Hearsay Exceptions: Public Records & Reports

Tag Archives: hearsay

Hearsay Exceptions: Public Records & Reports

Posted on February 24, 2014 by Jessica Smith

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)).

Category: Evidence, Uncategorized | Tags: Evidence, exceptions, hearsay, public records, rule 803, rules of evidence

Hearsay Exceptions: Business Records

Posted on February 19, 2014 by Jessica Smith

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).

Category: Evidence, Uncategorized | Tags: business records, Evidence, hearsay, hearsay exceptions, rule 803

Hearsay Exceptions: Recorded Recollection

Posted on February 18, 2014 by Jessica Smith

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).

Category: Evidence | Tags: Evidence, hearsay, hearsay exceptions, recorded recollection, rule 803

Hearsay Exceptions: Then Existing Mental, Emotional, or Physical Condition

Posted on January 21, 2014 by Jessica Smith

I’ve previously blogged about hearsay exceptions for admissions by party-opponents (here), present sense impressions and excited utterances (here), and statements for purposes of medical diagnosis and treatment (here). In this post I’ll focus on the Rule 803(3) exception for statements of then existing mental, emotional, or physical condition. Remember that unlike the Rule 804 exceptions, the Rule 803 exceptions don’t require unavailability. N.C. Rule 803(3) provides a hearsay exception for statements “of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”

In criminal cases this exception often is used to admit a murder victim’s statement that he or she fears the defendant. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001); State v. Thibodeaux, 352 N.C. 570, 578 (2000); State v. Gary, 348 N.C. 510, 522 (1998). Such evidence typically is deemed relevant because it shows the status of the relationship between the defendant and the victim. See, e.g., Thibodeaux, 352 N.C. at 578. The victim need not expressly state his or her fear of the defendant for the statement to fall within this exception. In State v. Dawkins, 162 N.C. App. 231, 235 (2004), for example, the victim gave a witness photographs showing the victim with a black eye and told the witness to keep the photographs “and if anything should happen, to give them to the police.” The court held that although the statement itself contained “no express declaration of fear . . . the attendant circumstances [gave] context to the victim’s statement and clearly reflect the victim’s fearful state of mind.” In sexual assault cases, the victim’s statements indicating fear of the defendant have been held admissible under this exception and relevant to whether the activity was committed by force and against the victim’s will. State v. Locklear, 320 N.C. 754, 760 (1987).

Another common scenario when this exception arises is when a statement shows the declarant’s intent to engage in a future act. Consider the following statement made by a murder victim to a neighbor: “I’m not feeling well today. I am about to leave to spend the night at my boyfriend’s house so that he can keep an eye on me.” This statement could be admitted under the Rule 803(3) exception to establish circumstantially that the victim was at her boyfriend’s house on the night of her murder. See, e.g., State v. Anthony, 354 N.C. 372, 405 (2001) (in a murder case, the victim’s statements that she intended to go to court the next day to get a domestic violence protective order and restraining order were admissible as her then existing intent and plan to engage in a future act); State v. Braxton, 352 N.C. 158, 190-91 (2000) (a declarant’s statement that he was going to approach the defendant about straightening out the alleged debt owed by the victim was admissible under this rationale); State v. Coffey, 326 N.C. 268, 286 (1990) (statement by child murder victim that she was going fishing with a nice gray-haired man on the day she disappeared was admissible under this exception). When offered to show the declarant’s intent to engage in a future act, there is no temporal requirement between the statement and the act intended. State v. Taylor, 332 N.C. 372, 386-87 (1992).

Sometimes statements of emotion will be accompanied by factual statements. For example, the victim/declarant says: “I’m afraid of the defendant because he has beaten me up before.” The first part of the victim’s statement recounts an emotion and is admissible under the rule. The second part recounts a fact. A party may seek to exclude factual statements, like those in this example, arguing that the exception–by its terms–does not include a statement of memory or belief to prove the fact remembered or believed. N.C. R. Evid. 803(3). Notwithstanding the text of the Rule, the cases hold that statements of fact providing context or a basis for expressions of emotion are admissible under this exception. State v. Smith, 357 N.C. 604, 609-10 (2003); State v. Murillo, 349 N.C. 573, 588 (1998); State v. Alston, 341 N.C. 198, 229-30 (1995). These cases seem to stand for the proposition that factual statements made in isolation and unaccompanied by statements of emotion are inadmissible under Rule 803(3), but statements of fact that relate to an expression of emotion are admissible. While a useful guide, not all cases adhere to this general rule, suggesting that there is room for argument by the parties. See, e.g., State v. Cummings, 326 N.C. 298, 312-13 (1990) (victim/declarant’s statements recounting several occasions when the defendant had beaten her and that he had threatened to kill her if she tried to take back her children from him were admissible); State v. Gary, 348 N.C. 510, 521-22 (1998) (victim’s statement, “He told me he’d kill me if I left him” was admissible).

Category: Evidence, Uncategorized | Tags: hearsay, hearsay exceptions, rule 803

Hearsay Exceptions: Present Sense Impressions & Excited Utterances

Posted on November 18, 2013 by Jessica Smith

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 or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Morgan, 359 N.C. 131, 154 (2004).

“Describing or Explaining an Event or Condition.” To be admissible under this exception, the statement must describe or explain an event or condition. N.C. R. Evid. 803(1). For example, in State v. Morgan, 359 N.C. 131, 155 (2004), a declarant’s statement to the defendant’s brother that the declarant needed help because the defendant was “tripping” fell within this exception because it explained the defendant’s condition.

Contemporaneous with or Immediately Thereafter. To be admissible under this exception the statement must have been made “while the declarant was perceiving the event or condition, or immediately thereafter.” N.C. R. Evid. 803(1). When the statement is made contemporaneously with the event or condition, this requirement is satisfied. See, e.g., State v. Reid, 322 N.C. 309, 315 (1988) (statement was contemporaneous with event).

There are no rigid rules about the temporal connection between the statement and the event in question. State v. Cummings, 326 N.C. 298, 314 (1990). Statements made within ten minutes of the event or condition have been held admissible. See, e.g., State v. Odom, 316 N.C. 306, 313 (1986) (ten minutes after observing an abduction). But longer or less precise intervals also have been found acceptable. See State v. Morgan, 359 N.C. 131, 155 (2004) (lapse in time was attributable to the ½ mile the declarant had to travel to reach a residence); Cummings, 326 N.C. at 314 (lapse in time was attributable to the amount of time it took the declarant to drive from Willow Springs to Raleigh); State v. Petrick, 186 N.C. App. 597, 602-03 (2007) (event “had just happened”).

A statement is unlikely to fall within this exception when it is made hours or days after the event or condition. See, e.g., State v. Maness, 321 N.C. 454, 459 (1988) (statements made nine days later were inadmissible); State v. Little, 191 N.C. App. 655, 664 (2008) (trial court did not abuse its discretion by excluding statement made at least several hours after the event).

Excited Utterance. Rule 803(2) provides a hearsay exception for “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Startling Event/Condition. Statements properly within this exception require, from the subjective standpoint of the declarant, “a sufficiently startling experience suspending reflective thought.” State v. Smith, 315 N.C. 76, 86 (1985). An example is being the victim of a crime. See, e.g., State v. Guice, 141 N.C. App.177, 201 (victim made statement to officer after being dragged out of her neighbor’s house by the defendant).

Under Stress Caused by Event/Condition. The statement must be made while the declarant is under the “stress of excitement caused by the event or condition.” N.C. R. Evid. 803(2). This ensures that the statement is “a spontaneous reaction, not one resulting from reflection or fabrication.” State v. Smith, 315 N.C. 76, 86 (1985). Evidence about the declarant’s emotional state can support an inference that he or she was under the influence of the event. Guice, 141 N.C. App at 201 (declarant was crying and having difficulty breathing); State v. Thomas, 119 N.C. App. 708, 714 (1995) (crying and upset).

Because the exception requires that the statement be made while the declarant was still under the stress of the event, there is typically a close temporal nexus between the statement and the event. See, e.g., McLemore, 343 N.C. at 248 (declarant/wife made statement approximately three minutes after she learned that her husband shot his mother). The modern trend, however, is “to consider whether the delay in making the statement provided an opportunity to manufacture or fabricate the statement.” Smith, 315 N.C. at 87 (citation omitted). A useful rule of thumb to apply when considering the temporal connection between the statement and the event or condition is this: “[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective though process.” 2 Kenneth S. Broun et al., McCormick on Evidence 370 (7th ed. 2013).

When considering the spontaneity of statements made by young children, the courts are more flexible regarding the length of time between the startling event and the statement. Smith, 315 N.C. at 87-90 (1985). Thus, in Smith, for example, the court held that statements by two small children to their grandmother, made two or three days after a sexual assault, were excited utterances. 315 N.C. at 90.

Responses to Questions Not Excluded. The North Carolina courts have rejected the argument that statements made in response to questions lack the necessary spontaneity. See, e.g., In re J.S.B., 183 N.C. App.192, 200 (2007).

Relating to the Event or Condition. The rule requires that the statement “relat[e] to” the startling event or condition. This requirement has not been frequently litigated. However, it appears to be broader than the requirement for a present sense impression. See generally State v. Anthony, 354 N.C. 372, 403 (2001) (shooting victim’s statement to a neighbor, “[t]ake care of my boys,” was admissible under this exception).

Category: Evidence, Uncategorized | Tags: Evidence, excited utterances, hearsay, hearsay exceptions, present sense impressions

Hearsay Exceptions: Admissions by Party-Opponents

Posted on November 12, 2013 by Jessica Smith

Evidence Rule 801(d) sets out a hearsay exception for “Admissions by a Party-Opponent.” If you’re not clear on that rule, read on.

The rule says that a statement is admissible under this exception if it is “offered against a party” and is

(A) his or her own statement, in an individual or representative capacity;

(B) a statement that the party has manifested an adoption of or a belief in its truth;

(D) a statement by the party’s agent or servant about a matter within the scope of agency or employment, made during the existence of the relationship; or

(E) a statement by the party’s co-conspirator during and in furtherance of the conspiracy.

N.C. R. Evid. 801(d). The exception is understood to apply to admissions, defined as “statement[s] of pertinent facts which, in light of other evidence, [are] incriminating.” State v. Al-Bayyinah, 359 N.C. 741, 748 (2005) (quotation omitted). In the criminal context, the Rule 801(d)(C) and (D) exceptions rarely apply and aren’t addressed here.

Defendant’s Own Statement. In criminal cases, Rule 801(d) typically arises with regard to the first category of statements—when the defendant himself or herself made the statement at issue. See, e.g., State v. Al-Bayyinah, 359 N.C. 741, 747-48 (2005); State v. Lambert, 341 N.C. 36, 49-50 (1995); State v. Graham, __ N.C. App. __, 733 S.E.2d 100, 106 (2012); State v. Smith, 157 N.C. App. 493, 496 (2003). However, this aspect of the rule is self-explanatory and requires no extended discussion.

Adopted Admissions. Rule 801(d)(B) provides that a hearsay statement is admissible if it is offered against a party and is a statement that he or she has manifested an adoption of or a belief in its truth. This is sometimes referred to as the “adoptive admission” rule. As a general matter, adoptive admissions fall into two categories:

(1) those adopted through an affirmative act or statement and

(2) those inferred from silence or a failure to respond in circumstances that call for a response.

State v. Weaver, 160 N.C. App. 61, 65 (2003). However, an adoptive admission “may be manifested in any appropriate manner.” State v. Marecek, 152 N.C. App. 479, 502-04 (2002) (quotation omitted) (the defendant’s failure to deny that he killed the victim in the face of another’s statements to that effect and his comments that the evidence could not be found because he burned the body and that he was too smart to be caught constituted an implied admission).

An example of the first category of adoption—through affirmative act or statement—occurred in State v. Thompson, 332 N.C. 204 (1992). In that murder case, Sanchez, a hit man hired by the defendant called the defendant asking for his money. Sanchez stated, in part, “You told me, me go to North Carolina kill a Raymond, I kill him, now I need . . . my money for me leave.” Sanchez continued, asking the defendant whether he had his money “for killing Raymond.” The defendant responded: “Yeah.” The North Carolina Supreme Court found that the conversation constituted an admission by the defendant. Id. at 217-18.

Sometimes a party will argue that a person’s silence constitutes an implied admission. The cases hold that

if the statement is made in a person’s presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in a position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission.

State v. Williams, 333 N.C. 719, 725-26 (1993) (adopted admission; the defendant was silent in the face of accomplice’s statements that “both of them shot both men” and “one shot one and one shot the other”) (quotation omitted).

Co-Conspirator’s Statement. Finally, Rule 801(d)(E) provides that a statement is admissible as an exception to the hearsay rule if it is offered against a party and is “a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.” In order for the statements or acts of a co-conspirator to be admissible, there must be a prima facie showing that

a conspiracy existed,
the acts or declarations were made by a party to the conspiracy and in pursuance of its objectives, and
the statement was made while the conspiracy was active, that is, after it was formed and before it ended.

See, e.g., State v. Williams, 345 N.C. 137, 141 (1996) (State made the required showing).

In order to prove a conspiracy, the State must show that the defendant entered into an agreement with at least one other person to commit an unlawful act with intent that the agreement be carried out. Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 72 (7^th ed. 2012). The State must establish a prima facie case that a conspiracy existed independently of the statement sought to be admitted. See, e.g., State v. Valentine, 357 N.C. 512, 521-23 (2003) (State made showing). However, in establishing the prima facie case, the State is granted wide latitude and the evidence is viewed in a light most favorable to the State. See, e.g., Valentine, 357 N.C. at 521; Williams, 345 N.C. at 142.

Statements made prior to or subsequent to the conspiracy are not admissible under this exception. Compare State v. Stephens, 175 N.C. App. 328, 334 (2006) (statements made prior to the conspiracy were inadmissible), and State v. Gary, 78 N.C. App. 29, 36 (1985) (trial court erred by admitting statements made after the conspiracy ended), with State v. Collins, 81 N.C. App. 346, 351-52 (1986) (trial court did not err by finding that statements were made during the conspiracy). It is generally understood that a conspiracy ends when the co-conspirators either achieve or fail in obtaining their primary objective.

Category: Evidence, Uncategorized | Tags: admissions, hearsay, rule 801

Are a Child’s Statements to a Treating Psychologist Admissible Under Hinnant?

Posted on March 20, 2013 by Jessica Smith

Suppose a child victim of sexual abuse is referred to a psychologist for counseling. In the course of treatment the child reveals details about the abuse. If the child doesn’t testify at the later sex abuse trial, are the child’s statements to the psychologist admissible under the Rule 803(4) hearsay exception for statements made for purposes of medical diagnosis and treatment?

In a paper here I addressed many of the challenging evidence issues that arise in child victim cases. And in a blog post here I addressed generally the Rule 803(4) hearsay exception. As noted in that post, under the Hinnant test two inquiries must be satisfied for evidence to be admissible under the Rule 803(4) hearsay exception: (1) that the declarant intended to make the statement in order to obtain medical diagnosis or treatment; and (2) that the declarant’s statement was reasonably pertinent to medical diagnosis or treatment. State v. Hinnant, 351 N.C. 277 (2000). When analyzing the first prong, the trial court must consider all objective circumstances; relevant factors include whether an adult explained to the child the need for treatment and the importance of truthfulness, with whom, and under what circumstances, the child was speaking, the setting of the interview, and the nature of the questions.

The law is clear that if a child makes a statement to a physician during treatment the statement may be admissible under Hinnant. But what about statements made to a psychologist or other mental health care provider in the course of mental health treatment? Hinnant itself held that a child’s statements to a psychologist were inadmissible under the Rule 803(4) exception. In that case the child made the statements to the psychologist about two weeks after an initial medical examination. Noting that no one explained the interview’s medical purpose or the importance of being truthful, that the interview occurred in a child friendly room, and that the interviewer used leading questions, the court held that the statements failed the first prong of the Hinnant test. Turning to the second prong of the test, the court noted that the “nontreating” psychologist did not meet with the child until after the child’s initial medical examination. See also State v. Waddell, 351 N.C. 413, 418 (2000) (criminal case; statements to same psychologist under nearly identical circumstances were inadmissible); State v. Bates, 140 N.C. App. 743, 746–47 (2000) (same). However, neither Hinnant nor the later cases establish a per se bar to admission of a child’s statements to a mental health care provider under the Rule 803(4) exception. Rather, in each the evidence was held inadmissible because the Hinnant test wasn’t satisfied on the facts of the case. And then we have In re Mashburn, 162 N.C. App. 386 (2004). Mashburn was an abuse and neglect case involving a male and a female child. At trial Dr. Harris, the children’s therapist, recounted statements that the children had made to him about the abuse. This evidence was admitted under the Rule 803(4) exception. On appeal, the court easily found the children’s statements admissible: “[T]he children’s statements to Dr. Harris were made for the purpose of diagnosis and treatment. In fact, Dr. Harris diagnosed the children with a myriad of mental health problems, including borderline post traumatic stress syndrome and developmental delay. As a result, he recommended a course of treatment for the juveniles.” Mashburn, 162 N.C. App. at 395. In that case, it’s clear that Harris was the children’s therapist; the decision describes him as such and notes that the female child saw Harris for eighteen therapy sessions. Another unpublished case supports the notion that a child’s statements to a treating therapist may be admissible under the Rule 803(4) exception. In re N.M.H., 183 N.C. App. 490 (2007) (unpublished) (abuse and neglect case; a child’s statements to the child’s therapist during ongoing therapy sessions were admissible; the therapist had been practicing sixteen years, her practice was confined to working with children and families, she was licensed by the state Board, and she had a Bachelor’s Degree and Master’s Degree in Psychology, and had done postgraduate study in child trauma, treatment of emotional and psychological disorders in children, and the treatment of physical abuse, sexual abuse and neglect; the child was not directed by the therapist, all of his actions and statements were spontaneous events, and his statements “went directly to [the psychologist’s] diagnosis of post-traumatic stress disorder”). In fact, at least one unpublished abuse and neglect case suggests that a child’s statements to a psychologist who is not engaged in ongoing treatment of the child may be admissible under the Rule 803(4) exception. In re I.M., 708 S.E.2d 215 (N.C. Ct. App. 2011) (unpublished) (abuse and neglect case; children’s statements to a psychologist during a psychological evaluation done nine months after removal from the home were admissible; the interview was done in a “consultation room” with no toys or play items and the psychologist explained the purpose of the interview, discussed the importance of telling the truth, and took measures to ensure that the children could distinguish between truth and falsehood; through the evaluation, the psychologist formed specific clinical diagnoses for two of the children and very specific impressions regarding the third child’s psychological wellbeing and recommended therapy for all three children). These cases indicate that if the Hinnant test is satisfied, a child’s statements to a psychologist may be admissible under Rule 803(4).

One final note: If the 803(4) exception doesn’t fly, there is always the residual exception. See, e.g., Hinnant, 351 N.C. at 291 (noting that the child’s statements may be admissible under the residual exception). That, however, is the topic for another blog post.

Category: Evidence, Uncategorized | Tags: child victims, hearsay, hinnant, psychologists

Child Victims and the Medical Diagnosis and Treatment Hearsay Exception

Posted on April 30, 2012 by Jessica Smith

Child victim cases often present an array of challenging evidence issues. In a paper here I addressed many of those issues. One common question that folks contact me about is the admissibility of a child’s hearsay statements under Evidence Rule 803(4). This rule creates a hearsay exception for statements made for purposes of medical diagnosis and treatment. An analysis known as a Hinnant test applies when this hearsay exception is at issue. See generally State v. Hinnant, 351 N.C. 277 (2000). Consider this post your Hinnant primer.

Rule 803(4) creates a hearsay exception for “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” N.C.R. Evid. 803(4). Testimony admitted under this exception “is considered inherently reliable because of the declarant’s motivation to tell the truth in order to receive proper treatment.” Hinnant, 351 N.C. at 286. In Hinnant, the North Carolina Supreme Court held that two inquiries must be satisfied for hearsay evidence to be admissible under this exception: “First, the trial court must determine that the declarant intended to make the statement at issue in order to obtain medical diagnosis or treatment. . . . Second, the trial court must determine that the declarant’s statements were reasonably pertinent to medical diagnosis or treatment.” Id. at 289.

The satisfy the first prong, the proponent of the evidence “must affirmatively establish that the declarant had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment.” Id. at 287. When determining whether the requisite intent existed, the trial court considers “all objective circumstances . . . surrounding the declarant’s statements.” Id. at 288. Neither a psychological examination nor a voir dire of the child is necessary to determine whether the child had the requisite intent. State v. Carter, 153 N.C. App. 756, 760-61 (2002). Some factors the court should consider in determining whether a child had the requisite intent are:

whether an adult explained to the child the need for treatment and the importance of truthfulness;
with whom, and under what circumstances, the child was speaking;
the setting of the interview; and
the nature of the questions.

Hinnant, 315 N.C. at 287-88; see also In re Mashburn, 162 N.C. App. 386, 394 (2004); State v. Bates, 140 N.C. App. 743, 745 (2000). An examination that has a dual purpose can satisfy the first prong of the test, provided that one of the purposes is medical diagnosis and treatment. State v. Isenberg, 148 N.C. App. 29, 38 (2001). However, when the witness is interviewed solely for trial preparation, this prong of the test is not satisfied. Hinnant, 351 N.C. at 285.

As to the second prong of the test—that the statements were reasonably pertinent to medical diagnosis or treatment—cases hold that a child sexual assault victim’s identification of the perpetrator is reasonably pertinent to medical diagnosis and treatment. Isenberg, 148 N.C. App. at 38-39; State v. Lewis, 172 N.C. App. 97, 105 (2005). As the courts have explained, this identification is pertinent to continued treatment of the possible psychological and emotional problems resulting from the offense.

Statements made to an individual other than a medical doctor—such as to a family member—may qualify as statements made for the purpose of medical diagnosis or treatment if the Hinnant test is satisfied. State v. McGraw, 137 N.C. App. 726, 729 (2000); see also Commentary to N.C.R. Evid. 803 (“Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.”). However, statements to such persons do not qualify if made after the declarant already has received initial medical diagnosis and treatment. Hinnant, 351 N.C. at 289; see also State v. Watts, 141 N.C. App. 104, 107 (2000). The courts reason that in this situation, “the declarant is no longer in need of immediate medical attention” and thus “the motivation to speak truthfully is no longer present.” Hinnant, 351 N.C. at 289.

That’s the basic law. Here are some cases on point:

Statements Inadmissible:

State v. Waddell, 351 N.C. 413, 418 (2000) (statements to psychologist; interview occurred after the initial medical examination; child friendly room; leading questions; no evidence that child had a medical treatment motive or that anyone explained interview’s medical purpose or the importance of being truthful).
State v. Hinnant, 351 N.C. 277, 289–91 (2000) (statements to a psychologist about two weeks after the initial medical examination; no one explained the interview’s medical purpose or the importance of being truthful; child friendly room; leading questions).
State v. Carter, __ N.C. App. __, 718 S.E.2d 687 (2011) (statement to a social worker during “play therapy” sessions in child friendly room more than two weeks after an initial examination; no evidence child understood that sessions were for medical diagnosis or treatment; social worker did emphasize need for truth).
In re T.C.S., 148 N.C. App. 297, 303 (2002) (statements to social worker; no evidence that child had a treatment motive).
State v. Watts, 141 N.C. App. 104, 108 (2000) (statement to a hospital nurse and two doctors three months after initial medical examination; no evidence that the child had a medical treatment purpose or that importance of truthful answers was explained).
State v. Bates, 140 N.C. App. 743, 746–47 (2000) (statement to psychologist; no evidence of a treatment motive or explanation of the need for honesty; child friendly room; leading questions).
State v. McGraw, 137 N.C. App. 726, 729 (2000) (statements to child’s mother; no evidence of a treatment motive).

Statements Admissible

State v. Burgess, 181 N.C. App. 27, 34-35 (2007) (statements to pediatric nurses before doctor’s examination).
State v. Lewis, 172 N.C. App. 97, 104–05 (2005) (statements to nurses immediately before a physical examination; children understood interviews’ medical purpose; although they occurred in a child friendly room, room was in a medical center; identification of the perpetrator was pertinent to medical diagnosis and treatment).
In re Mashburn, 162 N.C. App. 386, 393-95 (2004) ((1) statements to a nurse during a medical history interview; child had treatment motive; (2) victims’ statements to a mental health professional who diagnosed them with a variety of mental health problems and recommended treatment were admissible).
State v. Thornton, 158 N.C. App. 645, 650-51 (2003) (statements to a clinical social worker in interview conducted the same day as a physical examination; social worker explained the importance of being truthful; non-leading questions).
State v. Isenberg, 148 N.C. App. 29, 36–39 (2001) ((1) statements to a pediatric nurse in a hospital; nurse was in a uniform and explained that the child would see a doctor for a physical examination and instructed her to be truthful; (2) child’s statements to a doctor were admissible; examination occurred in a medical room with medical purpose).
State v. Stancil, 146 N.C. App. 234, 242 (2001) (interviews in the hospital soon after the incident by a psychologist, a certified sexual assault nurse, and a pediatrician; child had a medical motive and returned to see the pediatrician days later due to pain).
In re Clapp, 137 N. C. App. 14, 21-22 (2000) (statements to mother and doctor could have been admitted under this exception; child told her mother of incident that occurred that day and mother took her to a hospital emergency room).

Category: Evidence, Uncategorized | Tags: child victims, hearsay, hinnant, medical

Is the Translation or Interpretation of Another’s Statements Hearsay?

Posted on December 7, 2011 by Shea Denning

Suppose a person who speaks only Spanish is stopped on suspicion of impaired driving by two officers, Officer A and Officer B. Officer A speaks and understands only English. Officer B is fluent in English and Spanish. Officer B asks the defendant if he has been drinking. The defendant states, in Spanish, that he drank some beer and a little whiskey at a friend’s house. Officer B tells Officer A, in English, what the defendant said. The defendant ultimately is arrested for impaired driving by Officer A. At defendant’s trial on impaired driving charges, only Officer A testifies though Officer B remains employed by the same police department. When the prosecutor asks Officer A what the defendant said after he was stopped, the defendant’s attorney objects on Confrontation Clause grounds. Defendant’s attorney argues that any testimony from Officer A about what defendant said contains two layers of hearsay. First, the statements made by the defendant are hearsay (though they are subject to the hearsay exception in N.C. R. Evid. 801(d) for admissions of a party opponent). Second, the translation of those statements amounts to an out-of-court statement by Officer B, who is not testifying though he is available to do so. Defendant’s attorney asserts that allowing Officer A to testify about what defendant said to Officer B, based on Officer B’s translation of those statements, violates the defendant’s right to confront witnesses against him. The prosecutor asserts that Officer B’s statements do not add an additional layer of hearsay and thus there is no Confrontation Clause concern. Who has the better of these arguments?

Considering a similar objection on evidentiary grounds before the Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36 (2004), the North Carolina Supreme Court in State v. Felton, 330 N.C. 619, 633 (1992) analyzed the admissibility of a translated statements under principles of agency based upon an interpreter’s service as a language conduit. The agency/language conduit analysis attributes an interpreter’s statements to the declarant absent circumstances that rebut the presumption that an interpreter is acting as the declarant’s agent. Viewed through this lens, the interpretation of a declarant’s statement by an interpreter considered to be the declarant’s agent does not add an additional layer of hearsay. Thus, the court in Felton held that a law enforcement officer who interrogated a defendant with the aid of an interpreter could testify at trial regarding the defendant’s responses, even though the interpreter herself did not testify, so long as circumstances did not negate the presumption that the interpreter was the defendant’s agent. Felton identified the following factors as tending to refute an inference of agency: (1) a substantial possibility that the interpreter had a motive to misrepresent, such as an interest in shifting suspicion to the accused and away from the interpreter, or (2) a lack of capacity or demonstrated incompetence on the part of the translator. The court explained that “‘[w]here, however, there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship may properly be found to exist. In those circumstances the translator is no more than a “language conduit,” . . . and a testimonial identity exists between declarant and translator. . . .’” Id. at 635. Felton also rejected the notion that the selection of an interpreter by law enforcement officers or an interpreter’s employment by a law enforcement agency removes the presumption of agency that arises “when an accused accepts the benefit of the proffered translation to make a voluntary statement.” Id. at 636.

Courts in other jurisdictions have employed a similar analysis both pre- and post-Crawford. See, e.g., United States v. Nazemian, 948 F.2d 522, 526-27 (9th Cir. 1991) (noting that “[w]hile many of the early state cases and a number of contemporary state cases take the position that the statement of an interpreter constitutes inadmissible hearsay . . . all of the federal circuits which have considered the question recently have taken the view that the translator may in some circumstances be viewed as an agent of the defendant, and the translation hence be attributable to the defendant as her own admission”); Hernandez v. State, 662 S.E.2d 325 (Ga. App. 2008) (concluding that, in light of the language conduit rule, the trial court did not abuse its discretion in allowing the jury to hear an out-of-court translation of defendant’s statements); People v. Jackson, 2011 WL 1878794, __ N.W.2d ___ (Mich. Ct. App. May 17, 2011) (concluding that (1) nurse’s reports to officer regarding witness’s hand-signal responses to officer’s questions fell within the language conduit rule and did not constitute an additional layer of hearsay, and (2) defendant did not have a constitutional right to confront nurse because what she reported properly was considered to be the statements of a witness whom defendant had a full opportunity to cross-examine).

Thus, if the declarant whose statement was translated testifies at trial and language conduit principles apply, there is no Confrontation Clause violation. See Jackson, 2011 WL 1878794. And when the defendant is the declarant, admission of his or her statements does not implicate the Confrontation Clause because a defendant has no right to confront himself. See, e.g., Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir.2009) (“cases involv[ing] the use of a defendant’s own statements against him … implicate a defendant’s Fifth Amendment rights rather than the Sixth Amendment right of confrontation”), cert. denied, ___U.S. ___ , 130 S.Ct. 1086 (January 11, 2010); United States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir.2006) (admission of defendant’s statement did not violate Confrontation Clause); United States v. Lafferty, 387 F.Supp.2d 500, 511 (W.D.Pa.2005) (“Inherent in Justice Scalia’s analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself.”).

So, in the scenario above, absent evidence that Officer B was not qualified or competent to interpret defendant’s statements, or that he had a motive to misrepresent the defendant’s responses, the prosecutor has the better of the arguments.

Category: Evidence, Uncategorized | Tags: confrontation clause, hearsay, interpreters, translators

Authentication and Hearsay Issues with Phone Records

Posted on March 15, 2011 by Jeff Welty

Suppose that the state wants to introduce the defendant’s phone records, in order to show that he called the victim in violation of a DVPO. The state subpoenas the records, and the phone company provides them, along with an affidavit from an appropriate employee stating that they are business records.

Armed with the records and the affidavit, will the state be able to introduce the record over the defendant’s objections (1) that the records cannot be authenticated, and (2) that the records are hearsay not within any exception?

The authentication objection should be denied. Even without the affidavit, the “distinctive characteristics” of the records, such as their appearance and structure, references to the defendant as the subscriber, and the like might be sufficient to authenticate them. See N.C. R. Evid. 901(b)(4); Fry v. State, 885 N.E.2d 742 (Ind. Ct. App. 2008) (sufficient showing that cell phone records were authentic where they were produced in response to law enforcement’s request; contained a list of call times and durations; and “contain[ed] multiple references to the account holder’s name, and identifying labels of the corresponding cell phone companies;” there were “hundreds of reference points from which it could be determined that they are the purported records for the requested cell phone numbers”). The affidavit removes all possible doubt on the authentication issue, and the affidavit may properly be considered because the authenticity of a document is a preliminary question to which the rules of evidence do not apply. See generally N.C. R. Evid. 104(a) (stating that preliminary questions are to be determined by the court without regard to the rules of evidence).

The hearsay objection presents a more difficult issue. The state may argue that the records fall within the exception in N.C. R. Evid. 803(6), which applies to certain records “kept in the course of a regularly conducted business activity.” The foundational requirements for the exception must be “shown by the testimony of the custodian or other qualified witness.” The problem for the state is the word “testimony.” The affidavit, while a sworn statement, does not appear to be “testimony,” meaning that it cannot establish the necessary foundation. (By way of contrast, the federal business records rule, Fed. R. Evid. 803(6), expressly provides that the foundation may be supplied by testimony or by a written certification from an appropriate witness.) Notwithstanding the plain language of the rule, however, there is some support in our appellate case law for the use of an affidavit to satisfy the foundational requirements of the business records exception. See In re S.W., 175 N.C. App. 719 (2006) (cited approvingly in In re S.D.J., 192 N.C. App. 478 (2008)). But as authority for the use of an affidavit, In re S.W. cites Chamberlain v. Thames, 131 N.C. App. 705 (1998), a civil case that allowed an affidavit to be used under the specific provision regarding the use of affidavits to establish the foundation for the admission of medical and public records in N.C. R. Civ. P. 45(c). Because Chamberlain is a civil case applying a particular rule of civil procedure, it may not be a strong precedent for the use of affidavits in criminal cases.

Assuming arguendo that the records cannot be introduced under the business records exception, the state might argue that they can be introduced under the residual exception in Rule 803(24). That exception applies to statements not falling within any other exception but with “circumstantial guarantees of trustworthiness” sufficient to warrant the admission of the statements. To my knowledge, no North Carolina appellate case addresses this argument, but it seems plausible that a business record established as such by affidavit is as trustworthy as one established as such by live witness testimony. If the state wishes to pursue this argument, it must give the defendant advance written notice of its intent to offer the records under the residual exception.

As an aside, the Confrontation Clause does not prohibit the use of an affidavit in the way described above. Neither the affidavit, nor the phone records themselves, are testimonial. See, e.g., United States v. Yeley-Davis, __ F.3d __, 2011 WL 167249 (10^th Cir. Jan. 20, 2011).

Any controversy can be avoided by having the defendant stipulate to the records’ admissibility, or by procuring the attendance of an appropriate witness from the phone company. See State v. Logner, 297 N.C. 539 (1979) (records “identified and duly authenticated by qualified officials” of the telephone company properly admitted). Anyone who is familiar with the system by which the records are created and maintained would be an appropriate witness. The threshold for familiarity may be fairly low, allowing a wide range of phone company employees to serve as appropriate witnesses. See generally Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 225 n. 480 and accompanying text. Indeed, in In re S.D.J., supra, a person who was not even an employee of the business in question, but who was familiar with the business as a result of her frequent contact with it, was deemed an appropriate witness. For an out-of-state case discussing a more than adequate witness, see State v. Myers, 795 N.E.2d 77 (Ohio Ct. App. 10 Dist. 2003) (“[The phone company employee] demonstrated sufficient familiarity with the operation of [company]’s business and the circumstances under which the telephone records were prepared, maintained, and retrieved. She testified as to how information regarding a telephone call is captured by the switch, a computer server. [The witness]’s testimony detailed how the computerized records of telephone calls are maintained in the normal course of business, which can be reduced to paper records if requested by court order or subpoena. Further, she testified regarding the procedure employed to prepare a written report of a telephone call. [The witness]’s knowledge was sufficient to base her testimony that the telephone records at issue were what they purported to be and were made in the ordinary course of business.”).

In some cases, the subscriber might be an appropriate sponsoring witness. For example, if the state sought to introduce the victim’s, rather than the defendant’s, phone records, the state might be able to have the victim authenticate the records. The subscriber would seem to be a “witness with knowledge” under N.C. R. Evid. 901(a)(1), who could testify along the lines of “yes, these are my records. They show my name and number and calls I remember making, and Verizon sent them to me at my request.” Although the subscriber normally won’t be able to establish that the records are business records for hearsay purposes, even if no hearsay exception can be found, the records might be admissible for corroboration or other non-hearsay or limited purposes.

Category: Evidence, Uncategorized | Tags: authentication, business records, confrontation clause, hearsay, phone records

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