Evidence > Character Evidence > Flashcards
Character Evidence Flashcards
Rule 405
Rule 405.
Methods of Proving Character
What 3 Methods of Proving Character are listed in Rule 405
- By Reputation
- By Opinion
- By Specific Instances of Conduct
Specific Acts
How do you prove Character by Reputation or Opinion under FRE
When evidence of a person’s
- character or
- character trait
is admissible,
it may be proved by Character Witness’ testimony about
1. the person’s reputation or
2. the person’s opinion.
On cross-examination of the Character Witness,
the court may allow an inquiry into
> relevant
> specific instances of the person’s conduct = aka Specific Acts
When can you prove the person’s Character/Character Trait by Specific Instances of Conduct aka Specific Acts
(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.
define Reputation
“Reputation” is
- the view of the person’s character
- held by
- an sizable group of people in the community
- who have an adequate basis to form an opinion.
define Opinion
“Opinion” is
- W’s own view
- of the person’s Character or Character Trait
- based on W’s personal knowledge.
How can Reputation/Opinion W be crossed
A witness who has testified on direct about reputation or opinion may be cross-examined about specific instances of conduct
aka Specific Acts
What evidence is neccessary to prove character when character is an essential element of a charge/claim/defense
When character is an essential element of
a charge or
defense,
character may be proved through evidence of specific instances of conduct.
define person’s “character”
A person’s “character”
are that person’s
peculiar qualities
impressed on him
by nature and habit
which distinguish him from others.”
what foundation must be laid before W testifies about X’s reputation
Before W may testify about X’s reputation
the offering party must lay a proper foundation for the testimony – that is,
there must be a showing that
the testifying W is familiar
with a view held by a sizable group of people in the community
who have an adequate basis upon which to form an opinion about the person’s reputation.
Why is W’s testimony of X’s Reputation admissible
Because reputation is a HSY exception.
Is reputation testimony an exception under HSY Rule
yes.
testimony about a person’s reputation is admissible as a hearsay exception.
Rule: FRE 803(21).
W talks about what others in the community say about X
is testimony about absence of reputation admissible
Yes.
Testimony about the absence of a reputation (e.g., that the witness has not heard about the person having a negative or unflattering reputation regarding a character trait) is also admissible. See State v. Martin, 322 N.C. 229 (1988).
What’s the difference between reputation and opinion testimony
Opinion testimony is very similar to reputation, except that
it refers to W’s own opinion of the person’s character,
rather than expressing the general view of the larger community, which has an adequate basis to formulate an opinion about X.
Can D claiming self-defense destify as to his oponion aobut V’s violent character
Yes.
See, e.g., State. Watson, 338 N.C. 168 (1994) (defendant claiming self-defense may testify as to his opinion that victim had a violent character, if the defendant has a basis for holding such an opinion).
what foundation must D lay when he claims self-defense and testified as to his opinion about V’s violent character
D claiming self-defense
may testify as to his opinion
that
V had a violent character,
if D has a basis for holding such an opinion.
The foundation required for an opinion testimony is less rigorous than for reputation –
the only prerequisite for opinion testimony
is that it must be based on W’s
personal knowledge.
See G.S. 8C-701; State v. Hernandez, 184 N.C. App. 344 (2007); State v. Morrison, 84 N.C. App. 41 (1987).
who can offer reputation/opinion evidence of X’s character
Reputation or opinion evidence regarding X’s character may
only be offered
through lay testimony
Is Expert testimony on character or a trait of character admissible as circumstantial evidence of behavior
No.
“Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.” G.S. 8C-1 Rule 405(a); see G.S. 8C-608(a); State v. Jackson, 320 N.C. 452 (1987); State v. Aquallo, 318 N.C. 590 (1986); State v. Wise, 326 N.C. 421 (1990). This issue most often arises in cases involving child victims of sexual assaults, where an expert medical witness is asked to opine on whether the child victim is “truthful.” For more information, see the related Expert Testimony entry on Child Sexual Assault Exams.
4 circumstances when Rule 1004 allowing admission of other evidence to prove content of a writing applies
Federal Rule of Evidence 1004 addresses the admissibility of evidence other than the original document under certain circumstances. Here’s a summary and explanation:
Content of the Rule: Rule 1004 states that the original is not required, and other evidence of the content of a writing, recording, or photograph is admissible in the following situations:
- All Originals Lost or Destroyed
If all the originals are lost or destroyed, and not by the party acting in bad faith, other evidence of the content is admissible. This acknowledges situations where the original cannot be produced due to circumstances beyond the control of the party seeking to introduce the evidence.
- Original Not Obtainable:
If the original cannot be obtained by any available judicial process or procedure, a substitute is allowed. This covers situations where the original is located in a place where the court has no jurisdiction or is otherwise legally unobtainable.
- Opponent Has Control of Original:
When a party against whom the original would be offered controls the original and fails to produce it after being put on notice that the original will be a subject of proof at the trial, other evidence of the content is admissible. This prevents a party from unfairly withholding evidence.
- Not Closely Related to a Controlling Issue:
If the writing, recording, or photograph is not closely related to a controlling issue in the case, a duplicate or other evidence of its content is permissible.
This applies when the document in question is not central to the case’s outcome.
What’s the purpose of Rule 1004 permitting admission of Secondary Evidence to prove the content of a writing
Rule 1004 serves to prevent the exclusion of important evidence simply because the original is unavailable for reasons beyond the control of the presenting party.
It ensures that the judicial process is not hampered by the unavailability of original documents, especially when their content is not significantly disputed.
Rule 1004 under what circumstances is production of the original excused
Basically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactory explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused.
The rule recognizes no “degrees” of secondary evidence. While strict logic might call for extending the principle of preference beyond simply preferring the original, the formulation of a hierarchy of preferences and a procedure for making it effective is believed to involve unwarranted complexities. Most, if not all, that would be accomplished by an extended scheme of preferences will, in any event, be achieved through the normal motivation of a party to present the most convincing evidence possible and the arguments and procedures available to his opponent if he does not. Compare McCormick §207.
Secondary Evidence is Amissible if
(1). Loss or destruction of the original, unless due to bad faith of the proponent, is a satisfactory explanation of nonproduction. McCormick §201.
(2). When the original is in the possession of a third person, inability to procure it from him by resort to process or other judicial procedure is sufficient explanation of nonproduction. Judicial procedure includes subpoena duces tecum as an incident to the taking of a deposition in another jurisdiction. No further showing is required. See McCormick §202.
Paragraph (3). A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made.
He can ward off secondary evidence by offering the original.
The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so. McCormick §203.
Paragraph (4). While difficult to define with precision, situations arise in which no good purpose is served by production of the original. Examples are the newspaper in an action for the price of publishing defendant’s advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick §200, p. 412, n. 1.
Notes of Committee on the Judiciary, House Report No. 93–650
The Committee approved Rule 1004(1) in the form submitted to Congress. However, the Committee intends that loss or destruction of an original by another person at the instigation of the proponent should be considered as tantamount to loss or destruction in bad faith by the proponent himself.
Statement written on Dracula’s tombstone is relevant. Under BER, must the tombstone be produced
No.
It will be considered unavailable under FRE 1004(2).
Therefore, secondary evidence of the writing will be permitted, such as
- copies
- notes or
- oral testimony
When is a written, oral or nonverbal communication subject to HSY Rules
When it is intended
as an assertion of a fact
= communication of a fact
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.”
SeeG.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 alsoState 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).”).
What statements may be admissible as Non-HSY
Not an “Assertion”
When they are not intended as an assertion of facts
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.,
inmate’s command to D
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.”);
“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 alsoState 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).”).
‘Zxxxxxxc
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.” SeeG.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 alsoState 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).”).
Assertions
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.” SeeG.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 alsoState 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).”).
What are Verbal Acts
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. SeeState v. Banks, 210 N.C. App. 30 (2011).
Pursuant toRules 801(a)and802, 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 regardingAdmission 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 regardingHearsay 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 regardingHearsay 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 ofRule 801and 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 underRule 801if 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. SeeState 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 underRule 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 notofferedfor the truth of the matter asserted, the prosecutor may notrelyon 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, seeJeff 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 byRule 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. SeeState 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 onImpeachment: Generally [Rule 607].
Verbal Acts
Rule 801allows, 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 byRule 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 also2 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.
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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. SeeState v. Banks, 210 N.C. App. 30 (2011).
Pursuant toRules 801(a)and802, 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 regardingAdmission 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 regardingHearsay 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 regardingHearsay Exeptions [Rule 804].
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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. SeeState v. Banks, 210 N.C. App. 30 (2011).
Pursuant toRules 801(a)and802, 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 regardingAdmission 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 regardingHearsay 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 regardingHearsay 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 ofRule 801and 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 underRule 801if 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. SeeState 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 underRule 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 notofferedfor the truth of the matter asserted, the prosecutor may notrelyon 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, seeJeff 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 byRule 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. SeeState 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 onImpeachment: Generally [Rule 607].
Verbal Acts
REPUTATION
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
What exception does Rule 1004 provides to the Best Evidence Rule (Rule 1002)
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.
What’s Rule 1004
Admission of Secondary Evidence
Rule 1004
What’s the purpose of Rule 1004 permitting admission of Secondary Evidence
to prove
the content of a writing
What are the two components of credibility
Credibility has two components
1. competency and
2. veracity
Define a Witnesses competency
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
Define veracity
The truthfulness of the witness determines his veracity
What does the Sixth Amendment guarantees to a criminal defendant
The ride establishing the sixth amendment is the right to confront Witnesses
Cross examination
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
When are prior uncharged crimes admissible
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
What’s the purpose of Rule 405
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.
Why are specific instances of conduct only admissible when P’s character is in issue under the substantive law?
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
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
When can you on cross a character W about specific instances of a Person’s conduct
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
Can D, charged with assault, introduce testimony of specific instances of conduct to show that V was the first aggressor
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 counsel.2 8
However, the court determined that cross
Specific instances of conduct not admissible
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
Does NY allow to prove character or a character trait by opinion testimony
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
NY v FRE character testimony
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.
Rule 404. Character Evidence; Other Crimes, Wrongs or Acts
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 inRule 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
Rule607 - Who may Impeach a Witness
Rule608 - 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.
Rule 405. Methods of Proving Character
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.
Rule 406. Habit; Routine Practice
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.
Rule 401. Test for Relevant Evidence
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.
Rule 402. General Admissibility of Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless
any of the following provides otherwise:
- the US Constitution
- Federal Statute
- FRE, or
- other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
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.
Is reputation testimony HSY
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
When is a Question a HSY
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).”).
Rule 1004
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.
Recorded Recollection HSY 803(5) Rule
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) accuratelyreflects W’s knowledge.
If admitted,
the record may be readinto evidence
but may be
received as an exhibit
only ifoffered by anadverseparty.
Declaration/Statement Against Interest
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.
