Relevance
Evidence is relevant if it has any tendency to make the existence of a fact of consequence more probable than it would be w/o the evidence.
ALL relevant evidence is admissible unless:
Some specific exclusionary rule applies
OR
Danger of unfair prejudice > Probative Value
Policy Based Exclusions
(Liability Insurance)
Inadmissible to show fault or ability to pay.
Admissible to prove ownership or control if controverted by D.
Policy Based Exclusions
(Subsequent Remedial Measures)
Inadmissible to prove fault
Admissible to prove ownership, control, or feasibility of safer conditions if controverted by D.
Policy Based Exclusions
(Settlement Offers)
Inadmissible to prove liability or weakness of case.
Admissible to impeach W by showing bias
NOTE: Statements of fact made during settlement negotiations are generally inadmissible for ALL purposes, including impeachment.
Policy Based Exclusions
(Offers to plead guilty / withdrawn pleas)
Inadmissible against D in pending criminal trial or civil trial based on same facts.
Policy Based Exclusions
(Offers to Pay Medical Expenses)
Inadmissible to prove liability.
NOTE: NC expands this to include “other” expenses as well.
Policy Based Exclusions
(Seat Belt Use)
Generally inadmissible in civil and criminal cases.
Character Evidence
(Civil Cases)
Civil Cases: Inadmissible by either party to prove conformity therewith.
EXCEPT: Where character in issue (e.g. defamation)
Character Evidence
(Criminal Trials)
Inadmissible by prosecution to prove D acted in conformity therewith.
D can admit opinion or reputation evidence to prove conformity with good character, but “opens the door” for rebutal with specific acts by prosecution.
If D is asserting self defense, may introduce opinion or reputation evidence of the V’s violent character. This opens the door for prosecution to rebut with opinion or reputation evidence of V’s good character. NC does NOT allow rebuttal with evidence of D’s violent character.
Rape Shield Laws
Four NC exceptions to inadmissibility of V’s prior sexual conduct. Admissible if sexual conduct:
- was between V and D (prior consent relevant to subsequent consent);
- is evidence of specific instances offered to show the act(s) charged were not committed by D
- is evidence of consent
- offered as basis of expert psych opinion that V fantasized or invented the act(s) charged
Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion!
Character Evidence Admissible for Non-Character Purposes
D’s other crimes or bad acts admissible for MIMIC:
- Motive
- Intent
- Mistake or Accident (absence of)
- Identity
- Common Scheme or Plan
Authentication of Documents
Documents can be authenticated by:
- Personal Knowledge
- Admission in Pleadings
- Handwriting (expert, non-expert, jury)
- Ancient Documents Rule
- Solicited Reply
Self Authenticating Documents
Official Publications
- Certified copies of public/private records on file with a public office.
- Newspapers/Periodicals
- Trade inscriptions / Labels
- Acknowledged Documents
- Commercial Paper
NC Distinction: NOT Business records
Authentication of Photographs
Foundation laid by testimony based on personal knowledge that the photo is a “fair and accurate representation.”
Best Evidence Rule
To prove the contents of a writing, the original document must be produced if available. Applies in 2 situations:
- Writing is a legally operative document; or
- W is testifying to facts learned from reading the writing.
Spousal Privilege
Spousal Testimony: Applies to both criminal and civil proceedings, protects any confidential communications made during the marriage. Need not be married at time of trial. May only be waived by both parties together.
Spousal Communications: Applies to criminal proceedings only. Protects the right of a person to testify against their current spouse (must be married at time of trial).
Exception: These will not cover comms regarding joint criminal activity or cases of spousal/child abuse.
Cross Examination
NC Distinction! NC Does NOT limit scope of cross-examination to that of direct. Can cross on any matter relevant to the dispute.
Expert Testimony
NC does not adhere to the Daubert Test. Instead:
- the method of proof msut be sufficiently reliable as an area for expert testimony
- the witness must be qualified as an expert in that area
- the expert testimony must be relevant
NC Distinctions: Adverse party may request disclosure of underlying facts and data prior to expert giving opinion.
Also, NC allows opinions as to mental state/condition in criminal cases.
Hearsay
A statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted.
Hearsay Exceptions
Dec. is a Party:
- Party Admission
Dec. is Unavailable:
- Former Testimony
- Stmts. against interest
- Dying Declarations
Dec. is Anyone
- Excited Utterance
- Present Sense Impression
- Statement of Then-Existing Mental/Physical/Emotional Condition
- Statement for purpose of Med Dx or Treatment
- Business and Public Records
