Character Evidence Flashcards

Question

Assertions

Answer 1

Not an “Assertion” Written, oral, or nonverbal communication is a statement subject to the hearsay rules only if the communication is intended as an “assertion.” See G.S. 8C-801(a). Therefore, statements that do not assert any facts, such as questions (“what time is it?”) or instructions (“get out of here”), may be admissible as nonhearsay. See, e.g., State v. Mitchell, 135 N.C. App. 617 (1999) (inmate’s command to the defendant to “leave” or “hurry” was not hearsay: “[d]irectives, such as those here, are not hearsay because they are simply offered to prove that the directive was made, not to prove the truth of any matter asserted therein.”); G.S. 8C-801, Official Commentary (explaining that “a preliminary determination will be required to determine whether an assertion is intended,” but also noting that “[t]he rule is so worded as to place the burden upon the party claiming that the intention [to make an assertion] existed” and “ambiguous and doubtful cases will be resolved against him and in favor of admissibility”); see also State v. Peek, 89 N.C. App. 123 (1988) (written name and address on an envelope was not hearsay, because it was not intended as an assertion: “The sender's conduct in addressing and mailing the envelope undoubtedly implies that the sender believes the addressee lives at that address. Nevertheless, because no assertion is intended, the evidence is not hearsay and is admissible.”). However, if the context or substance of the question or directive indicates that it should be understood as an “assertion” and it is being offered to prove the truth of the matter asserted, then the question or directive should be viewed as a statement subject to the hearsay rules. See, e.g., State v. McQueen, 324 N.C. 118 (1989) (question that a companion asked the defendant – “you don’t remember killing a state trooper?” – was inadmissible hearsay since it was offered to prove the truth of the matter asserted: namely, that the defendant had no recollection of the killing); State v. Marlow, 334 N.C. 273 (1993) (“Clearly, Horton's oral assertion that he told Howell ‘not to come back around. To stay away,’ constituted hearsay under Rule 801(a).”).

Answer 2

707.1Hearsay: Definition & Admissibility [Rules 801, 802] Last Updated: 12/01/23 Court-Appointed Expert [Rule 706] Admission of Party Opponent [Rule 801(d)] Key Concepts Hearsay is any statement made by the declarant at a time or place other than while he or she is testifying at the trial or hearing that is offered to prove the truth of the matter asserted. Hearsay is not admissible in evidence unless it is specifically allowed by an exception in the rules of evidence or another statute. Statements that are not offered for the truth of the matter (e.g., only offered to show the effect on the listener or to corroborate the witness’s testimony) are not hearsay, and therefore are not excluded under Rules 801 and 802. The Basic Rules Rule 801 – Definition of Hearsay The following definitions apply under this Article: (a) Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. - A "declarant" is a person who makes a statement. (c) Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. G.S. 8C-801. Note: Rule 801(d) is covered separately in the next entry on “Admission of a Party Opponent.” Rule 802 – Hearsay Not Admissible Hearsay is not admissible except as provided by statute or by these rules. G.S. 8C-802. Legal Overview Evidence is “hearsay” if it is a statement (that is, an “assertion,” either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. See, G.S. 8C-801, 802; State v. Burke, 343 N.C. 129 (1996). For example, if a trial witness such as a law enforcement officer attempted to testify about what an eyewitness at the scene of the crime said that he or she saw, and that statement was offered to establish that the events transpired as the witness reported, the statement would be inadmissible hearsay unless another statute or rule authorized the admission of the statement. See State v. Banks, 210 N.C. App. 30 (2011). Pursuant to Rules 801(a) and 802, the prohibition against hearsay testimony also applies to nonverbal conduct of the declarant (such as a nod or gesture), if that conduct is intended as an assertion. See, e.g., State v. Robinson, 355 N.C. 320 (2002) (testimony from one witness about whether another witness had pointed anyone out in a mug shot book was inadmissible hearsay); State v. Marlow, 334 N.C. 273 (1993) (“Howell's actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay”); State v. Satterfield, 316 N.C. 55 (1986) (declarant’s gesture, in response to officer’s question, of pointing to the drawer where knife could be found was nonverbal conduct intended as an assertion, and therefore inadmissible as hearsay). The statutory exceptions that allow hearsay to be admitted into evidence are addressed in the following entries: For information about hearsay evidence that is admissible as an admission of a party-opponent, see the related Evidence entry regarding Admission of a Party Opponent [Rule 801(d)]. For information about hearsay evidence that is admissible as an exception regardless of the availability of the declarant, see the related Evidence entry regarding Hearsay Exceptions [Rule 803]. For information about hearsay evidence that is admissible as an exception based on the unavailability of the declarant, see the related Evidence entry regarding Hearsay Exeptions [Rule 804]. Not Hearsay by Definition In addition to the statutory hearsay exceptions listed above, there are many situations in which the statement of a declarant is admissible simply because it does not fall within the scope of Rule 801 and therefore it is not subject to exclusion. Several of the most common examples of these kinds of statements are summarized below. Not Offered for the Truth A declarant’s statement is not excluded as hearsay under Rule 801 if it is not being offered for the truth of the matter asserted (i.e., “the defendant did X”), but rather for some other permissible purpose such as explaining the defendant’s motive or showing the victim’s state of mind (e.g., “I was scared of the defendant because I heard he did X”). See, e.g., State v. McLean, 251 N.C. App. 850 (2017) (witness’s statement that jailer told her the defendant was in an adjacent cell was not hearsay, because it was offered for the nonhearsay purpose of explaining why the witness was afraid to testify); State v. Castaneda, 215 N.C. App. 144 (2011) (statements in detective’s interview with defendant about what other witnesses allegedly saw defendant do were not hearsay, because they were offered for the nonhearsay purpose of giving context to the defendant’s answers and explaining the detective’s interview technique); State v. Brown, 350 N.C. 193 (1999) (statements made to victim about getting a divorce were not offered for truth of the matter); State v. Davis, 349 N.C. 1 (1998) (statements about defendant being fired were offered for nonhearsay purpose of showing motive); State v. Dickens, 346 N.C. 26 (1997) (recording of statements made in 911 call was admissible for nonhearsay purpose of showing that call took place and that the accomplice was the caller); State v. Holder, 331 N.C. 462 (1992) (statement properly admitted to show state of mind); State v. Tucker, 331 N.C. 12 (1992) (“trial court erred in precluding admission of the statements because they were either nonhearsay or admissible under a hearsay exception”); State v. Woodruff, 99 N.C. App. 107 (1990) (“Clearly, these statements were not offered to ‘prove the truth of the matter asserted.’ This contention borders on the frivolous.”); State v. Quick, 323 N.C. 675 (1989) (victim's letter to murder defendant and testimony of victim's grandmother were not hearsay where they were offered to show that defendant's motive for killing victim was because she wished to discontinue their romantic relationship); State v. Hunt, 323 N.C. 407 (1988) (witness' statement that his wife took out insurance policy on her other husband and said that she did it to have him killed, was not offered for truth of the matter, but for the nonhearsay purpose of proving why codefendants conspired to kill her other husband) Practice Pointer Confrontation Clause? There is no confrontation clause issue when statements are admitted under the “not for the truth of the matter” rationale, because by their very nature these statements are not considered testimonial and therefore they fall outside the scope of what is protected by the clause. See State v. Steele, 260 N.C. App. 315 (2018); State v. Leyva, 181 N.C. App. 491 (2007). Explains Conduct or Effect on the Listener Conceptually, this is really just a sub-set of statements that are “not offered for the truth of the matter asserted,” but the case law has particularly recognized that statements which are offered for the nonhearsay purpose of explaining why a person took a particular course of action (“explains conduct”) or reacted in a certain way to that statement (“effect on the listener”) are not excluded as hearsay under Rule 801. See, e.g., State v. Steele, 260 N.C. App. 315 (2018) (“statements by a confidential informant to law enforcement officers which explain subsequent steps taken by officers in the investigative process are admissible as nonhearsay”); State v. Rogers, 251 N.C. App. 869 (2017), rev’d on other grounds, 371 N.C. 397 (2018) (officer’s statements about information collected from nontestifying witnesses were admissible for nonhearsay purpose of explaining officer’s subsequent actions taken in the investigation); State v. Chapman, 244 N.C. App. 699 (2016) (detective’s testimony about what was written in an instruction manual for the air pistol he was testing was not hearsay, because it was offered for the nonhearsay purpose of explaining why he set up the test the way he did); State v. Stanley, 213 N.C. App. 545 (2011) (statements were not hearsay because they were offered to show officer’s subsequent action); State v. Banks, 210 N.C. App. 30 (2011) (officer’s testimony about where another witness told him the gun could be found was not hearsay, because it was offered to explain officer’s subsequent actions of notifying his supervisor and locating the gun); State v. Elkins, 210 N.C. App. 110 (2011) (“[S]tatements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.”); State v. Treadway, 208 N.C. App. 286 (2010); (“Lane's testimony was offered for the non-hearsay purpose of explaining Lane's subsequent conduct” in which she reported the abuse to initiate medical care and investigation); State v. Miller, 197 N.C. App. 78, disc. review denied, 363 N.C. 586, (2009) ("Because defendant changed his story as a result of these out-of-court statements, it can be properly said that these questions were admitted to show their effect on defendant, not to prove the truth of the matter asserted."); State v. Reed, 153 N.C. App. 462 (2002) (“the witness' statement was offered only to explain Detective Talley's conduct subsequent to hearing the statement and not to show that defendant's home was actually a ‘liquor house.’”); State v. Wade, 155 N.C. App. 1 (2002) ("A careful reading of the testimony reveals that the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, rather they were offered for the non-hearsay purposes of showing state of mind and effect on the listener."); State v. Harper, 96 N.C. App. 36 (1989) (“there was no hearsay-within-hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer's conduct”). Practice Pointer Don't overdo it Despite the abundance of helpful cases on this issue, prosecutors should be cautious about overusing this argument as a fallback basis for getting challenged statements into evidence as nonhearsay. If the statement is not offered for the truth of the matter asserted, the prosecutor may not rely on it for that purpose either, so the value of the statement as evidence may be diminished. See, e.g., State v. Angram, 270 N.C. App. 82 (2020) (where the only statements directly linking defendant to robbery were admitted for a limited nonhearsay purpose, there was insufficient evidence to support conviction). For further discussion, see Jeff Welty, "The 'Explains Conduct' Non-Hearsay Purpose," N.C. Criminal Law Blog, Oct. 13, 2009. Corroboration of Testimony Statements or writings offered to corroborate a witness’s testimony are not offered for the truth of the matter asserted and are therefore not excluded by Rule 801. See, e.g., State v. Thompson, 250 N.C. App. 158 (2016) (victims' statements to officer were admissible to corroborate admitted statements to health care personnel who treated them at the time of the assaults); State v. Royster, 237 N.C. App. 64 (2014) (recordings of witness's telephone calls from jail were admissible at murder trial for nonhearsay purpose of corroborating witness's testimony that defendant had shot victim); State v. Johnson, 209 N.C. App. 682 (2011) (admission of prior written statement was permissible for nonhearsay purpose of corroborating testimony); State v. Tellez, 200 N.C. App. 517 (2009) (“evidence offered for corroboration and not as substantive evidence will not be excluded as hearsay”); State v. Guice, 141 N.C. App. 177 (2000) (“The trial court admitted the written statement not as substantive evidence, but for the limited purpose of corroborative evidence only, which does not constitute hearsay.”); State v. Coffey, 326 N.C. 268 (1990) (statements about what child reported were admissible to corroborate mother’s testimony); State v. Riddle, 316 N.C. 152 (1986) (“Collins' testimony was not offered to prove the truth of the matter asserted […] but was offered merely to prove that Pamela had made a statement to this effect to Collins. The testimony was therefore not objectionable on hearsay grounds.”). Practice Pointer What about impeachment? As with corroboration, a statement is not hearsay if it is offered to impeach a testifying witness. This does not, however, create a “back door” for admitting the impeaching statement as substantive evidence. See State v. Black, 223 N.C. App. 137 (2012); State v. Hunt, 324 N.C. 343 (1989). For more information about impeachment, including the circumstances when extrinsic evidence such as a prior statement may be used to impeach, see the related Evidence entry on Impeachment: Generally [Rule 607]. Verbal Acts Rule 801 allows, as nonhearsay, “the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.” G.S. 8C-801, Official Commentary. For example, if the statement itself constitutes an act under the law (such as offering a bribe or granting permission), the statement is not excluded by Rule 801. See, e.g., State v. Weaver, 160 N.C. App. 61 (2003) (defendant’s offer to pay officer money if he would ignore the drugs that he found was a verbal act of offering a bribe); see also 2 McCormick On Evid. § 249 (7th ed., 2016) (collecting cases and examples of other verbal acts). The rationale for allowing these kinds of statements into evidence is that “[s]ince the law accords the making of such statements a certain legal effect, the sincerity and reliability of the declarant is of no consequence; the simple fact that those statements were made is relevant.” 31A C.J.S. Evidence § 503.

Answer 3

About Resources Back Resources Smith’s Case Compendium N.C. Court Opinions AOC Court Forms Pattern Jury Instructions General Statutes NC Criminal Law Blog Court Calendars Conference of District Attorneys N.C. Attorney General Superior Court Judges’ Benchbook Indigent Defense Manual Series NC Crimes NC General Rules of Practice - Any -PretrialTrialSentencingAppeals & ReliefJuvenile ProsecutionsExpert TestimonyEvidencePattern Jury InstructionsArrest Warrant and Indictment Forms 707.1Hearsay: Definition & Admissibility [Rules 801, 802] Last Updated: 12/01/23 Court-Appointed Expert [Rule 706] Admission of Party Opponent [Rule 801(d)] Key Concepts Hearsay is any statement made by the declarant at a time or place other than while he or she is testifying at the trial or hearing that is offered to prove the truth of the matter asserted. Hearsay is not admissible in evidence unless it is specifically allowed by an exception in the rules of evidence or another statute. Statements that are not offered for the truth of the matter (e.g., only offered to show the effect on the listener or to corroborate the witness’s testimony) are not hearsay, and therefore are not excluded under Rules 801 and 802. The Basic Rules Rule 801 – Definition of Hearsay The following definitions apply under this Article: (a) Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. - A "declarant" is a person who makes a statement. (c) Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. G.S. 8C-801. Note: Rule 801(d) is covered separately in the next entry on “Admission of a Party Opponent.” Rule 802 – Hearsay Not Admissible Hearsay is not admissible except as provided by statute or by these rules. G.S. 8C-802. Legal Overview Evidence is “hearsay” if it is a statement (that is, an “assertion,” either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. See, G.S. 8C-801, 802; State v. Burke, 343 N.C. 129 (1996). For example, if a trial witness such as a law enforcement officer attempted to testify about what an eyewitness at the scene of the crime said that he or she saw, and that statement was offered to establish that the events transpired as the witness reported, the statement would be inadmissible hearsay unless another statute or rule authorized the admission of the statement. See State v. Banks, 210 N.C. App. 30 (2011). Pursuant to Rules 801(a) and 802, the prohibition against hearsay testimony also applies to nonverbal conduct of the declarant (such as a nod or gesture), if that conduct is intended as an assertion. See, e.g., State v. Robinson, 355 N.C. 320 (2002) (testimony from one witness about whether another witness had pointed anyone out in a mug shot book was inadmissible hearsay); State v. Marlow, 334 N.C. 273 (1993) (“Howell's actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay”); State v. Satterfield, 316 N.C. 55 (1986) (declarant’s gesture, in response to officer’s question, of pointing to the drawer where knife could be found was nonverbal conduct intended as an assertion, and therefore inadmissible as hearsay). The statutory exceptions that allow hearsay to be admitted into evidence are addressed in the following entries: For information about hearsay evidence that is admissible as an admission of a party-opponent, see the related Evidence entry regarding Admission of a Party Opponent [Rule 801(d)]. For information about hearsay evidence that is admissible as an exception regardless of the availability of the declarant, see the related Evidence entry regarding Hearsay Exceptions [Rule 803]. For information about hearsay evidence that is admissible as an exception based on the unavailability of the declarant, see the related Evidence entry regarding Hearsay Exeptions [Rule 804].

Answer 4

rces Back Resources Smith’s Case Compendium N.C. Court Opinions AOC Court Forms Pattern Jury Instructions General Statutes NC Criminal Law Blog Court Calendars Conference of District Attorneys N.C. Attorney General Superior Court Judges’ Benchbook Indigent Defense Manual Series NC Crimes NC General Rules of Practice - Any -PretrialTrialSentencingAppeals & ReliefJuvenile ProsecutionsExpert TestimonyEvidencePattern Jury InstructionsArrest Warrant and Indictment Forms 707.1Hearsay: Definition & Admissibility [Rules 801, 802] Last Updated: 12/01/23 Court-Appointed Expert [Rule 706] Admission of Party Opponent [Rule 801(d)] Key Concepts Hearsay is any statement made by the declarant at a time or place other than while he or she is testifying at the trial or hearing that is offered to prove the truth of the matter asserted. Hearsay is not admissible in evidence unless it is specifically allowed by an exception in the rules of evidence or another statute. Statements that are not offered for the truth of the matter (e.g., only offered to show the effect on the listener or to corroborate the witness’s testimony) are not hearsay, and therefore are not excluded under Rules 801 and 802. The Basic Rules Rule 801 – Definition of Hearsay The following definitions apply under this Article: (a) Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. - A "declarant" is a person who makes a statement. (c) Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. G.S. 8C-801. Note: Rule 801(d) is covered separately in the next entry on “Admission of a Party Opponent.” Rule 802 – Hearsay Not Admissible Hearsay is not admissible except as provided by statute or by these rules. G.S. 8C-802. Legal Overview Evidence is “hearsay” if it is a statement (that is, an “assertion,” either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. See, G.S. 8C-801, 802; State v. Burke, 343 N.C. 129 (1996). For example, if a trial witness such as a law enforcement officer attempted to testify about what an eyewitness at the scene of the crime said that he or she saw, and that statement was offered to establish that the events transpired as the witness reported, the statement would be inadmissible hearsay unless another statute or rule authorized the admission of the statement. See State v. Banks, 210 N.C. App. 30 (2011). Pursuant to Rules 801(a) and 802, the prohibition against hearsay testimony also applies to nonverbal conduct of the declarant (such as a nod or gesture), if that conduct is intended as an assertion. See, e.g., State v. Robinson, 355 N.C. 320 (2002) (testimony from one witness about whether another witness had pointed anyone out in a mug shot book was inadmissible hearsay); State v. Marlow, 334 N.C. 273 (1993) (“Howell's actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay”); State v. Satterfield, 316 N.C. 55 (1986) (declarant’s gesture, in response to officer’s question, of pointing to the drawer where knife could be found was nonverbal conduct intended as an assertion, and therefore inadmissible as hearsay). The statutory exceptions that allow hearsay to be admitted into evidence are addressed in the following entries: For information about hearsay evidence that is admissible as an admission of a party-opponent, see the related Evidence entry regarding Admission of a Party Opponent [Rule 801(d)]. For information about hearsay evidence that is admissible as an exception regardless of the availability of the declarant, see the related Evidence entry regarding Hearsay Exceptions [Rule 803]. For information about hearsay evidence that is admissible as an exception based on the unavailability of the declarant, see the related Evidence entry regarding Hearsay Exeptions [Rule 804]. Not Hearsay by Definition In addition to the statutory hearsay exceptions listed above, there are many situations in which the statement of a declarant is admissible simply because it does not fall within the scope of Rule 801 and therefore it is not subject to exclusion. Several of the most common examples of these kinds of statements are summarized below. Not Offered for the Truth A declarant’s statement is not excluded as hearsay under Rule 801 if it is not being offered for the truth of the matter asserted (i.e., “the defendant did X”), but rather for some other permissible purpose such as explaining the defendant’s motive or showing the victim’s state of mind (e.g., “I was scared of the defendant because I heard he did X”). See, e.g., State v. McLean, 251 N.C. App. 850 (2017) (witness’s statement that jailer told her the defendant was in an adjacent cell was not hearsay, because it was offered for the nonhearsay purpose of explaining why the witness was afraid to testify); State v. Castaneda, 215 N.C. App. 144 (2011) (statements in detective’s interview with defendant about what other witnesses allegedly saw defendant do were not hearsay, because they were offered for the nonhearsay purpose of giving context to the defendant’s answers and explaining the detective’s interview technique); State v. Brown, 350 N.C. 193 (1999) (statements made to victim about getting a divorce were not offered for truth of the matter); State v. Davis, 349 N.C. 1 (1998) (statements about defendant being fired were offered for nonhearsay purpose of showing motive); State v. Dickens, 346 N.C. 26 (1997) (recording of statements made in 911 call was admissible for nonhearsay purpose of showing that call took place and that the accomplice was the caller); State v. Holder, 331 N.C. 462 (1992) (statement properly admitted to show state of mind); State v. Tucker, 331 N.C. 12 (1992) (“trial court erred in precluding admission of the statements because they were either nonhearsay or admissible under a hearsay exception”); State v. Woodruff, 99 N.C. App. 107 (1990) (“Clearly, these statements were not offered to ‘prove the truth of the matter asserted.’ This contention borders on the frivolous.”); State v. Quick, 323 N.C. 675 (1989) (victim's letter to murder defendant and testimony of victim's grandmother were not hearsay where they were offered to show that defendant's motive for killing victim was because she wished to discontinue their romantic relationship); State v. Hunt, 323 N.C. 407 (1988) (witness' statement that his wife took out insurance policy on her other husband and said that she did it to have him killed, was not offered for truth of the matter, but for the nonhearsay purpose of proving why codefendants conspired to kill her other husband) Practice Pointer Confrontation Clause? There is no confrontation clause issue when statements are admitted under the “not for the truth of the matter” rationale, because by their very nature these statements are not considered testimonial and therefore they fall outside the scope of what is protected by the clause. See State v. Steele, 260 N.C. App. 315 (2018); State v. Leyva, 181 N.C. App. 491 (2007). Explains Conduct or Effect on the Listener Conceptually, this is really just a sub-set of statements that are “not offered for the truth of the matter asserted,” but the case law has particularly recognized that statements which are offered for the nonhearsay purpose of explaining why a person took a particular course of action (“explains conduct”) or reacted in a certain way to that statement (“effect on the listener”) are not excluded as hearsay under Rule 801. See, e.g., State v. Steele, 260 N.C. App. 315 (2018) (“statements by a confidential informant to law enforcement officers which explain subsequent steps taken by officers in the investigative process are admissible as nonhearsay”); State v. Rogers, 251 N.C. App. 869 (2017), rev’d on other grounds, 371 N.C. 397 (2018) (officer’s statements about information collected from nontestifying witnesses were admissible for nonhearsay purpose of explaining officer’s subsequent actions taken in the investigation); State v. Chapman, 244 N.C. App. 699 (2016) (detective’s testimony about what was written in an instruction manual for the air pistol he was testing was not hearsay, because it was offered for the nonhearsay purpose of explaining why he set up the test the way he did); State v. Stanley, 213 N.C. App. 545 (2011) (statements were not hearsay because they were offered to show officer’s subsequent action); State v. Banks, 210 N.C. App. 30 (2011) (officer’s testimony about where another witness told him the gun could be found was not hearsay, because it was offered to explain officer’s subsequent actions of notifying his supervisor and locating the gun); State v. Elkins, 210 N.C. App. 110 (2011) (“[S]tatements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.”); State v. Treadway, 208 N.C. App. 286 (2010); (“Lane's testimony was offered for the non-hearsay purpose of explaining Lane's subsequent conduct” in which she reported the abuse to initiate medical care and investigation); State v. Miller, 197 N.C. App. 78, disc. review denied, 363 N.C. 586, (2009) ("Because defendant changed his story as a result of these out-of-court statements, it can be properly said that these questions were admitted to show their effect on defendant, not to prove the truth of the matter asserted."); State v. Reed, 153 N.C. App. 462 (2002) (“the witness' statement was offered only to explain Detective Talley's conduct subsequent to hearing the statement and not to show that defendant's home was actually a ‘liquor house.’”); State v. Wade, 155 N.C. App. 1 (2002) ("A careful reading of the testimony reveals that the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, rather they were offered for the non-hearsay purposes of showing state of mind and effect on the listener."); State v. Harper, 96 N.C. App. 36 (1989) (“there was no hearsay-within-hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer's conduct”). Practice Pointer Don't overdo it Despite the abundance of helpful cases on this issue, prosecutors should be cautious about overusing this argument as a fallback basis for getting challenged statements into evidence as nonhearsay. If the statement is not offered for the truth of the matter asserted, the prosecutor may not rely on it for that purpose either, so the value of the statement as evidence may be diminished. See, e.g., State v. Angram, 270 N.C. App. 82 (2020) (where the only statements directly linking defendant to robbery were admitted for a limited nonhearsay purpose, there was insufficient evidence to support conviction). For further discussion, see Jeff Welty, "The 'Explains Conduct' Non-Hearsay Purpose," N.C. Criminal Law Blog, Oct. 13, 2009. Corroboration of Testimony Statements or writings offered to corroborate a witness’s testimony are not offered for the truth of the matter asserted and are therefore not excluded by Rule 801. See, e.g., State v. Thompson, 250 N.C. App. 158 (2016) (victims' statements to officer were admissible to corroborate admitted statements to health care personnel who treated them at the time of the assaults); State v. Royster, 237 N.C. App. 64 (2014) (recordings of witness's telephone calls from jail were admissible at murder trial for nonhearsay purpose of corroborating witness's testimony that defendant had shot victim); State v. Johnson, 209 N.C. App. 682 (2011) (admission of prior written statement was permissible for nonhearsay purpose of corroborating testimony); State v. Tellez, 200 N.C. App. 517 (2009) (“evidence offered for corroboration and not as substantive evidence will not be excluded as hearsay”); State v. Guice, 141 N.C. App. 177 (2000) (“The trial court admitted the written statement not as substantive evidence, but for the limited purpose of corroborative evidence only, which does not constitute hearsay.”); State v. Coffey, 326 N.C. 268 (1990) (statements about what child reported were admissible to corroborate mother’s testimony); State v. Riddle, 316 N.C. 152 (1986) (“Collins' testimony was not offered to prove the truth of the matter asserted […] but was offered merely to prove that Pamela had made a statement to this effect to Collins. The testimony was therefore not objectionable on hearsay grounds.”). Practice Pointer What about impeachment? As with corroboration, a statement is not hearsay if it is offered to impeach a testifying witness. This does not, however, create a “back door” for admitting the impeaching statement as substantive evidence. See State v. Black, 223 N.C. App. 137 (2012); State v. Hunt, 324 N.C. 343 (1989). For more information about impeachment, including the circumstances when extrinsic evidence such as a prior statement may be used to impeach, see the related Evidence entry on Impeachment: Generally [Rule 607]. Verbal Acts

Answer 5

Reputation. In the earlier stages of jury trial, when the jurors were expected to seek out the facts by neighborhood inquiries (instead of having the witnesses bring the facts through their testimony in court), community reputation was a frequent source of information for the jurors. When in the late 1600s the general doctrine excluding hearsay began to take form,40 the use of reputation either directly by the jurors or through the testimony of the witnesses was so well established in certain areas that exceptions to the hearsay rule for reputation in those areas was soon recognized.41 Reputation is a composite description of what the people in a community have said and are saying about a matter. A witness who testifies to reputation testifies to a generalized version of a series of out-of-court statements. Whether reputation is hearsay depends on the same tests applied to evidence of other out-of-court statements42 and sometimes may not be hearsay at all. Thus, in an action for defamation where an element of damages is injury to the plaintiff’s reputation, evidence that the plaintiff’s reputation was bad before the slander is not hearsay when presented regarding damages.43 Proof of reputation in the community offered as evidence that some person there had knowledge of the reputed facts is similarly not hearsay.44 On the other hand, evidence of reputation is hearsay when offered to prove the truth of the fact reputed and hence depends for its value on the veracity of the collective asserters.45 It should be excluded when it fits within no exception.46 However, several hearsay exceptions have been recognized for reputation as to character and certain other issues.47

Answer 6

Rule 1004 (admission of Secondary Evidence) provides exceptions to the Best Evidence Rule (Rule 1002), allowing for the admission of secondary evidence of a document’s contents when the original is lost, destroyed, unobtainable, controlled by the opposing party, or not central to the main issue of the case. This rule reflects a practical approach to evidence admission, balancing the need for original documents with the realities of their availability and relevance.

Answer 7

Admission of Secondary Evidence

Answer 8

What’s the purpose of Rule 1004 permitting admission of **Secondary Evidence** **to prove** the **content of a writing**

Answer 9

Credibility has two components 1. competency and 2. veracity

Answer 10

The witnesses competency is the opportunity and capacity to perceive combined with capacitor to recollect and communicate. Opportunity and capacity to perceive together with capacity to recollect and communicate recollect and communicate constitute the ingredients of competency

Answer 11

The truthfulness of the witness determines his veracity

Answer 12

The ride establishing the sixth amendment is the right to confront Witnesses

Answer 13

Repeating the same testimonial matter of the direct examination by questioning the witness and you on Cross examination is a process which often becomes desirable in order to test the witnesses capacity to recollect what he has just stated and to entertain whether he falls easily into inconsistencies and that betrays falsification. Cross examination is a weapon with which defendant defends himself against the prosecution and he's entitled to use it upon the witnesses to test their truthfulness and capacity

Answer 14

The evidence of Prior uncharged crimes is often a admissible in cases when the defendant raises the affirmative defense of entrapment. New line this is because in asserting this offense that accused necessarily places his predisposition to commit the crime in issue and thereby opens the door for the prosecutor to introduce evidence of some uncharged Acts

Answer 15

The purpose of Rule 405 is to determine **the proper form** of character evidence once the court has decided, pursuant to FRE 404(2) and 403 (3) that such evidence is admissible.

Answer 16

Under Rule 404, evidence of character or a character trait of the accused, the victim, or a witness may be admissible in certain situations. 5 Thus, Rule 405 is applied to determine the proper method of proving character when the character of an individual is admissible. 6 Federal Rule of Evidence 405 potentially allows three methods of proving character: "testimony as to reputation," "testimony in the form of an opinion," and testimony as to "specific instances of conduct." 7 Normally, character can be shown only by evidence of reputation or opinion. 8 Evidence of specific instances may only be admitted when a person's character is in issue under the substantive law because this type of evidence is "the most convincing" and "possesses the greatest capacity to arouse prejudice, to confuse, [and] to surprise." 9 Thus, when character

Answer 17

Thus, when the character of a Preson is not directly in issue, character evidence is limited to testimony concerning reputation or opinion. 10 The admission of reputation testimony pursuant to Rule 405 is consistent with the federal common law. 11 Under the early common law, testimony concerning the defendant's reputation was confined to the reputation in the community in which the defendant lived.12 The common law now allows reputation testimony from any community that the person is actively a part of. 13 In addition, reputation testimony may be limited to the time when the alleged offense was committed. 14 The admissibility of opinion testimony, however, departs from the common law doctrine. 15 The distinction between reputation

Answer 18

Once the character of a person has been placed in issue on direct examination, Rule 405 authorizes inquiries into particular instances of conduct by the person during cross-examination of **the character witness**. 18 The purpose of these questions is to help the jury determine the reliability of the testimony given by the character witness. 19 This rationale is based on the premise that because the witness has related opinion testimony or reputationtestimony, the cross-examination should "shed light on the accuracy of [the witness'] hearing and reporting." 20 United States v. Talamante2 1 illustrates the application of Rule 405. In Talamante, a defendant charged with assault attempted to introduce testimony of specific instances of conduct which would indicate that the victim was the first aggressor. 22 The Tenth Circuit held that the testimony was inadmissible. 23 The court reasoned that when testimony is used to "create an inference that a person acted in conformity with his or her character, Rule 405 allows proof of character only by reputation and opinion," and not through specific instances of conduct.24 In United States v. Oshatz,25 the defendant, a tax attorney, was charged in a sixteen-count indictment for his role in the securities trading activities of several partnerships. 26 The charges included conspiring to defraud the government of the United States, engaging in securities transactions that were fraudulent, and filing bogus tax returns for different partnerships. 27 The Second Circuit held that the trial court properly allowed the testimony of a character witness who gave opinion testimony concerning the defendant's truthfulness and honesty during cross-examination by defense counsel.2 8 However, the court determined that crosstestimony, the cross-examination should "shed light on the accuracy of [the witness'] hearing and reporting." 20 United States v. Talamante2 1 illustrates the application of Rule 405. In Talamante, a defendant charged with assault attempted to introduce testimony of specific instances of conduct which would indicate that the victim was the first aggressor. 22 The Tenth Circuit held that the testimony was inadmissible. 23 The court reasoned that when testimony is used to "create an inference that a person acted in conformity with his or her character, Rule 405 allows proof of character only by reputation and opinion," and not through specific instances of conduct.24 In United States v. Oshatz,25 the defendant, a tax attorney, was charged in a sixteen-count indictment for his role in the securities trading activities of several partnerships. 26 The charges included conspiring to defraud the government of the United States, engaging in securities transactions that were fraudulent, and filing bogus tax returns for different partnerships. 27 The Second Circuit held that the trial court properly allowed the testimony of a character witness who gave opinion testimony concerning the defendant's truthfulness and honesty during cross-examination by defense counsel.2 8 However, the court determined that cross

Answer 19

No. United States v. Talamante2 1 illustrates the application of Rule 405. In Talamante, a defendant charged with assault attempted to introduce testimony of specific instances of conduct which would indicate that the victim was the first aggressor. 22 The Tenth Circuit held that the testimony was **inadmissible**. Because when testimony is used to "create an inference that a person acted in conformity with his or her character, Rule 405 allows proof of character **only by reputation and opinion** and **not** through **specific instances of conduct**. In United States v. Oshatz,25 the defendant, a tax attorney, was charged in a sixteen-count indictment for his role in the securities trading activities of several partnerships. 26 The charges included conspiring to defraud the government of the United States, engaging in securities transactions that were fraudulent, and filing bogus tax returns for different partnerships. 27 The Second Circuit held that the trial court **properly allowed the testimony of a character witness who gave opinion testimony concerning the defendant's truthfulness and honesty during cross-examination by defense counse**l.2 8 However, the court determined that cross

Answer 20

In United States v. Oshatz,25 the defendant, a tax attorney, was charged in a sixteen-count indictment for his role in the securities trading activities of several partnerships. 26 The charges included conspiring to defraud the government of the United States, engaging in securities transactions that were fraudulent, and filing bogus tax returns for different partnerships. 27 The Second Circuit held that the trial court properly allowed the testimony of a character witness who gave opinion testimony concerning the defendant's truthfulness and honesty during cross-examination by defense counsel.2 8 However, the court determined that cross examination of non-expert character witnesses with hypothetical questions that assume the guilt of the defendant is prohibited, even though the questions could be relevant to the reliability of the testimony of the character witness. 2 9 The Second Circuit has also addressed the issue of whether questions regarding specific instances of conduct are permissible on cross-examination. In United States v. Wallach,30 the court held that, pursuant to Rule 405, it is permissible "to ask questions of character witnesses concerning their knowledge of specific instances of the defendant's conduct" on crossexamination. 3 1 However, the court noted that the district court must exercise its discretion before admitting such collateral evidence "to ensure that the jury does not convict the defendant for conduct with which he has not been charged." 32 In Wallach, the prosecutor was permitted to introduce evidence duringexamination regarding the defendant's performance as the attorney in a personal injury case involving two young children who were severely burned. 33 More specifically, the government elicited evidence that the defendant agreed to a $1.7 million settlement, while retaining a fee of $1 million.34 Additionally, the prosecutor, characterizing the defendant's actions as an "outrage," invited the jurors "to stand in the shoes of the parents of the [burned] children." 35 The court held that although the evidence was "technically" admissible, the prosecutor's attempts to blatantly prejudice the jury went "well beyond the bounds of propriety and relevance" and should not have been admitted for this purpose. 36

Answer 21

No. New York follows a different rule regarding the permissible methods of proving character or a trait of character. New York allows a defendant to establish good character only through his or her "general reputation in the community." 37 Thus, New York does **not** allow evidence in the form of an opinion. The New York rule originates from People v. Van Gaasbeck,38 where the court of appeals held that "'character means the estimate in which the individual is held by the community, and not the private opinion ... of. . . the witnesses. . . . '"39 In deciding that evidence based on the observation and personal knowledge of a witness is not admissible, the court reasoned that, if admissible, the truth of specific instances of the defendant's conduct relied on by the witness would be difficult to ascertain. 40 Further, the court believed that the admission of such evidence "would lead to the introduction into the case of innumerable collateral issues which could not be tried out without introducing the utmost complication and confusion into the trial, tending to distract the minds of the jurymen and befog the chief issue in litigation. "41 The Van Gaasbeck rule was upheld by the New York Court of Appeals in People v. Bouton.42 The court in Bouton noted that "[w]hile the nature of the defendant's character is the object of the proof, reputation ... is the raw material from which that character may be established." 43 In addition, in determining that reputation evidence does not have to be confined to the community the person lives in, the court stated that "[a] reputation may grow wherever an individual's associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability. " 44 The court also decided that "the fact that the [testimony] consisted solely of 'negative evidence' -- i.e., the absence of adverse comment on the pertinent aspects of defendant's character -- could not in itself be the basis for an exclusionary ruling."45 40. Id. at 418, 82 N.E. at 721

Answer 22

In People v. Kuss,4 6 the court of appeals stated that the New York rule is "slightly different" when dealing with the cross-examination of character witnesses. The court held that when **W's credibility is at issue**, W may be cross-examined as to the "existence of rumors or reports of particular acts allegedly committed by the defendant which are inconsistent with the reputation that W had attributed to D. The court warned that the *use of specific instances* can only be used to indicate "the W's ability to **accurately reflect** D's the reputation in the community," and "cannot be used to prove the truth of the rumors." This policy is in accord with Rule 405 and its justifications. There is a clear distinction between Fed law and NY law concerning **the introduction of evidence proving the character of both witnesses or parties**. Under Fed law, a W who is attempting to prove the character or a character trait of a person is permitted to do so by either opinion or reputation testimony. New York's evidentiary principle, by comparison, only permits a witness to testify as to the person's reputation. New York law does **not** permit testimony **in the form of an opinion**. The NY rule has been criticized as not promoting "the truth-seeking process" because it "requires rejection of the more reliable form of proof [which is] the opinions of those in a position to know the accused's character, while exposing the trier of fact to unverifiable hearsay of unknown origin."' Although the concerns of Van Gaasbeck regarding the difficulty of determining whether or not the facts upon which an opinion is based are well noted, it has been argued that they can be eliminated by narrowly fashioning rules concerning character evidence. It has been asserted that Federal Rule of Evidence 405 is tailored to "effectively eliminate[] any prejudice or unfair surprise. ,,55 Federal Rule of Evidence 405 and the New York rule do, however, have their similarities. Both rules, while allowing evidence concerning a person's reputation, no longer limit the evidence to the reputation in the community in which that person lives. Moreover, the rules are **similar regarding the type of evidence admissible on cross-examination**. Both allow inquiries into specific instances of the defendant's conduct during the cross-examination of a witness. Both rules also indicate that questioning a witness about specific instances of conduct is done to illustrate to the jury the reliability of the testimony of the character witness.

Answer 23

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts **(a) Character Evidence**. (1) Prohibited Uses Evidence of a person’s character or character trait is **not** admissible to prove that **on a particular occasion** the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a **criminal** case: **(A)** ** a _defendant_ may offer evidence of the *defendant’s* **pertinent trait**, and if the evidence is admitted, the prosecutor may offer evidence to **rebut** it; **(B)** _subject to the limitations in Rule 412_ (Sex-Offense Cases: The Victim)** a _defendant_ may offer evidence of an **alleged *victim’s* pertinent trait**, and if the evidence is admitted, the prosecutor may: (i) offer evidence to **rebut** it; **and** (ii) offer evidence of the **defendant’s same trait**; and **(C)** **in a homicide case**, the prosecutor may offer evidence of the alleged victim’s trait of **peacefulness** to rebut evidence that the victim was the **first aggressor**. (3) Exceptions for a Witness Evidence of a witness’s character may be admitted under Rule 607 - Who may Impeach a Witness Rule 608 - Witnesses' Character for Truthfullness or Untruthfulness Rule 609 - Impeachment by Evidence of Criminal Conviction **(b) Other Crimes, Wrongs, or Acts**. (1) Prohibited Uses. **Evidence of any other crime, wrong, or act** is **not** admissible to prove a person’s character in order to show that on a particular occasion the person **acted in accordance** with the character. (2) Permitted Uses. This evidence may be admissible for **another purpose**, such as proving MIMIC motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (3) Notice in a Criminal Case. In a criminal case, the prosecutor must: (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Answer 24

Rule 405. Methods of Proving Character **(a) By Reputation or Opinion** . When evidence of a person’s (PARTY'S ????) character or character trait **is admissible**, it may be proved by testimony about - the person’s **reputation** or by testimony in the form of **an opinion**. **On cross-examination of the character** witness, the court may allow an inquiry into **relevant specific instances** of the person’s conduct. **(b) By Specific Instances of Conduct**. When a person’s character or character trait is an **essential element** of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Answer 25

Rule 406. Habit; Routine Practice Primary tabs Evidence of a **person’s habit** or an **organization’s routine practice** may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence **regardless** of - whether it is **corroborated** or - whether there was an **eyewitness**.

Answer 26

Rule 401. Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make **a fact** more or less probable than it would be without the evidence; and (b) **the fact is of consequence** in determining the action.

Answer 27

Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible **unless** any of the following **provides otherwise**: 1. the US Constitution 2. Federal Statute 3. FRE, or 4. other rules prescribed by the Supreme Court. **Irrelevant** evidence is **not admissible**.

Answer 28

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: 1. unfair prejudice, 2. confusing the issues, 3. misleading the jury, 4. undue delay, 5. wasting time, or 6. needlessly presenting cumulative evidence.

Answer 29

Yes. But it falls within one of te exceptions. If a proper foundation is laid, and assuming 1. the character evidence is otherwise admissible and 2. relevant, 3. testimony about a person’s reputation is admissible as a hearsay exception

Answer 30

if the context or substance of the question or directive **indicates** that it should be understood as an “assertion” and it is being **offered to prove the truth** of the matter asserted, then the =question or =directive should be viewed as a statement subject to the hearsay rules. See, e.g., State v. McQueen, 324 N.C. 118 (1989) (question that a companion asked the defendant – ** “you don’t remember killing a state trooper?”** – was inadmissible hearsay since it was offered to prove the truth of the matter asserted: namely, that the defendant had no recollection of the killing); State v. Marlow, 334 N.C. 273 (1993) (“Clearly, Horton's oral assertion that he told Howell ‘not to come back around. To stay away,’ constituted hearsay under Rule 801(a).”).

Answer 31

Rule 1004. **Admissibility** of **Other Evidence** of **Content** An original is **not** required and **other evidence of the content** of a - writing - recording, or - photograph is admissible if: (a) **all the originals** are lost or destroyed, and not by the proponent acting in bad faith; (b) an original **cannot be obtained** by any available judicial process; (c) the party *against whom* the original would be offered had **control** of the original; was at that time put **on notice**, by pleadings or otherwise, that the original would be a **subject of proof at the trial** or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is **not closely related to a controlling issue**.

Answer 32

Recorded Recollection HSY 803(5) Rule A record that: **(A)** is on a matter the witness **once knew** about but *now * **cannot recall** well enough to testify fully and accurately; **(B)** was **made or adopted** by W when the matter was **fresh in W's memory**; and **(C)** accurately reflects W's knowledge. **If admitted**, the record **may be read into evidence** but may be received as an exhibit **only if offered by an adverse party**.

Answer 33

Statement against interest (also called a “declaration against interest”): Statement of a NON-Party made against his 1. legal or 2. financial interest qualifies for a hearsay exception. However, in order to use this exception, the person who made this out-of-court statement **must be “unavailable” to testify at the trial** for reasons such as 1. refusing to follow a subpoena to testify 2. serious illness or 3. death.

Character Evidence Flashcards

(57 cards)