"Seasoned" Superior Court Judges Judge Robert H. Hobgood Ninth Judicial District NC Conference of Superior Court Judges 2/22/2019

Introduction Relevancy and its limits After hearing this presentation you will be able to make instantaneous rulings without fear of reversal! NC Conference of Superior Court Judges 2/22/2019

Agenda The 400 series Article Four of the N.C. Evidence Code NC Conference of Superior Court Judges 2/22/2019

Overview Look at the Table of Contents of the Addendum Keep this as a reference to refer to a specific subject quickly NC Conference of Superior Court Judges 2/22/2019

Vocabulary Relevant evidence: Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401 Probative value Substantially outweighed Unfair prejudice NC Conference of Superior Court Judges 2/22/2019

Rule 403 Balancing Is the evidence relevant? Does it have probative value? Is its probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? NC Conference of Superior Court Judges 2/22/2019

Character Evidence Rule 404(a) Character evidence generally Rule 404(a)(1) Character of accused Rule 404(a)(2) Character of victim Rule 404(b) Other crimes, wrongs or acts Not admissible to prove the character of a person in order to show that he acted in conformity therewith NC Conference of Superior Court Judges 2/22/2019

Other purposes for which other crimes, wrongs, or acts are admissible: Proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. NC Conference of Superior Court Judges 2/22/2019

ERRONEOUS LIMITING INSTRUCTIONS State v. Hardy, 330 N.C. 207 (1994) State v. White, 331 N.C. 604 (1992) NC Conference of Superior Court Judges 2/22/2019

No duty to disclose Rule 404(b) evidence prior to trial Motion in limine does not preserve objection for appeal on the admissibility of Rule 404(b) evidence if the defendant does not object to that evidence at the time it is offered at trial. State v. Grooms, 353 N.C. 50, 76 (2000). NC Conference of Superior Court Judges 2/22/2019

THIN ICE FOR A TRIAL JUDGE The list of purposes in the second sentence of Rule 404(b) is neither exclusive nor exhaustive. State v. Morgan, 315 N.C. 626, 637 (1994). The burden is on the objecting party to show that there was no proper purpose for which the evidence could be admitted. State v. Young, 317 N.C. 396, 412 (1986). What if you cannot connect the offered evidence into a category specifically named in Rule 404(b)? NC Conference of Superior Court Judges 2/22/2019

When may defendant not offer evidence of prior crimes of the victim? When there is no evidence that the defendant was aware of the victim’s criminal past at the time of the killing. Defendant’s stated purpose for offering the evidence was to show that the victim had a propensity for violence and was the agressor in the affray. State v. Smith, 337 N.C. 658, 665-666 (1994). NC Conference of Superior Court Judges 2/22/2019

Rule 405. Methods of proving character. Rule 405(a) By testimony as to reputation or By testimony in the form of an opinion On cross examination, inquiry is allowable into relevant specific instances of conduct. N.B. Expert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior. NC Conference of Superior Court Judges 2/22/2019

Rule 405 (a) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. NC Conference of Superior Court Judges 2/22/2019

Rule 406. Habit; routine practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. NC Conference of Superior Court Judges 2/22/2019

Certain evidence excluded as a matter of public policy Rule 407. Subsequent remedial measures Rule 408. Compromise negotiations Rule 409. Payment of medical expenses Rule 410. Pleas and plea discussions Rule 411. Liability insurance NC Conference of Superior Court Judges 2/22/2019

Rule 412. Rape or sex offenses; relevance of victim’s past behavior Sexual behavior of the complainant is irrelevant unless: (1) Was between the complainant and the defendant; or (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or (3) Is evidence of a pattern of sexual behavior so distinctive or so closely resembling the defendant’s version of the alleged encounter with the complainant as to tend to prove that such complainant consented; or (4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged. NC Conference of Superior Court Judges 2/22/2019

Rule 412 (c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion. Rule 412 (d). Unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of a rape or sex offense case, or lesser included offense thereof. NC Conference of Superior Court Judges 2/22/2019

Procedure Proponent of the evidence shall apply to the court to determine the relevance The court conducts an in camera hearing Proponent makes offer of proof The hearing is transcribed, the record is open to inspection only by the parties, the complainant, their attorneys and the court or its agents, and appellate courts. NC Conference of Superior Court Judges 2/22/2019

The end NC Conference of Superior Court Judges 2/22/2019