Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right? Continue reading
Tag Archives: hearsay
I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue. Continue reading →
A recent case from the Supreme Court of North Carolina appears to have relaxed the limits on the use of hearsay at a probation violation hearing. The case also sheds light on the persistent question of whether a pending criminal charge may be considered as a violation of probation.
In State v. Murchison, the defendant was on probation with two 24–38 month suspended sentences. Less than a year into his probation, he was charged with first-degree burglary, first-degree kidnapping, and assault with a deadly weapon. His probation officer filed a probation violation report alleging that he violated the “commit no criminal offense” condition by being charged with the new crimes.
At the ensuing violation hearing, the defendant’s probation officer testified that the defendant’s mother said over the phone that the defendant had broken into her house with a knife, causing her and the defendant’s girlfriend to hide in a closet. The State also introduced a computer printout from the AOC showing that the defendant had been indicted for the burglary, with the case set for court later that week. Finally, the probation officer testified that she had “a feeling he’s going to kill somebody.” Based on that information, the trial judge found that the defendant committed the new criminal offenses and revoked. The defendant appealed.
In an unpublished opinion the court of appeals reversed, holding that the trial court erred when it revoked probation based solely on the probation officer’s hearsay testimony. The court cited to prior cases—State v. Pratt, 21 N.C. App. 538 (1974) and State v. Hewett, 270 N.C. 348 (1967)—indicating that hearsay alone is not competent evidence to support a trial judge’s finding of violation. The State petitioned for discretionary review.
The supreme court unanimously reversed the court of appeals. Beginning with the incantation that “[p]robation or suspension of sentence comes as an act of grace”—never a good sign for a probationer on appeal—the high court stressed that probation violation hearings are informal. By statute (G.S. 15A-1345(e)) formal rules of evidence do not apply, and a trial judge has broad discretion to admit any evidence relevant to revocation of the defendant’s probation. When considered alongside the probation officer’s concerns about the defendant’s dangerousness, the hearsay evidence was relevant and admissible and the revocation should have been affirmed.
I wouldn’t describe Murchison as groundbreaking, but earlier cases tended to be more restrictive regarding hearsay at violation hearings. In Pratt the court reversed a revocation based on a probationer’s improper change of address when the primary evidence showing the establishment of a new residence was hearsay—even though there was “direct evidence that on eight or ten occasions defendant was not found at the place that was supposed to be her residence.” 21 N.C. App. at 541. In Hewett, the supreme court went so far as to say that hearsay evidence should not have been considered by the revoking judge at all (although the revocation was ultimately upheld based on other competent evidence). 270 N.C. at 356. Even if the hearsay standard is lowered after Murchison, defendant-probationers should not forget their statutory and due process right to confront adverse witnesses at a violation hearing. That right, discussed here, requires the trial court to make findings of good cause if confrontation is not allowed.
Finally, to focus on the hearsay issue in Murchison feels a little like burying the lede. The only violation alleged by the probation officer and found by the trial court in Murchison was that the defendant committed new criminal offenses. The officer’s report focused exclusively on the pendency of the charges, and they clearly were still pending at the time of the violation hearing.
I have long been of the opinion that a probation court is free to consider a “new criminal offense” violation while the charge is still pending, so long as the judge makes independent findings of the alleged criminal behavior. Murchison supports that view. Nevertheless, I have often wondered if more process might be due when holding a hearing on that sort of violation than a run of the mill technical violation, on the theory that the violation hearing becomes a sort of mini-trial on the new criminal charge. Looking at the types of information considered in Murchison—a secondhand telephone conversation, a copy of an indictment, the “defendant’s demonstrated propensity for violence,” and the probation officer’s concern about the defendant’s dangerousness—it does not appear that any special rules apply.
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.
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 if he or she is “exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement.” N.C.R. Evid. 804(a). One commonly asserted privilege in this context is the Fifth Amendment privilege against self-incrimination. See, e.g., State v. Sargeant, 365 N.C. 58, 62 (2011) (witness invoked the Fifth Amendment and was unavailable). Another is the marital privilege. See, e.g., State v. Carter, 156 N.C. App. 446, 454 (2003) (witness asserted the marital privilege).
This availability ground requires a determination by the court that the asserted privilege in fact applies; if the privilege does not apply and witness refuses to answer after being ordered to do so, he or she will be unavailable because of a refusal the testify despite a court order, as discussed below.
Refusal To Testify Despite Court Order. A witness is unavailable if he or she “persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.” N.C. R. Evid. 804(a)(2). As a general rule, the trial court must expressly order the witness to testify. State v. Finney, 358 N.C. 79, 84-87 (2004) (trial court erred by finding the witness unavailable where the witness “never definitively refused to testify and certainly did not persist in a refusal to testify”); State v. Linton, 145 N.C. App 639, 646-47 (2001) (the trial court erred by declaring a child victim unavailable without giving the witness an explicit order to testify; “an order from the trial court is an essential component in a declaration of unavailability”). However, this requirement has been relaxed where the record shows that such an order would have been futile. See, e.g., State v. Carter, 156 N.C. App. 446, 459 (2003) (witness’s conduct and testimony “made it clear that there were no circumstances, including court intervention or order, which would compel him to testify”).
Lack of Memory. A witness is unavailable when he or she “[t]estifies to a lack of memory of the subject matter of his statement.” N.C. R. Evid. 804(a)(3); State v. Rollins, ___ N.C. App. ___, 738 S.E.2d 440, 444 (2013) (defendant did not challenge on appeal the trial court’s finding that a witness who had testified at the previous trial of this case was unavailable when the witness “stated that she could not currently identify defendant, that she did not remember knowing [victim], that she did not remember the events of the day of the murder, and that she could not remember previously testifying”); State v. Brigman, 178 N.C. App. 78, 87-88 (2006) (child witnesses who could not remember were unavailable). A witness is not unavailable on these grounds if he or she remembers the general subject matter in question but can’t remember details. State v. Miller, 330 N.C. 56, 62 (1991) (the trial court erred by finding witnesses unavailable where they testified that they remembered most of what they saw but did not remember every detail of the incident).
Death or Physical or Mental Illness, or Infirmity. A witness is unavailable if he or she is “unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.” N.C. R. Evid. 804(a)(4). When death is the basis for unavailability, there must be sufficient evidence that the witness is in fact deceased, State v. Triplett, 316 N.C. 1, 8 (1986); State v. McCail, 150 N.C. App. 643, 648-49 (2002) (where no evidence was presented regarding efforts to confirm that the witness was dead, the testimony of a second witness that she had not seen the first witness recently and had heard that he had been killed was insufficient to establish unavailability), such as an official death certificate.
Evidence of hospitalization or a mental or physical condition making it unsafe for the witness to travel may support a finding of unavailability. See, e.g., State v. Carter, 338 N.C. 569, 591-92 (1994) (mental illness); State v. Swindler, 129 N.C. App. 1, 5 (1998) (hospitalization).
Finally, A witness who is incompetent to testify is unavailable. State v. Waddell, 351 N.C. 413, 421-22 (2000).
Attendance Cannot Be Secured. A witness is unavailable if he or she is “absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . or testimony . . . by process or other reasonable means.” N.C. R. Evid. 804(a)(5). This requires a showing of a good faith effort by the proponent of the evidence to locate the witness. State v. Bailey, 163 N.C. App 84, 90 (2004); see also State v. Bowie, 340 N.C. 199, 207 (1995) (trial court properly found that a witness was unavailable based on officer’s efforts to secure her as a witness).
Unavailability Due to Proponent’s Procurement or Wrongdoing. A declarant is not unavailable if his or her unavailability “is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.” N.C. R. Evid. 804(a). Put another way, if the proponent is responsible for the witness’s absence, the witness will not be found to be unavailable. A defendant does not make himself or herself unavailable by asserting the Fifth Amendment. State v. Harris, 338 N.C. 211, 223 n.1 (1994); see also United States v. Bollin, 264 F.3d 391, 413 (4th Cir. 2001) (rejecting the defendant’s contention that he was unavailable because he invoked his Fifth Amendment rights).
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 to the hearsay rule. The rules contain two identical residual exceptions (sometimes called “catch all” exceptions). The first is in Rule 803(24), for which availability is immaterial; the second is in Rule 804(b)(5), which requires unavailability. The requirements for the two exceptions are virtually identical, except that decisions have “noted that the inquiry into the trustworthiness and probative value of the declaration is less strenuous when the declarant is unavailable.” 2 Brandis & Broun on North Carolina Evidence at 937.
Six-Step Analysis. Before admitting evidence pursuant to the residual exceptions, the trial judge must determine that:
(1) proper written notice was given to the adverse party;
(2) the statement is not specifically covered by any other hearsay exception;
(3) the statement possesses circumstantial guarantees of trustworthiness;
(4) the evidence is offered regarding a material fact;
(5) the evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(6) the evidence will best serve the general purposes of the rules of evidence and the interests of justice.
State v. Triplett, 316 N.C. 1, 7-9 (1986) (adopting the six-part test for the Rule 804(b)(5) residual exception); State v. Smith, 315 N.C. 76, 92-96 (1985) (adopting the six-part test for the Rule 803(24) residual exception).
Notice. A statement may not be admitted unless the proponent gives written notice stating his or her intention to offer it as well as its particulars, “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.” N.C. R. Evid. 803(24). No fixed amount of time is required for the notice and the notice requirement is construed flexibly. See, e.g., State v. Triplett, 316 N.C. 1, 12-13 (1986) (requirement satisfied; written notice given on the day of trial but State told the defense three weeks earlier that it would introduce the statements). “The central inquiry is whether the notice gives the opposing party a fair opportunity to meet the evidence.” State v. King, 353 N.C. 457, 480 (2001) (citation omitted). Compare, e.g., State v. Anthony, 354 N.C. 372, 390 (2001) (notice adequate when given after jury selection but five days before opening statements), and State v. Faucette, 326 N.C. 676, 686 (1990) (notice adequate when given the day before trial but the State did not seek to introduce the evidence until fifteen days later), with State v. Hester, 343 N.C. 266, 271 (1996) (evidence excluded where party failed to give notice), and State v. Carrigan, 161 N.C. App. 256, 261-62 (2003) (notice given shortly before the issue was heard was insufficient).
No Other Exception Applies. The residual exceptions come into play only when no other hearsay exception applies. Thus, for example, if the State is unsuccessful in admitting a statement by a non-testifying child sexual assault victim as an excited utterance or as a statement for purposes of medical diagnosis and treatment, the State then may argue that the residual exceptions apply. Put another way, these are exceptions of last resort.
Trustworthiness. The third and most significant step in the analysis, Smith, 315 N.C. at 93, requires a determination of whether the statement has circumstantial guarantees of trustworthiness. When evaluating trustworthiness, relevant factors include:
(1) whether the declarant had personal knowledge of the underlying events,
(2) whether the declarant is motivated to speak the truth or otherwise,
(3) whether the declarant has ever recanted the statement, and
(4) the practical availability of the declarant at trial for meaningful cross examination.
State v. Fowler, 353 N.C. 599, 612 (2001); State v. Sargent, 365 N.C. 58, 64 (2011). This list is not exhaustive. Sargent, 365 N.C. at 64. Other relevant factors include the nature and character of the statement, the relationship of the parties, State v. Triplett, 316 N.C. 1, 11 (1986); King, 353 N.C. at 479, and whether corroborating evidence exists. State v. Nichols, 321 N.C. 616, 625 (1988).
For more information on this prong of the analysis and a listing of relevant cases, see my judges’ bench book chapter here.
Material. The statement must be material, such as those identifying the perpetrator and describing the crime, State v. Fowler, 353 N.C. 599, 613 (2001); State v. Brigman, 178 N.C. App. 78, 88 (2006), or establishing the defendant’s motive. State v. Valentine, 357 N.C. 512, 519-20 (2003). At bottom, this requirement is a restatement of the relevancy requirements of Rules 401 and 402. State v. Smith, 315 N.C. 76, 94.
More Probative Than Other Evidence. The statement must be more probative than any other evidence that the proponent can procure through reasonable efforts. N.C. R. Evid. 803(24); 804(b)(5). This requirement involves a dual inquiry:
(1) Were the proponent’s efforts to procure more probative evidence diligent?
(2) Is the statement more probative on the point than other evidence that the proponent could reasonably procure?
Smith, 315 N.C. at 95; Fowler, 353 N.C. at 613 (quotations omitted).
The first inquiry asks whether the proponent made reasonable efforts to secure the declarant at trial. See, e.g., Fowler, 353 N.C. at 613-14 (requirement satisfied where the State acted diligently in trying to produce the declarant, then living in India, to testify at trial). The second involves an examination of other available evidence. For example, when a live witness can testify to the facts in question, that witness’s testimony typically will be more probative than similar hearsay statements. State v. Williams, 355 N.C. 501, 536 (2002). The second requirement is easily satisfied when the declarant is the only person with the relevant information. See, e.g., Fowler, 353 N.C. at 613.
Interests of Justice. The final step in the inquiry requires the trial court to determine whether the interests of justice will be best served by admission of the statement. This prong is fairly broadly construed, and is rarely dispositive. See, e.g., State v. Valentine, 357 N.C. 512, 520 (2003) (admission “served the ‘interests of justice’ by providing jurors with the necessary tools to ascertain the truth.”).
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 agency,
(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‑enforcement personnel, or
(C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.”
Covered Records and Reports. The rule refers to “[r]ecords, reports, statements, or data compilations, in any form.” N.C. R. Evid. 803(8)(A).
Activities of the Office or Agency. The rule covers records, etc. setting forth “the activities of the office or agency.” N.C. R. Evid. 803(8). Examples include:
- records of a county tax department, State v. Oxendine, 112 N.C. App. 731, 738 (1993); and
- a magistrate’s civil driver’s license revocation order, State v. Woody, 102 N.C. App. 576, 578 (1991).
Pursuant to Duty Imposed By Law. The rule covers records, etc. setting forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” N.C. R. Evid. 803(8)(B). This would include, for example a medical examiner’s investigation and autopsy report, In re J.S.B., 183 N.C. App. 192, 197-98 (2007), and reports by SBI analysts. State v. Acklin, 317 N.C. 677, 682 (1986). By contrast, one case held that a City Manager’s report of the police department’s handling of a murder case wasn’t the result of authority granted by law. State v. Hunt, 339 N.C. 622, 654 (1994).
In criminal cases, the rule excludes “matters observed by police officers and other law‑enforcement personnel,” N.C. R. Evid. 803(8)(B), such as officers’ observations during investigations. State v. McLean, 205 N.C. App. 247, 250 (2010). Thus, the notes of a non-testifying, undercover officer summarizing alleged drug transactions with the defendant are inadmissible under this exception. State v. Harper, 96 N.C. App. 36, 40 (1989). Also inadmissible is a defendant’s exculpatory statement to an officer that is contained in the officer’s report. State v. Maness, 321 N.C. 454, 459. However, this provision doesn’t exclude records of routine, ministerial matters made by law enforcement in a non-adversarial setting, such as booking records. See, e.g., McLean, 205 N.C. App. at 250-51.
Findings From an Investigation. The rule covers records, etc. setting forth “factual findings resulting from an investigation made pursuant to authority granted by law.” N.C. R. Evid.. 803(8)(C). The term “factual findings” doesn’t preclude admission of reports containing conclusions or opinions. Official Commentary to N.C. R. Evid. 803; see also In re J.S.B., 183 N.C. App. 192, 196-98 (2007) (the fact that a medical examiner’s investigation and autopsy report contained the medical examiner’s opinion as to cause of death in addition to objective observations of the victim’s physical injuries did not preclude admissibility).
Lack of Trustworthiness. Public records and reports are inadmissible if “the sources of information or other circumstances indicate lack of trustworthiness.” N.C. R. Evid. 803(8); see Official Commentary to N.C. R. Evid. 803 (this provision applies to all three parts of the rule).
Determining whether information or circumstances indicate a lack of trustworthiness requires a consideration of the totality of the circumstances surrounding “the making of the statement and that render the declarant particularly worthy of belief.” State v. Little, 191 N.C. App. 655, 666 (2008) (citation omitted). Compare id. (excluding a statement by non-testifying witness contained in an SBI agent’s crime scene report), with State v. Acklin, 317 N.C. 677, 682 (1986) (impartiality of SBI agents who created reports and ability to cross-examine witnesses assured trustworthiness), and State v. Watson, 179 N.C. App. 228, 245 (2006) (admitting prison records after finding that the circumstances did not indicate a lack of trustworthiness).
Authentication. All that is required to authenticate a public record is evidence that the record, etc. “is from the public office where items of this nature are kept.” State v. Oxendine, 112 N.C. App. 731, 738 (1993) (quoting N.C. R. Evid. 901(b)(7)). For original public records or documents, this is typically done with testimony by the custodian that it “is a part of the records or files of the custodian’s office.” Id.; see also 2 Brandis & Broun at 900.
N.C. R. CIV. P. 45(c)(2), which applies in criminal cases, G.S. 15A-801, allows custodians of public records to submit certified copies of records and affidavits in response to subpoenas.
Relation To Other Rules. The Official Commentary to Rule 803 says that public records and reports that are not admissible under the Rule 803(8) exception are not admissible as business records under Rule 803(6). Whether this is in fact the law in North Carolina is not clear. See State v. Forte, 360 N.C. 427, 436 n.1 (2006) (assuming without deciding that this Commentary reflects the intent of the General Assembly). But see State v. Wise, 178 N.C. App. 154, 160 (2006) (not mentioning this commentary but stating: “there is no merit in defendant’s argument that Rule 803(6) is limited by Rule 803(8)”); State v. Lyles, 172 N.C. App. 323, 325 n.1 (2005) (citing a now discredited North Carolina Supreme Court case for the proposition that Rule 803(8) does not restrict Rule 803(6)).
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. R. EVID. 803(6)
Made at or Near Time of the Event, Etc. The records must be made “at or near the time” of occurrence. N.C. R. EVID. 803(6). If the records themselves show that they were made then, they are self-authenticating in this regard. See, e.g., State v. Frierson, 153 N.C. App. 242, 247-48 (2002) (restaurant’s deposit slips and validation reports were self-authenticating). When the records aren’t dated, witness testimony can provide the required foundation. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse testified that medical records were created contemporaneously with victim’s care).
Knowledge. The record must have been made by or from information transmitted by “a person with knowledge.” N.C. R. EVID. 803(6); see, e.g., State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter intake form completed by the victim was admissible; it was completed at an employee’s direction, getting the form was regular shelter practice, and the employee saw the victim complete the form); see also State v. Marshall, 94 N.C. App. 20, 34 (1989) (information on a pretrial release record was completed by the defendant).
Made in the Regular Course of Business. The record must have been made in the course of a regularly conducted business activity, N.C. R. EVID. 803(6), such as a receipt given by a merchant to a purchaser at the time of sale, State v. Ligon, 332 N.C. 224, 232-34 (1992) (sales ticket), forms completed in connection with business transactions, State v. Holden, 321 N.C. 125, 143 (1987) (firearms form filled out at the time of sale), and bank deposit slips and statements. State v. Frierson, 153 N.C. App. 242, 247-48 (2002).
The exception isn’t limited to records created by what we typically think of as private businesses. The term “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. N.C. R. EVID. 803(6); State v. Scott, 343 N.C. 313, 333-34 (1996) (domestic violence shelter); State v. Tyler, 346 N.C. 187, 204-05 (1997) (hospital). Although it has been suggested that Rule 803(6) doesn’t cover government records, 2 Brandis & Broun on North Carolina Evidence at 886, case law suggests otherwise. See, e.g., State v. Sneed, 210 N.C. App. 622, 629 (2011) (NCIC database information indicating that gun was stolen); State v. Hewson, 182 N.C. App. 196, 207-08 (2007) (911 event report); State v. Wise, 178 N.C. App. 154, 160 (2006) (sex offender documents); see also State v. Windley, 173 N.C. App. 187, 193 (2005) (fingerprint card).
Lack of Trustworthiness. The exception doesn’t apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” N.C. R. EVID. 803(6); see generally State v. Galloway, 145 N.C. App. 555, 565-67 (2001) (doctor could not recall the source of the information in his report; records of a second doctor contained inconsistencies); State v. Agudelo, 89 N.C. App. 640, 645 (machine-produced telephone records were untrustworthy; the accuracy of the machine had not been verified and the witness had “no idea” when the machine was last checked for maintenance); State v. Brewington, 80 N.C. App. 42, 51-52 (1986) (telephone company records indicating that area payphones had placed collect calls to the defendant’s phone number were untrustworthy; accuracy of the records depended on the trustworthiness of a number provided by an unknown caller).
“Custodian” or Other “Qualified Witness.” The foundational requirements must be “shown by the testimony of the custodian or other qualified witness.” N.C. R. EVID. 803(6). The custodian can be the person who maintains the record for the entity or a person who has custody of the document; the custodian need not have been involved in the record’s creation. See, e.g., State v. Woods, 126 N.C. App. 581, 589-90 (1997) (foundation for hospital records laid by records custodian who was not involved in their creation).
In addition to a records custodian, the rule allows for the foundational requirements to be satisfied by some “other qualified person.” This can include the business owner, State v. Holden, 321 N.C. 125, 143 (1987) (gun shop owner laid foundation for firearms form completed by the defendant and a salesman), or someone who works at the entity that produced the records. See, e.g., State v. Tyler, 346 N.C. 187, 204-05 (1997) (nurse who worked in the relevant trauma unit and was familiar with the records); State v. Mebane, 106 N.C. App. 516, 530 (1992) (foundation for a time card by company supervisor who was familiar with timecard records and procedures).
At least one North Carolina case suggests that a person who is neither a records custodian nor affiliated with the entity that created the document can be a “qualified witness.” State v. Sneed, 210 N.C. App. 622, 630-31 (2011) (no plain error when trial court held that foundation was laid for printouts from the National Crime Information Center database indicating that a gun in the defendant’s possession had been reported stolen by a detective who was not involved with entering items into the database but used it in his regular course of his business). However, litigants may not want to rely on a plain error case, particularly where other authority requires a tighter nexus between the witness and the entity that created the document. See, e.g., United States v. Porter, 821 F.2d 968, 977 (4th Cir. 1987) (error to allow company’s security officer to lay foundation for company employment records; officer was not the records custodian, did not work in the personnel department where such records were made, and he did not know the record keeping requirements of the company).
Finally, under G.S 8-44.1 and N.C. R. Civ. P. 45, which applies in criminal cases, G.S.15A-802; G.S. 8-61, the foundation for certain hospital medical records may be made by affidavit by the records custodian. See, e.g., State v. Woods, 126 N.C. App. 581, 589 (1997) (State offered medical records by presenting written affidavits/certifications from the custodian of the records).
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 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.”
A lot of folks confuse this hearsay exception with the technique of present recollection refreshed under Evidence Rule 612. Don’t do that! When a witness testifies that he or she cannot remember the matter in question, the proponent may have the witness review a document or item in order to refresh the witness’ memory. If reviewing the material sufficiently refreshes the witness’s recollection, the witness then testifies to the matter in question and no hearsay issues are presented. That is present recollection refreshed. When, however, the witness’ memory cannot be refreshed, the proponent may seek to introduce the contents of a memorandum or record created by the witness as a recorded recollection, and in lieu of the witness’ trial testimony. See, e.g., State v. Spinks, 136 N.C. App.153, 158 (1999) (State turned to this exception when unable to refresh the witness’ recollection). To be admissible as a recorded recollection, the contents of the memorandum or record must satisfy Rule 803(5). See generally State v. Harrison, __ N.C. App. __, 721 S.E.2d 371, 375-76 (2012) (explaining the distinction).
Want to get a statement in under the Rule 803(5) exception? Want to keep one out? Here are the foundational requirements.
Memorandum or Record. By its terms the exception applies to a “memorandum or record.” Case law says this includes audio recordings. State v. Wilson, 197 N.C. App. 154, 160 (2009).
Recollection of Having Made the Statement. The declarant must remember having made the statement. State v. Wilson, 197 N.C. App. 154, 160 (2009) (statement inadmissible when witness did not recall making the statement and because of her mental state testified that she was “liable to say anything”). Typically this is easily satisfied by the witness’s testimony to that effect. State v. Love, 156 N.C. App. 309, 315 (2003) (witness so testified). Note that this requirement is not applied rigidly. State v. Leggett, 135 N.C. App. 168, 173 (1999) (statement properly admitted where the witness testified that the statement “was in his handwriting and contained his signature, but he could not remember writing it”; the witness “further testified that, although he could not remember writing the statement, what he wrote was true”).
Insufficient Recollection of Contents. The rule requires that the witness have “insufficient recollection to enable him to testify fully and accurately” about the matter. N.C. R. EVID. 803(5); State v Harrison, __ N.C. App. __, 721 S.E.2d. 371, 375 (2012) (stating this requirement); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible where witness testified that she no longer had a sufficient recollection as to the matter). Where there is no showing that the witness has an insufficient recollection or where the evidence shows that the witness’s memory of the event is clear and complete, the exception does not apply. State v. Cummings, 361 N.C. 438, 475 (2007) (evidence showed that the witness’s memory was sufficient); State v. Alston, 161 N.C. App. 367, 371 (2003) (no showing that the defendant had an insufficient memory).
Witness Had Knowledge. The proponent must establish that the document pertains to matters about which the declarant once had knowledge. N.C. R. EVID. 803(5); see, e.g., State v. Love, 156 N.C. App. 309, 314 (2003).
Made or Adopted by Witness. The memorandum or record must have been made or adopted by the witness at the time. Note that it need not have been made by the witness, if it was examined and adopted by the witness. Compare State v. Love, 156 N.C. App. 309, 315 (2003) (victim adopted the statement), with State v. Spinks, 136 N.C. App. 153, 159 (1999) (this requirement was not satisfied when the witness testified that she signed the statement without having read it). If the statement was prepared by someone else, adoption doesn’t require the declarant’s signature. Love, 156 N.C. App. at 315 n.1 (victim’s recorded recollection given to police was admissible even though it was an unsigned computer printout).
Made When Memory Was Fresh. The memorandum or record must have been made or adopted when the matter was fresh in the witness’s memory. N.C. R. EVID. 803(5). There are no bright line rules as to the timing of the memorandum or report’s creation; the matter need only have been fresh in the witness’s memory when created. See State v. Nickerson, 320 N.C. 603, 607 (1987) (witness’s testimony established that the statement was adopted when the matter was fresh in the witness’ memory); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible when witness testified that she made the statement when the events of the night were “fresh in her mind”).
Accurate. The memorandum or record must correctly reflect the witness’s knowledge at the time. N.C. R.EVID. 803(5). Simply put, it must be accurate. Thus, in one case a statement was held inadmissible when the witness testified that because of her mental state at the time she was “liable to say anything.” State v. Wilson, 197 N.C. App. 154, 160 (2009); see also State v. Hollingsworth, 78 N.C. App. 578, 581 (1985) (statement inadmissible when witness testified that the letter did not correctly reflect her knowledge of the events and that the “whole letter [was] a lie”).
One final note about trial practice. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party. N.C. R. EVID. 803(5). The rationale for this is to “prevent a jury from giving too much weight to a written statement that cannot be effectively cross-examined.” State v. Spinks, 136 N.C. App. 153, 159 (1999) (citation omitted).