Authentication and GPS Tracking

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 … Read more

Authenticating Photographs Taken from Social Media Sites

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 … Read more


Hearsay Exceptions: Former Testimony and Dying Declarations

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: … Read more


Hearsay Exceptions: What Does “Unavailability” Mean?

In earlier posts I covered the major Rule 803 hearsay exceptions, for which unavailability is immaterial. Rule 804 contains additional hearsay exceptions, but they only apply when the declarant is unavailable. What does unavailability mean? The Rule specifies five circumstances when a declarant is unavailable. The sections below explore them. Privilege. A witness is unavailable … Read more


Hearsay Exceptions: The Residual Exceptions

In a series of posts, I’ve been covering some of the hearsay exceptions that arise most commonly in criminal cases. The residual exceptions make that list. Here is your primer on those exceptions. Generally. Even if an out-of-court statement doesn’t fall within a specific hearsay exception, it still may be admissible under the residual exceptions … Read more


Hearsay Exceptions: Public Records & Reports

In my last blog post on hearsay exceptions, I discussed the business records exception. Here, I’ll address the hearsay exception for public records and reports. Rule 803(8) provides a hearsay exception for “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: (A)       the activities of the office or … Read more


Hearsay Exceptions: Business Records

Continuing my series on commonly used hearsay exceptions, we arrive, in this post, at the business records exception. This one comes up a lot in criminal cases. Here are the basics. Covered Records. The exception applies to “a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses.” N.C. … Read more


Hearsay Exceptions: Recorded Recollection

In a series of blog posts, I’ve been tackling the most common hearsay exceptions. This post focuses on the Rule 803(5) exception for recorded recollections. N.C. Rule 803(5) contains a hearsay exception for “[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him … Read more


Hearsay Exceptions: Present Sense Impressions & Excited Utterances

Rule 803 sets out twenty-three hearsay exceptions that apply regardless of the declarant’s availability. Two that arise with some frequency in criminal cases are present sense impressions and excited utterances. Here’s what you need to know about those exceptions. Present Sense Impression. Rule 803(1) provides an exception for “[a] statement describing or explaining an event … Read more