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RBR/PD/NoC/LS 14^/1983-85
North Carolina. Legislative

Research Commission.
Reports.








DATE


ISSUED TO














,
















RBR/PD/NoC/L514r/ 1983-a&
North Carolina. Legislative

Research Commission.
Reports.




UN


MOT TO BE REMOVED
FROM

C LAW SCHOOL
LIBRARY





NORTl-l CAROLINA RUL£S OF EVIDBNCE

AND

OFICIAL COWiTARY



COf^AINS

CHAPTER 701

OFH-IE

SESSIOfJ LAI^IS OF 1983

AND

COrteiTARY FROI^ TIE LEGISLATIVE
RESEARCH COTTSSION'S REPORT TO



TIE 1983 GBCRAL ,ASSpLY ON THE

_...: :: :.:::;:: \m changes

APPROVED BY W GENERAL ASSEPIBLY INCORPORATED



UWIS OF B'lDBlCE WITH CHANGES



JULY 7. 1983



1983 GEi^JERAL ASSEf^LY




SENATOR HENSON P BARNES

STM District

HOME Address 707 Park Avenue

GOLDSBORO. N C 27530



^ortl] Olarolina (Seneral Asaembly

§«rii;iti> (Chiiiulu-r
3;llll■l^lI 271U1



July 13, 1983



COMMfTTEES
Jun
Sta

Agric

Justice and Public S.a
Base Budget
State GovERNMENT/Housif



Mr. Charles J. Murray

Special Deptuty Attorney General

General Statutes Commission

10 E. Jones Street

Raleigh, North Carolina 27611

RE: Chapter 701 of the Session Laws of 1983; North Carolina
Rules of Evidence and Official Commentary



Dear Mr. Murray:

I am the Chairman of the Senate Judiciary III Committee
to which this act was referred during its legislative
consideration .

Section 2 of the act provides that the Revisor of
Statutes "shall cause the Commentary to each rule to be
printed with the rule in the General Statutes." It further
states that "any changes to the Commentary made during
legislative consideration of this act shall be incorporated
into the Commentary by the Revisor of Statutes."

Attached you will find a document entitled "North
Carolina Rules of Evidence and Official Commentary" which
bears the date July 7, 1983. The contents of the Commentary
contained in this document represents the incorporation of all
changes made to the Commentary during legislative consid-
eration of this act.




frfeon P. Barnes
Chairman
Senate Judiciary III Committee




If. PAUL PULLEY. JR


District 23


ADDRESS


ROOM 1 420




POST Office Box 62




Raleigh. NC 276 1 1




TELEPHONE 9 I 9-733-5806


Address


4720 Farrington Road




Durham N C 27707




TFiEPHuNl 919 4U9 4986



^urtl] Carolina (General ^sscmblg

House of J^cprcBinitatiucs
§'tatc ICcgislatiuc li^uilMim



July 13, 1983



COMMITTEES:



Mr. Charles J. Murray

Special Deptuty Attorney General

General Statutes Commission

10 E. Jones Street

Raleigh, North Carolina 27611



RE:



Chapter 701 of the Session Laws of 1983; North Carolina
Rules of Evidence and Official Commentary



Dear Mr. Murray:

I am the Chairman of the House Judiciary IV Committee to
which this act was referred during its legislative
consideration.

Section 2 of the act provides that the Revisor of
Statutes "shall cause the Commentary to each rule to be
printed with the rule in the General Statutes." It further
states that "any changes to the Commentary made during
legislative consideration of this act shall be incorporated
into the Commentary by the Revisor of Statutes."

Attached you will find a document entitled "North
Carolina Rules of Evidence and Official Commentary" which
bears the date July 7, 1983. The contents of the Commentary
contained in this document represents the incorporation of all
changes made to the Commentary during legislative consid-
eration of this act.



Sinceirely

W. Paul Pulley,' Jr.

Chairman

House Judiciary IV Committee



Short Title: Simplify Evidence Laws. (Public)



Bef erred to:



R DILL TO BE ENTITLED

AN ACT TO SIMPLIFY AND CODIFY THE FDLES OF EVIDENCE.

The General Assembly of North Carolina enacts:

Section 1. A new Chapter is added to the General

Statutes to read:

"CHAPTER as'.

"Evidence Code.
C
"§ eX~1- Rules of evidence. — The North Carolina Rules of

Evidence are as follows:

"ARTICLE 1.

"General Provisions.

"Rule 101. Scope.

These rules govern proceedings in the courts of this State to

the extent and with the exceptions stated in Rule 1101.

COHHENTABT

This rule differs from Fed. R. Evid. 101 only in that "courts
of this State" has been substituted for "courts of the Onited
States and before Onited States magistrates." Rule 1101 provides
greater details regarding the applicability of these rules in
various proceedings.

"Rule 102. Purpose and Con structio n.

(a) In General. These rules shall be construed to secure

fairness in administration, elimination of un justifiable expense

and delay, and promotion of growth and development of the law of

evidence to the end that the truth may be ascertained and



proceedings justly determined.

(b) Subordinate Divisions. For the purpose of these rules

only, the subordinate division of any rule which is labeled with

a lower case letter shall be a subdivision.

COHMENTAPY

This rule diffejrs from Fed. R. Evid. 102 by the addition of
subdivision (b) which is explained below. The commentary to each
rule indicates whether the rule is identical to or different from
its counterpart in the federal rules. The intent is to make
applicable, as an aid in construction, the federal decisional law
construing identical or similar provisions of the Federal Rules
of Evidence.

Of course, federal precedents are not binding on the courts of
this State in construing these rules. Nonetheless, these rules
are not adopted in a vacuum. A substantial body of law
construing these rules exists and should be looked to by the
courts for enlightenment and guidance in ascertaining the intent
of the General Assembly in adopting these rules. Dniformity of
evidence rulings in the courts of this State and federal courts
is one motivating factor in adopting these rules and should be a
goal of our courts in construing those rules that are identical.

Problems of construction may arise that have not been settled
by federal precedents. In these instances, our courts should
examine North Carolina cases as well as federal cases for
enlighten ment .

Although these rules answer the vast maiority of evidence
guestions that arise in our courts, there are some evidentiary
questions that are not within the coverage of these rules. In
these instances. North Carolina precedents will continue to
control unless changed by our courts.

The commentary to each rule indicates whether the rule is
consistent with current North Carolina practice. The discussion
of North Carolina law is included to highlight the changes made
by these rules.

Wherever the commentary refers to "the Advisory Committee's
Note", the reference is to the Advisory Committee on Rules of
Evidence appointed by United States Chief Justice Barren on March
8, 1965. See Saltzburg and Redden, Federa l R ules of E vidence
Manual, p. 2-H (3d ed . 1982).

Rule 102 provides that these rules shall be construed to
promote growth and development of the law of evidence. Of
course, this provision is not intended to give discretion to



construe the rules unfettered by the language of the rules.
Rather, the language of Rule 102 permits a flexible approach to
problems not explicitly covered by the rules.

Subdivision (b) was added to this rule to make it clear that
the scheme of subordinate divisions being followed is that of the
federal rules. The North Carolina statutory scheme would term
the subordinate divisions referred to as "subsections." It was
felt by the drafters of the North Carolina rules and commentary
that following the federal scheme would avoid confusion in
comparing the federal rules to the North Carolina rules and in
applying authorities which refer to the federal rules.

"Rule 103. Rulings on Evidence .

(a) Effect of Erroneous Ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike
appears of record. No particular form Is required
in order to preserve the right to assert the
alleged error upon appeal if the motion or
objection clearly presented the alleged error to
the trial court;

(2) Offer of Proof. In case the ruling is one
excluding evidence, the substance of the evidence
was made known to the court by offer or was
apparent from the context within which questions
were asked.

(b) Record of Offer and Ruling. The court may add any other
or further statement which shows the character of the evidence,
the form in which it was offered, the objection made, and the
ruling thereon. It may direct the making of an offer in question
and answer form.



(c) Hearing of Jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the iury by any
means, such as making statements or offers of proof or asking
questions in the hearing of the iury.

(d) Review of Errors Where Justice Requires. Notwithstanding
the requirements of subdivision (a) of this rule, an appellate
court may review errors affecting substantial rights if it
determines, in the interest of justice, it is appropriate to do
so.

COHMENTftBY

This rule is identical to Fed. «. Evid. 103, except for
subsection (1) of subdivision (a) , and subdivision (d) -

subdivision (a) adopts the "substantial rights" ianguaoe used
in the majority of states in testing for harmless error. North
Carolina Civ. Pro. Rule 61 provides that no error is grounds for
reversal unless the error amounts to the denial of a substantial
right. Subdivision (a) is not intended to affect the additional
requirement in criminal cases that a reasonable possibility exist
that a different result would have been reached if the error had
not been committed. See G. S. 15A-1443.

Subdivision (a) also provides that rulings on evidence cannot
be assigned as error unless the nature of the error was called to
the attention of the judge, so as to alert him to the proper
course of action and enable opposing counsel to take proper
corrective measures. This is in accord with North Carolina
practice. See Brandis on North C arolin a Evidence §27, at 107
(1982); G.S. 15A-14U6. The wording of subsection (1) differs
from the federal rule by borrowing the language of G.S. 15A-
IHHSia) to describe the minimum requirements of an objection or
motion to strike.

The provisions of subdivision (b) are substantially the same as
current North Carolina practice. North Carolina Civ. Pro. Rule
13(c) and G.S. 15a- 1416 (a) should be amended where necessary to
conform to Rule 103.

Subdivision (c) is in accord with North Carolina practice.

Subdivision (d) differs from Fed. R. Evid. 103(d) . The federal
rule provides that, although an error was not brought to the



court's attention (as required by subdivision (a)), the court may
nevertheless review "plain error affecting substantial rights."
Subdivision (d ) of this rule borrows its language from G.S. 15A-
1i»«*6(b), which applies in criminal proceedings, and makes that
the standard for both criminal and civil proceedings, but with
the addition that "substantial rights" must be affected. This
represents an expansion of the areas in civil cases in which
North Carolina appellate courts may review error where no proper
obiection or motion was previously made. See Brandis on No rth
Carolina Evidence § 21 (198 2) .

It is anticipated that in civil cases appellate courts will
rarely exercise the authority to take notice of errors that were
not brought to the attention of the trial court. G-S. 15ft-
lUUeCb) should be amended to reflect the adoption of Pule 103(d).

"Rule lOJ*. Preli minary Questions.

(a) Questions of Admissibility Generally. Preliminary
questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court, subiect to the
provisions of subdivision (b) . In making its determination it is
not bound by the rules of evidence except those with respect to
privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subiect to, the introduction of
evidence sufficient to support a finding of the fulfillment of
the condition.

(c) Hearing of Jury. Hearings on the admissibility of
confessions or other motions to suppress evidence in criminal
trials in superior court shall in all cases be conducted out of
the hearing of the jury. Hearings on other preliminary matters
shall be so conducted when the interests of iustice require or,
when an accused is a witness, if he so requests.



(d) Testimony by Accused. The accused does not, by testifying
upon a preliminary matter, subject himself to cross-examination
as to other issues in the case.

(e) Weight and Credibility. This rule does not limit the
right of a party to introduce before the jjury evidence relevant
to weight or credibility.

COMMENTARY

This rale is identical to Fed. R. Evid. 10^1 with the exception
of subdivision (c) which is discussed below.

Subdivision (a) states as a general rule that preliminary
guestions shall be determined by the judge. This is in accord
with North Carolina practice. See H. Brandis, Brandis on North
C arolin a Evidence § 8 (1982). The Advisory Committee's Note to
the federal rule states:

"The applicability of a particular rule of
evidence often depends upon the existence of a
condition. Is the alleged expert a qualified
physician? Is a witness whose former testimony
is offered unavailable? Was a stranger present
during a conversation between attorney and
client? In each instance the admissibility of
evidence will turn upon the answer to the
guestion of the existence of the condition.
Accepted practice, incorporated in the rule,
places on the judge the responsibility for these
determinations. McCormick * 53; Morgan, Basic
Problems of Evidence 4 5-50 (1962).

To the extent that these inquiries are factual,
the judge acts as a trier of fact. Often,
however, rulings on evidence call for an
evaluation in terms of a legally set standard.
Thus when a hearsay statement is offered as a
declaration against interest, a decision must be
made whether it possesses the required against-
interest characteristics. These decisions, too,
are made by the judge.

In view of these considerations, this subdivision
refers to preliminary requirements generally by
the broad term 'guestion,' without attempt at
specification.

This subdivision is of general application. It
must, however, be read as subject to the special



provisions for 'conditional relevancy' in
subdivision (b) and those for confessions in
subdivision (d) . "

The second sentence of subdivision (b) provides that in
making its determination on preliminary questions, the
court is not bound by the rules of evidence except those
with respect to privileges. The Advisory Committee's Note
states;

"If the question is factual in nature, the judge
will of necessity receive evidence pro and con on
the issue. The rule provides that the rules of
evidence in general do not apply to this process.
McCormick * 53, p. 123, n. 8, points out that the
authorities are 'scattered and inconclusive,' and
observes:

'Should the exclusionary law of evidence, "the
child of the jury system" in Thayer's phrase, be
applied to this hearing before the judge? Sound
sense backs the view that it should not, and that
the judge should be empowered to hear any
relevant evidence, such as affidavits or other
reliable hearsay.'

This view is reinforced by practical necessity in
certain situations. An item, offered and
objected to, may itself be considered in ruling
on admissibility, though not yet admitted in
evidence. Thus the content of an asserted

declaration against interest must be considered
in ruling whether it is against interest. *♦*
Another example is the requirement of Rule 602
dealing with personal knowledge. In the case of
hearsay, it is enough, if the declarant 'so far
as appears [has] had an opportunity to observe
the fact declared'. Mccormick § 10, p. 19.

If concern is felt over the use of affidavits by
the judge in preliminary hearings on

admissibility, attention is directed to the many
important judicial determinations made on the
basis of affidavits. ***

The rules of Civil Procedure are more detailed.
Rule '♦3(e), dealing with motions generally,
provides:

•When a motion is based on facts not appearing of
record the court may hear the matter on
affidavits presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral or testimony or



depositions. •

. . . Rule 56 provides in detail for the entry of
summary judgment based on affidavits. Affidavits
may supply the foundation for temporary
restraining orders under Rule 65(b)-"

Subdivision (b) concerns relevancy conditioned on fact.
The Advisory Committee's Note states:

"In some situations, the relevancy of an item of
evidence, in the large sense, depends upon the
existence of a particular preliminary fact. Thus
when a spoken statement is relied upon to prove
notice to X, it is without probative value unless
X heard it. Or if a letter purporting to be from
Y is relied upon to establish an admission by
him, it has no probative value unless Y wrote or
authorized it. Relevance in this sense has been
labelled 'conditional relevancy'. Morgan, Basic
Problems of Evidence 45-16 (1962). Problems
arising in connection with it are to be
distinguished from problems of logical relevancy,
e.g., evidence in a murder case that accused on
the day before purchased a weapon of the kind
used in the killing, treated in Rule 401.

If preliminary guestions of conditional relevancy
were determined solely by the judge, as provided
in subdivision (1), the functioning of the jury
as a trier of fact would be greatly restricted
and in some cases virtually destroyed. These are
appropriate guestions for juries. Accepted

treatment, as provided in the rule, is consistent
with that given fact guestions generally. The
judge makes a preliminary determination whether
the foundation evidence is sufficient to support
a finding of fulfillment of the condition. If
so, the item is admitted. If after all the
evidence on the issue is in, pro and con, the
jury could reasonably conclude that fulfillment
of the condition is not established, the issue is
for them. If the evidence is not such as to
allow a finding, the judge withdraws the matter
from their consideration. **♦

The order of proof here, as generally, is subject
to the control of the judge. "

Subdivision (b) is in accord with North Carolina
practice in making an exception to the general role that
preliminary questions are for the court. Bhen the
relevancy of evidence depends upon the existence of some
other fact which also requires proof, the determination of



the preliminary fact. qu(?stion is for the 1ury. B randis on
North Carolina Evidence § 8, p. 27-28 (1982).

Sobdivision (c) concerns when hearings on preliminary
questions will be oat of the hearing of the iury. The
Advisory Committee's Note states:

"Preliminary hearings on the admissibility of
confessions must be conducted outside the hearing
of the iury. See Jackson v. Denno, 376 0. S. 368,
84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964), Otherwise,
detailed treatment of when preliminary matters
should be heard outside the hearing of the jury
is not feasible. The procedure is time

consuming. Not infrequently the same evidence
which is relevant to the issue of establishment
of fulfillment of a condition precedent to
admissibility is also relevant to weight or
credibility, and time is saved bv taking
foundation proof in the presence of the iury.
Much evidence on preliminary questions, though
not relevant to jury issues, may be heard by the
-jury with no adverse effect. A great deal must
be left to the discretion of the iudge who will
act as the interests of iustice require."

Subdivision (c) has been changed from the federal rule
by the addition of language requiring other motions to
suppress evidence in criminal cases in superior court to
be conducted out of the hearing of the jury. This is in
accord with G.S. 15A-977(e) which should be amended to
reflect the adoption of this rule.

Subdivision (d) provides that the accused does not, by

testifying upon a preliminary matter, subject himself to

cross-examination as to other issues in the case. As the
Advisory Committee's Note states:

"The limitation upon cross-examination is
designed to encourage participation by the
accused in the determination of preliminary
matters. He may testify concerning them without
exposing himself to cross-examination generally.
The provision is necessary because of the breadth
of cross-examination under Rule 611(b)-
The rule does not address itself to questions of
the subsequent use of testimony qiven by an
accused at a hearing on a preliminary matter.
See Walder v. Onited States, 347 U.S. 62 (1954);
Simmons v. Onited States, 390 U.S. 377 (1968) ;
Harris v. New York, 401 U.S. 222 (1971)."

There are no North Carolina cases on this point.



Subdivision (e) makes it clear that after the court
makes its determination on a preliminary question of fact,
the party opposing the ruling is entitled to introduce
before the jury evidence that relates to the weight or
credibility of certain evidence. For example, even if the
court determines that a confession was not coerced, the
defendant may introduce evidence of coercion, since this
is relevant to the weight of the evidence.

Subdivision (e) is in accord with North Carolina
practice.

"Rule 105. Limited A dmis sibility.

When evidence which is admissible as to one party or for one

purpose bat not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the iury accordingly.

COMMENTARY

This rule is identical to Fed. F. Evid. 105. The A-ilvisory
Committee's Note states:

"A close relationship exists between this rule
and Rule 403 which requires exclusion when
•probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury.* The present
rule recognizes the practice of admitting
evidence for a limited purpose and instructing
the jury accordingly. The availability and
effectiveness of this practice roust be taken into
consideration in reaching a decision whether to
exclude for unfair prejudice under Rule 403. In
Bruton v. United States, 389 O.S. 818, 88 S.Ct.
126, 19 L.Ed-2d 70 (1968), the Court ruled that a
limiting instruction did not effectively protect
the accused against the prejudicial effect of
admitting in evidence the confession of a
codefendant which implicated him. The decision
does not, however, bar the use of limited
admissibility with an instruction where the risk
of prejudice is less serious."

Rule 105 is in accord with the general rule in North
Carolina that evidence that is inadmissible for one
purpose may be admitted for other and proper purposes.
See Brandis on North Carolina E videnc e § 79 (1982).



10



"Rule 106. Remainder of or Related Writings or R ecor ded
Stateme nts.

When d writing or recorded statement or part thereof is

introduced by a party, an adverse party may require him at that

time to introduce any other part or any other writing or recorded

statement which ought in fairness to be considered

contemporaneously with it.

COMMENTARY

This rule is identical to Fed. F. Evid. 106. The Advisory
Committee's Mote states:

"The rule is an expression of the rule of
completeness. McCormick § 56. It is manifested
as to depositions in Rule 32(a) (4) of the Federal
Rules of Civil Procedure, of which the proposed
rule is substantially a restatement.

The rule is based on two considerations. The
first is the misleading impression created by
taking matters out of context. The second is the
inadequacy of repair work when delayed to a point
later in the trial. *** The rule does not in any
way circumscribe the right of the adversary to
develop the matter on cross-examination or as
part of his own case.

For practical reasons, the rule is limited to
writings and recorded statements and does not
apply to conversations."

N. C. Civ. Pro. Pule 32(a)(5), which applies to
depositions, is similar to Rule 106.

"ARTICLE 2.

"Judicial Notice.

"Rule 201. Judicial Notice of MlU^cative Facts .

(a) Scope of Rule. This rule governs only judicial notice of


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