- If the ruling admits evidence, a party, on the record:
- Timely objects OR moves to strike; and
- States the specific ground, unless it was apparent from the context
- If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context
- Must be a ruling
- Objection must specifically state grounds, those grounds are ONLY part preserved for appeal
- “Apparent from the context” is hard to get on appeal, usually is presented when continuous line of objections on same line
- Substantial right being affected?
- No bright-line test, relying on probabilities- harmless error or not
- Generally, violation only affects substantial right when there is a reasonable probability that absent the error, the outcome of the trial would have been different
- I.E. – Whether erroneous evidence was primary evidence relied upon
- Many types of offers of proof
- I.E. – Witness Q&A is preferred
- “Timeliness” = when grounds first become apparent
- Typically, before question is answered
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record, either before or at trial , a party need not renew an objectionor offer of proof to preserve a claim of error for appeal
- NC is different State v. Ogelsby, pre-trial objection w/ ruling must be re stated in trial to be preserved for appeal (court still heard for fairness reasons)
- NC evidence said error was preserved, but Rules of Appellate Procedure said it must be restated → Appellate Procedure dominates b/c NC constitution grants Supreme Court authority to make its rules
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
- Don’t rely on this, must be “serious, egregious, manifest, highly prejudicial” “not correcting would result in manifest of injustice”
Standards of Review
- Generally, abuse of discretion standard
- Unless constitutional violation → then it’s de novo
FRE 601. Competency to Testify in General: Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
- Only two witness requirements: (1) personal knowledge; and (2) promise to testify truthfully
- Competence is presumed
- Competency is determined when the witness testifies, not when the event occurred
- When to apply state law of evidence for competency:
- Civil action or proceeding;
- Concerns an element of a claim or defense; and
- The claim or defense is one as to which state law supplies the applicable substantive rule (diversity jurisdiction)
- Rock v. Arkansas, court excluded hypnotic memory of criminal defendant, per se rule violates 6th amendment right to defend self and right to call witnesses in your defense
- States may have laws excluding hypnotic memory for civil cases, if
- defendant is not a witness in criminal case, or if rule is non-arbitrary like this one (was per se rule)
- States may still limit admission of hypnotic therapy if the witness is not the defendant, or other non-arbitrary measures
- Jury’s duty to determine credibility , this removed that ability from them
- Ohio v. Clark (mainly about confrontation clause- come back and add later)
NC 601(b): A person is disqualified to testify as a witness when the court determines that he is
- incapable of expressing himself concerning the matter as to be understood,
- either directly or through interpretation by one who can understand him, or
- incapable of understanding the duty of a witness to tell the truth
- Basically, same standard as federal rule, just stated differently
- NO MINIMUM AGE IN NC
- Thus, would be an error if a court excluded a witness solely because of their age
NC 601(c): Dead Man’s Statute: Upon the trial of an action...1) a party or a person interested in the event ... shall not be examined as a witness 2) in his own behalf or interest ...3) against the executor , administrator or survivor of a deceased person, or the guardian of an incompetent person...4) concerning any oral communication between the witness and the deceased person.
This rule does not apply when:
- The executor, administrator, guardian is examined in his own behalf regarding the subject matter of the communication;
- The testimony of the deceased or incompetent person is given in evidence concerning the same transaction or communication;
- (I.E. – nurse (neutral party) overhears decedent and presents testimony)
- Evidence of the subject matter of the oral communication is offered by the executor, administrator, survivor, guardian or person so deriving title or interest
- Specific to NC!!! Federal rules do not recognize this rule
- ONLY prohibits oral communications
- ONLY applies to interested parties
- But – remember that propounder may be the interested party
- Propounder doesn’t necessarily mean the Estate
- Estate of Redden: Wife suing Estate, wife offers dead husbands oral communications in deposition (not requested by Estate, she’s trying to say the Estate waived) and estate objects → testimony is incompetent under Dead Man’s Statute
- If nurse had overheard the oral communications? → could testify because not interested party (aside from hearsay concerns)
- In re Will of Baitschora: trial court should not have excluded Propounder’s testimony of oral communications w/ decedent after Caveator discussed subject matter of oral communications (opened door)
- Discussing subject matter does not have to involve oral communications to open door
FRE 602. Need for Personal Knowledge: Witness may testify to a matter only if evidence is introduced sufficient to support a finding (104(b) that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.
- PORN:
- Perception
- Comprehension
- Recollection
- Narration
- Standard- “if rational juror could find the witness had personal knowledge”
- Low standard, speculation is proper objection when not met
- Witness doesn’t have to be absolutely certain about the accuracy of her
- observations
- “I think...” does not necessarily violate this rule
- But- limited to first-hand knowledge based on perception
- Ie- if bystander just hears the car crash happen/someone yells “that car just ran the red light!” the bystander can’t just straight up say “that car ran the red light and caused the crash”
- “Why did Billy take a swing at Bobby?”
- “Well it seemed like Billy just got flat mad that Bobby had beaten him” → speculative, can’t testify to mindset of other person
- But- “Bobby had just beaten Billy. Billy looked mean and angry; real made like” → rationally based on perception, fine
- Would probs have to be
- Expert testimony doesn’t need personal knowledge (different rule)