True or False: An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.
Tag Archives: rules of evidence
404(b) Evidence: How Much Is Too Much?
The state supreme court recently reversed a death sentence and a first-degree murder conviction because the State presented “an excessive amount” of otherwise admissible Rule 404(b) evidence. How much is too much? Continue reading →
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)).
When Do The Evidence Rules Apply?
An interesting thing happened to me recently at a cocktail party. Before you get too excited let me say that this is a PG blog post! And it’s about the law! Anyway, an experienced trial lawyer (perhaps emboldened by drink?) got all up in my grill and asserted: “I know the evidence rules backwards and forwards. Bet you can’t stump me, professor.” A better person would have smiled and walked away. But, alas, that’s not me. I couldn’t resist. In my defense, he had also trotted out this old line: “Those who can’t do, teach.” I let that one go but this was too much! He basically entrapped me into bad behavior, especially with the snarky way he said “professor” (well, that’s my story). So I asked, “Okay, what’s the rule that tells us when the rules apply.” He deflated.
Not a lot of people can answer that question. But it comes up every now and then, as it did in a recent Court of Appeals case, State v. Foster. The answer is: Rules 101 and 1101.
Rule 101 says that Rule 1101 controls. Rule 1101(a) in turn says that except as provided in subdivision (b) or by statute, the rules apply “to all actions and proceedings in the courts of this State.”
Subsection (b) sets out the exceptions. It states that the rules, other than those with respect to privileges, do not apply to:
- The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
- Proceedings before grand juries.
- Miscellaneous Proceedings, including proceedings for extradition or rendition; first appearance before district court judge or probable cause hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
- Contempt proceedings in which the court is authorized by law to act summarily.
In Foster, the State argued that the rules didn’t apply to post-conviction motions for DNA testing under G.S. 15A-269. Specifically, the State argued that the matter didn’t constitute a “proceeding.” The court disagreed, concluding that the hearing on the motion constituted a proceeding and that none of the Rule 1101(b) exceptions applied.
So there you have it, the rules on when the rules apply.