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.

5 thoughts on “When Do The Evidence Rules Apply?”

  1. Okay, while on the subject the Rules and academic questions, tell me what you think about this issue. Rule 1101(b) indicates the Rules do not apply to probable cause hearings. N.C. Gen. Stat. 15A-611(b) appears to indicate otherwise, at least to the extent hearsay evidence if offered. Which controls?

  2. Rich,
    Great question. Thanks.
    G.S. 15A-611 doesn’t say the rules of evidence apply at probable cause hearings. It says that the State has to establish probable cause with nonhearsay evidence or evidence that falls within a hearsay exception, unless a specified statutory exception applies. That subsection was a compromise. Here’s how the Official Commentary to 15A-611 explains it:
    “This proposal stipulates that the evidence must be nonhearsay except for (1) traditional exceptions to the hearsay rule, (2) reports by certain technical experts, and (3) certain types of hearsay when there is no serious contest. There was some controversy within the Commission on this point, and the proposal is a compromise between those who wished to require evidence that would be competent at a trial and those who wished to allow reliable hearsay generally. The Commission believes that its compromise would prevent the State from holding back a truly key witness, for example, the victim in a rape case, but would not force the State to bring all its witnesses to the probable cause hearing and in effect turn it into a mini-trial.”


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.