Let me rant for a moment.
I’m getting a little tired of arguing basic foundational legal principles in North Carolina District Courts and having them be ignored.
Take, for instance, the vaunted Horizontal Gaze Nystagmus test, the MOST RELIABLE TEST ™ in the land for the detection of impairment. The most scientifically RIGOROUS (so we’re told) of NHTSA’s battery of standardized field sobriety tests. (Until the Supreme Court of Kansas declares it no better than a ouja board.)
FOR YEARS your humble narrator has been arguing court that the plain language of NCRE 702 means that the HGN can never come in unless the State can establish that the testimony comports with 702(a). Just because an officer has a piece of paper that says they took a 4 hour class on HGN does NOT mean that the test itself is reliable.
Rule 702 means what says.
Relatedly, another pet peeve of mine is the misunderstanding of what is hearsay. Here’s the scenario:
In a DWI case involving an accident or a case where the officer arrives late to the scene, the State attempts to establish that the defendant was the driver of the car by using other facts to connect the person to the car.
Often this involves an officer’s testimony that he ran the registration of the car, and it came back as the same person as the person accused of driving while impaired.
The problem is that, in many cases, the state improperly lays the foundation necessary to establish that the registration information obtained by the officer is sufficiently reliable to meet a hearsay exception.
In cases where the officer simply says what he saw at the time of his arrest, the testimony about what he said he saw on a computer screen or a printout at that time is hearsay.
Hearsay is defined as a “statement, other that one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2001). Under the hearsay rules, the term “statement” includes written assertions. N.C. Gen. Stat. § 8C-1, Rule 801(a) (2001).
Since the State, in these cases, offers to provide evidence about the registration to prove a fact in controversy, the evidence is hearsay.
Hearsay is inadmissible unless it falls within a recognized exception to the hearsay rule. State v. Parker, 140 N.C. App. 169 (2000); N.C. Gen. Stat. § 8C-1, Rule 802.
A possible exception to the hearsay rule is the Business Record Exception (Rule 803(6)). Business records are admissible as an exception to the hearsay rule if “made in the regular course of business, at or near the time of the transaction involved, and authenticated by a witness who is familiar with them and the system under which they were made.” State v. Galloway, 304 N.C. 485.
However, an officer is never in a position to testify whether the business record is familiar with the manner in which vehicle registrations may be processed and kept by the Division of Motor Vehicles unless he has worked for the DMV in the past.
A second exception, enumerated in N.C. Gen. Stat. § 8C-1, Rule 803(8), is the Public Record Exception. This rule excepts from hearsay restrictions “reports, records, statements, or data compilations in any form, of public offices or agencies, setting forth … the activities of the office or agency….” N.C. Gen. Stat. § 8C-1, Rule 803(8).
However, if offered as a public records exception, the proponent must properly authenticate the document: “A written statement is not admissible as evidence without proper identification or authentication.” State v. Solomon, 340 N.C. 212 (1995). A statement is properly authenticated if the proponent offers “evidence sufficient to support a finding that the matter in question is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2001).
A testimony about what an officer saw on a document at an earlier time simply does not meet the foundational requirements to reach a hearsay exception. The only admissible evidence would be “evidence sufficient,” to wit: 901(b)(7) “Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”