Evidence Archives – Page 2 of 5 – North Carolina Criminal Law

Rule 803(6): Please Hold for the Next Available Representative…

February 25, 2019March 13, 2018 Jonathan Holbrook

A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.

What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up.

Confusing Recorded Recollection and Present Recollection Refreshed

March 5, 2018 Jessica Smith

I wrote a post (here) about the recorded recollection exception to the hearsay rule, in which I noted that this exception often is confused with the technique of present recollection refreshed under Evidence Rule 612. We see a little of that in the recent court of appeals decision, State v. Brown. Let’s take a look.

State v. Thompson Tells a Tale of Two Facebook Screenshots

October 11, 2017 Shea Denning

After Roshawn Thompson picked up his cousin Kendall Rascoe from the Greenville mall in November 2014, Thompson and a friend, Andre Grey, robbed Rascoe at gunpoint. At Thompson’s armed robbery trial, his defense attorney sought to cross examine Rascoe about Facebook messages he sent to Thompson earlier in the day asking whether Thompson could get some marijuana for him while he was in Greenville. Rascoe denied sending the message and testified that he just happened to run into Thompson at the mall. The State objected to the admission of the screenshot of the messages.

Later in the trial, the State sought to introduce a screenshot of a picture of Thompson and Grey copied from Thompson’s Facebook page. Rascoe showed the investigating detective the picture for purposes of identifying Thompson and Grey. Thompson objected to the admission of the screenshot, in which both of his middle fingers were extended.

How did the trial court rule? Did it make the right call?

Bill Cosby and the Lack of Rule 404(b) Evidence

June 19, 2017 Jeff Welty

Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one.

Can the Fact that Daryl Had a Glock Yesterday Be Used to Prove that He Had an AK-47 Today?

May 22, 2017 Jeff Welty

When a defendant is charged with possession of a firearm by a felon, may the prosecution introduce, under Rule 404(b), evidence that the defendant previously possessed a different firearm? Courts nationally are divided. The Court of Appeals of North Carolina just ruled in State v. Williams that the answer is no.

Going “Beyond the Bounds” of Rule 404(b) in a Case Involving the Death of a Child

August 29, 2016 Jeff Welty

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.

Court of Appeals Upholds Admissibility of Social Media Evidence Based on Circumstantial Evidence of Authenticity

March 7, 2016 Jeff Welty

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.

404(b) Evidence: How Much Is Too Much?

June 1, 2015 Jeff Welty

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?

Proving That Larceny of a Motor Vehicle Is a Felony

September 23, 2014 Jeff Welty

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 … Read more