North Carolina Criminal Law UpdatesIn layperson’s terms, “hearsay” is an out-of-court statement, made by a declarant (witness) who is not testifying in court, that is used to 
prove the truth or accuracy of the matter asserted.
What is hearsay, and the many exceptions to the evidentiary rule about hearsay, is subject to a fair amount of confusion and therefore disagreement during a trial.
Very experienced criminal defense lawyers, prosecutors, and judges argue over hearsay and evidence issues. It can be a confusing area of law – John Fanney, Criminal Lawyer Raleigh NC
Is Hearsay Admissible?
The general rule is the admission of hearsay testimony is improper. NC Rule of Evidence 802 sets forth in relevant part, “[H]earsay is not admissible.”
Yet within the same sentence of Rule 802, there is an important additional word: EXCEPT
With regard to the admission of hearsay testimony in North Carolina, the exceptions to the rule are so numerous and so broadly interpreted that hearsay statements are often admitted in a trial for both criminal allegations and civil litigation.
How does the Judge decide what is admissible evidence?
If objected to by one of the parties, the Court considers whether hearsay is admissible or something that should be excluded from evidence or suppressed.
The presiding judge, whether it be in Superior Court or District Court or a felony or misdemeanor charge, may on its own motion or sua sponte rule on the admissibility on hearsay testimony.
The Court (defense lawyers often refer to judges as “the Court”) must first determine whether the statement is indeed hearsay.
Thereafter, the court must further consider whether the hearsay may be allowed or otherwise authorized under one of the numerous exceptions to the hearsay rule in North Carolina.
Hearsay evidence involves answering the questions, “Is the statement hearsay?” and “Even if it is hearsay, is it admissible as an exception to the rule?”
I think it’s a mistake to think of them merely as rare exceptions or something hardly used as evidnece. The exceptions are specifically referenced and so numerous that they for all intents and purposes define the ‘rule’ – John Fanney, DWI Lawyer Raleigh NC
Rule 802 – Hearsay Evidence
North Carolina Rules of Evidence establish hearsay is not admissible unless specifically authorized under the rules of evidence or by statute.
Disputes over the alleged improper admission of hearsay testimony, at the appellate level, are reviewed De Novo.
De Novo review means the appellate court considers the legal issue from a fresh perspective. It is Latin for “from new” and generally means “anew” or “again.”
The admission or non-admission of hearsay evidence is therefore not discretionary. Something either is hearsay or it is not, as a matter of law.
Trial Courts ruling on misdemeanor charges, allegations of DWI, felonies, drug charges, assaults, etc., are not given discretion in determining what is hearsay or whether hearsay is admissible.
What do appellate courts consider in ruling on hearsay issues?
Just like the Trial Judge, the North Carolina Court of Appeals and Supreme Court consider first whether something is hearsay and second whether there is an exception that allows admission of the out-of-court statement into evidence.
As such, they may replace their own judgment regarding the admissibility of a specific hearsay statement for that of the trial court.
Some statements made outside the courtroom are admissible simply because they don’t seek to prove the matter asserted.
It’s also important to note, even if hearsay evidence is improperly admitted, it may ultimately be deemed harmless error if there is sufficient other evidence of a crime and the criminal accusations that could independently lead to a conviction.
What is Present Sense Impression?
One exception to the hearsay rule is referred to by defense lawyers in NC, prosecutors, judges, and plaintiff attorneys as Present Sense Impression.
It is described in the Rule of Evidence 803(1).
A present sense impression is a statement that explains or describes a condition or event that is made while the declarant is seeing or perceiving the condition or event or has just recently seen the condition or event.
One reason present sense impressions are allowed as evidence is the likelihood of a conscious misrepresentation or deliberate misstatement is thought to be greatly reduced if the statement or statements are made during or immediately after perceiving an event.
People can and do fabricate statements to suit their needs literally as events develop. It’s a bit naïve to assume people always tell the truth and don’t have biases and motivations in saying what they do even if said concurrently with how things develop – John Fanney, Wake County Criminal Defense
One of the more hotly disputed legal issues between defense lawyers and prosecutors for criminal allegations involves the wording within Rule 803(1) is “immediately thereafter.”
There is no hard and fast rule about how long is too long in defining immediately thereafter.
The Supreme Court of North Carolina has held statements to police officers by someone who allegedly witnessed criminal wrongdoing may be admissible under the present sense impression exception that allows for the delay between the time something took place and when the police arrive on scene.
Raleigh DUI Defense – Criminal Defense DWI Lawyers in Wake County
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