In this blog post from 2012, Professor Jessica Smith summarized Rules of Evidence 101 and 1101, which together dictate that the rules of evidence apply to “all actions and proceedings in the courts of this State,” except for proceedings that are specifically excluded by the rules or another statute. Pursuant to these two rules and the case law interpreting them, proceedings at which the rules of evidence (except for rules of privilege) do not apply include: applications for warrants; grand jury proceedings; first appearances; pretrial release hearings; probable cause hearings; hearings on motions to suppress; witness voir dire; sentencing hearings; probation revocation hearings; and more.
That’s quite a list. If the rules of evidence do not apply to any of these proceedings, are there any limits at all on the evidence that may be offered? Could an unsworn and mentally incompetent witness with no personal knowledge offer irrelevant and prejudicial triple-hearsay testimony about a prior conviction more than 10 years old, offered solely for the purpose of showing the defendant’s bad character and the likelihood that he acted in conformity therewith?
Surely not. But if there are no rules of evidence, why not? The short answer to nearly any question about the admissibility of evidence under Rule 1101(b) is “it’s in the judge’s discretion,” but what guides that discretion, and what are its limits?
The Judge’s Discretion
The short answer above needs some fleshing out, but it’s a good starting point. When the rules of evidence do not apply, it is generally left up to the judge’s discretion to admit any evidence that he or she finds competent and probative. See, e.g., State v. Murchison, 367 N.C. 461 (2014) (“Because the proceeding was a probation revocation hearing, the trial court was not bound by the formal rules of evidence and acted within its discretion when it admitted the hearsay evidence”); State v. Augustine, 359 N.C. 709 (2005) (“any competent evidence which the court deems to have probative value may be received” at a sentencing hearing where the rules of evidence do not apply).
However, the broad discretion of the trial judge is directed (and sometimes restricted) by a variety of other statutes, rules, and legal principles.
1) Rules of Evidence
First and most importantly, although the formal rules of evidence do not apply at any of the proceedings listed in Rule 1101(b), the rules still serve as a helpful guide for determining the admissibility of evidence in accordance with basic evidentiary principles like relevance, prejudice, and reliability. See, e.g., State v. Davis, 353 N.C. 1 (2000) (explaining that even when the rules of evidence don’t apply, “they may be used as a guideline to reliability and relevance,” and holding that “hearsay statements introduced therein must be relevant and bear indicia of reliability” and the “judge still must determine the admissibility of evidence subject to general rules excluding evidence that is repetitive or unreliable”); State v. Greene, 351 N.C. 562 (2000) (although the rules of evidence did not apply at a sentencing hearing, “the trial judge properly used Rule 609(b) as a guide in this case” to exclude impeachment evidence regarding a witness’s prior conviction that was more than 10 years old).
2) Fairness and Due Process
The defendant also has a fundamental right to due process of law, even when the formal rules of evidence do not apply. Excluding competent evidence that the defendant in fairness should have been allowed to present, or allowing incompetent and unfairly prejudicial evidence to be admitted against the defendant, could potentially violate that right. See, e.g., Holmes v. South Carolina, 547 U.S. 319 (2006) (“the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense”); Gardner v. Florida, 430 U.S. 349 (1977) (confrontation rights applied at capital sentencing hearing). See also North Carolina Code of Judicial Conduct, Canon 3A(4) (judge should afford every person a “full right to be heard according to law”).
However, at the less formal proceedings in which Rule 1101(b) applies, our courts have typically shown a corresponding degree of flexibility in applying the due process standard. See, e.g., Murchison, 367 N.C. at 464 (allowing hearsay testimony at probation revocation hearing did not violate “the more limited due process rights” afforded probationers); Davis, 353 N.C. at 23 (where character evidence offered at sentencing hearing “did not go too far,” it did not “violate defendant’s constitutional right to a fundamentally fair sentencing hearing”). Also note that the defendant’s confrontation rights likely do not apply in pretrial proceedings such as hearings on motions to suppress. For a discussion and collected cases on this issue, see Prof. Smith’s related blog post here.
3) Procedural Statutes
Next, the statutes setting forth the applicable procedural rules for particular types of hearings may direct that some types of evidence are either independently prohibited or expressly permitted. Because the statutes control the manner in which the hearing itself must be conducted, they apply even when the formal rules of evidence do not. See also G.S. 8C-1101, Official Commentary (“Current North Carolina practice with respect to voir dire, sentencing hearings, probation revocation hearings, and juvenile proceedings is not meant to be changed by adoption of these rules”).
For example, Rule 1101(b) states that the rules of evidence do not apply to probable cause hearings, but G.S. 15A-611 independently directs that the state must make its showing of probable cause through the use of “nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule,” with limited exceptions allowed for matters such as examination and testing reports, or hearsay offered to prove issues of value, ownership, possession, or consent. Other court proceedings that fall within the scope of Rule 1101(b) may have similar evidentiary prohibitions or permissions set by statute. See, e.g., G.S. 15A-1345(e) (rules of evidence do not apply at probation revocation hearings, but defendant has right to present evidence and confront witnesses unless the court excuses confrontation for good cause, and record or testimony from preliminary hearing is not admissible at revocation hearing); G.S. 15A-833(a) (the victim has “the right to offer admissible evidence of the impact of the crime” at a sentencing hearing); G.S. 15A-2000(a)(3) (at a capital sentencing hearing, “evidence may be presented as to any matter that the court deems relevant to sentence”).
Comparable statutes govern the types of evidence that are permitted or prohibited at certain juvenile proceedings. See, e.g., G.S. 7B-2202 (limiting, with exceptions, the use of hearsay evidence at probable cause hearings); G.S. 7B-2501 (expressly permitting the use of “any evidence, including hearsay evidence… that the court finds to be relevant, reliable, and necessary” to determine the juvenile’s needs and conduct a disposition hearing).
4) Rules of Conduct and Practice
When the formal rules of evidence do not apply, the judge may exercise his or her discretion and admit evidence deemed relevant and reliable, even though the proponent has not laid a complete foundation or fully authenticated the evidence as the rules of evidence would normally require. Attorneys should be alert to the risk that the higher degree of latitude and informality allowed under Rule 1101(b) could draw them, even inadvertently, into an ethical violation. The Rules of Professional Conduct and General Rules of Practice always apply, and attorneys have duties of candor and fairness that apply to the presentation of any evidence. See, e.g., North Carolina Rules of Professional Conduct, Rule 3.3(a)(3) (duty of candor to the tribunal; may not “offer evidence that the lawyer knows to be false”); Rule 3.4(b) (duty of fairness to opposing party and counsel; lawyer may not “falsify evidence” or “counsel or assist a witness to testify falsely”); North Carolina General Rules of Practice, Rule 12 (“Counsel shall not knowingly misinterpret the contents of a paper [or] the testimony of a witness […] nor shall he offer evidence which he knows to be inadmissible.”).
Outright fabrication of evidence is highly unlikely, of course, but when the formal rules of evidence are not being used, there is a risk that less obvious deficiencies or shortcomings in the evidence could be glossed over. For example, the judge at a sentencing hearing might choose to admit apparently genuine banking records that are relevant and probative on the issue of restitution, even though the offering party did not quite check every box for admitting the evidence as a business record under Rule 803(6). That’s a perfectly reasonable exercise of judicial discretion under Rule 1101(b), but if the judge’s belief that the records are reliable is based partly on the fact that they were “produced directly by the bank,” the attorney would be obligated to inform the court if that were not actually the case, such as if the records were given to the attorney by a third party.
5) The Other Rules of Evidence?
Finally, what about the other rules of evidence that are found outside the formal Rules of Evidence? This was the question that first prompted me to start looking into this area, and eventually led to this post. Let me back up a bit and explain.
One of the primary reasons why the Rules of Evidence were adopted in 1983 was to simplify and codify the messy patchwork of evidentiary principles scattered throughout the statutes, cases, and common law. See Crumpler and Widenhouse, “An Analysis of the New North Carolina Evidence Code,” 20 Wake Forest L. Rev. 1 (1984) (noting that “the most compelling reason” for adopting the evidence code was to address the “complex and confusing mixture of common law and narrow statutes” in North Carolina evidence law). To that end, adoption of the new rules of evidence was paired with the repeal of some other evidentiary statutes. For example, the former “Rape Shield” statutes found in G.S. 8-56.6 – 56.11 were repealed and replaced by Rule 412, which limits the use of evidence regarding a victim’s past sexual behavior in rape or sex offense cases.
But today, nearly forty years after adopting the Rules of Evidence, we still have an interesting and diverse collection of evidence-related statutes in Chapter 8 (“Evidence”) that exist right alongside the formal rules of evidence codified in Chapter 8C (“Evidence Code”). See, e.g., G.S. 8-35.1 (admissibility of DMV record to prove prior DWI convictions); G.S. 8-44.1 (admissibility of hospital records); G.S. 8-50.2 (foundation and admissibility of radar gun results); G.S. 8-97 (foundation and other requirements for admissibility of photographs as substantive evidence).
To the extent that these other statutes contain foundational requirements or limitations on the admissibility of certain types evidence, do those requirements and limitations still apply even when Rule 1101(b) says that the “rules” of evidence do not? I think the answer is yes, they do, although there may be a plausible argument going the other way.
The first line of G.S. 8C-1 states that “the North Carolina Rules of Evidence are as follows….” See also G.S. 8C-1102 (“these rules shall be known and may be cited as the ‘North Carolina Rules of Evidence'”). Therefore, when Rule 1101(b) states that “the rules” do not apply to particular proceedings, the most natural reading of that term suggests that only the corresponding Rules of evidence contained within Chapter 8C are affected. See Crumpler and Widenhouse, supra at 3 (“The Code thus operates as a whole; it should be so construed by the courts”). Statutes in Chapter 8 (or anywhere else) that happen to be related to evidentiary matters, but are not technically part of the Rules, remain in effect and limit the judge’s discretion to admit or exclude the evidence. Clean, simple, easy.
But just for argument’s sake, consider two points. First, while Rule 1101(a) states that “these rules” apply to all proceedings (unless otherwise specified), Rule 1101(b) states that “the rules” (except for rules of privilege) do not apply to particular types of hearings. Does that subtle difference in phrasing suggest Rule 1101(b) is intended to be given a broader scope? Additionally, many of the statutes that define the rules of privilege referenced in Rule 1101(b) are found in Chapter 8 (see G.S. 8-53 through 57.1). Is that, perhaps, another indication that Rule 1101(b) does apply to the evidentiary statutes found in Chapter 8, since it is incorporating at least some of them by reference?
I have not seen an appellate case that clearly addresses this issue (as always, please correct me if I’m wrong), so if you have any thoughts please share them in the comments section below. Or if you are aware of any other factors besides the five topics summarized in this post that may impact the judge’s discretion in admitting evidence under Rule 1101(b), please note that in the comments as well.