Evidence

A continuing legal education presentation by Rachel Scott Decker

Rules of Evidence I.

The Federal Rules of Evidence and the North Carolina Rules of Evidence parallel one another and many of the rules are the same. Where those rules are the same, the North Carolina courts look to federal case law interpreting those rules for guidance, when interpreting the NC Rules of Evidence. State v. Squire, 321 N.C. 541, 364 S.E.2d 354 (1988). While the rules are similar, they are not identical, and this paper highlights where the rules are different.

General Provisions A.

The differences in the rules begin with Rule 103, which deals with rulings on the evidence. In state court, a party must make a specific objection to evidence, if the objection is not apparent from the context. The federal rules do not require the specific objection. The differences in these rules are contained in Rule 103(a).

North Carolina Rule of Evidence 104(c) is more expansive than the federal rule. The federal rule provides that the admissibility of confessions should be heard out of the presence of the jury. Additionally, where the interests of justice require or where an accused is a witness, hearings on preliminary matters shall be conducted out of the jury’s hearing. North Carolina also requires that all motions to suppress evidence in criminal superior court shall be conducted out of the jury’s hearing.

Judicial Notice B.

Rule 201(e) governs how judicial notice will be taken. In state court, only a trial court can take judicial notice of something. In federal court, a court at any level may take judicial notice. Presumptions in Civil Actions and Proceedings C.

Rule 301 of the North Carolina Rules of Evidence includes an extra three sentences that seek to clarify operation of the rule. Specifically, the following language is included in the state, not the federal rule:

The burden of going forward is satisfied by the introduction of evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist. If the party against whom a presumption operates fails to meet the burden of producing evidence, the presumed fact shall be deemed proved, and the court shall instruct the jury accordingly. When the burden of producing evidence to meet a presumption is satisfied, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact.

N.C.R. Evid. 301.

C. Relevancy and Its Limits

Rule 404 deals with character evidence.

The first difference between the two sets of rules appears in Rule 404(a)(1). There, in federal court, there is an additional provision that is not included in the state court rules. Specifically, the federal rule allows the prosecution to enter character evidence of an accused (when normally it cannot except on rebuttal), where an accused offers evidence of a character trait of the victim. However, the prosecution is limited to introducing evidence of the trait of the accused that is the same trait the accused offered of the victim.

Additionally, Rule 404(b) is different in federal and state courts. This rule provides that evidence of other crimes or wrongs is generally not admissible to show that the person acted in conformity therewith at the relevant time. However, evidence of other wrongs is admissible for other stated purposes. In state court, evidence of other wrongs is admissible to show entrapment, and entrapment is not listed in the federal rule. Further, the federal rule appears to require the prosecution to give notice of its intent to introduce such evidence for other purposes, while the state rule has no such requirement in the rule.

Rule 405 addresses methods of proving character. Rule 405(a) of the state rule contains a reference to expert testimony regarding character that is not present in the federal rule. Specifically, the state rule provides that “[e]xpert testimony on a character or a trait of character is not admissible as circumstantial evidence of behavior.” N.C.R.Evid. 405(a).

Rule 409 prohibits evidence of a party’s offering to pay medical expenses occasioned by an injury as proof of liability. The state rule prohibits the mentioning of “medical, hospital, or other expenses” while the federal rule prohibits the mentioning of “medical, hospital, or similar expenses.”

Plea issues are addressed in Rule 410. The rule prohibits the admission of certain plea issues into evidence. In state court, the evidence is inadmissible against or on behalf of the defendant, whereas in federal court, the evidence is inadmissible against the defendant. The inadmissible evidence in question is similar in both state and federal court, although the state rule is a little more expansive in what it prohibits. Specifically, the state rule also prohibits admission of statements in proceedings under Article 58 of Chapter 15A or its comparable procedure in district court. Also, both rules provide for limited admission of the inadmissible plea evidence. Under the federal rule, which is a little more expansive, the statements may also be introduced in perjury trials whereas no such provision exists under state rule. Rule 412 and beyond is the rape shield provision, and the rules differ substantially. The framework of the rules also differs, in that the federal rules include an extra three rules for which the North Carolina Rules of Evidence have no counterpart. These additional rules address evidence of similar crimes in sexual assault cases, evidence of similar crimes in child molestation cases, and evidence of similar acts in civil cases concerning sexual assault and child molestation.

Privileges D.

Rule 501 addresses privileges, and the rules differ substantially. The federal rule provides that the federal common law will indicate which privileges courts will recognize, aside from the constitutional privileges or those enacted by congress. In state court, the state rules maintained the old system of codified privileges, rejecting the common law approach adopted at the federal level. It is important to note, however, that the federal rule will apply state law privileges when state law is governing the case in federal court.

Witnesses E.

Rule 601 deals with the competency of witnesses to testify. The first sentence of the rules is identical, but the state rule contains several disqualifications for a witness. Rule 601(b) of the North Carolina Rules of Evidence provides that a person who cannot be understood or who is incapable of understanding the duty of a witness to tell the truth cannot testify. Rule 601(c) of the North Carolina Rules of Evidence addresses the former Dead Man’s Statute and relates to when statements of a deceased person may be introduced into evidence. Impeachment by evidence of conviction of a crime is addressed by Rule 609.

There are a few differences in the state and federal rules. Rule 609(a) provides for the type of crime that is admissible. In federal court, the evidence of the crime is admissible where the crime was punishable by more than one year or was a crime involving dishonesty. In state court, evidence of a crime is admissible where the crime was a felony or Class A1, Class 1, or Class 2 misdemeanor. Rule 609(c) addresses the effect of a pardon. In federal court, evidence of the conviction is inadmissible where there has been a pardon, annulment, certificate of rehabilitation based on a finding of rehabilitation and no reconviction for a crime punishable by more than a year, or if the person was pardoned. In state court, evidence of the conviction is inadmissible where there has been a pardon.

Rule 610 provides that evidence of religious beliefs is inadmissible to show that the person’s credibility is impaired or enhanced because of the religious beliefs. The state court rule also explicitly states that this evidence is admissible to show interest or bias. The federal rules do not contain such an explicit statement.

Rule 611 addresses the interrogation of witnesses. Rule 611(b), which addresses cross examination, is different in federal and state court. State court allows a wide open cross. In federal court, cross examination is limited by direct examination and credibility issues. However, the court does have the discretion in federal court to allow the cross examination to be more expansive than the scope of the direct examination.

Rule 612 deals with using a writing to refresh the witness’s memory. The rules are organized differently and substantively are different. The state rule addresses the use of objects as well as writings to refresh a witness’s recollection, whereas the federal rule simply addresses the use of a writing. The state rule applies clearly to trials, hearings, or depositions while the federal rule leaves unsaid where the witness must be testifying for the rule to apply. The state rule explicitly provides for inspection of the object or writing if production is impractical, and the federal rule has no such explicit provision. Finally, both rules provide for in camera inspection of the item if the item is not directly related to the subject matter of the testimony. The state rule also permits in camera review when a privilege is claimed.

Rule 613 concerns prior statements of witnesses. The first paragraph of the federal rule is the state rule. Additionally, the federal rule contains subpart 613(b). This subpart provides that where extrinsic evidence is used to prove the prior inconsistent statement, the witness must be afforded an opportunity to explain or deny the statement and the opposing party must be afforded an opportunity to interrogate the witness thereon.

Rule 614 addresses the court’s calling and interrogation of witnesses. In North Carolina state court, a party need not lodge an objection to the calling of a witness or to the court’s questions to a witness. In federal court, however, a party must object to either the calling of a witness or the court’s questions to a witness at the next available time that the jury is not present.

Rule 615 deals with the sequestering of witnesses. In federal court, the court must sequester a witness at the party’s request. In state court, the court may sequester the witness at the party’s request. The rule additionally provides a listing of people who cannot be excluded from the courtroom. The listings are identical, except in state court, a person whose presence is determined by the court to be in the interest of justice cannot be excluded. Also, in federal court, a person authorized by statute to be present cannot be excluded, and there is no corresponding provision in the state court rule.

Opinions and Expert Testimony F.

Rule 701 addresses opinion testimony by lay witnesses. The rules exclude lay testimony of opinion, except in listed circumstances. The federal rule indicates that lay opinion testimony cannot be based on scientific, technical, or other specialized knowledge within the scope of Rule 702, and the state rule has no explicit prohibition related to this.

Rule 702 concerns testimony by experts. Section (a) of the state rule is similar to the federal rule. The federal rule qualifies when experts may testify, and the state rule does not contain the qualification in the rule. Specifically, the federal rule allows the expert to testify if the testimony is based on sufficient facts or data, the testimony is the product of reliable principles or methods, and the witness has applied the principles to the facts. The major difference in the rules is embodied in sections (b) through (h) of the state rule that addresses the medical malpractice tort deform. Many people have written papers regarding this rule and its interplay with Rule 9(j) of the North Carolina Rules of Civil Procedure, and the practitioner is encouraged to review other materials regarding these issues.

Rule 703 concerns the bases of an expert’s opinion. The rules are identical in describing on what an expert may rely in forming his or her opinion. The federal rule contains an additional provision that is not contained in the state rule. The federal rule provides that facts upon which the expert relied which are inadmissible into evidence shall not be disclosed to the jury unless the probative value in assisting the jury to weigh the expert’s opinion substantially outweighs the prejudice.

Rule 704 addresses the expert’s ability to render an opinion on the ultimate issue. The federal rule contains a provision not present in the state rule. The federal rule indicates that an expert testifying about the mental condition of a criminal defendant cannot testify as to whether the criminal defendant had the mental state that constitutes an element of the crime.

Rule 705 deals with the disclosure of the underlying facts that were used to form the expert’s opinion. The rules are different in two respects. First, in federal court, the court may require the expert to disclose the underlying facts and data that support his or her opinion. In state court, the opposing counsel must request this disclosure. Also, in state court, the state rule specifically provides that an expert need not give his or her opinion in response to a hypothetical question, and the federal rule does not contain such an explicit statement.

G. Hearsay

Rule 801 addresses the general rules regarding hearsay. Rule 801(d) is different in the two systems. In state court, Rule 801(d) provides for an exception to the hearsay rule for an admission of a party opponent. In the federal courts, an admission of a party opponent is not hearsay. Additionally, the federal rule explains more fully admissions of a party opponent in agency type situations, and the state rule has no explicit explanation regarding agency. The federal rule also has a provision, not contained in the state rule, that indicates certain prior statements by witnesses are not hearsay. These nonhearsay statements are statements offered where the witness testifies at trial and the prior statement was inconsistent with the testimony and the prior statement was made under oath, the prior statement is consistent and is offered to rebut a charge of recent fabrication, or is a prior statement regarding identification.

Rule 803 contains exceptions to the hearsay rule for when the availability of the declarant is immaterial. Rule 803(22) of the Federal Rules of Evidence provides an exception for judgment of a previous conviction. The state rule has no such counterpart. Additionally, the state rule has a catch all exception to the hearsay rule that is not provided for in Rule 803 of the Federal Rules of Evidence, but is provided for in Rule 807 of the Federal Rules of Evidence. The only substantive difference in the two catch all provisions is that North Carolina state courts require written notice to be given to the adverse party, whereas federal courts merely require that notice of an intent to use the statement be given.

Rule 804 provides for exceptions to the hearsay rule when the declarant is unavailable. Several of the exceptions to the hearsay rule are different in the two forums. Rule 804(b)(2) provides for an exception to the hearsay rule for statements made under the belief of impending death. The state court permits the exception in all proceedings. In federal court, the exception is recognized in civil actions and in prosecutions of homicides.

Rule 804(b)(3) addresses when a statement against interest will be admitted. The differences in the rule emerge where criminal issues are involved. In state court, a statement exposing the declarant to criminal liability is not admissible in a criminal case without corroborating circumstances indicating trustworthiness. In federal court, the statement exposing the declarant to criminal liability is not admissible in a criminal case when it is offered to exculpate the accused, unless corroborating circumstances indicate trustworthiness.

Rule 804(b)(5) of the North Carolina Rules of Evidence is the catchall exception embodied in Rule 807 of the Federal Rules of Evidence. Like Rule 803(24) of the North Carolina Rules of Evidence, Rule 804(b)(5) is different from the federal rule in that it requires written notice of an intent to introduce evidence under the catchall exception. The federal rules also contain Rule 804(b)(6), which deals with forfeiture by wrongdoing, which is not contained in the state rule. The rule provides for the admissibility of a witness’s statements where the opposing party engaged in wrongdoing that was intended to and did procure the unavailability of the witness.

H. Authentication and Identification

Rule 902 describes items that are considered self authenticating. The federal and state rules are for the most part the same. However, the rules are different in that the federal rule contains subpart 902(11) and 902(12), which are not contained in the state rule. These subparts provide for self authentication of certain specified domestic and foreign records of regularly conducted activity.

Contents of Writings, Recordings, and Photographs I.

Rule 1001(1) defines a writing or recording under the rules. The rules are different in that the state rule provides that a sound is a writing or recording that is governed by the rule. The federal rule does not explicitly include sound in its definition of writing.

Miscellaneous Rules J.

Rule 1101 is similar in both codes, and it deals with the applicability of the rules. Obviously, the rules’ application is different, one applying in state matters, the other in federal. Both codes provide for exceptions to when they apply, and these exceptions are similar. However, the state rules of evidence do not apply in contempt proceedings where the court is authorized to act summarily; no such exception is provided in federal court. The federal rule also lists several additional areas where the federal rules do not apply in whole.

IV. Real Evidence

Foundation Requirements C.

The North Carolina Rules. 1.

As noted in the previous section, to admit real evidence, a party must have a witness identify the object as being the same object involved in the incident and must show that the object has not undergone a material change. State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1998); State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992); State v. Campbell, 311 N.C. 386, 317 S.E.2d 391 (1984); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Handsome; 300 N.C. 313, 266 S.E.2d 670 (1980); State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977); State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998); State v. Andrews, 56 N.C. App. 91, 286 S.E.2d 850 (1982). Whether a party has presented sufficient evidence to meet this two prong test rests in the trial court’s sound discretion. Fleming; State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996); Handsome; State v. Abernathy, 295 S.E.2d 147, 244 S.E.2d 373 (1978); Harbison; Andrews. Although generally speaking a witness must identify real evidence, where a witness has testified in detail regarding the object sought to be admitted, without actually identifying it, the admission of the object itself is not prejudicial error. See State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971) (where the Supreme Court found no prejudicial error in the admission of a pen knife about which a witness had already described in detail, even though the technical foundation requirements had not been met).

In determining whether the object is the same as the one involved in the incident, courts look to the testimony of witnesses. If a witness identifies the object as being what it purports to be, generally the object will be admitted into evidence. See State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1998); State v. Handsome, 300 N.C. 313, 266 S.E.2d 670 (1980).

However, where there is no testimony as to the identity or unchanged condition of the evidence, it cannot be admitted. In State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977), the Supreme Court found that the trial court did not abuse its discretion in refusing to admit into evidence a tire offered by defendant. There, defendant shot and killed a passenger in a car. Defendant argued that the car was trying to run him down, and he shot at the car trying to make it stop, and specifically hit the tire. When officers initially examined the car, they saw nothing abnormal about the tire except that it was flat. After examination, the tire and the car were released back to the owner. The officers re-examined the tire three months later, and the tire contained bullet holes. The officer testified that the tire he examined three months later was the same tire he had previously examined, although he had found no bullet holes the first time, but this statement was based on the owners’ representations to him that the tire was the same. The owners were not called to testify about the whereabouts of the tire during the three month interim. The Supreme Court found that the trial court properly required additional authentication of the tire before admitting it into evidence.

In looking at alteration issues, the courts do not always look closely at the alteration issue, if the alteration can be explained. For example, in Fleming, the Supreme Court found no plain error in the admission of a watch into evidence in defendant’s murder trial. There, the authorities searched the crime scene and did not discover the watch. The crime scene was left unlocked for three days. When the authorities returned, the watch was discovered and taken into custody. When the State presented the watch at trial, it was cleaner and its buckle was missing. Defendant argued that this indicated that the watch had been altered. Finding that the trial court properly admitted the evidence, the Supreme Court noted that several witnesses identified the watch as the defendant’s watch and that photographs of the scene taken the first day actually showed the watch there. Moreover, the officer who found the watch testified that he maintained control over it until it was turned over to the SBI lab and that the watch was the one he found on the scene. The Supreme Court noted that any alleged weaknesses in the chain of evidence went to the weight, not the admissibility, of such evidence.

Likewise, in State v. Handsome, 300 N.C. 313, 266 S.E.2d 670 (1980), the Supreme Court found that the trial court did not abuse its discretion in allowing the victim’s clothes into evidence. The victim testified that the clothes were his clothes, but now the clothes were bloody and dirty. The Supreme Court found that the changed condition of the clothes, their being bloody and dirty, was consistent with what happened to the victim, specifically that he was shot and thrown from a car into the ditch. The victim’s identification of his clothes was sufficient to allow the clothes to come into evidence.

Sometimes a chain of custody must be established where the evidence is not readily identifiable or where the evidence is susceptible to alteration and there is a reason to believe the evidence has been altered. State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1998); State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996); State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992); State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898 (1987); State v. Bell, 311 N.C. 131, 316 S.E.2d 611 (1984); State v. Campbell, 311 N.C. 386, 317 S.E.2d 391 (1984); State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998). However, even where a chain of custody must be presented, weak links in the chain pertain only to the weight of the evidence, and not its admissibility. Id. At least in the criminal cases, the appellate courts look to the party seeking to keep out the evidence to produce reasons for believing the evidence may have been altered. See State v. Sloan, 316 N.C. 714, 343 S.E.2d 527 (1986) (where the Supreme Court affirmed the admission into evidence of rectal swab slides in a rape case, noting that “the defendant has provided no reason for believing that this evidence was altered” where the State presented substantial chain of custody evidence); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981) (allowing the State to admit real evidence where there was no explicit testimony that the items were not unchanged, since such evidence could be implied from the testimony); State v. Brown, 101 N.C. App. 71, 398 S.E.2d 905 (1990) (where the Court of Appeals held that the State need not present a detailed chain of custody where the defendant failed to raise the issue of alteration of evidence). As noted above, where physical evidence is introduced, a chain of custody is not always required, if the evidence is readily identifiable and witnesses identify the evidence. State v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996). Testimony that the object offered into evidence “looks like” or “is similar to” the object observed is sufficient testimony to allow introduction of the object into evidence. State v. Andrews, 56 N.C. App. 91, 286 S.E.2d 850 (1982); State v. Bradsher, 49 N.C. App. 507, 271 S.E.2d 915 (1980).

In Carr, the Supreme Court found that the trial court did not abuse its discretion in admitting crack cocaine into evidence. The defendant argued that the evidence was inadmissible because the State failed to establish a proper chain of custody. Rejecting this argument, the Supreme Court noted that the crack cocaine was readily identifiable because of its sealed packaging and contents. State’s witnesses testified that the crack was the crack that they either found or examined. Because the substance was identifiable and was in fact identified, the State was not required to establish a detailed chain of custody. See also State v. Morris, 102 N.C. App. 541, 402 S.E.2d 845 (1991) (finding that establishing a chain of custody for the introduction of marijuana was unnecessary when two officers identified the marijuana by their appearance and their evidence tags); State v. Cobbins, 66 N.C. App. 616, 311 S.E.2d 653 (1984) (holding that no chain of custody for a pistol is necessary where witnesses positively identify the pistol); State v. Andrews, 56 N.C. App. 91, 286 S.E.2d 850 (1982) (where no chain of custody for a stolen diamond was required where the witness positively identified the diamond).

Because weak links in the chain of custody go to weight and not admissibility, gaps in the chain of custody are not fatal. State v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996). In that case, the Supreme Court affirmed the defendant’s conviction for murder. The victim’s shirt was admitted into evidence, and the defendant objected because the State did not call to the stand all persons having custody of the shirt to establish the chain of custody. The officer who took the shirt from medical personnel was no longer employed by the police department and did not testify. Instead, the officer to whom the first officer delivered the shirt was called to identify the shirt. Other evidence indicated that the shirt had the victim’s name label on it. The Supreme Court indicated that this was sufficient evidence to permit admission of the shirt, and it was not necessary for the first officer to testify, since breaks in the chain of custody do not effect admissibility.

Again, in Taylor, the Supreme Court found no error in the admission of testimony regarding the autopsies of the victims because there was proper chain of custody evidence regarding the bodies. The detective testified that he observed the bodies at the scene, photographed the bodies, was present at the autopsy, and the clothes on the autopsy bodies were the same as those on the victims at the scene. The Supreme Court stated that the “State clearly established a chain of custody for the bodies.” Id. at 389. Also, in that case, the Supreme Court found sufficient to establish the chain of custody for the bullet the testimony from the medical examiner who removed the bullet that the bullet was the one that he removed and had not been altered, as well as similar testimony from other witnesses who had handled the bullet.

The Supreme Court looked at the timing issues relative to the collection of evidence and the chain of custody in State v. Bell, 311 N.C. 131, 316 S.E.2d 611 (1984). There, the court affirmed the admission into evidence of a knife in the defendant’s rape trial. The defendant argued that the State failed to present adequate chain of custody evidence because the knife was not discovered in the defendant’s car at the scene of the crime. Rather, the knife was discovered during an inventory search of the vehicle, which occurred the day after the vehicle was impounded. Rejecting this argument, the Supreme Court noted that when impounding the vehicle, the police officers locked the car. They then delivered the car to a private garage experienced in handling vehicles involved in crimes, which garage locked the vehicle up until law enforcement personnel arrived the next day to retrieve it. The one day lapse in time in finding the knife was not sufficient to break the chain of custody under the circumstances. See also State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979) (allowing a poison bottle into evidence which was found in a field by investigating officers a year after defendant threw the bottle in the field).

For other chain of custody cases finding that an adequate chain of custody had been presented, see State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984); State v. Hunt, 305 N.C. 238, 287 S.E.2d 818 (1982); State v. Abernathy, 295 S.E.2d 147, 244 S.E.2d 373 (1978); State v. Owen, 130 N.C. App. 505, 503 S.E.2d 747 (1998); State v. Gonzalez, 62 N.C. App. 146, 302 S.E.2d 463 (1983); State v. Jones, 56 N.C. App. 259, 289 S.E.2d 383 (1982); State v. Bryant, 50 N.C. App. 139, 272 S.E.2d 916 (1980); State v. Bradsher, 49 N.C. App. 507, 271 S.E.2d 915 (1980).

The Federal Rules 2.

The Federal case law does not differ substantially from North Carolina law regarding the admissibility of real evidence. Before a party can introduce real evidence, the party must identify the item through witness testimony. Rules 901(a) and 901(b)(1) Fed. R. Evid. If a chain of custody issue is raised, the trial court has the discretion to determine whether the evidence should be admitted. United States v. Ricco, 52 F.3d 58 (4th Cir. 1995). Chain of custody evidence is simply a rule requiring the proponent of evidence to show that the evidence is in substantially the same condition. United States v. Turpin, 65 F.3d 1207 (4th Cir. 1995). Omissions in the chain of custody are not fatal as long as there is sufficient evidence that the item is what it purports to be and has not been materially altered. United States v. Howard-Arias, 679 F.2d 363 (4th Cir. 1982).

Problems in the chain of custody evidence go to the weight of the evidence and not its admissibility. United States v. Turpin, 65 F.3d 1207 (4th Cir. 1995); United States v. Massuet, 851 F.2d 111 (4th Cir. 1988). Gaps in time between the event and the collection of evidence are immaterial to the chain of custody issues when there is no question that the evidence is what the offering party purports it to be. Turpin.

Handling Opposition D.

Often in chain of custody cases, issues arise regarding whether there was opportunity for someone to tamper with the evidence. In most of the decided cases, however, the appellate courts have found that the trial court did not abuse its discretion in admitting the evidence since breaks in the chain of custody go to weight and not admissibility of evidence as discussed in the previous section.

For example, in State v. Campbell, 311 N.C. 386, 317 S.E.2d 391 (1984), the Supreme Court found that the trial court did not abuse its discretion in admitting a rape kit into evidence. The defendant argued that the State failed to adequately establish a chain of custody where evidence showed that the doctor preparing the kit placed the kit in a refrigerator in the hospital, but there was no testimony as to the location of the refrigerator or whether it was locked or unlocked, that the day after the kit was prepared, hospital personnel were seen in possession of the kit, and that the hospital security officer in charge of maintaining such evidence was on vacation. Rejecting this argument, the Supreme Court indicated that the State’s evidence regarding chain of custody was sufficient where the doctor preparing the rape kit testified that the one offered into evidence was without question the one he prepared, the hospital security officer testified regarding hospital procedures for the safe keeping of such evidence, and the hospital security guard and the SBI laboratory officer both testified that when they received the kit, its seal was intact and no one appeared to have tampered with it. Again, the Supreme Court pointed to the defendant, indicating that the defendant was only speculating that someone had tampered with the rape kit.

Also, in chain of custody cases, one party may request a special jury instruction that the jury must find the object to be what it purports to be before the jury can make other inferences therefrom. However, a party must specifically request such an instruction. In State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978), the Supreme Court found that a defendant’s failure to request a specific jury instruction eliminated his chance to contest issues on appeal. There, the defendant objected to the chain of custody of a flashlight on which his fingerprint was found. The Supreme Court found that the trial court did not abuse its discretion in allowing the flashlight into evidence. The defendant then complained that the trial court erred in failing to instruct the jury that in order to consider the fingerprint evidence, the jury had to find that there had been a proper chain of custody for the flashlight. The Supreme Court indicated that a party wanting an elaboration of the law must specifically request it. Because defendant failed to do so at trial, he could not raise these issues on appeal. Rule 403 is often raised to prevent the admission of real evidence where a party argues that the probative value of the evidence is substantially outweighed by the danger if unfair prejudice to it. However, generally speaking, the appellate courts find no error even when the trial courts admit the most gruesome of real evidence. For example, in a criminal matter, the victim’s bloody clothing is admissible. State v. Knight, 340 N.C. 531, 459 S.E.2d 481 (1995). Admission of the victim’s little finger is not an abuse of discretion. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991). There is no abuse of discretion with the admission of the victim’s false teeth that bore scratch marks. State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987).

Another issue arises with respect to the jury’s handling of the real evidence itself. In State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988), the Supreme Court found no error when the jurors were allowed to handle a pistol that had been admitted into evidence. The defendant objected to allowing the jurors to handle the pistol, arguing that the jurors’ handling of the pistol was akin to experimenting with the pistol under conditions that were not substantially similar to the conditions at the time of the crime. Rejecting this argument, the Supreme Court made clear that allowing the jurors to handle real evidence is not an experiment; rather, the handling of evidence by jurors is a demonstration. See also State v. Walden, 311 N.C. 667, 319 S.E.2d 577 (1984) (finding no error when the jury was allowed to handle a shotgun admitted into evidence). On a similar note, the Supreme Court found that the trial court did not abuse its discretion in allowing a jury to leave the courtroom to view the fire truck involved in the motor vehicle collision that was the subject of the lawsuit, in Williams v. Bethany Volunteer Fire Dept., 307 N.C. 430, 298 S.E.2d 352 (1983). There, the plaintiff sued defendant when its truck ran a red light. Defendant pleaded contributory negligence and counterclaimed for the damage to its truck, arguing that it was responding to a fire call and had its lights and siren flashing. The trial court allowed the jurors to view the truck, and the Court of Appeals found error, indicating that the viewing of the truck did not meet the requirements for an experiment. Rejecting this approach, the Supreme Court indicated that the viewing of the truck was permissible to illustrate the testimony of witnesses. Further, proper foundations had been laid because the jury viewed the identical truck involved in the collision. See also State v. Fearing, 304 N.C. 499, 284 S.E.2d 479 (1981) (allowing admission of defendant’s vehicle into evidence).