreted the parallel federal evidentiary rule and held that such “collateral” statements are inadmissible under this hearsay exception. Williamson v. United States, 512 U.S. 594, 604 (1994). The North Carolina Supreme Court does not appear to have directly addressed the implications of that ruling on its earlier interpretation of North Carolina’s statement against interest exception. State v. Barnes, 345 N.C. 184, 216 (1997) (noting the defendant’s argument regarding Williamson but not addressing the conflict directly because the statement at issue, “we f––––– up a police,” clearly implicated the declarant along with the defendant). At least one post-Williamson court of appeals decision has cited the Wilson rule, albeit without mentioning Williamson. State v. Kimble, 140 N.C. App. 153, 161 (2000).
Independent, Non-Hearsay Indications of Trustworthiness. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the statement’s trustworthiness. N.C. R. Evid. 804(b)(3). To satisfy this requirement, there must be “some other independent, nonhearsay indication” of the statement’s trustworthiness. State v. Artis, 325 N.C. 278, 305-06 (1989). The corroborating circumstances may include evidence presented at trial. However, evidence cutting against trustworthiness, such as a motive for the declarant to have offered a false statement, will weigh against admission. State v. Dewberry, 166 N.C. App. 177, 182-83 (2004).
Rule 804 contains five hearsay exceptions that apply when the declarant is unavailable. I addressed one of them—the residual exception—in a prior post. Another one of the five—statements of family history—rarely arises in the criminal law so I won’t spend any time on it. In this post I’ll tackle two of the Rule 804 exceptions: former testimony and dying declaration.
Former Testimony. Rule 804(b)(1) provides a hearsay exception for former testimony. Specifically, it creates an exception for “[t]estimony 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 same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” N.C. Evid. R. 804(b)(1). When the evidence is offered by the State, case law adds the additional requirement that the defendant must have been present at the former proceeding and represented by counsel. See, e.g., State v. Rollins, __ N.C. App. __, 738 S.E.2d 440, 445 (2013).
In most cases, this exception raises no complicated issues. By way of example, courts have held the following types of prior testimony admissible under this rule:
- A witness’s testimony during a prior trial on the charges at issue. See, e.g., State v. Hunt, 339 N.C. 622, 646 (1994); State v. Swindler, 129 N.C. App. 1, 5 (1998).
- A witness’s testimony during the defendant’s juvenile transfer hearing in connection with the charged offense. State v. Giles, 83 N.C. App. 487, 494 (1986).
- A witness’s testimony at the defendant’s pretrial bond hearing in connection with the charge at issue. State v. Ramirez, 156 N.C. App. 249, 258 (2003) (rejecting the defendant’s argument that the bond hearing raised different issues than the trial, and therefore defendant did not have “an opportunity and similar motive” to cross-examine the witness).
- A witness’s testimony during an Alford plea proceeding. State v. Rollins, __ N.C. App. __, 738 S.E.2d 440, 445 (2013) (rejecting the defendant’s argument that he had no motive to cross-examine the witness at the plea hearing).
- A victim’s testimony during voir dire conducted during the trial at issue. State v. Finney, 358 N.C. 79, 89 (2004) (trial court erred by prohibiting the defendant from admitting this testimony).
Dying Declaration. Rule 804(b)(2) contains the hearsay exception for dying declarations. It provides an exception for 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.” N.C. R. Evid. 804(b)(2). This exception is particularly important for the State because—at least in North Carolina—it satisfies both the hearsay rules and the confrontation clause. State v. Bodden, 190 N.C. App. 505, 514-15 (2008); State v. Calhoun, 189 N.C. App. 166, 172 (2008).
One question that comes up with this exception is: Is the declarant’s death a prerequisite to admissibility? Pre-rules cases say yes. They say that the proponent of the evidence must show that death actually occurred. 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 921 (7th ed. 2011). That foundational requirement has been repeated by at least one post-Rules case. Bodden, 190 N.C. App. at 512. However, other authority suggests that the rule rejects the common law requirement that death actually occur, 2 Brandis & Broun at 921 n.670; Robert P. Mosteller et al., North Carolina Evidentiary Foundations 11-85 (2nd ed. 2009), and not all post-Rules cases include the fact of death when articulating the evidentiary foundation for this exception. See, e.g., State v. Sharpe, 344 N.C. 190, 193-94 (1996).
Moving beyond the “actual death” issue, the statement must be made at a time when the declarant believes that death is imminent. Compare Sharpe, 344 N.C. at 194 (1996) (following his confession to a murder, the witness stated that he would kill himself before he would go to jail for the murder, but nothing in the circumstances surrounding the making of the statement suggested that he was in immediate danger of being arrested; thus, it was not established that the witness believed his death was imminent), with State v. Penley, 318 N.C. 30, 40 (1986) (declarant believed death was imminent).
Finally, to be admissible under this exception, the statement must “concern the cause or circumstances of what he believed to be his impending death.” N.C. R. Evid. 804(b)(2). Compare Sharpe, 344 N.C. at 194 (statement did not satisfy this requirement), with Penley, 318 N.C. at 40 (statements concerned cause of death).
My last post in this long series on hearsay exceptions will address one more Rule 804 exception: Statements Against Penal Interest. Look for it soon.