GSNC

Cross References. - For the North Carolina Rules of Evidence, see Chapter 8C.

ARTICLE 1. Statutes.

Sec.

§ 8-1. Printed statutes and certified copies evidence.

All statutes, or joint resolutions, passed by the General Assembly may be read in evidence from the printed statute book; or a copy of any act of the General Assembly certified by the Secretary of State shall be received in evidence in every court.

History

(1826, c. 7; R.C., c. 44, ss. 4, 5; Code, ss. 1339, 1340; Rev., ss. 1592, 1593; C.S., s. 1747.)

Legal Periodicals. - For case law survey on evidence, see 41 N.C.L. Rev. 476 (1963); 44 N.C.L. Rev. 1005 (1966); 45 N.C.L. Rev. 934 (1967).

For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).

CASE NOTES

Public Statute Admissible. - Where the public printer has published a certain act with other public acts of the General Assembly, it is made, presumptively at least, a part of the public laws of the State, and every person having occasion to do so has the right to read it in evidence in any court of the State as the law. Wrought Iron Range Co. v. Carver, 118 N.C. 328, 24 S.E. 352 (1896).

Private Statute Not Admissible. - The statute incorporating the North Carolina Railroad Company was a private act, and it was error to permit it to be read and commented on to the court or jury until it had been properly introduced as evidence. Town of Durham v. Richmond & D.R.R., 108 N.C. 399, 12 S.E. 1040, 13 S.E. 1 (1891).

Whether the statute, or some enactment in it, is public or private, is a question of law, which the court must determine, in the absence of statutory enactment declaring and settling its nature. Town of Durham v. Richmond & D.R.R., 108 N.C. 399, 12 S.E. 1040, 13 S.E. 1 (1891).

Journal of Legislature. - A copy of the journal of the legislature deposited with the Secretary of State is not evidence for any purpose. It is the journal, which is the original, which is to be filed in the office of the Secretary of State, and it is this original or an exemplification made therefrom by him which, when competent, is to be used in evidence. Wilson v. Markley, 133 N.C. 616, 45 S.E. 1023 (1903).

Judicial Notice of Certain Regulations. - Where neither of the promulgating agencies is subject to the North Carolina Administrative Procedure Act (G.S. 150B-1 et seq.), the court is only required to take judicial notice of their regulations if submitted in accordance with certain procedures designed to insure their accuracy. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872 (1984).

Applied in C.C.T. Equip. Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962).

Cited in Continental Tel. Co. v. Gunter, 99 N.C. App. 741, 394 S.E.2d 228 (1990).

§ 8-2. Martin's collection of private acts.

Any private act published by Francis X. Martin, in his collection of private acts, shall be received in evidence in every court.

History

(1826, c. 7, s. 2; R.C., c. 44, s. 5; Code, s. 1340; Rev., s. 1593; C.S., s. 1748.)

§ 8-3. Laws of other states or foreign countries.

A printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree or ordinance, by the executive thereof, contained in a book or publication purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the judicial tribunals thereof, shall be evidence of the statute law, proclamation, edict, decree, or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of the reports of cases, adjudged in the courts thereof, shall also be admitted as evidence of the unwritten or common law thereof.
Any party may exhibit a copy of the law of another state, territory, or foreign country copied from a printed volume of the laws of such state, territory, or country on file in
1. The offices of the Governor or the Secretary of State, and duly certified by the Secretary of State, or
2. The State Library and certified as provided in G.S. 125-6, or
3. The Supreme Court Library and certified as provided in G.S. 7A-13 (f).

History

(1823, c. 1193, ss. 1, 3, P.R.; R.C., c. 44, s. 3; C.C.P., s. 360; Code, s. 1338; Rev., s. 1594; C.S., s. 1749; 1967, c. 565.)

CASE NOTES

Editor's Note. - Some of the cases cited in this section were decided prior to the enactment of G.S. 8-4.

Prior to the enactment of G.S. 8-4, when any question arose as to the law of any other state or territory, or of the United States, or of any foreign country, the parties were required to prove such law. Gooch v. Faucett, 122 N.C. 270, 29 S.E. 362 (1898); Miller v. Atlantic C.L.R.R., 154 N.C. 441, 70 S.E. 838 (1911); Kelly Springfield Tire Co. v. Lester, 192 N.C. 642, 135 S.E. 778 (1926).

Presumption as Regards Common Law. - In the absence of proof to the contrary, the common law will generally be presumed to be in force in a sister state, except in those states whose jurisprudence is not founded on the common law. Miller v. Atlantic C.L.R.R., 154 N.C. 441, 70 S.E. 838 (1911).

What Common Law Is as Question for Jury. - Where the common law of another state is proved, the court must leave the evidence of what that law is to the jury and cannot inform them what the law is. Moore v. Gwynn, 27 N.C. 187 (1844).

Certificate of Secretary of State as Evidence. - The certificate of the Secretary of State, in relation to the statutes of another state, given in pursuance of this section is evidence in criminal and civil cases. State v. Patterson, 24 N.C. 346 (1842).

A transcript of a statute duly certified by the Secretary of State is evidence at all times of its being in force according to its terms unless a repeal is shown. State v. Cheek, 35 N.C. 114 (1851).

Publication of Foreign Laws Admissible. - A book purporting to be the publication of the statute laws of another state, and to be published by the authority of such state, is admissible as evidence of such laws. Copeland v. Collins, 122 N.C. 619, 30 S.E. 315 (1898).

Admissibility of Printed Copy of Foreign Laws. - By the terms of this section, a printed copy of the acts of the legislature of another state is admissible in the courts of this State to prove the statute law of such other state. Under the law as it stood prior to the enactment of this section, a printed copy of the acts of the legislature of a foreign state was not admissible in evidence. State v. Behrman, 114 N.C. 797, 19 S.E. 220 (1894).

While a copy of a foreign homicide statute was admissible as evidence of the statutory law of the foreign state under G.S. 8-3(a), the State presented no evidence that the statute was unchanged from the version of the statute under which defendant was convicted; thus, the State failed to show that defendant's prior conviction was substantially similar to an offense in North Carolina. State v. Morgan, 164 N.C. App. 298, 595 S.E.2d 804 (2004).

United States Agricultural Regulations Judicially Noticed. - The regulations of the United States Department of Agriculture concerning the transportation of cattle are not foreign laws within the meaning of this section, and the courts are required to take judicial notice of them. State v. Southern Ry., 141 N.C. 846, 54 S.E. 294 (1906).

Witnesses. - Any person who claims to know the provisions of the common or unwritten laws of a foreign country may, under this section, testify to and explain them before courts and juries. State v. Behrman, 114 N.C. 797, 19 S.E. 220 (1894).

The law of another state may be proven in transitory actions brought in the courts of this State by witnesses learned in the law of such other state, and by its authorized statutes and reports of decisions of its courts of last resort, and when properly offered in evidence they must be interpreted by our courts as matters of law. Howard v. Howard, 200 N.C. 574, 158 S.E. 101 (1931).

Necessity of Instructions to Jury. - Where the foreign law has been proved it is the duty of the court to instruct the jury as to the meaning of the law, its applicability to the case at hand, and its effect on the case, and it is error to refer the whole case to the jury without instructions. Hooper v. Moore, 50 N.C. 130 (1857).

Cited in State v. Rich, 130 N.C. App. 113, 502 S.E.2d 49 (1998), cert. denied, 349 N.C. 237, 516 S.E.2d 605 (1998); State v. Claxton, 225 N.C. App. 150, 736 S.E.2d 603 (2013); State v. Sanders, 367 N.C. 716, 766 S.E.2d 331 (2014); State v. Riley, 253 N.C. App. 819, 802 S.E.2d 494 (2017).

§ 8-4. Judicial notice of laws of United States, other states and foreign countries.

When any question shall arise as to the law of the United States, or of any other state or territory of the United States, or of the District of Columbia, or of any foreign country, the court shall take notice of such law in the same manner as if the question arose under the law of this State.

History

(1931, c. 30.)

Cross References. - As to judicial notice of private statutes, see G.S. 1A-1, Rule 9(h).

Legal Periodicals. - For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970).

For article, "Recognition of Foreign Judgments," see 50 N.C.L. Rev. 21 (1971).

For article, "A New Paradigm for Understanding Judicial Notice and its Implications in the Modern Digital Age," see 9 Elon L. Rev. 267 (2017).

CASE NOTES

Sua Sponte Notice of Law of Foreign Countries. - When State courts are confronted with cases involving questions of the law of foreign countries, this section requires that they, sua sponte, take notice of such law. La Grenade v. Gordon, 60 N.C. App. 650, 299 S.E.2d 809 (1983).

The party seeking to have the law of a foreign jurisdiction applied has the burden of bringing such law to the attention of the court. If the foreign jurisdiction has no law, either statutory or decisional, on the question involved, the courts of this State will not speculate on what law such jurisdiction might adopt and will apply the law of North Carolina. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983).

Traffic Laws of South Carolina. - Trial court did not err in taking judicial notice of similarity between South Carolina impaired driving statutes and North Carolina statute. Sykes v. Hiatt, 98 N.C. App. 688, 391 S.E.2d 834 (1990).

Absence of Reference by Parties. - Under this section judicial notice of foreign law is required, even in the absence of reference thereto by the parties, when foreign law governs the action. Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718 (1981).

Because all of the lease agreements and purchase agreements involved in a case designated Florida law as the governing law for interpretation of the documents, even though the parties did not mention Florida law, the appellate court took judicial notice of Florida law and used Florida law to resolve any substantive issues. Press v. AGC Aviation, LLC, - N.C. App. - , 817 S.E.2d 445 (2018).

Allegation of Survivability Under Law of Another State. - In an action to recover for the alleged tortious conversion of personalty by a nonresident, instituted in this State after the death of the nonresident against his personal representative, the failure of the complaint to allege that the cause of action survived under the laws of the state in which it arose did not render the complaint demurrable. Suskin v. Hodges, 216 N.C. 333, 4 S.E.2d 891 (1939).

Negligent Injury Occurring in Another State. - In an action instituted in this State to recover for negligent injury occurring in another state, liability must be determined according to the substantive law of such other state, of which the North Carolina courts must take notice. Thames v. Nello L. Teer Co., 267 N.C. 565, 148 S.E.2d 527 (1966), overruled on other grounds, Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998).

Collision in Virginia. - In an action brought in this State under the Tort Claims Act for a collision which occurred in Virginia, the substantive law of Virginia and the procedural law of North Carolina applied. Parsons v. Alleghany County Bd. of Educ., 4 N.C. App. 36, 165 S.E.2d 776 (1969).

Applied in Suskin v. Hodges, 216 N.C. 333, 4 S.E.2d 891 (1939); Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126 (1943); Lewis v. Furr, 228 N.C. 89, 44 S.E.2d 604 (1947); Caldwell v. Abernathy, 231 N.C. 692, 58 S.E.2d 763 (1950); Johnson v. Salsbury, 232 N.C. 432, 61 S.E.2d 327 (1950); Handley Motor Co. v. Wood, 238 N.C. 468, 78 S.E.2d 391 (1953); Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458 (1957); Kirby v. Fulbright, 262 N.C. 144, 136 S.E.2d 652 (1964); Arnold v. Ray Charles Enters., Inc., 264 N.C. 92, 141 S.E.2d 14 (1965); American Inst. of Mktg. Sys. v. Willard Realty Co., 277 N.C. 230, 176 S.E.2d 775 (1970); Tennessee Carolina Transp., Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973).

Cited in Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974); State v. Johnston, 39 N.C. App. 179, 249 S.E.2d 879 (1978); Tanglewood Land Co. v. Wood, 40 N.C. App. 133, 252 S.E.2d 546 (1979); Employment Sec. Comm'n v. Lachman, 305 N.C. 492, 290 S.E.2d 616 (1982); Leonard v. Johns-Manville Sales Corp., 59 N.C. App. 454, 297 S.E.2d 147 (1982); State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994).

§ 8-5. Town ordinances certified.

In a trial in which the offense charged is the violation of a town ordinance, a copy of the ordinance alleged to have been violated, proven as provided in G.S. 160A-79, shall be prima facie evidence of the existence of such ordinance.

History

(1899, c. 277, s. 2; Rev., s. 1595; C.S., s. 1750; 1971, c. 381, s. 3; 1973, c. 1446, s. 17.)

CASE NOTES

When Certification Unnecessary. - The certification of a town ordinance as required by this section, was only prima facie evidence of its existence, and this was unnecessary when the ordinance had been proven by the production of the official records of the town by the proper officer, which showed its passage. State v. Razook, 179 N.C. 708, 103 S.E. 67 (1929).

Evidence Insufficient to Rebut Prima Facie Case. - When the defendant, convicted of the violation of a city ordinance, on appeal introduced in evidence the minutes of the meeting of the governing authorities of the town held on the date when the purported ordinance was alleged to have been adopted, which did not show its passage on that date, it was not conclusive that the ordinance had not been passed at some other time, against the statutory certificate of the mayor that it was in existence at the time of the defendant's conviction. State v. Gill, 195 N.C. 425, 142 S.E. 328 (1928).

No Evidence of Certification or Publication. - The refusal to permit police officer to testify on cross-examination as to existence and contents of a paper-writing which purported to be an ordinance of the city, was not error where there was no evidence that purported ordinance had been certified, as required by this section, or that it had been printed and published by the city as provided in G.S. 160-272 (now repealed). Toler v. Savage, 226 N.C. 208, 37 S.E.2d 485 (1946).

Cited in State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295 (1958); Black v. Penland, 255 N.C. 691, 122 S.E.2d 504 (1961).

ARTICLE 2. Grants, Deeds and Wills.

Sec.

§ 8-6. Copies certified by Secretary of State or State Archivist.

Copies of the plats and certificates of survey, or their accompanying warrants, and all abstracts of grants, which may be filed in the office of the Secretary of State, or in the Department of Natural and Cultural Resources, which copies, upon certification by the Secretary of State as to those records in his office, or the State Archivist as to those records in the Department of Natural and Cultural Resources, as true copies, shall be as good evidence, in any court, as the original.

History

(1822, c. 1154, P.R.; R.C., c. 44, s. 6; Code, s. 1341; Rev., s. 1596; C.S., s. 1751; 1961, c. 740, s. 1; 1973, c. 476, s. 48; 2015-241, s. 14.30(s).)

Cross References. - As to certification by clerk of Secretary of State, see G.S. 8-9.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" twice.

CASE NOTES

Material Discrepancy from Original. - This section does not make the copies better evidence than the original; and where there is a material discrepancy, it is for the jury to find as a fact which one is correct. Richards v. W.M. Ritter Lumber Co., 158 N.C. 54, 73 S.E. 485 (1911), modified on other grounds, 159 N.C. 455, 74 S.E. 1016 (1912).

Certified Abstract Competent to Show Title. - Abstracts of grants in the usual form, duly certified as correct copies by the Secretary of State and recorded in the office of the register of deeds, are competent to show title out of the state. Marshall v. Corbett, 137 N.C. 555, 50 S.E. 210 (1905).

Applied in Meekins v. Miller, 245 N.C. 567, 96 S.E.2d 715 (1957).

Cited in Whichard v. Oliver, 56 N.C. App. 219, 287 S.E.2d 461 (1982).

§ 8-7. Certified copies of grants and abstracts.

For the purpose of showing title from the State of North Carolina to the grantee or grantees therein named and for the lands therein described, duly certified copies of all grants and of all memoranda and abstracts of grants on record in the office of the Secretary of State, or in the Department of Natural and Cultural Resources, given in abstract or in full, and with or without the signature of the Governor and the great seal of the State appearing upon such record, shall be competent evidence in the courts of this State or of the United States or of any territory of the United States, and in the absence of the production of the original grant shall be conclusive evidence of a grant from the State to the grantee or grantees named and for the lands described therein.

History

(1915, c. 249, s. 1; C.S., s. 1752; 1961, c. 740, s. 2; 1973, c. 476, s. 48; 2015-241, s. 14.30(s).)

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources."

CASE NOTES

Constitutionality. - This section was held constitutional and valid. Howell v. Hurley, 170 N.C. 401, 87 S.E. 107 (1915).

Copy Conclusive as to Regularity of Original. - An abstract of a grant of the State's land by the Secretary of State imported the regularity of its issuance, and that the constitutional mandate of affixing the seal of the original had been legally complied with, though the abstract gave no indication thereof, the regularity of the official conduct in granting the original being presumed; furthermore, the abstract could be introduced as competent evidence on the trial of an action involving the title to the lands described in the grant, by one claiming under it. Howell v. Hurley, 170 N.C. 401, 87 S.E. 107 (1915).

§ 8-8. Certified copies of grants and abstracts recorded.

Duly certified copies of such grants and of such memoranda and abstracts of grants may be recorded in the county where the lands therein described are situated, and the records thereof in such counties, or certified copies thereof, shall likewise be competent evidence for the purpose of showing title from the State of North Carolina to the grantee or grantees named and for the lands described therein.

History

(1915, c. 249, s. 2; C.S., s. 1753.)

Cross References. - As to registration of certified copies of any deeds or writings, and their use in evidence, see G.S. 47-31.

§ 8-9. Copies of grants certified by clerk of Secretary of State validated.

All copies of grants heretofore issued from the office of the Secretary of State, duly certified under the great seal of the State, and to which the name of the Secretary has been written or affixed by the clerk of the said Secretary of State, are hereby ratified and approved and declared to be good and valid copies of the original grants and admissible in evidence in all courts of this State when duly registered in the counties in which the land lies; all such copies heretofore registered in said counties are hereby declared to be lawful and regular in all respects as if the same had been signed by the Secretary of State in person and duly registered.

History

(1901, c. 613; Rev., s. 1597; C.S., s. 1754.)

Cross References. - As to copies of destroyed record as evidence generally, see G.S. 98-1 et seq.

CASE NOTES

History. - As to the lack of authority of the clerk of the Secretary of State to certify and affix the great seal of the State to copies of grants and other papers from the Secretary of State's office prior to the enactment of this section, see Beam v. Jennings, 96 N.C. 82, 2 S.E. 245 (1887).

§ 8-10. Copies of grants in Burke.

Copies of grants issued by the State within the County of Burke prior to the destruction of the records of said county by General Stoneman in the year 1865, shall be admitted in evidence in all actions when the same are duly registered; and when the original grants are lost, destroyed or cannot be found after due search, it shall be presumed that the same were duly registered within the time prescribed by law, as provided upon the face of original grant.

History

(1901, c. 513; Rev., s. 1610; C.S., s. 1755.)

§ 8-11. Copies of grants in Moore.

Copies of grants for land situated in Moore County and the counties of which Moore was a part, entered in a book, and the book being certified under the seal of the Secretary of State, shall have the force and effect of the originals and be evidence in all courts.

History

(1903, c. 214; Rev., s. 1613; C.S., s. 1756.)

§ 8-12. Copies of grants in Onslow.

The copies of grants made by the register of deeds of Onslow County under laws of 1907, chapter 434, of grants, abstracts of grants, and other documents pertaining to titles of land in Onslow County issued prior to the year 1800, and contained in a book called Book of Transcribed Grants Issued Prior to One Thousand Eight Hundred, duly authenticated as prescribed in said Chapter 434 of the laws of 1907, shall be received as evidence in all courts of the State, and certified copies therefrom shall be received as evidence.

History

(1907, c. 434; C.S., s. 1757.)

§ 8-13. Certain deeds dated before 1835 evidence of due execution.

In all actions hereafter instituted in which the title or ownership of any lands situated in North Carolina is at issue or in dispute, any deed or release, or a duly certified copy thereof, in which the people of the State of North Carolina are grantees and bearing date prior to the year 1835 and purporting to have been filed and recorded in the office of the Secretary of State of North Carolina prior to said year and now on file and of record in said office, and executed or purporting to have been executed by any person or persons as the representatives or agents or for or on behalf of any society, tribe, nation or aggregation of persons, whether signed or executed individually or in their representative capacity, and any such deed or release having been authorized to be executed by an act of the General Assembly of North Carolina by the properly authorized agents of such society, tribe, nation or aggregation of persons, shall be prima facie evidence that the person or persons signing or executing any such deed or release were the properly authorized agent or agents of such society, tribe, nation or aggregation of persons. Any recitals or statements of fact in any such deed or release shall be prima facie evidence of the truth thereof in any such actions.

History

(1915, c. 75; C.S., s. 1758.)

§ 8-14. Certified copies of maps of Cherokee lands.

Certified copies by the Secretary of State of the copies, or parts thereof, of the maps of the Cherokee lands and of the Cherokee Country, as provided for and described in Chapter 175 of the laws of 1911, shall have the same force and effect and be entitled to the same force and effect as evidence as certified copies of the whole or parts of the original maps.

History

(1911, c. 175; C.S., s. 1759.)

§ 8-15. Certified copies of certain surveys and maps obtained from the State of Tennessee.

A certified copy of the report of the survey made by the North Carolina commissioners, McDowell, Vance and Matthews, of that portion of the State of Tennessee extending from a point on the Virginia line to a point on the Smoky Mountain west of the Pigeon River, as obtained and filed by the Secretary of State under the provisions of Chapter 162 of the laws of 1913, shall, when certified under the hand and seal of the Secretary of State, be competent evidence in the trial of any action in the courts of the State.

History

(1913, c. 162; C.S., s. 1760.)

§ 8-16. Evidence of title under H.E. McCulloch grants.

In all actions or suits, wherein it may be necessary for either party to prove title, by virtue of a grant or grants made by the king of Great Britain or Earl Granville to Henry McCulloch, or Henry Eustace McCulloch, it shall be sufficient for such party, in the usual manner, to give evidence of the grant or conveyance from the king of Great Britain or Earl Granville to the said Henry McCulloch, or Henry Eustace McCulloch, and the mesne conveyances thereafter, without giving any evidence of the deed or deeds of release, relinquishment or confirmation of Earl Granville to the said Henry McCulloch, or Henry Eustace McCulloch, or the power or powers of attorney by which the conveyances from the said Henry McCulloch, or Henry Eustace McCulloch, purport to have been made.

History

(1819, c. 1021, P.R.; R.C., c. 44, s. 1; Code, s. 1336; Rev., s. 1600; C.S., s. 1761.)

§ 8-17. Conveyances or certified copies evidence of title under McCulloch.

In all trials where the title of either plaintiff or defendant shall be derived from Henry Eustace McCulloch, or Henry McCulloch, out of their tracts numbers one and three, it shall not be required of such party to produce, in support of his title, either the original grant from the crown to the proprietors, or a registered copy thereof; but in all such cases the grant or deed executed by such reputed proprietors, or by his or their lawful attorney, or a certified copy thereof, shall be deemed and held sufficient proof of the title of such proprietors, in the same manner as though the original grants were produced in evidence.

History

(1807, c. 724, P.R.; R.C., c. 44, s. 2; Code, s. 1337; Rev., s. 1601; C.S., s. 1762.)

§ 8-18. Certified copies of registered instruments evidence.

A copy of the record of any deed, mortgage, power of attorney, or other instrument required or allowed to be registered, duly authenticated by the certificate and official seal of the register of deeds of the county where the original or duly certified copy has been registered, may be given in evidence in any of the courts of the State where the original of such copy would be admitted as evidence, although the party offering the same shall be entitled to the possession of the original, and shall not account for the nonproduction thereof, unless by a rule or order of the court, made upon affidavit suggesting some material variance from the original in such registry or other sufficient grounds, such party shall have been previously required to produce the original, in which case the same shall be produced or its absence duly accounted for according to the course and practice of the court.

History

(1846, c. 68, s. 1; R.C., c. 37, s. 16; Code, s. 1251; 1893, c. 119, s. 2; Rev., s. 1598; C.S., s. 1763.)

Cross References. - As to recordation and use in evidence of certified copies generally, see G.S. 47-31.

CASE NOTES

This section is not applicable when the original instrument is offered in evidence with the certificate of the register of deeds appearing thereon with respect to the time filed for registration and the book and page where it has been registered and the date of such registration. State v. Dunn, 264 N.C. 391, 141 S.E.2d 630 (1965).

Signature of Clerk Essential. - The failure of the clerk (now the register of deeds) to sign his name to the certificate for registration, a requirement found in the provisions of G.S. 47-14, renders the instrument inadmissible as evidence under this section. Woodlieff v. Woodlieff, 192 N.C. 634, 135 S.E. 612 (1926).

The record of a registered deed is competent evidence without producing the original where no rule of court for the production of the original has been issued. Ratliff v. Ratliff, 131 N.C. 425, 42 S.E. 887 (1902).

The "registry" or copy of the record of a bond to make title to land made by a deceased person, under which a deed had been made by the administrator of said obligor, was within the spirit and meaning of this section, and was admissible without accounting for the absence of the original. Doe v. Shelton, 46 N.C. 370 (1854).

Copy of Record of Clerk's Bond. - Inasmuch as the duly certified copy of the record of any instrument required to be registered was admissible as full and sufficient evidence of such instrument, and as the register of deeds was required to register and keep the bond of the superior court clerk, a duly certified copy of the record of such bond was competent evidence of its provisions. State ex rel. Battle v. Baird, 118 N.C. 854, 24 S.E. 668 (1896).

Lack of Seal No Effect. - A copy of a grant from the register's office, which affirmatively showed that it was issued under the great seal of the State, was admissible in evidence, though the registry did not show the impress of the seal, or scroll to indicate it. And while the seal may have been necessary to authenticate the grant, it would be presumed to have been affixed as required by law. Aycock v. Raleigh & Augusta Air-Line R.R., 89 N.C. 321 (1883).

Production of Original to Correct Mistakes. - The original deed may be shown in evidence to correct an omission by the register of deeds of the signature of the justice of the peace before whom the deed was acknowledged. Brown v. Hutchinson, 155 N.C. 205, 71 S.E. 302 (1911).

Parol Evidence to Explain Variance. - Where the original deed was lost, and it was contended that there was a material variance between the certified copy and the original deed, parol evidence to prove the correct description contained in the original instrument was rejected, this section being construed as to have no application to such a case. Hooper v. Justice, 111 N.C. 418, 16 S.E. 626 (1892).

Time and Manner of Objecting. - A party against whom the registry of a deed (or other instrument), or a copy thereof has been introduced in evidence, cannot then raise the objection that there is a variance between such registry, or copy, and the original instrument; if he desired to avail himself of such objection he should have required the production of the original in the way provided by this section. Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902 (1891).

Applied in Jones v. Arehart, 125 N.C. App. 89, 479 S.E.2d 254 (1996).

Cited in Merchants & Farmers Bank v. Sherrill, 231 N.C. 731, 58 S.E.2d 741 (1950); Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E.2d 85 (1979); Whichard v. Oliver, 56 N.C. App. 219, 287 S.E.2d 461 (1982).

§ 8-19. Common survey of contiguous tracts evidence.

Whenever any person owns several tracts of land which are contiguous or adjoining, but held under different deeds and different surveys, it may be lawful for any such person to have all such bodies of land included in one common survey by running around the lines of the outer tracts, and thereupon the possession of any part of said land covered by such common survey shall be deemed and held in law as a possession of the whole and every part thereof: Provided, that nothing in this section shall be construed to affect the rights or claims of persons which have already accrued to any part of said land. In all cases where such common surveys are made as directed by this section, the same may be recorded and registered as in cases of deeds, and shall be evidence in like manner.

History

(1869-70, c. 34, ss. 1, 2; Code, s. 1277; Rev., s. 1505; C.S., s. 1764.)

CASE NOTES

When Possession of Part Is Equivalent to Whole. - Under the provisions of this section, by recording and registering a survey of the outer lines of several contiguous tracts, so as to exhibit their outer boundaries as if the whole territory had been covered by one tract, a possession at any one point on either of the separate tracts will become equivalent to a possession of "the whole and every part." McNamee v. Alexander, 109 N.C. 242, 13 S.E. 777 (1891).

Sufficiency of Proof. - The surveyor's testimony that the map was correct was sufficient to make it competent. Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419 (1908).

§ 8-20: Repealed by Session Laws 1993, c. 288, s. 1.

Cross References. - For present provision concerning use of certified registered copies as evidence, see G.S. 47-31.

§ 8-21. Deeds and records thereof lost, presumed to be in due form.

Whenever it is shown in any judicial proceeding that a deed or conveyance of real estate has been lost or destroyed, and that the same had been registered, and that the register's book containing the copy has been destroyed by fire or other accident, so that a copy thereof cannot be had, it shall be presumed and held, unless the contents be shown to have been otherwise, that such deed or conveyance transferred an estate in fee simple, if the grantor was entitled to such an estate at the time of conveyance, and that it was made upon sufficient consideration.

History

(1854, c. 17; R.C., c. 44, s. 14; Code, s. 1348; Rev., s. 1602; C.S., s. 1766.)

Cross References. - As to burnt and lost records, see G.S. 98-1 et seq.

CASE NOTES

Presumption of Regularity. - The registration of a deed is presumed to be correct. Cochran v. Linville Imp. Co., 127 N.C. 386, 37 S.E. 496 (1900).

§ 8-22. Local: recitals in tax deeds in Haywood and Henderson.

In all legal controversies touching lands in the Counties of Haywood and Henderson, in which either party shall claim title under any sale for taxes alleged to have been due and laid, in and for the year one thousand seven hundred and ninety-six, or any preceding year, the recital contained in the deed or assurance, made by the sheriff or other officer conveying or assuring the same, of the taxes having been laid and assessed, and of the same having remained due and unpaid, shall be held and taken to be prima facie evidence of the truth of each and every of the matters so recited.

History

(R.C., c. 44, s. 11; Code, s. 1346; Rev., s. 1606, C.S., s. 1767.)

§ 8-22.1. Local: tax deeds in Richmond.

Proof of execution and delivery of a deed recorded before 1971 to a grantee by the sheriff of Richmond County pursuant to sale under execution in a tax foreclosure proceeding brought by Richmond County under G.S. 105-375 establishes a presumption that all notices required by G.S. 105-375 and Article 29B of Chapter 1 of the General Statutes were duly given and served, as required by law, to all persons entitled to receive the notices.

History

(1981, c. 517.)

§ 8-23. Local: copies of records from Tyrrell.

Copies of records of the County of Tyrrell between the years one thousand seven hundred and thirty-five and one thousand seven hundred and ninety-nine, when copied in a book and certified to by the clerk of the Superior Court of Tyrrell County as to the records of his office and by the register of deeds as to the records of his office, and deposited in their respective offices in Washington County, shall be treated in all respects as original records and received as evidence in all courts of Washington County.

History

(1903, c. 199; Rev., s. 1612, C.S., s. 1768.)

§ 8-24. Local: records of partition in Duplin.

The transcripts made by the clerk of the Superior Court of Duplin County, in accordance with Chapter three hundred and ninety-five of the laws of one thousand nine hundred and seven, of the reports of committees relating to the partition of real estate on file in his office prior and up to the year one thousand eight hundred and fifty-six, entered and indexed in a book entitled Reports of Committees, A, and the reports of committees beginning with and subsequent to the year one thousand eight hundred and fifty-six, entered and indexed in a book entitled Reports of Committees, B, shall be as competent evidence as are the original reports of the committees.

History

(1907, c. 395, ss. 3, 4; C.S., s. 1769.)

§ 8-25. Local: records of wills in Duplin.

The transcripts made by the clerk of the Superior Court of Duplin County, in accordance with Chapter three hundred and ninety-five of the laws of one thousand nine hundred and seven, of all wills and entries of probate and dates of registration appearing on the same, on file in his office prior and up to the January term of the County Court of Duplin County, one thousand eight hundred and thirty, and entered in a book designated as Records of Wills, A, and duly indexed as provided by law, shall be as competent evidence in any court as are the originals of such wills.

History

(1907, c. 395, ss. 1, 2; C.S., s. 1770.)

§ 8-26. Local: records of deeds and wills in Anson.

The copies of the deeds and deed books and of the wills and will books made in Anson County under the act of March second, one thousand nine hundred and five, shall have the same force and effect as the original deeds and deed books copied and as the original wills and will books copied, and shall take the place of said original deeds and deed books and wills and will books as evidence in all court procedure; and wherever said deed books or will books are ordered or directed to be produced in court by subpoena or other order of court, the copies made under such act shall be produced, unless the court shall specially order the production of the original books, and the copies so produced in court shall have the same validity and effect and be used for the same purposes, with the same effect, as the original books.

History

(1905, c. 663, s. 3; Rev., s. 1615; C.S., s. 1771.)

CASE NOTES

Cited in Meares v. Town of Beaufort, 193 N.C. App. 49, 667 S.E.2d 244 (2008).

§ 8-27. Local: records of wills in Brunswick.

Under the provisions of Chapter one hundred and six of the laws of one thousand nine hundred and eight, authorizing and directing that all unrecorded wills, dated prior to January first, one thousand eight hundred and seventy-five, on file in the office of the clerk of the Superior Court of Brunswick County, and which have been duly proved in the form required by law, and bearing the adjudication certificate of the proper officer, shall be recorded in the books of wills in the said office and properly indexed; that all wills recorded in the minutes of the court of pleas and quarter sessions or other books of record in said office shall be transcribed and indexed in the book of wills in said office; and that all wills recorded in the office of the register of deeds of said county shall be properly indexed in the book kept for the purpose in the office of the clerk of the superior court of the county; the record of any instrument or certified copy thereof, recorded under the provisions of this Article, shall be admitted in evidence in the trial of any cause, subject to the same rules upon which other wills are admitted.

History

(1908, s. 106; C.S., s. 1772.)

§ 8-28. Copies of wills.

Copies of wills, duly certified by the proper officer, may be given in evidence in any proceeding wherein the contents of the will may be competent evidence.

History

(1784, c. 225, s. 6, P.R.; R.C., c. 119, s. 21; Code, s. 2175; Rev., s. 1603; C.S., s. 1773.)

Cross References. - As to probate of copy of lost will, see G.S. 98-4 and 98-5.

CASE NOTES

Certified Copy as Evidence. - Under this section a certified copy of a will is competent evidence in any case wherein the contents of the will would be competent evidence. Hampton v. Hardin, 88 N.C. 592 (1883), overruled on other grounds, McEwan v. Brown, 176 N.C. 249, 97 S.E. 20 (1918).

§ 8-29. Copies of wills in Secretary of State's office.

Copies of wills filed or recorded in the office of the Secretary of State, attested by the Secretary, may be given in evidence in any court, and shall be taken as sufficient proof of the devise of real estate, and are declared good and effectual to pass the estate therein devised: Provided, that no such will may be given in evidence in any court nor taken as sufficient proof of the devise unless a certificate of probate appear thereon.

History

(1852, c. 172; R.C., c. 44, s. 12; 1856-7, c. 22; Code, s. 2181; Rev., s. 1607; C.S., s. 1774.)

§ 8-30. Copies of wills recorded in wrong county.

Whereas, by reason of the uncertainty of the boundary lines of many of the counties of the State, wills have been proved, recorded and registered in the wrong county, whereby titles are insecure; for remedy whereof: The registry or duly certified copy of the record of any will, duly recorded, may be given in evidence in any of the courts of this State.

History

(1858-9, c. 18; Code, s. 2182; Rev., s. 1608; C.S., s. 1775.)

§ 8-31. Copy of will proved and lost before recorded.

When any will which has been proved and ordered to be recorded was destroyed during the war between the states, before it was recorded, a copy of such will, so entitled to be admitted to record, though not certified by any officer, shall, when the court shall be satisfied of the genuineness thereof, be ordered to be recorded, and shall be received in evidence whenever the original or duly certified exemplification would be; and such copies may be proved and admitted to record under the same rules, regulations and restrictions as are prescribed in Chapter 98 entitled Burnt and Lost Records.

History

(1866-7, c. 127; Code, s. 2183; Rev., s. 1609; C.S., s. 1776.)

§ 8-32. Certified copies of deeds and wills from other states.

In cases where inhabitants of other states or territories, by will or deed, devise or convey property situated in this State, and the original will or deed cannot be obtained for registration in the county where the land lies, or where the property shall be in dispute, a copy of said will or deed (after the same has been proved and registered or deposited, agreeable to the laws of the state where the person died or made the same) being properly certified, either according to the act of Congress or by the proper officer of the said state or territory, shall be read as evidence.

History

(1802, c. 623, P.R.; R.C., c. 44, s. 9; Code, s. 1344; Rev., s. 1619; C.S., s. 1777.)

CASE NOTES

Records of other states, to be used in evidence in this State, must have the attestation of the clerk of the court whose record is offered, and the seal of the court, if it has one. If there be no seal, this must appear in the certificate of the clerk, and the judge, chief justice, or presiding magistrate of such court must certify that the record is properly attested. Hunter v. Kelly, 92 N.C. 285 (1885); Kinseley v. Rumbough, 96 N.C. 193, 2 S.E. 174 (1887); Riley v. Carter, 158 N.C. 484, 74 S.E. 463 (1912).

Properly Authenticated Copy Is Admissible. - A copy of a will made in another state, with its probate certified by the judge of the court in which it was proved, and accompanied by the testimonial of the governor of that state that the person who gave that certificate was the proper officer to take such probate and to certify the same, was a sufficient authentication of the will to authorize its reception as evidence in the courts of this State. Knight v. Wall, 19 N.C. 125 (1836).

Test for Admission Under Section. - The copy, to be admissible in evidence, must be of such a will as would be admitted to record in North Carolina; hence, where a will was executed in Tennessee and from the certificate of probate on the exemplified copy produced, it appeared that but one witness swore that he subscribed the will as witness in the presence of the testator and other witness to the will did not appear to have been sworn at all, it was held that such a will should not be read in evidence. Blount v. Patton, 9 N.C. 237 (1822).

Incomplete Authentication. - Where a will, proved in another state, bore the certificate of the clerk of the court wherein the probate was had to the oath of the attesting witnesses, but had no other authentication, it was held inadmissible in evidence. Hunter v. Kelly, 92 N.C. 285 (1885).

§ 8-33. Copies of lost records in Bladen.

The clerk of the Superior Court of Bladen County shall transcribe the judgment docket and index books and the will books in his office, and all other books in said office containing records made since the year one thousand eight hundred and sixty-eight, and the records so transcribed shall have the same force and effect as the original records would have, and shall be received in evidence as the original records and be prima facie evidence of their correctness and of the sufficiency of their probate, though the probates are lost and are not transcribed.

History

(1895, c. 415; 1903, c. 65; Rev., s. 1611; C.S., s. 1778.)

ARTICLE 3. Public Records.

Sec.

§ 8-34. Copies of official writings.

Copies of all official bonds, writings, papers, or documents, recorded or filed as records in any court, or public office, or lodged in the office of the Governor, Treasurer, Auditor, Secretary of State, Attorney General, Adjutant General, or the State Department of Natural and Cultural Resources, shall be as competent evidence as the originals, when certified by the keeper of such records or writings under the seal of the keeper's office when there is such seal, or under the keeper's hand when there is no such seal, unless the court shall order the production of the original. Copies of the records of the board of county commissioners shall be evidence when certified by the clerk of the board under the clerk's hand and seal of the county.
The provisions of this section shall apply to records stored on any form of permanent, computer-readable media, such as a CD-ROM, if the medium is not subject to erasure or alteration. Nonerasable, computer-readable storage media may be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of permanently valuable records as provided in G.S. 121-5(d).

History

(1792, c. 368, s. 11, P.R.; R.C., c. 44, s. 8; 1868-9, c. 20, s. 21; 1871-2, c. 91; Code, ss. 715, 1342; Rev., s. 1616; C.S., s. 1779; 1961, c. 739; 1973, c. 476, s. 48; 1999-131, s. 3; 1999-456, s. 47(c); 2011-326, s. 13(a); 2015-241, s. 14.30(s).)

Effect of Amendments. - Session Laws 2011-326, s. 13(a), effective June 27, 2011, in the last sentence of subsection (b), substituted "may be used" for "shall not be used" and deleted "except to the extent expressly approved by the Department of Cultural Resources pursuant to standards and conditions established by the Department" from the end.

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in subsection (a).

CASE NOTES

"Copy" Defined. - A copy, within the meaning of this section, is a transcript of the original, i.e., a writing exactly like another writing. State v. Champion, 116 N.C. 987, 21 S.E. 700 (1895); Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917).

Certification of Copy. - The power of an officer, who is the keeper of certain public records, to certify copies is confined to a certification of their contents as they appear by the records themselves, and the records must, therefore, be so certified, for he has no authority to certify to the substance of them, nor that any particular fact, as a date, appears on them. Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917).

Original Record Is Admissible. - This section does not prevent the admission in evidence of the original record itself. State v. Voight, 90 N.C. 741 (1884); State ex rel. Carolina Iron Co. v. Abernathy, 94 N.C. 545 (1886). See State v. Hunter, 94 N.C. 829 (1886); Charles S. Riley & Co. v. Carter, 165 N.C. 334, 81 S.E. 414 (1914); Blalock v. Whisnant, 216 N.C. 417, 5 S.E.2d 130 (1939).

While certified copies of records are admitted in evidence, the originals are not thereby made incompetent. State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978).

And Copy Is Admissible Where Original Is Lost. - Where a superior court record is lost, a certified copy of the transcript of the same in the appellate court is sufficient evidence of the record. Aiken v. Lyon, 127 N.C. 171, 37 S.E. 199 (1900).

A certified copy of a petition in a suit was admissible in evidence upon proof of the loss of the original records. Weeks v. McPhail, 128 N.C. 130, 38 S.E. 472, rehearing denied, 129 N.C. 73, 39 S.E. 732 (1901).

But Certified Statement Not Admissible. - This section makes competent only the "copies" of official records, etc., and a mere certified statement from the register's office was only evidence of the correctness of the record, and could not be admitted in evidence in place of the original record. State v. Champion, 116 N.C. 987, 21 S.E. 700 (1895); Wiggins v. Rogers, 175 N.C. 67, 94 S.E. 685 (1917).

Incriminating Evidence Contained in Document. - Where the document admitted under the provisions of this section contains incriminating evidence, the defense often interposed by the accused is that to admit such paper would be in violation of the constitutional right of the defendant on trial for crime to have opportunity to confront his accusers and the witnesses offered to sustain the charge. It is settled, however, that this section is not violative of this constitutional right, since these provisions constitute a well-recognized exception to the privilege given by the Constitution. State v. Behrman, 114 N.C. 797, 19 S.E. 220 (1894); State v. Dowdy, 145 N.C. 432, 58 S.E. 1002 (1907).

Admissibility of "Written Hearsay". - North Carolina countenances the introduction of test results, certified copies of official documents and records, as well as other writings, which, but for statute or decisional authority, would be written hearsay. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).

Document Reclassifying Prisoner's Status. - An authenticated copy of a department of correction document reclassifying a person's status as a prisoner and disclosing that he had been removed from the work release program for having returned therefrom in a highly intoxicated condition was a relevant and properly certified copy of an official record and was admissible in action to terminate parental rights. In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800 (1982).

Applied in Moye v. Thrifty Gas Co., 40 N.C. App. 310, 252 S.E.2d 837 (1979).

Cited in State v. Beamon, 2 N.C. App. 583, 163 S.E.2d 544 (1968); In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977).

§ 8-35. Authenticated copies of public records.

All copies of bonds, contracts, notes, mortgages, or other papers relating to or connected with any loan, account, settlement of any account or any part thereof, or other transaction, between the United States or any state thereof or any corporation all of whose stock is beneficially owned by the United States or any state thereof, either directly or indirectly, and any person, natural or artificial; or extracts therefrom when complete on any one subject, or copies from the books or papers on file, or records of any public office of the State or the United States or of any corporation all of whose stock is beneficially owned by the United States or by any state thereof, directly or indirectly, shall be received in evidence and entitled to full faith and credit in any of the courts of this State when certified to by the chief officer or agent in charge of such public office or of such office of such corporation, or by the secretary or an assistant secretary of such corporation, to be true copies, and authenticated under the seal of the office, department, or corporation concerned. Any such certificate shall be prima facie evidence of the genuineness of such certificate and seal, the truth of the statements made in such certificate, and the official character of the person by which it purports to have been executed.

History

(1891, c. 501; Rev., s. 1617; C.S., s. 1780; 1939, c. 149.)

Cross References. - As to judicial notice of laws of other states and foreign countries, see G.S. 8-3 and 8-4.

Legal Periodicals. - For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).

CASE NOTES

G.S. 14-7.4 is very similar in form and purpose to this section. State v. Aldridge, 67 N.C. App. 655, 314 S.E.2d 139 (1984).

The purpose of authentication and certification of records is to avoid the inconvenience and sometimes the impossibility of producing original public documents in court, and admission of certified records tends to expedite trial of cases. State v. Watts, 289 N.C. 445, 222 S.E.2d 389 (1976).

A valid, properly authenticated judgment is admissible under North Carolina law. State v. Maynard, 311 N.C. 1, 316 S.E.2d 197, cert. denied, 469 U.S. 963, 105 S. Ct. 363, 83 L. Ed. 2d 299 (1984), aff'd, 943 F.2d 407 (4th Cir. 1991), cert. denied, 502 U.S. 1110, 112 S. Ct. 1211, 117 L. Ed. 2d 450 (1992).

But Authentication Is Essential. - Proper authentication is essential to the admission in evidence of the copies of the original records, and papers purporting to be exemplification from the Treasury Department of the United States, not authenticated, will not be admitted. Mott v. Ramsay, 92 N.C. 152 (1885).

In order for this section to apply it must affirmatively appear that the evidence was offered as a properly authenticated copy of a public record in accordance with this section. State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

Parol Evidence Inadmissible. - The contents of the original record may not be proved by parol evidence under this section, but must be shown by a certified copy. National Sur. Co. v. Brock, 176 N.C. 507, 97 S.E. 417 (1918).

Reading of Record by District Attorney. - There is no error in allowing a properly certified copy of a record to be read into evidence by the district attorney, as opposed to having the document passed among the jurors. State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Public documents may be authenticated by mechanical reproduction of signature of authorized officer when he intends to adopt the mechanical reproduction as his signature. State v. Watts, 289 N.C. 445, 222 S.E.2d 389 (1976).

This section does not impose the restriction upon the general rule that for a stamped, printed or typewritten signature to be a good signature, the signature must be made under the hand of the person making it. State v. Watts, 289 N.C. 445, 222 S.E.2d 389 (1976).

Same - Presumption. - When the authorized officer of the D.M.V. provides records of the Division pursuant to statute, it may be presumed that he intends to authenticate the documents and to adopt the mechanical reproduction of his name as his own signature. State v. Watts, 289 N.C. 445, 222 S.E.2d 389 (1976).

This section has no application to an uncertified copy of a coroner's report but only to a duly certified copy. Robinson v. Life & Cas. Ins. Co., 255 N.C. 669, 122 S.E.2d 801 (1961).

Initialed certificate lacking notary's authentication meets all the requirements of G.S. 20-48 and provides prima facie evidence of the genuineness of such certificate, the truth of the statements made in such certificate, and the official character of the person who purportedly initialed and executed it. State v. Johnson, 25 N.C. App. 630, 214 S.E.2d 278, cert. denied, 288 N.C. 247, 217 S.E.2d 671 (1975).

The matters appearing in the transcript of any paper on file or records of any public office of this State or the United States, being relevant to an account which a referee was directed to take, are admissible in evidence by virtue of the provisions of this section. Wallace Bros. v. Douglas, 114 N.C. 450, 19 S.E. 668 (1894). See also Hinton v. Lake Drummond Canal Co., 166 N.C. 484, 82 S.E. 844 (1914).

A record of the D.M.V., disclosing that defendant's license was in a state of revocation under official D.M.V. action during the period defendant was charged with driving on a highway of this State, was competent under this section when the record was certified under seal of the D.M.V. State v. Mercer, 249 N.C. 371, 106 S.E.2d 866 (1959).

The records of the D.M.V., properly authenticated, were competent for the purpose of establishing the status of a person's operator's license and driving privilege. State v. Teasley, 9 N.C. App. 477, 176 S.E.2d 838, appeal dismissed, 277 N.C. 459, 177 S.E.2d 900 (1970); State v. Rhodes, 10 N.C. App. 154, 177 S.E.2d 754 (1970).

Same - Employee's Certification of Original Renders Copy Admissible. - Certification by an employee of the D.M.V. that the original of an order of security requirement or suspension of driving privilege was mailed to defendant on a specified date at his address shown on the records of the D.M.V. was sufficient to render admissible a copy of the document in a prosecution of a defendant for driving while his license was suspended. State v. Herald, 10 N.C. App. 263, 178 S.E.2d 120 (1970).

Same - Certified Copy of Driver's License Record Admissible to Show Revocation. - In a prosecution of a defendant for driving while his license was suspended, a properly certified copy of the driver's license record of defendant on file with the D.M.V. is admissible as evidence that the defendant's license was in a state of revocation for a period covering the date of the offense for which he was charged. State v. Herald, 10 N.C. App. 263, 178 S.E.2d 120 (1970).

Applied in Dunes Club, Inc. v. Cherokee Ins. Co., 259 N.C. 294, 130 S.E.2d 625 (1963); State v. Williams, 17 N.C. App. 39, 193 S.E.2d 452 (1972).

Cited in Taylor v. Garrett, 7 N.C. App. 473, 173 S.E.2d 31 (1970); State v. Parker, 20 N.C. App. 146, 201 S.E.2d 35 (1973); In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977).

§ 8-35.1. Division of Motor Vehicles' record admissible as prima facie evidence of convictions of offenses involving impaired driving.

Notwithstanding the provisions of G.S. 15A-924(d), a properly certified copy under G.S. 8-35 or G.S. 20-26(b) of the license records of a defendant kept by the Division of Motor Vehicles under G.S. 20-26(a) is admissible as prima facie evidence of any prior conviction of a defendant for an offense involving impaired driving as defined in G.S. 20-4.01(24a).

History

(1975, c. 642, s. 1; c. 716, s. 5; 1983, c. 435, s. 3.)

§ 8-35.2. Records of clerk of court criminal index admissible in certain cases.

Notwithstanding the provisions of G.S. 15A-924(d) or 15A-1340.4(e), certified copies of the records contained in the criminal index or similar records maintained manually or by automatic data processing equipment by the clerk of superior court, are admissible as prima facie evidence of any prior convictions of the person named in the records, if the original documents upon which the records are based have been destroyed pursuant to law. The index must contain at least the following information:

The case file number;
The name, sex, and race of the defendant;
His address;
His driver's license number, if the conviction is for a motor vehicle offense and the number is available;
The date of birth of the defendant, if it is available;
The offense for which he was charged and the date of same;
The disposition of the charge and the date of same;
Whether the defendant was indigent;
Whether he was represented by an attorney, and if so, the name of the attorney;
Whether the defendant waived his right to an attorney, and
The name and address of any victim, if available.

History

(1985, c. 606, s. 1; 1997-456, s. 27.)

CASE NOTES

Cited in State v. Ellis, 130 N.C. App. 596, 504 S.E.2d 787 (1998).

§ 8-36. Authenticated copy of record of administration.

When letters testamentary or of administration on the goods and chattels of any person deceased, being an inhabitant in another state or territory, have been granted, or a return or inventory of the estate has been made, a copy of the record of administration or of the letters testamentary, and a copy of an inventory or return of the effects of the deceased, after the same has been granted or made, agreeable to the laws of the state where the same has been done, being properly certified, either according to the act of Congress or by the proper officer of such state or territory, shall be allowed as evidence.

History

(1834, c. 4; R.C., c. 44, s. 7; Code, s. 1343; Rev., s. 1618; C.S., s. 1781.)

§ 8-37. Certificate of Commissioner of Motor Vehicles as to ownership of automobile.

In any civil or criminal action in which the ownership of a motor vehicle is relevant, evidence as to the letters and numbers appearing upon the registration plate attached to such vehicle or of the motor vehicle identification number, together with certified copies of records furnished pursuant to G.S. 20-42 by the Commissioner of Motor Vehicles showing the name of the owner of the vehicle to which such registration plate or vehicle identification number is assigned, or a certified copy of the certificate of title for such motor vehicle on file with the Commissioner of Motor Vehicles, is prima facie evidence of the ownership of such motor vehicle.

History

(1931, c. 88, s. 1; 1943, c. 650; 1979, c. 980.)

Cross References. - As to registration and certificate of title for motor vehicles generally, see G.S. 20-50 et seq.

CASE NOTES

Applied in Woodruff v. Holbrook, 255 N.C. 740, 122 S.E.2d 709 (1961).

Cited in In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977).

ARTICLE 3A. Findings, Records and Reports of Federal Officers and Employees.

Sec.

§ 8-37.1. Finding of presumed death.

A written finding of presumed death, made by the Secretary of War, the Secretary of the Navy, or other officer or employee of the United States authorized to make such finding, pursuant to the Federal Missing Persons Act (56 Stat. 143, 1092, and P.L. 408, ch. 371, 2d Sess. 78th Cong.; 50 U.S.C. App. Supp. 1001-17), as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this State as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance. This subsection applies only to findings of presumed death made prior to the effective date of Section 5(b) of Public Law 89-554.
A written finding of presumed death, made by the Secretary pursuant to Chapter 10 of Title 37 of the U.S. Code, P.L. 89-554 as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office, or other place in this State as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances, and place of his disappearance. This subsection applies only to findings of presumed death made on or after the effective date of Section 5(b) of Public Law 89-554.

History

(1945, c. 731, s. 1; 1995, c. 379, s. 3.)

§ 8-37.2. Report or record that person missing, interned, captured, etc.

An official written report or record, or duly certified copy thereof, that a person is missing, missing in action, interned in a neutral country, or beleaguered, besieged or captured by an enemy, or is dead, or is alive, made by any officer or employee of the United States authorized by the act referred to in § 8-37.1, or by any other law of the United States to make same, shall be received in any court, office or other place in this State as prima facie evidence that such person is missing, missing in action, interned in a neutral country, or beleaguered, besieged or captured by an enemy, or is dead, or is alive, as the case may be.

History

(1945, c. 731, s. 2.)

§ 8-37.3. Deemed signed and issued pursuant to law; evidence of authority to certify.

For the purposes of §§ 8-37.1 and 8-37.2 any finding, report or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States as is described in said sections, shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and the person signing same shall prima facie be deemed to have acted within the scope of his authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his authority so to certify.

History

(1945, c. 731, s. 3.)

ARTICLE 4. Other Writings in Evidence.

Sec.

§ 8-38: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 13.

Cross References. - As to provision that a subscribing witness' testimony is not necessary, see G.S. 8C-1, Rule 903.

§ 8-39. Parol evidence to identify land described.

In all actions for the possession of or title to any real estate parol testimony may be introduced to identify the land sued for, and fit it to the description contained in the paper-writing offered as evidence of title or of the right of possession, and if from this evidence the jury is satisfied that the land in question is the identical land intended to be conveyed by the parties to such paper-writing, then such paper-writing shall be deemed and taken to be sufficient in law to pass such title to or interest in such land as it purports to pass: Provided, that such paper-writing is in all other respects sufficient to pass such title or interest.

History

(1891, c. 465, s. 1; Rev., s. 1605; C.S., s. 1783.)

Cross References. - As to vagueness of description in deeds, see G.S. 39-2.

CASE NOTES

Section Not Retroactive in Operation. - There is a general presumption against the retroactive operation of a statute where it would impair vested rights; therefore, this section cannot be held to operate retrospectively so as to allow parol testimony to locate land referred to and ambiguously described in a contract made before the passage of this section. Lowe v. Harris, 112 N.C. 472, 17 S.E. 539 (1893).

Deed Must Contain Some Description. - This section applies only where there is a description which can be aided by parol, but not when there is no description. Lowe v. Harris, 112 N.C. 472, 17 S.E. 539 (1893); Hemphill v. Annis, 119 N.C. 514, 26 S.E. 152 (1896); Harris v. Woodward, 130 N.C. 580, 41 S.E. 790 (1902).

A deed which fails to describe any land is as void now as it was before the passage of this section, but a description by name, where lands have a known name, is sufficient. Moore v. Fowle, 139 N.C. 51, 51 S.E. 796 (1905).

And Description Must Identify Land or Refer to Source of Identification. - The statute applies only when there is a description which can be aided by parol, and cannot be held to validate a deed where the description is too vague and indefinite to identify the land claimed and to fit it to the description. At all events, the description as it may be explained by oral testimony must identify and make certain the land intended to be conveyed. Failing in this, the deed is void. Holloman v. Davis, 238 N.C. 386, 78 S.E.2d 143 (1953).

The statutory rule permitting the use of parol testimony to fit the description in the deed to the land intended to be conveyed does not relieve the invalidity due to vagueness, indefiniteness and uncertainty unless there are elements of description which are either certain in themselves or are capable of being reduced to certainty by reference to something extrinsic, to which the deed refers. The liberal rule of construction does not permit the passing of title to land by parol. Such evidence cannot be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. Holloman v. Davis, 238 N.C. 386, 78 S.E.2d 143 (1953).

The description must identify the land, or it must refer to something that will identify it with certainty. Cummings v. Dosam, Inc., 273 N.C. 28, 159 S.E.2d 513 (1968).

A deed purporting to convey an interest in land is void unless it contains a description of the land sufficient to identify it or refers to something extrinsic by which the land may be identified with certainty. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

Parol Evidence Alone Cannot Establish Boundary. - While parol evidence is competent to "fit the description to the thing," it is not competent to establish a line or corner when the instrument by its terms wholly fails to identify such line or corner; in other words, it is competent to find but not to make a corner. Holmes v. Sapphire Valley Co., 121 N.C. 410, 28 S.E. 545 (1897).

Description in Deed Must Be Fitted to Earth's Surface. - In an action to recover for the wrongful cutting and removal of timber from land claimed by plaintiffs, plaintiffs must locate the land by fitting the description in their deeds to the earth's surface, regardless of whether they rely upon their deeds as proof of title or color of title, or, in the absence of title or color of title, they are required to establish the known and visible lines and boundaries of the land actually occupied by them for the statutory period. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786 (1955).

Those having the burden of proof must locate the land they claim title to by fitting the description contained in the paper-writing offered as evidence of title to the land's surface. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969).

Allegations as to title having been denied, it was incumbent upon plaintiffs in ejectment action to establish both ownership and trespass. Whether relying upon their deeds as proof of title or of color of title, they were required to locate the land by fitting the description in the deeds to the earth's surface and showing that such deeds embraced the land in controversy. In the absence of title or color of title, they were required to establish the known and visible lines and boundaries of the land actually occupied for the statutory period. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53 (1969).

Scope of Descriptive Words in Deed May Not Be Enlarged by Parol Evidence. - Parol evidence is admissible to fit the description in a deed showing color of title to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

As the purpose of parol evidence is to fit the description to the property, not to create a description. McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965); Cummings v. Dosam, Inc., 273 N.C. 28, 159 S.E.2d 513 (1968); Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972).

Evidence dehors the deed is admissible to "fit the description to the thing" only when it tends to explain, locate, or make certain some call or descriptive term used in the deed. It is the deed that must speak. The oral evidence must only interpret what has been said therein. McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59 (1965).

Parol evidence is admissible to fit the description to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. State v. Brooks, 279 N.C. 45, 181 S.E.2d 553 (1971); Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972).

Parol evidence is not admissible to enlarge the scope of the description in the deed, but when the deed itself, including the references to extrinsic things, describes with certainty the property intended to be conveyed, parol evidence is admissible to fit the description in the deed to the land. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

Ambiguous or Indefinite Terms Generally. - Where the written terms contained in the contract are sufficient to pass the property, but are ambiguous or indefinite, then parol evidence of the expressions of the parties and attendant facts and circumstances may be heard to aid in ascertaining the correct meaning of the terms used, but not to alter or add to what has been written. Ward v. Gay, 137 N.C. 397, 49 S.E. 884 (1905).

Patently Ambiguous Description. - When it is apparent upon the face of the deed, itself, that there is uncertainty as to the land intended to be conveyed and the deed, itself, refers to nothing extrinsic by which such uncertainty can be resolved, the description is said to be patently ambiguous. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

A patent ambiguity in the description of the land is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

A patent ambiguity in the description of the land cannot be removed by parol evidence. Cummings v. Dosam, Inc., 273 N.C. 28, 159 S.E.2d 513 (1968).

Parol evidence may not be introduced to remove a patent ambiguity in the description of the land since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

And Deed Containing Such Description Is Void. - Where the description of land in a deed under which plaintiffs claimed was patently ambiguous, the deed was void and could not be the basis for a valid claim of title in the plaintiffs to the land claimed by them. Overton v. Boyce, 289 N.C. 291, 221 S.E.2d 347 (1976).

The identity or location of the land may be shown by documentary evidence, such as plats, surveys, and field notes. A map made by a surveyor of the premises sued for and of other tracts adjacent thereto, when proved to be correct, is admissible to illustrate other testimony in the case and throw light on the location of the land in controversy; and a draft of a survey, proved to be correct, is admissible in evidence as explanatory of what the surveyor testified he had done in making the survey. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E.2d 53 (1969).

When Description Is Sufficient. - A description of land in a deed as all that tract of land in two certain counties lying on "both sides of old road between" designated points, and bounded by lands of named owners "and others," being parts of certain State grants, conveyed by the patentee or enterer to certain grantees, etc., was sufficient to admit parol evidence in aid of the identification of the lands as those intended to be conveyed. Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630 (1920).

Superior court erred, inter alia, in denying a loan assignee's motion for summary judgment in its quiet title action because the deed of trust adequately described the property to create a lien on that property without the need for reformation and also identified the real estate securing the loan by its correct street address and tax parcel number, and the owner could, and did, encumber the property when he obtained the loan from the assignee's predecessor where several deeds in the owner's chain of title, including the deed conveying the property to him, all included the same legal description as the deed of trust, with no reference to the book and page number of the subdivision's map in the county's Map Book. MTGLQ Inv'rs, L.P. v. Curnin, 263 N.C. App. 193, 823 S.E.2d 409 (2018).

Applied in McKay v. Bullard, 219 N.C. 589, 14 S.E.2d 657 (1941); Taylor v. Tri-County Elec. Membership Corp., 10 N.C. App. 277, 178 S.E.2d 130 (1970).

Cited in Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440 (1944); Brown v. Hurley, 243 N.C. 138, 90 S.E.2d 324 (1955); Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316 (1955); Lane v. Lane, 255 N.C. 444, 121 S.E.2d 893 (1961); Garrison v. Blakeney, 37 N.C. App. 73, 246 S.E.2d 144 (1978); Chappell v. Donnelly, 113 N.C. App. 626, 439 S.E.2d 802 (1994).

§ 8-40: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 12.

Cross References. - As to comparison by the trier of factor expert witnesses with specimens which have been authenticated, see G.S. 8C-1, Rule 901(b)(3).

§ 8-40.1: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 10.

Cross References. - As to present provisions relating to the learned treatise exception to the hearsay rule, see G.S. 8C-1, Rule 803(18).

§ 8-41. Bills of lading in evidence.

In all actions by or against common carriers or in the trial of any criminal action in which it shall be thought necessary to introduce in evidence any bills of lading issued by said common carrier or by a connecting carrier, it shall be competent to introduce in evidence any paper-writing purporting to be the original bill of lading, or a duplicate thereof, upon proof that such paper purporting to be such bill of lading or duplicate was received in due course of mail from consignor or agent of said carrier or connecting carrier, or delivered by said common carrier to the consignee or other person entitled to the possession of the property for which said paper purports to be the bill of lading: Provided, that such purported bill of lading shall not be declared to be the bill of lading unless the said purported bill of lading is first exhibited by the plaintiff or his agent or attorney to the defendant or its attorney, or its agent upon whom process may be served, ten days before the trial where the point of shipment is in the State, and twenty days when the point of shipment is without the State. Upon such proof and introduction of the bill of lading, the due execution thereof shall be prima facie established.

History

(1915, c. 287; C.S., s. 1785; 1945, c. 97.)

§ 8-42. Book accounts under sixty dollars.

When any person shall bring an action upon a contract, or shall plead, or give notice of, a setoff or counterclaim for goods, wares and merchandise by him sold and delivered, or for work done and performed, he shall file his account with his complaint, or with his plea or notice of setoff or counterclaim, and if upon the trial of the issue, or executing a writ of inquiry of damages in such action, he shall declare upon his oath that the matter in dispute is a book account, and that he hath no means to prove the delivery of any of the articles which he then shall propose to prove by himself but by this book, in that case such book may be given in evidence, if he shall make out by his own oath that it doth contain a true account of all the dealings, or the last settlement of accounts between himself and the opposing party, and that all the articles therein contained, and by him so proved, were bona fide delivered, and that he hath given the opposing party all just credits; and such book and oath shall be received as evidence for the several articles so proved to be delivered within two years next before the commencement of the action, but not for any article of a longer standing, nor for any greater amount than sixty dollars ($60.00).

History

(1756, c. 57, ss. 2, 6, 7, P.R.; R.C., c. 15, s. 1; Code, s. 591; Rev., s. 1622; C.S., s. 1786.)

CASE NOTES

Terms Construed. - In an early case, the words "to make out on his oath" and "to prove," used in the former statute, were construed to be synonymous terms. Kitchen v. Tyson, 7 N.C. 314 (1819).

Construction with Former G.S. 8-51. - Notwithstanding the restrictions contained in former G.S. 8-51, in relation to a person's testifying as to any matter between himself and a deceased person, when his executor or administrator is a party, he may, as heretofore, be permitted to testify under this section. Leggett v. Glover, 71 N.C. 211 (1874). See Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915).

Applicability of Section. - This section is applicable only to actions brought under the "book-debt law," hence in an action on a contract for sawing timber, it was not necessary to set out the items in the pleadings. McPhail Bros. v. Johnson, 115 N.C. 298, 20 S.E. 373 (1894).

Where Original Account Exceeds Sixty Dollars. - Under this section, a plaintiff may prove by his own oath a balance of sixty dollars, due to him, although his account produced appears to have been originally for more than sixty dollars ($60.00), but is reduced by credits below that amount. McWilliams v. Cosby, 26 N.C. 110 (1843).

Same - Dismissal of Part for Jurisdictional Purposes. - Where divers dealings were included in an account, the aggregate of which exceeded sixty dollars ($60.00), the plaintiff could omit or give credit for any item he chose, so as to bring the case within the jurisdiction of a single magistrate. But after thus obtaining jurisdiction the plaintiff could not prove the account under this section for he was required to swear that the account rendered contained a true account of all the dealings. Joseph Waldo & Co. v. Jolly, 49 N.C. 173 (1856).

Proof of Setoff Allowed. - The defendant may, under this section, prove a setoff. Webber v. Webber, 79 N.C. 572 (1878).

Book and Oath Not Exclusive Evidence. - The book and the oath under this section are not evidence that the book contains all the credits and a full and true account of all the dealings between the parties, so as to show that nothing is due to the other party. Alexander v. Smoot, 35 N.C. 461 (1852).

Swearing as to Price of Goods. - It is competent for a party under this section to swear to the price, as well as to the delivery of the articles stated in his account. Colbert v. Piercy, 25 N.C. 77 (1842).

Cross-Examination. - It is competent for the opposite party to cross-examine the party taking his oath as required by this section, both as to the article and the prices charged, with a view to contradict or discredit him as he might do in regard to any other witness swearing to the account, the party so swearing being considered as a witness in his own cause. Colbert v. Piercy, 25 N.C. 77 (1842).

Books of Decedent Admissible. - Under this section it is admissible to the amount of sixty dollars ($60.00) to offer the book accounts of a decedent, containing charges against third persons, and made by him. Bland v. Warren, 65 N.C. 372 (1871).

Unverified Entries on Own Book. - A party to an action may not show unverified entries of credit in his behalf on his own books involved in a disputed account, the same not falling within the intent and meaning of this section and G.S. 8-43 and 8-44, especially when it has not been made to appear that the person having made them is dead or cannot be had to give his sworn statement of the transaction. Branch v. Ayscue, 186 N.C. 219, 119 S.E. 201 (1923).

Cited in Perry v. First-Citizens Bank & Trust Co., 223 N.C. 642, 27 S.E.2d 636 (1943).

§ 8-43. Book accounts proved by personal representative.

In all actions where executors and administrators are parties, such book account for all articles delivered within two years previous to the death of the deceased may be proved under the like circumstances, rules and conditions; and in such case, the executor or administrator may prove by himself that he found the account so stated on the books of the deceased; that there are no witnesses, to his knowledge, capable of proving the delivery of the articles which he shall propose to prove by said book, and that he believes the same to be just, and doth not know of any other or further credit to be given than what is therein mentioned: Provided, that if two years shall not have elapsed previous to the death of the deceased, the executor or administrator may prove the said book account, if the suit shall be commenced within three years from the delivery of the articles: Provided further, that whenever by the aforesaid proviso the time of proving a book account in manner aforesaid is enlarged as to the one party, to the same extent shall be enlarged the time as to the other party.

History

(1756, c. 57, s. 2, P.R.; 1796, c. 465, P.R.; R.C., c. 15, s. 2; Code, s. 592; Rev., s. 1623; C.S., s. 1787.)

CASE NOTES

An administrator may offer in evidence the book accounts of a decedent, containing charges against third persons, and made by him. Bland v. Warren, 65 N.C. 372 (1871).

Cited in Perry v. First-Citizens Bank & Trust Co., 223 N.C. 642, 27 S.E.2d 636 (1943).

§ 8-44. Copies of book accounts in evidence.

A copy from the book of accounts proved in manner above directed may be given in evidence in any such action or setoff as aforesaid, and shall be as available as if such book had been produced, unless the party opposing such proof shall give notice to the adverse party or his attorney, at the joining of the issue, or 10 days before the trial, that he will require the book to be produced at the trials; and in that case no such copy shall be admitted as evidence.

History

(1756, c. 57, s. 33, P.R.; R.C., c. 15, s. 3; C.C.P., s. 343c; Code, s. 593; Rev., s. 1624; C.S., s. 1788.)

CASE NOTES

Production of Original After Notice. - In all cases under this section and G.S. 8-42 and 8-43, it is the duty of the party, who wishes to prove his debt by his own oath, to produce the original account when notice to that effect has been given to him by the other party. Coxe v. Skeen, 25 N.C. 443 (1843).

A voluntary destruction of the original will not authorize the introduction of a copy. Coxe v. Skeen, 25 N.C. 443 (1843).

§ 8-44.1. Hospital medical records.

Copies or originals of hospital medical records shall not be held inadmissible in any court action or proceeding on the grounds that they lack certification, identification, or authentication, and shall be received as evidence if otherwise admissible, in any court or quasi-judicial proceeding, if they have been tendered to the presiding judge or designee by the custodian of the records, in accordance with G.S. 1A-1, Rule 45(c), or if they are certified, identified, and authenticated by the live testimony of the custodian of such records.

Hospital medical records are defined for purposes of this section and G.S. 1A-1, Rule 45(c) as records made in connection with the diagnosis, care and treatment of any patient or the charges for such services except that records covered by G.S. 122-8.1, G.S. 90-109.1 and federal statutory or regulatory provisions regarding alcohol and drug abuse, are subject to the requirements of said statutes.

History

(1973, c. 1332, s. 1; 1983, c. 665, s. 2.)

Editor's Note. - G.S. 122-8.1, referred to in this section, was repealed by Session Laws 1985, c. 589, s. 1. See now Chapter 122C.

CASE NOTES

Admissibility of Hospital Records. - A hospital record is a business record, and is admissible into evidence upon the laying of a proper foundation. A proper foundation consists of testimony from a hospital librarian or custodian of the records or other qualified witness as to the identity and authenticity of the record and the mode of its preparation, including testimony that the entries were made at or near the time of the act or event recorded, that the entries were made by persons having personal knowledge of the event or act, and that the entries were made ante litem motam. The court, however, should exclude from jury consideration entries which amount to hearsay on hearsay. Donavant v. Hudspeth, 75 N.C. App. 321, 330 S.E.2d 517, rev'd on other grounds, 318 N.C. 1, 347 S.E.2d 797 (1986); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Authenticating Hospital Records. - This section merely eliminated the necessity of taking original hospital records to court, where they were often kept for long periods to the dismay of record keepers and the inconvenience of those who needed to use the records for any purpose, including the later treatment of the patient. It did not modify the then-existing process of authenticating hospital records but, to the contrary, it ratified and reinforced the process by continuing to require authenticating testimony. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853 (1983).

The key to authenticating hospital records is not personal knowledge by anyone of particular entries or occurrences, but evidence of system and practice; evidence that a business-like system of compiling records exists, which requires that entries be made at or near the time involved by those who examine, observe, test and treat patients; and that in practice the system is generally followed. When that is testified to by someone familiar with the system, and the purported record involved is testified to be genuine, the authenticating process is complete. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853 (1983).

It is a matter of common knowledge among those familiar with hospital records that entries requiring dictation and transcription are done late by many doctors because they give priority to their other medical duties. Nevertheless, such entries, when regularly made, are still parts of the patients' record and should be so considered, except when there is evidence of duplicity or bad faith. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853 (1983).

Mental Health Records Previously Admitted Into Evidence. - Trial court did not err by considering mental health records of a mother contained within the underlying file and previously admitted into evidence in proceedings to terminate her parental rights, because the mental health records challenged by the mother were originally admitted into evidence during a permanency planning review hearing and were not challenged by the mother at that time. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).

It is not required that the authenticating proof be only by personal knowledge. Such a requirement would, for all intents and purposes, abrogate the use of business records in court; because under the conditions that most businesses and hospitals are conducted today, it is a rare person indeed, that has personal knowledge of any work or undertaking done by others. In re Will of Cromartie, 64 N.C. App. 115, 306 S.E.2d 853 (1983).

Mental Health Records Admissible. - Rutherford County Department of Social Services was not precluded from admitting the mother's mental health records into evidence. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006).

Applied in State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

§ 8-45. Itemized and verified accounts.

In any actions instituted in any court of this State upon an account for goods sold and delivered, for rents, for services rendered, or labor performed, or upon any oral contract for money loaned, a verified itemized statement of such account shall be received in evidence, and shall be deemed prima facie evidence of its correctness.

History

(1897, c. 480; Rev., s. 1625; 1917, c. 32; C.S., s. 1789; 1941, c. 104.)

Legal Periodicals. - For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

CASE NOTES

Purpose. - This section was designed to facilitate the collection of such accounts where there was no bona fide dispute, and to relieve the plaintiff in such instances of the expense and delay of formally taking depositions. Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915).

This section was designed to facilitate the collection of accounts about which there is no bona fide dispute. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576 (1976); Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747 (1984).

This section was designed to facilitate the collection of accounts not in dispute. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

This statute is applicable only where there is no dispute about an account. Durham Life Broadcasting, Inc. v. International Carpet Outlet, Inc., 63 N.C. App. 787, 306 S.E.2d 459 (1983).

Construction of Section. - This section must be strictly construed. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576 (1976).

Since many states have statutes similar to this section it is appropriate to review decisions from those states for guidance in construing this section. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576 (1976).

Use Not Limited to Absence of Witness. - Nothing in this section or case law limits the use of a verified statement of the account to only those situations where the witness is unavailable to testify. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565 (1976).

Verification Essential. - An itemized account to be prima facie evidence of its correctness must be properly verified and stated so as to show an indebtedness. Knight v. Taylor, 131 N.C. 84, 42 S.E. 537 (1902).

Sufficiency of Verification. - Verification of the itemized account is sufficient if the affiant has personal knowledge of the account or is familiar with the books and records of the business and is in a position to testify as to the correctness of the records. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565 (1976).

Where the verifier has no personal knowledge of all the matters contained therein will not disqualify the exhibit as a verified statement if such verifier certifies familiarity with the books and records of the business and is competent to testify to their correctness. The law requires no more. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, cert. denied, 309 N.C. 826, 310 S.E.2d 359 (1983).

In an action for accounting and tax services rendered, the different itemized bills for each period showing the services rendered, the time required, expenses incurred, charges made, the previous balance, the amount then due, and the different ledger sheets showing charges, payments, and balances all along, are ingredients enough for a good, verified statement of account. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, cert. denied, 309 N.C. 826, 310 S.E.2d 359 (1983).

Unverified Statements of Account Admissible as Business Records. - In an action to recover for labor and materials supplied by plaintiff in repairing defendant's truck, plaintiff's exhibit which consisted of itemized statements of account for materials supplied and labor performed by plaintiff upon defendant's truck was not admissible pursuant to this section because it was not verified; however, the exhibit was admissible under the business records exception to the hearsay rule where there was testimony that the exhibit properly reflected the work done by plaintiff's shop foreman and charges made pursuant to the work he performed. Bond Park Truck Serv. v. Hill, 53 N.C. App. 443, 281 S.E.2d 61 (1981).

Where it affirmatively appears from the record that the various entries on the papers comprising the exhibit admitted as a verified statement of account were made in the regular course of business, at or near the time of the transactions involved, and were authenticated by a witness familiar with the system under which they were made, the exhibit was admissible under the business records exception to the hearsay rule. VanLandingham v. Northeastern Motors, Inc., 63 N.C. App. 778, 306 S.E.2d 169, cert. denied, 309 N.C. 826, 310 S.E.2d 359 (1983).

Statements showing amounts due for services rendered, attached to complaint, and based upon an unverified computer printout were not admissible as verified itemized statements under this section. However, as this evidence was admissible under the business records exception to the hearsay rule, and as the jury was correctly instructed on the law pertaining to an account stated by an implied agreement, this error was rendered harmless. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

Competency of Witness Required. - Under the terms of this section, as now drawn, an affiant, verifying an account so as to make the same prima facie evidence, must be a competent witness to the facts, and, when it appears on the face of the account that he has no personal knowledge of these facts, or it is established that he is otherwise an incompetent witness, the ex parte account so verified should not be received in evidence. Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915). And it must appear that he is not excluded under former G.S. 8-51. See William M. Lloyd & Co. v. Poythress, 185 N.C. 180, 116 S.E. 584 (1923).

An itemized, verified statement of an account is an ex parte statement and this section, governing its admission, must be strictly complied with, and the person who verifies the account, being treated as a witness pro tanto, must be competent to testify as a witness in respect to the account if called upon at the trial; but where an itemized statement of account offered at the trial was verified by the treasurer of the plaintiff corporation who declared in his affidavit that "he is familiar with the books and business" of the plaintiff, it could not be held as a matter of law that the affiant had no personal knowledge of the transaction, and the exclusion of the statement by the trial court was reversible error. Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915), cited and distinguished, in Endicott-Johnson Corp. v. Schochet, 198 N.C. 769, 153 S.E. 403 (1930).

The account must be sworn to by some person who would be a competent witness to testify to the correctness of the account. Johnson Serv. Co. v. Richard J. Curry & Co., 29 N.C. App. 166, 223 S.E.2d 565 (1976).

An affiant who verifies an account of goods sold and delivered, which is to be received into evidence and taken as prima facie evidence of its correctness pursuant to this section, shall be regarded and dealt with as a witness pro tanto, and to such extent must meet the requirements and is subject to the qualifications and restrictions as other witnesses. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576 (1976).

Where plaintiff's purported itemized statement was verified by a woman who was identified in the verification as the president of plaintiff corporation, but the verification contained no statement to the effect, and there was no other showing, that affiant had any personal knowledge of the matters set forth in the affidavit or that she was familiar with the books and records of plaintiff corporation, and the burden was on plaintiff to establish a prima facie case, it failed to show that the affiant would have been competent to testify if called as a witness at trial. Bramco Elec. Corp. v. Shell, 31 N.C. App. 717, 230 S.E.2d 576 (1976).

Prima Facie Case. - In an action to recover for goods sold and delivered, where a verified statement of the account shows that it is for goods sold by the plaintiff to the defendant and sets out the number and kind of articles, the catalogue numbers, price per dozen and discounts allowed, and there are trade terms and abbreviations well understood in the trade, which show more fully the kind of articles, it is properly itemized to make out a prima facie case under this section. Claus v. Lee, 140 N.C. 552, 53 S.E. 433 (1906); Lipinsky v. Revell, 167 N.C. 508, 83 S.E. 820 (1914).

To make out a prima facie case under this section, the account not only must be properly verified and itemized, it must also be stated so as to show an indebtedness. Kight v. Harris, 33 N.C. App. 200, 234 S.E.2d 637 (1977); Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799 (1986).

Nonsuit. - Where a verified account or affidavit to a statement for goods sold and delivered is insufficient to establish a prima facie case under the provision of this section, and this is the only evidence offered, a judgment of nonsuit upon the evidence is properly allowed. Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915).

Burden of Proof. - Where a prima facie case had been made out by the plaintiff in his action to recover the purchase price of goods sold and delivered to the defendant, and the latter contended that he, as the agent for the former, was to sell upon commission, and that he had accounted for such sales, except a small balance which he tendered, or offered to submit to judgment for that amount, the burden was upon defendant to show the fact of agency, and of accounting thereon, which was for the determination of the jury upon the question of indebtedness. Carr v. Alexander & Garsed, 169 N.C. 665, 86 S.E. 613 (1915).

Husband as Agent of Wife. - Itemized statement of goods held insufficient to establish agency of husband in purchasing goods for use on wife's farm. Pitt v. Speight, 222 N.C. 585, 24 S.E.2d 350 (1943).

Subordination of Section to Former G.S. 8-51. - In William M. Lloyd & Co. v. Poythress, 185 N.C. 180, 116 S.E. 584 (1923), the court said: "We have held that this section, appearing as a section on the law of evidence, should be construed in subordination to C.S., 1795, [former G.S. 8-51] under the principle announced in Cecil v. City of High Point, 165 N.C. 431, 81 S.E. 616 (1914)." See Nall v. Kelly, 169 N.C. 717, 86 S.E. 627 (1915).

Applied in Wright Co. v. Green, 196 N.C. 197, 145 S.E. 16 (1928); United States Leasing Corp. v. Hall, 264 N.C. 110, 141 S.E.2d 30 (1965); Planters Indus., Inc. v. Wiggins, 17 N.C. App. 132, 193 S.E.2d 303 (1972); Harrell v. W.B. Lloyd Constr. Co., 300 N.C. 353, 266 S.E.2d 626 (1980).

Cited in Haines v. Clark, 230 N.C. 751, 55 S.E.2d 693 (1949); Forsyth County Hosp. Auth. v. Sales, 82 N.C. App. 265, 346 S.E.2d 212 (1986); Roy Burt Enters., Inc. v. Marsh, 328 N.C. 262, 400 S.E.2d 425 (1991).

ARTICLE 4A. Photographic Copies of Business and Public Records.

Sec.

§ 8-45.1. Photographic reproductions admissible; destruction of originals.

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, X ray or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile, does not preclude admission of the original.
The provisions of subsection (a) of this section shall apply to records stored on any form of permanent, computer-readable media, such as a CD-ROM, if the medium is not subject to erasure or alteration. Nonerasable, computer-readable storage media may be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of permanently valuable records as provided in G.S. 121-5(d).

History

(1951, ch. 262, s. 1; 1977, ch. 569; 1999-131, s. 1; 1999-456, s. 47(a); 2011-326, s. 13(b).)

Cross References. - As to admissibility of contents of writings, recordings and photographs, see Chapter 8C, Article 10.

Effect of Amendments. - Session Laws 2011-326, s. 13(b), effective June 27, 2011, in the last sentence of subsection (b), substituted "may be used" for "shall not be used" and deleted "except to the extent expressly approved by the Department of Cultural Resources pursuant to standards and conditions established by the Department" from the end.

Legal Periodicals. - For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).

CASE NOTES

Reproductions Are Primary Evidence. - Reproductions are made and kept among the records of many banks in due course of business. Their accuracy is not questioned. As proof of payment they constitute not secondary but primary evidence. State v. Shumaker, 251 N.C. 678, 111 S.E.2d 878 (1960).

Photostatic copies of deposit slips and checks made by an employee of a bank in the usual course of business and identified by such employee are competent as primary evidence without proof of the loss or destruction of the originals. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6 (1969).

Photocopies are admissible as originals. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308 N.C. 387, 302 S.E.2d 253 (1983).

Business records are admissible as an exception to the hearsay rule when they (1) are made in the regular course of business, at or near the time of the events recorded; (2) are original entries; (3) are based on the personal knowledge of the individual making the entries; and (4) are authenticated by a witness familiar with the system by which they were made. Pinner v. Southern Bell Tel. & Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308 N.C. 387, 302 S.E.2d 253 (1983).

Failure to Show That Copy Was Made in Regular Course of Business or by Whom It Was Made. - A photostatic copy of a purported written designation of plaintiff by deceased as the beneficiary of deceased's governmental life insurance benefits should not be admitted as evidence where plaintiff failed to show that the copy was made in the regular course of business or activity of any federal agency or by whom it was made. Jones v. Metropolitan Life Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6 (1969).

A photostatic copy of a computerized report from the operations center of a bank was admissible in a prosecution for the issuance of checks with knowledge of insufficient funds to pay the checks upon presentation. State v. Passmore, 37 N.C. App. 5, 245 S.E.2d 107, cert. denied, 295 N.C. 556, 248 S.E.2d 734 (1978).

Cited in In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); Sutton v. Sutton, 35 N.C. App. 670, 242 S.E.2d 644 (1978).

§ 8-45.2. Uniformity of interpretation.

This Article shall be so interpreted and construed as to effectuate its general purpose of making uniform the law of those states which enact it.

History

(1951, c. 262, s. 2.)

§ 8-45.3. Photographic reproduction of records of Department of Revenue and Division of Employment Security.

The State Department of Revenue is hereby specifically authorized to have photographed, photocopied, or microphotocopied all records of the Department, including tax returns required by law to be made to the Department, and said photographs, photocopies, or microphotocopies, when certified by the Department as true and correct photographs, photocopies, or microphotocopies, shall be as admissible in evidence in all actions, proceedings and matters as the originals thereof would have been.
The Division of Employment Security is hereby specifically authorized to have photographed, photocopied, or microphotocopied all records of the Division, including filings required by law to be made to the Division, and said photographs, photocopies, or microphotocopies, when certified by the Division as true and correct photographs, photocopies, or microphotocopies, shall be as admissible in evidence in all actions, proceedings, and matters as the originals thereof would have been.
The provisions of this section shall apply to records stored on any form of permanent, computer-readable media, such as a CD-ROM, if the medium is not subject to erasure or alteration. Nonerasable, computer-readable storage media may be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of permanently valuable records as provided in G.S. 121-5(d).

History

(1951, c. 262, s. 3; 1999-131, s. 2; 1999-456, s. 47(b); 2001-115, s. 1; 2011-326, s. 13(c); 2011-401, s. 3.2.)

Effect of Amendments. - Session Laws 2011-326, s. 13(c), effective June 27, 2011, in the last sentence of subsection (b), substituted "may be used" for "shall not be used" and deleted "except to the extent expressly approved by the Department of Cultural Resources pursuant to standards and conditions established by the Department" from the end.

Session Laws 2011-401, s. 3.2, effective November 1, 2011, substituted "Division of Employment Security" for "Employment Security Commission" in the section heading and in subsection (a1), and thrice substituted "Division" for "Commission."

§ 8-45.4. Title of Article.

This Article may be cited as the "Uniform Photographic Copies of Business and Public Records as Evidence Act."

History

(1951, c. 262, s. 4.)

ARTICLE 4B. Evidence of Fraud, Duress, Undue Influence.

Sec.

§ 8-45.5. Statements, releases, etc., obtained from persons in shock or under the influence of drugs; fraud presumed.

Any oral or written statement, waiver, release, receipt, or other representation of any kind by any person made or executed while a patient in any hospital and taken by any person in connection with any type of insurance coverage on or for the benefit of said patient which shall have been taken while such patient was in shock or appreciably under the influence of any drug, including drugs given primarily for sedation, shall be deemed to have been obtained by means of fraud, duress or undue influence on the part of the person or persons taking same, and the same shall be incompetent and inadmissible in evidence to prove or disprove any fact or circumstance relating to any claim for which any insurance company may be liable under any policy of insurance issued to, or which may indemnify or provide coverage or protection for the person making or executing any such statement or other instrument while a patient in a hospital, nor may any such person making or executing the same be examined or cross-examined in regard thereto.

History

(1967, c. 928.)

Legal Periodicals. - For note on avoidance of releases in personal injury cases in North Carolina, see 5 Wake Forest Intra. L. Rev. 359 (1969).

CASE NOTES

Cited in Tate v. Golding, 1 N.C. App. 38, 159 S.E.2d 276 (1968).

ARTICLE 5. Life Tables.

Sec.

§ 8-46. Mortality tables as evidence.

Whenever it is necessary to establish the expectancy of continued life of any person from any period of the person's life, whether the person is living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to determine litigation, as evidence, with other evidence as to the health, constitution and habits of the person, of such expectancy represented by the figures in the columns headed by the words "completed age" and "expectation" respectively:

Completed Age Expectation 0 75.8 1 75.4 2 74.5 3 73.5 4 72.5 5 71.6 6 70.6 7 69.6 8 68.6 9 67.6 10 66.6 11 65.6 12 64.6 13 63.7 14 62.7 15 61.7 16 60.7 17 59.8 18 58.8 19 57.9 20 56.9 21 56.0 22 55.1 23 54.1 24 53.2 25 52.2 26 51.3 27 50.4 28 49.4 29 48.5 30 47.5 31 46.6 32 45.7 33 44.7 34 43.8 35 42.9 36 42.0 37 41.0 38 40.1 39 39.2 40 38.3 41 37.4 42 36.5 43 35.6 44 34.7 45 33.8 46 32.9 47 32.0 48 31.1 49 30.2 50 29.3 51 28.5 52 27.6 53 26.8 54 25.9 55 25.1 56 24.3 57 23.5 58 22.7 59 21.9 60 21.1 61 20.4 62 19.7 63 18.9 64 18.2 65 17.5 66 16.8 67 16.1 68 15.5 69 14.8 70 14.2 71 13.5 72 12.9 73 12.3 74 11.7 75 11.2 76 10.6 77 10.0 78 9.5 79 9.0 80 8.5 81 8.0 82 7.5 83 7.1 84 6.6 85 and over 6.6

History

(1883, c. 225; Code, s. 1352; Rev., s. 1626; C.S., s. 1790; 1955, c. 870; 1971, c. 968; 1997-133, s. 1.)

Legal Periodicals. - For article, "Economic Valuation for Wrongful Death," see 6 Campbell L. Rev. 47 (1984).

For 1997 legislative survey, see 20 Campbell L. Rev. 389.

CASE NOTES

Tables Need Not Be Specially Put in Evidence. - This section being a public act, the tables herein contained are competent as evidence without being specially put in evidence. Coley v. City of Statesville, 121 N.C. 301, 28 S.E. 482 (1897).

The mortuary table in this section is one of the prevailing mortality tables put into statutory form so as to permit its use without formal proof. Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999 (1945).

The mortuary table is statutory and need not be introduced in evidence, but may receive judicial notice when facts are in evidence requiring or permitting its application. Chandler v. Moreland Chem. Co., 270 N.C. 395, 154 S.E.2d 502 (1967); Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209 (1988).

The table, being statutory, need not be introduced in evidence in order to make use of it upon the question of damages when other facts are in evidence permitting its application. Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131 (1968).

Mortuary table is competent evidence bearing upon life expectancy and future earning capacity of the injured person in actions for personal injuries resulting in permanent disability. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).

But it is not admissible unless there is evidence of permanent injury. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E.2d 81 (1972).

Where testimony tended to show that plaintiff's injuries were permanent, etc. in character, it was proper for the presiding judge to permit plaintiff to introduce and the jury to consider the mortuary tables formerly embodied in this section. Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326 (1953).

The mortuary tables were properly introduced into evidence on the issue of damages over defendant's objection where plaintiff introduced evidence that he received permanently disfiguring scars from sulphuric acid burns as a result of defendant's negligence. Chandler v. Moreland Chem. Co., 270 N.C. 395, 154 S.E.2d 502 (1967).

Before evidence of life expectancy under this section can be introduced, there must be evidence to a reasonable certainty of permanent injury. Mitchem v. Sims, 55 N.C. App. 459, 285 S.E.2d 839 (1982).

Where sufficient evidence existed to establish that slip and fall plaintiff suffered permanent injuries, the introduction of a mortuary table was not error. Matthews v. Food Lion, Inc., 135 N.C. App. 784, 522 S.E.2d 587 (1999).

Tables Not Conclusive. - In an action to recover damages for a personal injury, the expectation of life tables contained in this section are not conclusive but are merely evidential on the issue as to damages. Sledge v. Lumber Co., 140 N.C. 459, 53 S.E. 295 (1906); Odom v. Canfield Lumber Co., 173 N.C. 134, 91 S.E. 716 (1917); Young v. E.A. Wood & Co., 196 N.C. 435, 146 S.E. 70 (1929).

And Must Be Considered with Other Evidence. - The tables must be considered in connection with the "other evidence as to the health, constitution and habits" of the deceased. Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191 (1900). See Wachovia Bank & Trust Co. v. Atlantic Greyhound Lines, 210 N.C. 293, 186 S.E. 320 (1936); Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631 (1937).

The mortuary table is merely evidence of life expectancy to be considered with other evidence as to the health, constitution and habits of the deceased, and an instruction making the expectancy set out in this section definitive and conclusive not only violated the evidence rule, but also G.S. 1-180 (now repealed) prohibiting the expression of an opinion "whether a fact is fully or sufficiently proven." Starnes v. Tyson, 226 N.C. 395, 38 S.E.2d 211 (1946).

Bankruptcy court's valuation of the debtor's life estate was consistent with North Carolina law; while the bankruptcy court clearly recognized that G.S. 8-46 allowed such number to be adjusted based on other evidence, the bankruptcy court's finding that appellant's evidence was either insufficient or not credible was entitled to deference. Mitchell v. Parker (In re Parker), - F. Supp. 2d - (W.D.N.C. Aug. 2, 2011).

This section does not, like § 8-47, give a mathematical result which the court can apply. The table given is merely evidentiary. Waggoner v. Waggoner, 246 N.C. 210, 97 S.E.2d 887 (1957).

Value of Life Tenancy. - When a life tenant and the remainderman sell the lands, the life tenant is entitled to the present cash value of her life estate in the purchase price, computed according to her life expectancy at the date of the execution of the deed, and the remainderman is entitled to the balance of the purchase price. Thompson v. Avery County, 216 N.C. 405, 5 S.E.2d 146 (1939).

Value of Dower. - Because the mortuary table is only evidentiary, the cash value of dower inchoate depended on the ages of husband and wife, and on their health, habits and all other circumstances tending to show the probabilities as to the length of life; there is no reason for differing rules for determining life expectancy as between married women entitled to dower inchoate and widows entitled to dower consummate. Waggoner v. Waggoner, 246 N.C. 210, 97 S.E.2d 887 (1957). As to abolition of dower, see G.S. 29-4.

Failure to Instruct Jury as to Life Expectancy of Plaintiff. - In the absence of a request, the judge did not commit reversible error in failing to instruct the jury in an action for personal injury that the plaintiff had a life expectancy of 15.27 years according to the mortuary table, which he had introduced in evidence, where, although the charge did not contain a direct reference to the plaintiff's life expectancy, the court did instruct the jury to take into consideration all the evidence bearing on the issue, including the plaintiff's age. Derby v. Owens, 245 N.C. 591, 96 S.E.2d 851 (1957).

Erroneous Instruction. - Where the element of future damages figured largely in consideration of the issue, an instruction to the effect that the jury could take into consideration the mortuary tables as to the life expectancy of plaintiff, without reference to the evidence as to plaintiff's health prior and subsequent to the accident and without charging that the mortuary tables could be considered only as evidence together with other evidence as to the health, constitution and habits of plaintiff, was incomplete and erroneous. Harris v. Atlantic Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710 (1956).

Applied in Brenkworth v. Lanier, 260 N.C. 279, 132 S.E.2d 623 (1963); Kinsey v. Town of Kenly, 263 N.C. 376, 139 S.E.2d 686 (1965); Knight v. Seymour, 263 N.C. 790, 140 S.E.2d 410 (1965); Dolan v. Simpson, 269 N.C. 438, 152 S.E.2d 523 (1967); Teachey v. Woolard, 16 N.C. App. 249, 191 S.E.2d 903 (1972); Livingston v. United States, 817 F. Supp. 601 (E.D.N.C. 1993); In re Appeal of Blue Ridge Hous. of Bakersville LLC, 226 N.C. App. 42, 738 S.E.2d 802, dismissed and review granted, 367 N.C. 216, 747 S.E.2d 526, 2013 N.C. LEXIS 723 (2013).

Cited in Waddell v. United Cigar Stores of Am., 195 N.C. 434, 142 S.E. 585 (1928); Farris v. Hendricks, 196 N.C. 439, 146 S.E. 77 (1929); White v. North Carolina R.R., 216 N.C. 79, 3 S.E.2d 310 (1939); McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850 (1940); Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341 (1940); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952); Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241 (1960); Skidmore v. Austin, 261 N.C. 713, 136 S.E.2d 99 (1964); Redevelopment Comm'n v. Capehart, 268 N.C. 114, 150 S.E.2d 62 (1966); Ratliff v. Duke Power Co., 268 N.C. 605, 151 S.E.2d 641 (1966); Mattox v. Huneycutt, 3 N.C. App. 63, 164 S.E.2d 28 (1968); Leonard v. United States, 303 F. Supp. 1282 (E.D.N.C. 1969); Vanhoy v. Phillips, 15 N.C. App. 102, 189 S.E.2d 557 (1972); Fortune v. First Union Nat'l Bank, 323 N.C. 146, 371 S.E.2d 483 (1988); Wooten v. Warren ex rel. Gilmer, 117 N.C. App. 350, 451 S.E.2d 342 (1994); Johnson v. Southern Indus. Constructors, Inc., 126 N.C. App. 103, 484 S.E.2d 574 (1997); Downs v. State, 159 N.C. App. 220, 582 S.E.2d 638 (2003), aff'd, 358 N.C. 213, 593 S.E.2d 763 (2004); Shaver v. United States, 319 F. Supp. 2d 649 (M.D.N.C. 2004); Littleton v. Willis, 205 N.C. App. 224, 695 S.E.2d 468 (2010); Williams v. Woodmen Found., 250 N.C. App. 482, 792 S.E.2d 876 (2016).

§ 8-47. Present worth of annuities.

Whenever it is necessary to establish the present worth or cash value of an annuity to a person, payable annually during the person's life, such present worth or cash value may be ascertained by the use of the following table in connection with the mortality tables established by law, the first column representing the number of years the annuity is to run and the second column representing the present cash value of an annuity of one dollar for such number of years, respectively:

No. of Years Annuity Cash Value of the Annuity is to Run of $1 1 ................................................ $ 0.943 2 ................................................. 1.833 3 ................................................. 2.673 4 ................................................. 3.465 5 ................................................. 4.212 6 ................................................. 4.917 7 ................................................. 5.582 8 ................................................. 6.210 9 ................................................. 6.802 10 ................................................ 7.360 11 ................................................ 7.887 12 ................................................ 8.384 13 ................................................ 8.853 14 ................................................ 9.295 15 ................................................ 9.712 16 ............................................... 10.106 17 ............................................... 10.477 18 ............................................... 10.828 19 ............................................... 11.158 20 ............................................... 11.470 21 ............................................... 11.764 22 ............................................... 12.042 23 ............................................... 12.303 24 ............................................... 12.550 25 ............................................... 12.783 26 ............................................... 13.003 27 ............................................... 13.211 28 ............................................... 13.406 29 ............................................... 13.591 30 ............................................... 13.765 31 ............................................... 13.929 32 ............................................... 14.084 33 ............................................... 14.230 34 ............................................... 14.368 35 ............................................... 14.498 36 ............................................... 14.621 37 ............................................... 14.737 38 ............................................... 14.846 39 ............................................... 14.949 40 ............................................... 15.046 41 ............................................... 15.138 42 ............................................... 15.225 43 ............................................... 15.306 44 ............................................... 15.383 45 ............................................... 15.456 46 ............................................... 15.524 47 ............................................... 15.589 48 ............................................... 15.650 49 ............................................... 15.708 50 ............................................... 15.762 51 ............................................... 15.813 52 ............................................... 15.861 53 ............................................... 15.907 54 ............................................... 15.950 55 ............................................... 15.991 56 ............................................... 16.029 57 ............................................... 16.065 58 ............................................... 16.099 59 ............................................... 16.131 60 ............................................... 16.161 61 ............................................... 16.190 62 ............................................... 16.217 63 ............................................... 16.242 64 ............................................... 16.266 65 ............................................... 16.289 66 ............................................... 16.310 67 ................................................ 16.331

The present cash value of the annuity for a fraction of a year may be ascertained as follows: Multiply the difference between the cash value of the annuities for the preceding and succeeding full years by the fraction of the year in decimals and add the sum to the present cash value for the preceding full year. When a person is entitled to the use of a sum of money for life, or for a given time, the interest thereon for one year, computed at four and one half percent (4 1/2%), may be considered as an annuity and the present cash value be ascertained as herein provided: Provided, the interest rate in computing the present cash value of a life interest in land shall be six percent (6%).

Whenever the mortality tables set out in G.S. 8-46 are admissible in evidence in any action or proceeding to establish the expectancy of continued life of any person from any period of the person's life, whether the person is living at the time or not, the annuity tables herein set forth shall be evidence, but not conclusive, of the loss of income during the period of life expectancy of the person.

History

(1905, c. 347; Rev., s. 1627; C.S., s. 1791; 1927, c. 215; 1943, c. 543; 1957, c. 497; 1959, c. 879, s. 3; 1965, c. 991; 1997-133, s. 2.)

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 389.

CASE NOTES

This section was intended to apply strictly to annuities, and therefore, in an action to recover damages for injuries causing death, it was error to permit the jury to consider the provisions thereof for the purpose of ascertaining the present value of the intestate's life. Poe v. Raleigh & Augusta Air Lines R.R., 141 N.C. 525, 54 S.E. 406 (1906). See Brown v. Lipe, 210 N.C. 199, 185 S.E. 681 (1936).

Interest Rate. - Annuities, under this section, must be computed at 4.5% and not at 6%. Smith v. Smith, 223 N.C. 433, 27 S.E.2d 137 (1943).

As to the value of a widow's annuity, see Brenkworth v. Lanier, 260 N.C. 279, 132 S.E.2d 623 (1963).

Valuation of Life Estate. - Bankruptcy court's valuation of the debtor's life estate was consistent with G.S. 8-47; the bankruptcy court calculated the present cash value of the life estate by multiplying the $130,010 sale price for the property by 6%, resulting in the annual value of $7,800.60 for the life estate, which amount was multiplied by $13.765, resulting in a value of the life estate of $107,375.25. Mitchell v. Parker (In re Parker), - F. Supp. 2d - (W.D.N.C. Aug. 2, 2011).

Applied in In re Appeal of Blue Ridge Hous. of Bakersville LLC, 226 N.C. App. 42, 738 S.E.2d 802, dismissed and review granted, 367 N.C. 216, 747 S.E.2d 526, 2013 N.C. LEXIS 723 (2013).

Cited in American Blower Co. v. MacKenzie, 197 N.C. 152, 147 S.E. 829 (1929); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952); Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326 (1953); Waggoner v. Waggoner, 246 N.C. 210, 97 S.E.2d 887 (1957); Redevelopment Comm'n v. Capehart, 268 N.C. 114, 150 S.E.2d 62 (1966); Downs v. State, 159 N.C. App. 220, 582 S.E.2d 638 (2003), aff'd, 358 N.C. 213, 593 S.E.2d 763 (2004).

ARTICLE 6. Calendars.

Sec.

§ 8-48. Clark's Calendar; proof of dates.

In any controversy or inquiry in any court or before any fact finding board, commission, administrative agency or other body, where it becomes necessary or pertinent to determine any information which may be established by reference to a calendar for any year between the years 1753 A.D. and 2002 A.D., inclusive, it is permissible to introduce in evidence "Clark's Calendar, a Calendar Covering 250 Years, 1753 A.D. to 2002 A.D.," as supplemented, copyrighted, 1940, by E. B. Clark, Entry: Class AA, Number 328,573, Copyright Office of the United States of America, Washington, or any reprint of the 1940 edition certified by the Secretary of State to be an accurate copy of it, and the calendar or reprint, when so introduced, shall be prima facie evidence that the information disclosed by the calendar or reprint is true and correct.
The Secretary of State shall prepare and publish a perpetual calendar similar to Clark's Calendar covering years beginning with 2003 A.D. The perpetual calendar published by the Secretary of State shall be admissible in evidence to the same degree and in the same manner as Clark's Calendar for years beginning with 2003.

History

(1941, c. 312; 1997-58, s. 1.)

ARTICLE 7. Competency of Witnesses.

Sec.

§ 8-49. Witness not excluded by interest or crime.

No person offered as a witness shall be excluded, by reason of incapacity from interest or crime, from giving evidence either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit or proceeding, civil or criminal, in any court, or before any judge, justice, jury or other person having, by law, authority to hear, receive and examine evidence; and every person so offered shall be admitted to give evidence, notwithstanding such person may or shall have an interest in the matter in question, or in the event of the trial of the issue, or of the suit or other proceeding in which he is offered as a witness. This section shall not be construed to apply to attesting witnesses to wills.

History

(1866, c. 43, ss. 1, 4; C.C.P., c. 342; 1869-70, c. 177; 1871-2, c. 4; Code, ss. 589, 1350; Rev., ss. 1628, 1629; C.S., s. 1792.)

Cross References. - As to witnesses, generally, see Chapter 8C, Article 6.

As to disqualification of certain interested persons, see G.S. 8C-1, Rule 601(c).

Legal Periodicals. - For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

For article, "Silence, Confessions, and the New Accuracy Imperative," see 65 Duke L.J. 697 (2016).

CASE NOTES

This section abolishes the common-law rule which prevented a party who was interested in the result of the verdict and judgment from appearing as a witness. A similar enactment will be found in the statutes of practically all the states. The trend of the development of the rules of evidence has been to remove personal disqualification to testify. State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948).

Section Construed with Former Dead Man's Statute. - The provisions of this section must be considered in the light of those contained in former G.S. 8-51 (see now G.S. 8C-1, Rule 601(c)) which place certain restrictions on the general rule embodied in this section. In other words, the provisions of former G.S. 8-51 formed exceptions to this section, and took them from the operation of its principle, leaving the parties falling within these exceptions to stand upon the same footing as they did prior to the enactment of this section. See Charlotte Oil & Fertilizer Co. v. Rippy, 124 N.C. 643, 32 S.E. 980 (1899).

And with G.S. 8-50 and G.S. 8-56. - The construction of this section should also be in connection with the provisions of G.S. 8-50 and 8-56, since they all relate to the same subject, i.e., the competency of the witnesses. Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913).

Burden on Challenger to Show Disqualification. - The general rule established by this section and G.S. 8-50 is that no person offered as a witness shall be excluded on account of interest or because a party to the action, except as otherwise provided. Hence, it is incumbent upon one who challenges the competency of the witness to show disqualification. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156 (1952).

Party Testifying in Own Behalf. - The provisions of this section make it permissible for a party to testify in his own behalf. State v. McIntosh, 64 N.C. 607 (1870); Autry v. Floyd, 127 N.C. 186, 37 S.E. 208 (1900).

Legatee Under Will as Witness. - Under this section, removing the disqualification on account of interest, the widow of the testator, who was named as a legatee and devisee in a will, was a competent witness to prove the fact that the script propounded was found among the papers of the deceased. Nor would the last provision of the section prevent the widow from testifying, since this provision applies only to attesting witnesses to the execution of a will. Cornelius v. Brawley, 109 N.C. 542, 14 S.E. 78 (1891).

Beneficiary Under Holographic Will. - Under this section and G.S. 8-50, one who is a beneficiary under a holographic will may testify to such competent relevant and material facts as tend to establish it as a valid will without rendering void the benefits he is to receive thereunder. It is otherwise as to an attesting witness of a will that the statute requires to be attested by witness thereto. In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924).

Executor as Witness. - An executor, named in a will, was a competent witness to testify as to the existence, probate and registration of a will, he being rendered competent by this section, and he was not disqualified by former G.S. 8-51 (see now G.S. 8C-1, Rule 601(c)), as to transactions occurring after the death of the testator, as they could in no sense be considered as transactions between the witness and the testator. Cox v. Beaufort County Lumber Co., 124 N.C. 78, 32 S.E. 381 (1899).

The widow of a deceased vendor, who was present at the sale of a mule by her husband to the plaintiff, was a competent witness under this section, and was not excluded under former G.S. 8-51 (see now G.S. 8C-1, Rule 601(c)), as she was not a party to the action and had no interest in the same. Little v. Ratliff, 126 N.C. 262, 35 S.E. 469 (1900).

Mortgagee. - Where he is not excluded under the provisions of former G.S. 8-51 (see now G.S. 8C-1, Rule 601(c)), the mortgagee in a chattel mortgage is competent, as a subscribing witness thereto, to prove its execution for admission to probate, inasmuch as this section removes the disqualification formerly attaching to witnesses having an interest. Clark v. Hodge, 116 N.C. 761, 21 S.E. 562 (1895).

Fornication and Adultery. - In a trial for fornication and adultery a former defendant as to whom a nolle prosequi had been entered was a competent witness against the other defendant. State v. Phipps, 76 N.C. 203 (1877).

Cited in In re Farmer, 60 N.C. App. 421, 299 S.E.2d 262 (1983); In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

§ 8-50. Parties competent as witnesses.

On the trial of any issue, or of any matter or question, or on any inquiry arising in any action, suit or other proceeding in court, or before any judge, justice, jury or other person having, by law, authority to hear and examine evidence, the parties themselves and the person in whose behalf any suit or other proceeding may be brought or defended, shall, except as otherwise provided, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, in behalf of either or any of the parties to said action, suit or other proceeding. Nothing in this section shall be construed to apply to any action or other proceeding in any court instituted in consequence of adultery, or to any action for criminal conversation.
, (c) Repealed by Session Laws 1967, c. 954, s. 4.

History

(1866, c. 43, ss. 2, 3; Code, s. 1351; Rev., s. 1630; C.S., s. 1793; 1953, c. 885, s. 1; 1967, c. 954, s. 4.)

Cross References. - As to competency of witnesses, see G.S. 8C-1, Rule 601.

Legal Periodicals. - For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

For note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

CASE NOTES

Evidence of Spouse's Conduct. - This section, G.S. 8-49, and former G.S. 8-51 (see now G.S. 8C-1, Rule 601(c)) should be construed together, and thus construed, they do not prohibit the evidence of the husband as to the conduct of his wife, where she is not a party, in his action against another for damages for criminal conversation with his wife and the alienation of her affections. Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913).

Same - Introduction Prohibited by Common Law. - At common law, neither the husband nor the wife is allowed to prove the fact of access or nonaccess; and as such rule is founded "upon decency, morality and public policy," it is not changed by this section, allowing parties to testify in their own behalf. Boykin v. Boykin, 70 N.C. 262 (1874).

Testifying Against Codefendant. - A defendant in a criminal case is, under this section, competent and compellable to testify for or against a codefendant, provided his testimony does not incriminate himself. State v. Smith, 86 N.C. 705 (1882); State v. Medley, 178 N.C. 710, 100 S.E. 591 (1919).

Same - Practice Not Commendable. - The practice of sending codefendants to the grand jury to testify against each other, while allowable, is not commended. State v. Frizell, 111 N.C. 722, 16 S.E. 409 (1892).

Consolidation and Testimony of Codefendant. - Where the testimony of codefendant would have carried equal force if it had been received without an order of consolidation, there was no abuse of discretion in the trial judge's order consolidating cases for trial. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976).

Defendant's contention that consolidation of cases resulted in prejudicial error to him because he was deprived of his right to open and close the jury arguments when his codefendant elected to testify was without merit. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976).

Testimony of an Accomplice. - An accomplice could not testify on direct examination to facts tending to incriminate defendant and at the same time refuse to answer questions on cross-examination relating to matters embraced in his examination-in-chief, and where he refused to answer relevant questions on cross-examination on the ground that his answers might tend to incriminate him, it was error for the court to refuse defendant's motion that his testimony-in-chief be stricken from the record, the refusal to answer the questions on cross-examination rendering the testimony-in-chief incompetent. State v. Perry, 210 N.C. 796, 188 S.E. 639 (1936).

It is well established that an accomplice is always a competent witness. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976).

Fact that accomplice's testimony is usually induced by promise of or hope for leniency goes only to his credibility as a witness, and not to his competency as a witness. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976).

Instructing Witness Not to Incriminate Himself. - In an indictment for an affray, it was not error for the presiding judge to caution the witness (a defendant) before the counsel for the other defendant cross-examined him, that he need not tell anything to incriminate himself. State v. Weaver, 93 N.C. 595 (1885).

Applied in Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393 (1965).

Cited in State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968); In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

§ 8-50.1. Competency of blood tests; jury charge; taxing of expenses as costs.

In the trial of any criminal action or proceeding in any court in which the question of parentage arises, regardless of any presumptions with respect to parentage, the court before whom the matter may be brought, upon motion of the State or the defendant, shall order that the alleged-parent defendant, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage and which are reasonably accessible to the alleged-parent defendant, the known natural parent, and the child. The results of those blood tests and comparisons, including the statistical likelihood of the alleged parent's parentage, if available, shall be admitted in evidence when offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person. Upon receipt of a motion and the entry of an order under the provisions of this subsection, the court shall proceed as follows:
1. Where the issue of parentage is to be decided by a jury, where the results of those blood tests and comparisons are not shown to be inconsistent with the results of any other blood tests and comparisons, and where the results of those blood tests and comparisons indicate that the alleged-parent defendant cannot be the natural parent of the child, the jury shall be instructed that if they believe that the witness presenting the results testified truthfully as to those results, and if they believe that the tests and comparisons were conducted properly, then it will be their duty to decide that the alleged-parent is not the natural parent; whereupon, the court shall enter the special verdict of not guilty; and
2. By requiring the State or defendant, as the case may be, requesting the blood tests and comparisons pursuant to this subsection to initially be responsible for any of the expenses thereof and upon the entry of a special verdict incorporating a finding of parentage or nonparentage, by taxing the expenses for blood tests and comparisons, in addition to any fees for expert witnesses allowed per G.S. 7A-314 whose testimonies supported the admissibility thereof, as costs in accordance with G.S. 7A-304; G.S. Chapter 6, Article 7; or G.S. 7A-315, as applicable.
Repealed by Session Laws 1993, c. 333, s. 2.
In the trial of any civil action in which the question of parentage arises, the court shall, on motion of a party, order the mother, the child, and the alleged father-defendant to submit to one or more blood or genetic marker tests, to be performed by a duly certified physician or other expert. The court shall require the person requesting the blood or genetic marker tests to pay the costs of the tests. The court may, in its discretion, tax as part of costs the expenses for blood or genetic marker tests and comparisons. Verified documentary evidence of the chain of custody of the blood specimens obtained pursuant to this subsection shall be competent evidence to establish the chain of custody. Any party objecting to or contesting the procedures or results of the blood or genetic marker tests shall file with the court written objections setting forth the basis for the objections and shall serve copies thereof upon all other parties not less than 10 days prior to any hearing at which the results may be introduced into evidence. The person contesting the results of the blood or genetic marker tests has the right to subpoena the testing expert pursuant to the Rules of Civil Procedure. If no objections are filed within the time and manner prescribed, the test results are admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy. The results of the blood or genetic marker tests shall have the following effect:
1. If the court finds that the conclusion of all the experts, as disclosed by the evidence based upon the test, is that the probability of the alleged parent's parentage is less than eighty-five percent (85%), the alleged parent is presumed not to be the parent and the evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence;
2. If the experts disagree in their findings or conclusions, the question of paternity shall be submitted upon all the evidence;
3. If the tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is between eighty-five percent (85%) and ninety-seven percent (97%), this evidence shall be admitted by the court and shall be weighed with other competent evidence;
4. If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence.

History

(1949, c. 51; 1965, c. 618; 1975, c. 449, ss. 1, 2; 1979, c. 576, s. 1; 1993, c. 333, s. 2; 1993 (Reg. Sess., 1994), c. 733, s. 1.)

Legal Periodicals. - For a brief discussion of this section, see 27 N.C.L. Rev. 456 (1949).

For note discussing the admissibility of blood-grouping tests to rebut the presumption that a child born during a valid marriage is legitimate, see 50 N.C.L. Rev. 163 (1971).

For survey of 1974 case law on the use of blood-grouping tests, see 53 N.C.L. Rev. 1057 (1975).

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For comment, "The Use of Blood Tests in Actions to Determine Paternity," see 16 Wake Forest L. Rev. 591 (1980).

For note discussing an indigent's right to a blood test in a paternity suit, see 4 Campbell L. Rev. 169 (1981).

CASE NOTES

Editor's Note. - Many of the cases in the following annotations were decided under this section as it stood before the 1975 amendment, which made the results of a blood test, not in conflict with other blood tests, conclusive rather than merely competent evidence that defendant could not be the father of the child, and prior to the 1993 amendment, which provided for the admissibility of a certified report of the results of a paternity blood test or genetic marker test without additional expert testimony, and assigned weight to such evidence according to the probability of parentage.

Scope of Section. - This section authorizes blood tests only upon motion made by either the State or the defendant, and the court involved in the matter must order the test. The statute does not authorize the indiscriminate taking of blood, nor does it allow the performance of a blood test by anyone than a trained technician or anywhere other than a medical facility. State v. Mauney, 106 N.C. App. 26, 415 S.E.2d 208 (1992).

This section does not confer standing upon an alleged natural parent to compel a presumed father to submit to a blood test to determine the paternity of a child born during the marriage of the presumed father to the natural mother. Johnson v. Johnson, 343 N.C. 114, 468 S.E.2d 59 (1996).

Former subdivision (b)(1) of this section (see now subsection (b1)) was applicable to civil actions only; the statute which applies to criminal actions is subdivision (a)(1). State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 329 N.C. 274, 407 S.E.2d 848 (1991).

The provisions of this section were intended to apply alike in civil and criminal actions except in those particulars involving procedural differences. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

But Only in Actions in Which Question of Paternity Arises. - This section requires blood-grouping tests only in actions in which the question of paternity arises. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. Williams v. Holland, 39 N.C. App. 141, 249 S.E.2d 821 (1978).

Section Not Applicable in Rape Case. - This section applies only where "the question of parentage arises." A question of parentage is not central to a charge of rape. Thus, the commands of this section are inapplicable in a rape case. State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987).

For discussion of calculation of a "probability of paternity" from blood test results, see Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, aff'd, 314 N.C. 660, 335 S.E.2d 897 (1985).

Weight Given Tests Is Legislative Question. - It is for the General Assembly to decide the question of the weight to be given blood-grouping tests. State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974).

Weight Given Blood Tests Which Do Not Exclude Putative Father. - The legislature has not mandated the weight to be given to blood tests which do not exclude the putative father. The jury is entitled to consider this evidence and accord it the weight deemed appropriate. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).

Results of Tests Are Competent to Rebut Any Presumption of Paternity. - In both criminal and civil actions in which the question of paternity arises, the results of blood-grouping tests must be admitted in evidence when offered by a duly licensed practicing physician or other qualified person, regardless of any presumptions with respect to paternity, and such evidence shall be competent to rebut any presumptions of paternity. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

To permit the marital presumption to be rebutted absent a determination that another man is the father of the child would illegitimate the child in violation of the public policy of this state. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720 (1996).

Including Common-Law Presumption of Legitimacy. - Assuming blood-grouping tests are made and offered in evidence by qualified persons, the results thereof, if they tend to exclude defendant as the father of the child, may be offered in evidence to rebut the common-law presumption of legitimacy. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Tests Cannot Prove Paternity. - The value of serological blood tests, when made and interpreted by specifically qualified technicians, using approved testing procedures and reagents of standard strength, is now generally recognized. Such tests, however, can never prove the paternity of any individual, and they cannot always exclude the possibility. Nevertheless, in a significant number of cases, they can disprove it. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Tests Conclusive Only in Excluding Putative Father. - The blood-grouping test results are conclusive only in excluding the putative father. The results might show him to have a blood type which the father of the child must have had; but this only indicates that of all the people of that blood type or group, he, as well as anyone else with that blood type or group, could have been the father of the child. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

The marital presumption ordinarily may be rebutted by evidence of blood grouping tests excluding a putative father as the biological father. Jones v. Patience, 121 N.C. App. 434, 466 S.E.2d 720 (1996).

Inconsistent Results Allowed. - This statute simply provides that when test results are consistent and show the defendant not to be the father of the child, the jury is required to return a special verdict of not guilty. Nothing in this statute prohibits the admission into evidence of inconsistent results. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 329 N.C. 274, 407 S.E.2d 848 (1991).

Varying Results of Blood Tests. - Court did not err by admitting the result of blood tests showing the probability of defendant's fathering the child to be 99.54%, even though it varied greatly from the result of blood tests performed by another laboratory showing the probability of paternity to be only 93.75%. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, cert. denied, 329 N.C. 274, 407 S.E.2d 848 (1991).

Effect Where Principle of Res Judicata Bars Issue of Paternity. - Where the defendant in an action to recover arrearages for child support was barred by principles of res judicata from putting paternity in issue as the result of a prior adjudication of paternity in a Nevada divorce action in which the Nevada court had in personam jurisdiction over the defendant, the trial court erred in allowing the defendant's motion for blood-grouping tests. Williams v. Holland, 39 N.C. App. 141, 249 S.E.2d 821 (1978).

Before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. If a defendant is barred by res judicata or estoppel from raising the issue of paternity, the statutorily imposed obligation of the court to order that the parties submit to blood-grouping tests never arises, and it is error for the court to enter such order. Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22 (1981).

Default Judgment Barred Right to a Blood Test. - Because a default judgment conclusively established defendant's paternity, defendant having failed to appeal the default judgment or make a timely motion under Rule 59(a)(8) of the Rules of Civil Procedure, res judicata barred the granting of defendant's motion for blood testing. Garrison ex rel. Chavis v. Barnes, 117 N.C. App. 206, 450 S.E.2d 554 (1994).

The defendant was not barred from contesting paternity pursuant to this section where the issue had not been litigated and where the defendant never formally acknowledged paternity in the manner prescribed by G.S. 110-132; furthermore, the defendant was not required to present evidence that another man had acknowledged paternity in order for the court to authorize the test. Ambrose v. Ambrose, 140 N.C. App. 545, 536 S.E.2d 855 (2000).

Defendant Has Right to Blood Test. - There can be no doubt that a defendant's right to a blood test to determine parentage is a substantial right and that, upon defendant's motion, the court must order the test when it is possible to do so. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

A defendant is entitled in a proceeding under the Uniform Reciprocal Enforcement of Support Act to a blood-grouping test pursuant to this section where the issue of paternity is raised and, upon timely motion, is entitled to have the jury pass on the issue of paternity. Brondum v. Cox, 30 N.C. App. 35, 226 S.E.2d 193, aff'd, 292 N.C. 192, 232 S.E.2d 687 (1976).

The 1975 amendment to this section amplified the importance of the right to a blood-grouping test under G.S. 49-7. State v. Morgan, 31 N.C. App. 128, 228 S.E.2d 523 (1976).

Indigent defendant's right to a free blood-grouping test may be rendered meaningless without counsel to advise him of his right to demand such a test, to explain the test's significance, to ensure that the test is properly administered and to ensure that the results are properly admitted into evidence. Wake County ex rel. Carrington v. Townes, 53 N.C. App. 649, 281 S.E.2d 765 (1981), modified, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 74 L. Ed. 2d 965 (1983).

The only areas in which the results of blood grouping tests should be open to attack are in the method of testing or in the qualifications of the persons performing the tests. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Personal Performance of Test by Witness Not Required. - This section allows testimony of paternity test results without requiring personal performance of the test. State v. Green, 55 N.C. App. 255, 284 S.E.2d 688 (1981), appeal dismissed, 305 N.C. 304, 291 S.E.2d 152 (1982).

Tests May Not Be Accurate Until Infant Six Months Old. - In a few cases it has been found that an infant's blood group cannot be established immediately after birth. However, by the age of six months, an accurate determination can always be had. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

When the death of the child makes a blood test impossible the situation is analogous to that which occurs when an eyewitness to events constituting the basis for an indictment dies before the accused has interviewed him or taken his deposition. It would hardly be suggested that to try the defendant after the death of that witness would deprive him of due process and that therefore the prosecution must be dismissed. State v. Fowler, 277 N.C. 305, 177 S.E.2d 385 (1970).

Tests May Be Ordered in Action for Alimony and Child Support Where Husband Denies Paternity. - In plaintiff-wife's action for alimony, alimony pendente lite and child support, defendant-husband was entitled under the section to an order for a blood grouping test where plaintiff alleged and defendant denied that he was the father of a child born to plaintiff during the subsistence of the marriage. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

And Results of Test May Also Be Evidence of Adultery. - While there is no authority for blood-grouping tests unless an issue of paternity is raised, in a case in which the issue of paternity is raised, the results of the blood-grouping tests, if they exclude defendant as the father of a child admittedly born during the subsistence of the marriage, also would be evidence of adultery. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Finding of Paternity Held Erroneous. - In suit in which wife sought alimony, temporary alimony, custody of children, child support and attorney's fees, and husband filed an answer denying that he was the father of the youngest child, in light of the district judge's findings that scientific evidence demonstrated that husband was sterile at the time the child was conceived, and that if husband was sterile, the blood grouping probability of paternity (set at 95.98%) was reduced to 0%, judge's conclusion that husband fathered the child was erroneous. Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, aff'd, 314 N.C. 660, 335 S.E.2d 897 (1985).

Evidentiary Requirements Not Met. - Blood test at issue did not qualify for admissibility under the relaxed evidentiary requirements of subdivision (b1) and the trial court did not err by refusing to allow it into evidence. Catawba County ex rel. Child Support Enforcement Agency ex rel. Kenworthy v. Khatod, 125 N.C. App. 131, 479 S.E.2d 270 (1996).

The trial court properly admitted the presumption of paternity relevant to genetic marker testing set forth in this section although the record contained no ruling as to defendant's written objection to the admission nor any stipulation to admit the evidence, contrary to the court's assertion that the parties did so stipulate; where expert testimony indicated that paternity by defendant was a factual possibility, it would have been error to assign 0 as the prior probability of paternity. Brown v. Smith, 137 N.C. App. 160, 526 S.E.2d 686 (2000).

Chain of Custody. - It was prejudicial error for the trial court to admit other man's blood test results where the chain of custody was not properly established. Rockingham County Dep't of Social Serv. ex rel. Shaffer v. Shaffer, 126 N.C. App. 197, 484 S.E.2d 415 (1997).

If a paternity blood test is not ordered by the trial court upon motion by a party, the standard in G.S. 8-50.1(b1) will not apply and the party seeking to admit the test must present independent evidence of the chain of custody. Where no sworn affidavits or witness testimony established that specimen's were drawn from a putative father and the minor child, where no testimony was submitted from the person who collected the samples, and where no testimony or an affidavit was presented from the individual who performed the DNA test to confirm that the specimen was transferred within the laboratory without being disturbed, it was error to admit the results of the test and a determination of parentage was reversed. Columbus County v. Davis, 163 N.C. App. 64, 592 S.E.2d 225 (2004).

Verification of Chain of Custody. - Where there was no evidence that the chain of custody of blood tests relied on were verified as required by subsection (b1) even though the chain of custody was certified there was not sufficient compliance with this section; thus, blood tests were erroneously admitted. Rockingham County Dep't of Social Servs. ex rel. Shaffer v. Shaffer, 126 N.C. App. 197, 484 S.E.2d 415 (1997).

Trial court erred in precluding the alleged father from participating in the termination of parental rights hearing after a paternity test indicated that there was a zero possibility that he was the child's father because the presumption created by the paternity test was nevertheless rebuttable. In re L.D.B., 168 N.C. App. 206, 617 S.E.2d 288 (2005).

Trial court erred by failing to order a mother, a minor child, and an alleged father to submit to a paternity test upon the motion of the mother pursuant to G.S. 8-50.1(b1) because there was no prior litigation of paternity and the mother contested the paternity of the father in a child custody dispute. Helms v. Landry, 194 N.C. App. 787, 671 S.E.2d 347 (2009), review denied, stay denied, 363 N.C. 125, 675 S.E.2d 364 (2009).

Presumption Rebutted. - Putative father's testimony that he did not know child's mother and did not have sexual relations was clear, cogent, and convincing evidence sufficient to rebut the presumption created by the 99.96% probability of paternity test. Nash County Dep't of Social Servs. ex rel. Child Support Enforcement Agency ex rel. Williams v. Beamon, 126 N.C. App. 536, 485 S.E.2d 851 (1997).

Applied in Johnson v. Johnson, 7 N.C. App. 310, 172 S.E.2d 264 (1970); State v. White, 42 N.C. App. 320, 256 S.E.2d 505 (1979); Bunting v. Beacham, 45 N.C. App. 304, 262 S.E.2d 672 (1980); Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983); Dorton v. Dorton, 69 N.C. App. 764, 318 S.E.2d 344 (1984); Wake County ex rel. Denning v. Ferrell, 71 N.C. App. 185, 321 S.E.2d 913 (1984); Heavener v. Heavener, 73 N.C. App. 331, 326 S.E.2d 78 (1985).

Cited in State v. Davis, 272 N.C. 102, 157 S.E.2d 671 (1967); State v. White, 300 N.C. 494, 268 S.E.2d 481 (1980); State v. Camp, 299 N.C. 524, 263 S.E.2d 592 (1980); Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982); Davie County Dep't of Social Servs. v. Jones, 62 N.C. App. 142, 301 S.E.2d 926 (1983); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985); Nash County Dep't of Social Servs. ex rel. Its Child Support Enforcement Agency ex rel. Williams v. Beamon, 126 N.C. App. 536, 485 S.E.2d 851 (1997); Rice v. Rice, 147 N.C. App. 505, 555 S.E.2d 924 (2001).

§ 8-50.2. Results of speed-measuring instruments; admissibility.

The results of the use of radio microwave, laser, or other speed-measuring instruments shall be admissible as evidence of the speed of an object in any criminal or civil proceeding for the purpose of corroborating the opinion of a person as to the speed of an object based upon the visual observation of the object by such person.
Notwithstanding the provisions of subsection (a) of this section, the results of a radio microwave, laser, or other electronic speed-measuring instrument are not admissible in any proceeding unless it is found that:
1. The operator of the instrument held, at the time the results of the speed-measuring instrument were obtained, a certificate from the North Carolina Criminal Justice Education and Training Standards Commission (hereinafter referred to as the Commission) authorizing him to operate the speed-measuring instrument from which the results were obtained.
2. The operator of the instrument operated the speed-measuring instrument in accordance with the procedures established by the Commission for the operation of such instrument.
3. The instrument employed was approved for use by the Commission and the Secretary of Public Safety pursuant to G.S. 17C-6.
4. The speed-measuring instrument had been calibrated and tested for accuracy in accordance with the standards established by the Commission for that particular instrument.
All radio microwave, laser, and other electronic speed-measuring instruments shall be tested for accuracy within a 12-month period prior to the alleged violation by a technician possessing at least a General Radiotelephone Operator License from the Federal Communications Commissions or possessing a Certified Electronics Technician certificate issued by a Federal Communications Commission Commercial Operators License Examination Manager or by a laboratory established by the International Association of Chiefs of Police. A written certificate by the technician or laboratory showing that the test was made within the required period and that the instrument was accurate shall be competent and prima facie evidence of those facts in any proceeding referred to in subsection (a) of this section.
In every proceeding where the results of a radio microwave, laser, or other speed-measuring instrument is sought to be admitted, judicial notice shall be taken of the rules approving the use of the models and types of radio microwave, laser, and other speed-measuring instruments and the procedures for operation and calibration or measuring accuracy of such instruments.

All radio microwave, laser, and other speed enforcement instruments shall be tested in accordance with standards established by the North Carolina Criminal Justice Education and Training Standards Commission. The Commission shall provide for certification of all radio microwave, laser, and other speed enforcement instruments.

History

(1979, 2nd Sess., c. 1184, s. 3; 1983, c. 34; 1987, c. 318; c. 827, s. 60; 1994, Ex. Sess., c. 18, s. 1; 2005-137, s. 1; 2011-145, s. 19.1(g).)

Effect of Amendments. - Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted "Public Safety" for "Crime Control and Public Safety" in subdivision (b)(3).

CASE NOTES

Use of Radar as Corroboration Only. - The General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone, and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation. State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986).

§ 8-50.3: Expired effective September 30, 2007.

Editor's Note. - Session Laws 2003-280, s. 5, as amended by Session Laws 2005-27, made this section effective July 1, 2003, and expiring September 30, 2007.

§ 8-51: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 5.

Cross References. - As to present provisions pertaining to the disqualification of interested persons, see now G.S. 8C-1, Rule 601(c).

§ 8-51.1. Dying declarations.

Dying declarations admissible in administrative proceedings shall be as provided in G.S. 8C-1, Rule 804.

History

(1973, c. 464, s. 1; 1983 (Reg. Sess., 1984), c. 1037, s. 11.)

Legal Periodicals. - For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

For survey of 1978 law on evidence, see 57 N.C.L. Rev. 1061 (1979).

For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).

CASE NOTES

Editor's Note. - The cases below were decided under this section as it read prior to amendment by Session Laws 1983 (Reg. Sess., 1984), c. 1037, s. 11.

U.S. Const., Amend. VI Not Violated by Admission of Declaration. - Albeit a dying declaration is indubitably hearsay and the declarant is, of course, not available for cross-examination, the admission of such evidence is not a violation of U.S. Const., Amend. VI. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

General Assembly Codified Essentials of Former Law. - "Dying declarations" by the person whose death is an issue in the case have long been admissible in North Carolina provided (1) at the time they were made the declarant was in actual danger of death; (2) he had full apprehension of the danger; (3) death did in fact ensue; and (4) declarant, if living, would be a competent witness to testify to the matter. In 1973, the General Assembly codified the essentials of those requirements in this section. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

And Case Law Requirements Are Unchanged. - In State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976), and in State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976), it was noted, without deciding, that the words "no hope of recovery" in the statute might make the statutory exception to the hearsay rule more restrictive than existing case law. The Supreme Court concluded that the statutory prerequisites that the deceased must have been "conscious of approaching death and believed that there was no hope of recovery" did not change the case-law requirements that in order to be admissible the declarations of a decedent must have been "in present anticipation of death." State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

The statutory prerequisites that the deceased must have been "conscious of approaching death and believed that there was no hope of recovery" did not change case-law requirements that in order to be admissible the declaration of a decedent must have been "in present anticipation of death." It was enough if he "believed he was going to die." State v. Penn, 36 N.C. App. 482, 244 S.E.2d 702 (1978).

Rationale Based on Trustworthiness of Declaration. - The rationale of this section clearly rests upon a belief in the general trustworthiness of dying declarations, rather than upon the necessity for bringing to justice the perpetrators of secret homicides. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978).

The common law and statutory requirement of "no hope of recovery" rests upon the tenet that when an individual believes death to be imminent, the ordinary motives for falsehood are absent and most powerful considerations impel him to speak the truth. The solemnity of approaching death is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

The public necessity of preventing secret homicides from going unpunished requires the preservation of dying declarations as evidence, notwithstanding the inability of the defendant to cross-examine his accuser. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

Section Expands the Admissibility of Statements. - The overall effect of this section was to liberalize the dying declaration exception to the hearsay rule by expanding the admissibility of such statements to all civil and criminal trials. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978).

Declarant's Death Need Not Be in Issue. - Admissibility seems no longer to be confined to situations in which the declarant's death is in issue, but rather extends to any situation in which the cause or circumstances of the declarant's death may be relevant to any issue in litigation. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978).

It is not necessary that the declarant should be in the very act of dying; it is enough if he is under the apprehension of impending dissolution. Stated in simpler terms, it is enough if he believed he was going to die. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

And Test Is Not Actual Swiftness with Which Death Ensues. - The fact that the declarant survived one week longer than the doctor had told him he might live did not affect the admissibility of his dying declarations. The test is the declarant's belief in the nearness of death when he made the statement, not the actual swiftness with which death ensued. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declarant realized death was near, this requirement of the law is satisfied. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976); State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978); State v. Richardson, 308 N.C. 470, 302 S.E.2d 799 (1983).

The consciousness of approaching death may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the communications, if any, made to him by his medical advisers, if assented to or understandingly acquiesced in by him. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

The party seeking admission of the out-of-court statement need not show that the declarant stated he had given up all hope of living or considered himself to be in the throes of death. All that must be shown is that the declarant believes he is going to die. This belief is best shown by his express communication to this effect. However, it is not necessary that declarant personally express his belief that he has no chance of recovery. This may be shown by the circumstances. State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981).

The declaration must have been voluntary and made when the declarant was conscious of approaching death and without hope for recovery. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976).

The admissibility of a declaration as a dying declaration is a question to be determined by the trial judge, and when the judge admits the declaration, his ruling is reviewable only to determine whether there is evidence tending to show facts essential to support it. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976); State v. Penn, 36 N.C. App. 482, 244 S.E.2d 702 (1978).

The admissibility of dying declarations is a decision for the trial judge, and review by the Supreme Court is limited to the narrow question of whether there is any evidence tending to show the factual prerequisites to admissibility. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978); State v. Richardson, 308 N.C. 470, 302 S.E.2d 799 (1983).

A dying declaration is not conclusive, its weight and credibility being for the jury to determine. It may be impeached in the same manner as any other sworn statement. State v. Harding, 291 N.C. 223, 230 S.E.2d 397 (1976).

Once admitted into evidence, a dying declaration is no different from other testimony. The extent of its credibility is a matter for the jury and it is subject to impeachment or corroboration upon the same grounds and in the same manner as the testimony of a sworn witness. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

Declarations Made in Response to Leading Questions. - The fact that the dying declarations were made in response to leading questions did not require their exclusion from evidence. The qualifying questions were not perfunctory to be used in the event the dying man took a turn for the worse, but were clearly appropriate in light of the declarant's severe injuries and inability to speak, and the declarations were as nearly spontaneous as declarations by one under the circumstances could be. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

Impeachment of Dying Declaration. - The impeachment of a dying declaration must proceed under the ordinary rules of evidence. Under these rules, for the purpose of impeachment, a party is entitled to introduce evidence only of the general reputation or character of the witness. Therefore, the courts do not permit the witness to be impeached by independent evidence of particular misconduct. Specifically, this means that a witness may not be impeached by record evidence of his conviction of crime. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

Evidence of the general character or reputation of a decedent is relevant on the issue of his dying declaration and is admissible to impeach or to sustain the declaration. This is an exception to the usual rule that evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide. State v. Stevens, 295 N.C. 21, 243 S.E.2d 771 (1978).

Applied in State v. Richardson, 59 N.C. App. 558, 297 S.E.2d 921 (1982).

§ 8-52: Repealed by Session Laws 1973, c. 41.

§ 8-53. Communications between health care provider and patient.

No person, duly authorized to practice under Article 1 of Chapter 90 of the General Statutes, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon, and no such information shall be considered public records under G.S. 132-1. Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin. Any resident or presiding judge in the district, either at the trial or prior thereto, or the Industrial Commission pursuant to law may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.

History

(1885, c. 159; Rev., s. 1621; C.S., s. 1798; 1969, c. 914; 1977, c. 1118; 1983, c. 410, ss. 1, 2; c. 471; 2019-191, s. 41.)

Cross References. - For section authorizing the Secretary of the Department of Human Resources to obtain, notwithstanding this section, a copy or summary of pertinent portions of patient medical records deemed necessary by joint agreement of the attending physician and the Department physician for investigating a disease or health hazard, and providing immunity to a physician providing such copies or summaries, see G.S. 130A-5(2).

For section authorizing disclosure of medical information by health care provider under certain circumstances, see G.S. 90-21.20B.

Effect of Amendments. - Session Laws 2019-191, s. 41, effective October 1, 2019, substituted "health care provider" for "physician" in the section heading; and substituted "under Article 1 of Chapter 90 of the General Statutes" for "physic or surgery" in the first sentence.

Legal Periodicals. - For note on the discretion of the trial judge in compelling disclosure of privileged information in the area of physician-patient privilege, see 41 N.C.L. Rev. 627 (1963).

For case law survey on evidence, see 43 N.C.L. Rev. 900 (1965).

For note on authority of the judge in a child custody hearing to compel disclosure by a treating physician on the issue of the mental stability of one of the parties, see 46 N.C.L. Rev. 956 (1968); 47 N.C.L. Rev. 265 (1968).

For note on reporting patients for review of driver's license, see 48 N.C.L. Rev. 1003 (1970).

For comment surveying North Carolina Law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For comment on release of medical records by North Carolina hospitals, see 7 N.C. Cent. L.J. 299 (1976).

For comment on the evidentiary implications at trial of the physician-patient privilege, see 12 Wake Forest L. Rev. 849 (1976).

For survey of 1979 law on evidence, see 58 N.C.L. Rev. 1456 (1980).

For article discussing the psychotherapist-patient privilege, see 60 N.C.L. Rev. 893 (1982).

For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

For article, "What's the Harm in Asking?: A Discussion of Waiver of the Physician-Patient Privilege and Ex Parte Interviews with Treating Physicians," see 19 N.C. Cent. L.J. 1 (1990).

For comment on the prohibition of ex parte contacts with a plaintiff's treating physician, see 13 Campbell L. Rev. 233 (1991).

For note, "Restricting Ex Parte Interviews with Nonparty Treating Physicians: Crist v. Moffatt," see 69 N.C.L. Rev. 1381 (1991).

I. GENERAL CONSIDERATION.

Privilege Is Statutory. - At common law, communications from patients to physicians are not privileged. Such privilege is purely statutory. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

Section Amends Common-Law Rule. - Under the common law, communications which passed between a patient and a physician in the confidence of the professional relation and information acquired by the physician while attending or treating the patient were not privileged or protected from disclosure by the physician. This section as interpreted by the Supreme Court has the effect of amending this common-law rule. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

Legislative Intent. - The legislature intended this section to be a shield and not a sword. It was careful to make provision to avoid injustice and suppression of truth by putting it in the power of the trial judge to compel disclosure. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

Purpose of Section. - One of the objects of this statute is to encourage full and frank disclosure to the doctor. Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297 (1954).

It is the purpose of statutes such as this section to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962); In re Farrow, 41 N.C. App. 680, 255 S.E.2d 777 (1979); Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified, State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905 (1988).

The purpose of this section is to create a privileged relationship between physician and patient. Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964); Johnson v. United Ins. Co. of Am., 262 N.C. 253, 136 S.E.2d 587 (1964).

The underlying purpose of the privilege under this section is to encourage free communication and disclosure between patient and physician to facilitate the proper diagnosis and treatment of the patient's ailment; the denial of this privilege would result in the patient withholding information vital to the proper treatment of her ailment for fear of publicity exposing facts of an embarrassing or confidential nature. Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998).

Purposes of North Carolina's statutory physician-patient privilege is to encourage the patient to fully disclose pertinent information to a physician so that proper treatment may be prescribed, to protect the patient against public disclosure of socially stigmatized diseases, and to shield the patient from self-incrimination; accordingly, the proviso allowing for compelled disclosure of privileged information is intended to refer to exceptional rather than ordinary factual situations. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

Purpose of Section Must Be Carried Out at Superior Court Level. - If the spirit and purpose of this section is to be carried out, it must be at the superior court level. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

The principle by which a physician may not be compelled to divulge communications and other matters which have come to his knowledge by observation of his patient is regulated by statute, and under the provisions of this section, the privilege is qualified, and it rests within the discretion of the trial judge, in the administration of justice, to compel the physician, called as a witness, to testify to such matters when relevant to the inquiry. State v. Martin, 182 N.C. 846, 109 S.E. 74 (1921).

Compelled Disclosure in Exceptional Situations. - In view of the primary purpose of this section to create a privileged relationship between physician and patient, it is clear that the provision regarding compelled disclosure is intended to refer to exceptional, rather than ordinary, factual situations. Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964).

Proper Administration of Justice. - This section sets forth the procedure to compel disclosure of information which ordinarily is protected by the doctor-patient privilege. Such information may be disclosed by order of the court if in the opinion of the trial judge disclosure is necessary to the proper administration of justice. This decision is one made in the discretion of the trial judge, and the defendant must show an abuse of discretion in order to successfully challenge the ruling. State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992).

This section and G.S. 8-53.3 are to be read in pari materia. When so read, they extend the physician-patient privilege to the psychologist-client situation and withdraw the privilege in all situations where "necessary to a proper administration of justice." The reasons for the exceptions to the privileges granted by the two statutes are the same and it would be discordant to fail to extend to G.S. 8-53.3 the amendment of this section which made it clear that the legislature intended that disclosure could be compelled prior to trial. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, cert. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

Statutory Authority for Requesting and Releasing Medical Records. - Trial court did not err by admitting defendant's medical records showing that the defendant had an elevated blood alcohol level at the time of his motorcycle crash into evidence since G.S. 8-53 was not the only statute under which patient medical records could be requested and released, and defendant failed to show that his medical records were obtained in violation of 45 C.F.R. § 164.512(f) or G.S. 90-21.20B(a), as he did not allege that the search warrant sought information that was not relevant and material to a legitimate law enforcement inquiry or was insufficiently specific and limited in scope or that de-identified information could have reasonably been used instead. State v. Smith, 248 N.C. App. 804, 789 S.E.2d 873 (2016).

Workers' compensation claimant had no statutory right to bar the public disclosure of his workers' compensation file because (1) the disclosure of documents that were not awards was statutorily prevented, (2) the general assembly did not exempt awards, (3) the physician-patient privilege was irrelevant, (4) the prohibition against disclosing mental health records did not apply, and (5) the Health Insurance Portability and Accountability Act did not apply to the Industrial Commission (Commission) and let physicians disclose health information to the Commission. Mastanduno v. Nat'l Freight Indus., 262 N.C. App. 77, 821 S.E.2d 592 (2018), cert. denied, 372 N.C. 52, 822 S.E.2d 636, 2019 N.C. LEXIS 109 (2019); cert denied, 140 S. Ct. 269, 205 L. Ed. 2d 133 (U.S. 2019).

Discretion of Trial Judge. - The statute affords the trial judges wide discretion in determining what is necessary for a proper administration of justice. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983).

The court examined sealed medical records of the victim which the victim's hospital asserted as privileged under G.S. 8-53 and concluded that they contained no information exculpatory of defendant's guilt or material to her defense or punishment. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693 (2000).

Order Issued by Incorrect Judge. - While the order compelling the disclosure of a second-degree murder defendant's medical records, which showed how much alcohol he drank on the night of the traffic accident, should have been issued by a superior court judge, rather than a district court judge, the error was harmless in light of the other overwhelming evidence of the defendant's intoxication. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

This section is not applicable in an involuntary commitment proceeding. In re Farrow, 41 N.C. App. 680, 255 S.E.2d 777 (1979).

For discussion of distinction between statutory physician-patient privilege and rule prohibiting unauthorized ex parte contacts with patient's nonparty treating physicians, see Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990).

Defense counsel may not interview medical malpractice plaintiff's nonparty treating physicians privately without plaintiff's express consent. Defendant instead must utilize the statutorily recognized methods of discovery enumerated in G.S. 1A-1, Rule 26. Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990).

Exclusion of Statement From Treating Physician. - Exclusion of a written response from a treating physician, which was in response to a facsimile sent by defense counsel that detailed three questions regarding causation of an employee's alleged work-related injury and subsequent disability, was proper since the communication was ex parte and consisted of interrogatories to a non-party, which were not authorized by any caselaw precedent nor any rule of evidence. Mayfield v. Parker Hannifin, 174 N.C. App. 386, 621 S.E.2d 243 (2005).

Applied in Wilder v. Edwards, 7 N.C. App. 513, 173 S.E.2d 72 (1970); Gibson v. Montford, 9 N.C. App. 251, 175 S.E.2d 776 (1970); State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975), ; State v. Hodgen, 47 N.C. App. 329, 267 S.E.2d 32 (1980); Prince v. Duke Univ., 326 N.C. 787, 392 S.E.2d 388 (1990); Mosteller v. Stiltner, 221 N.C. App. 486, 727 S.E.2d 601 (2012).

Cited in State v. Wade, 197 N.C. 571, 150 S.E. 32 (1929); State v. Litteral, 227 N.C. 527, 43 S.E.2d 84 (1947); Flora v. Hamilton, 81 F.R.D. 576 (M.D.N.C. 1978); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984); Shelton v. Morehead Mem. Hosp., 318 N.C. 76, 347 S.E.2d 824 (1986); State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158 (1986); Crist v. Moffatt, 92 N.C. App. 520, 374 S.E.2d 487 (1988); Salaam v. North Carolina DOT, 122 N.C. App. 83, 468 S.E.2d 536 (1996), review denied, 345 N.C. 494, 480 S.E.2d 51 (1997); Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999); Norris v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483 (2000); In re Will of Smith, 159 N.C. App. 651, 583 S.E.2d 615 (2003); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003); Midkiff v. Compton, 204 N.C. App. 21, 693 S.E.2d 172 (2010), cert. denied 364 N.C. 326, 700 S.E.2d 922, 2010 N.C. LEXIS 680 (2010); Lowd v. Reynolds, 205 N.C. App. 208, 695 S.E.2d 479 (2010).

II. NATURE AND SCOPE OF PRIVILEGE.

Qualified Privilege. - The privilege established by this section is not absolute, but qualified. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified, 321 N.C. 1, 361 S.E.2d 734 (1987).

This privilege extends only to those cases in which the physician and patient relationship existed at the time of the communication and where the information given was necessary for diagnosis or treatment. State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979).

Examination as to Criminal Defendant's Competence. - No physician-patient privilege is created between a physician and a criminal defendant examined by the physician for the purpose of passing on defendant's ability to proceed to trial. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 104 S. Ct. 37, 77 L. Ed. 2d 1456 (1983).

A psychiatrist appointed by the court for a sanity examination of the defendant is a witness for the court, not the prosecution, and the statements made by the defendant to the psychiatrist are not privileged under the doctor-patient relationship. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 104 S. Ct. 37, 77 L. Ed. 2d 1456 (1983).

The admissions of one accused of crime are not rendered confidential within the meaning of the law when made to a psychiatrist examining him by order of the court in order to form an opinion as to whether the defendant had sufficient capacity to be in law guilty of crime, since, under the circumstances of this case, the relationship of physician and patient did not exist, and this section is not applicable. State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928).

Where doctor went to the jail to examine defendant at the request of his brother to determine if he was under the influence of intoxicating liquor, not at the request of defendant, and not to perform any professional services for defendant, the relationship of patient and physician, under such circumstances, did not exist between defendant and the doctor within the purview of this section. State v. Hollingsworth, 263 N.C. 158, 139 S.E.2d 235 (1964), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

Effect of Marriage Between Physician and Patient. - If the relation of doctor and patient existed between plaintiff and her former husband, any information which he acquired while attending her in his professional character was protected by this section in the same manner as if they had not been married to each other. Furr v. Simpson, 271 N.C. 221, 155 S.E.2d 746 (1967).

Application to Nurses, Technicians and Others. - The effect of this section is not extended to include nurses, technicians, and others, unless they were assisting, or acting under the direction of, a physician or surgeon. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

The provisions of this section also apply to nurses, technicians, and others when they are assisting or acting under the direction of a physician or surgeon, if the physician or surgeon is at the time acting so as to be within the rule set out therein. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969); State v. Wooten, 18 N.C. App. 269, 196 S.E.2d 603, appeal dismissed, 283 N.C. 670, 197 S.E.2d 879 (1973).

This privilege includes entries in hospital records made by or under the direction of physicians and surgeons. However, this statute does not include nurses, technicians and others, unless they were assisting, or acting under the direction of a physician or surgeon. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983).

Optometrists Not Covered by Privilege. - The physician-patient privilege against disclosure of confidential communications and information does not extend to optometrists. State v. Shaw, 305 N.C. 327, 289 S.E.2d 325 (1982).

What Information Included. - It is the accepted construction of this section that it extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe. Smith v. John L. Roper Lumber Co., 147 N.C. 62, 60 S.E. 717 (1908). See Creech v. Sovereign Camp, W.O.W., 211 N.C. 658, 191 S.E. 840 (1937); Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137 (1960); Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962); Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964); In re Farrow, 41 N.C. App. 680, 255 S.E.2d 777 (1979).

This section applied to hospital records offered in evidence in an action to recover death benefits under a policy of insurance, where insurer denied liability on the ground that the application contained false statements with respect to insured's health, insofar as the records contained entries made by physicians and surgeons, or under their direction, pertaining to communications and information obtained by them in attending the insured professionally, which information was necessary to enable them to prescribe for her. However, any other information contained in the records, if relevant and otherwise competent, was not privileged. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

Information Is No Less Privileged Because It Was Obtained in Hospital. - There is no difference in the application of the statute between examination and treatment of the patient by a physician or surgeon in a hospital and in the home. The information is no less privileged that it was obtained in a hospital. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

Tape Relating to Facts in Death Certificates. - In an action by plaintiff to recover damages for wrongful discharge from his position as superintendent of a State hospital for the mentally disordered, a tape of a meeting of the credentials committee of that hospital would not come within the privilege provided by this section where the information on the tape did not relate to treatment of patients but related basically the facts included in the death certificates of patients which were a matter of public records. Smith v. State, 298 N.C. 115, 257 S.E.2d 399 (1979).

Cross-examination of defendant's psychiatrist concerning incriminating statements made by defendant did not violate defendant's statutory right to privileged communication with his doctor on the basis that no bona fide doctor-patient relationship existed between defendant and his expert witness, or on the basis that, even assuming a valid relationship, defendant waived his right to the privilege by putting the doctor on the stand. State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980).

Child Abuse Cases. - The physician-patient privilege, created by this section, is not available in cases involving child abuse. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983). See G.S. 8-53.1

III. WAIVER.

Privilege Is That of Patient. - A physician or surgeon may not refuse to testify; the privilege is that of the patient. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962); Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968); State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

The records of patients at a hospital are privileged but the privilege is that of the patient - not the hospital. Reserve Life Ins. Co. v. Davis Hosp., 36 F.R.D. 434 (W.D.N.C. 1965).

The privilege created by this statute is for the benefit of the patient alone. In re Farrow, 41 N.C. App. 680, 255 S.E.2d 777 (1979).

The privilege is not absolute, but qualified. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962); State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

The privilege created by this statute may be waived by the patient, and in any event is a qualified, rather than an absolute, privilege in that the judge has discretion, either at the trial or prior thereto, to "compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." In re Farrow, 41 N.C. App. 680, 255 S.E.2d 777 (1979).

Only Patient or Court May Authorize Disclosure. - The law protects the patient's secrets, and makes it the duty of the doctor to keep them, a duty he cannot waive. The veil of secrecy can be drawn aside only by the patient or by court, and only when the ends of justice require it. Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297 (1954).

Privilege May Be Waived. - The privilege given by this section is for the benefit of the patient alone, and it may be insisted on or waived at his discretion, subject to the exceptions included in the section. Fuller v. Knights of Pythias, 129 N.C. 318, 40 S.E. 65 (1901); Smith v. John L. Roper Lumber Co., 147 N.C. 62, 60 S.E. 717 (1908). See Creech v. Sovereign Camp, W.O.W., 211 N.C. 658, 191 S.E. 840 (1937); Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137 (1960).

Since the privilege is that of the patient alone, it may be waived by him expressly or impliedly, and cannot be taken advantage of by any other person. Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968).

The physician-patient privilege may be waived and the waiver may be express or implied. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984); Spencer v. Spencer, 70 N.C. App. 159, 319 S.E.2d 636 (1984).

A patient may waive the privilege under this Section; the waiver may be express or implied. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified on other grounds, 321 N.C. 1, 361 S.E.2d 734 (1987).

A patient may expressly or impliedly waive his physician-patient privilege during discovery and at trial. Adams v. Lovette, 105 N.C. App. 23, 411 S.E.2d 620, aff'd, 332 N.C. 659, 422 S.E.2d 575 (1992).

A patient may waive the physician-patient privilege by breaking the fiduciary relationship with the physician by revealing, or permitting revelation of, the substance of the information transmitted to the physician. Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998).

Medical records are protected by this section, which sets forth the physician-patient privilege, and because this statutory privilege is to be strictly construed, the patient bears the burden of establishing the existence of the privilege and objecting to the discovery of such privileged information; moreover, the privilege is not absolute and may be waived, either by express waiver or by waiver implied from the patient's conduct. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

Implied waivers of the physician-patient privilege occur where: (1) the patient fails to object to testimony on the privileged matter; (2) the patient calls the physician as a witness and examines him or her as to the patient's physical condition; (3) the patient testifies to the communication between himself or herself and the physician; or (4) a patient, by bringing an action, counterclaim, or defense directly places his or her medical condition at issue. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

Patient-physician privilege conferred by G.S. 8-53 was impliedly waived because the decedent and later the executor of the decedent's estate placed the decedent's mental health and history of substance abuse at issue by bringing a claim for emotional distress. Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507 (2007).

The privilege is waived by implication where the patient calls the physician as a witness and examines him as to patient's physical condition, where patient fails to object when the opposing party causes the physician to testify, or where the patient testifies to the communication between himself and physician. Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968); Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified on other grounds, 321 N.C. 1, 361 S.E.2d 734 (1987).

Effect of Implied Waiver. - The defendants were not entitled to summary judgment on the patient's claim for unauthorized disclosure of confidential information, where neither the waiver of the privilege implied by the patient's filing of a medical malpractice action against her former physician and others for misdiagnosis of breast cancer nor her conduct during the course of the action allowed defendants who were not parties to the action to disclose her mammography films to the expert who was testifying as an expert for the defendant physician absent her authorization or the use of appropriate discovery procedures. Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998).

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff's production of requested medical records for a period beginning five years prior to service of the discovery request because by claiming emotional distress, she impliedly waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552 (2012).

Where plaintiff used an affidavit of his physician for the purpose of obtaining a temporary restraining order pending the hearing of his case on the merits, such use did not waive the physician-patient privilege. Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968).

Waiver by Patient's Testimony Describing Nature of Injuries in Detail. - While a patient does not waive his right to assert that a communication between himself and his physician is privileged by merely testifying as to his own physical condition, where the patient voluntarily goes into detail regarding the nature of his injuries, he waives the privilege, and the physician is competent and compellable to testify in regard thereto, since the patient will not be allowed to close the mouth of the only witness in a position to contradict him and fully explain the facts. Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137 (1960).

A patient may surrender his privilege in a personal injury case by testifying to the nature and extent of his injuries and the examination and treatment by the physician or surgeon. Whether the testimony of the patient amounts to a waiver of privilege depends upon the provisions of the applicable statute and the extent and ultimate materiality of the testimony given with respect to the nature, treatment, and effect of the injury or ailment. The question of waiver is to be determined largely by the facts and circumstances of the particular case on trial. Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968).

When a patient voluntarily testifies in detail about his injuries and his medical treatment, he waives the privilege, and the adverse party may examine the physician. Green ex rel. Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, cert. denied, 312 N.C. 621, 323 S.E.2d 922 (1984).

Plaintiff May Not Waive Privilege as to Information But Not as to Other Matters. - When the patient breaks the fiduciary relationship with the physician by revealing, or permitting revelation of, the substance of the information transmitted to the physician, the patient has, in effect, determined that it is no longer important that the confidences which the privilege protects continue to be protected. Having taken this position, the plaintiff may not silence the physician as to matters otherwise protected by the privilege. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

Such as Opinions. - There is no statutory basis for allowing a patient to waive his privilege as to information gained by his physician while maintaining it as to his physician's opinions. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

When a patient dissolves the fiduciary relationship with his physician by disclosing or permitting disclosure of details of their consultations, he should not, in fairness, be allowed to prevent the physician from stating an opinion which might aid the trier of fact in assessing the merits of the patient's case. To hold otherwise would enable patients to use the privilege not defensively to protect their confidences but offensively to suppress the truth in litigation. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

Following Waiver, Plaintiff May Not Prohibit Physicians from Testifying for Defendant. - A plaintiff who has waived his physician-patient privilege as to nonparty treating physicians may not preclude these physicians from testifying as experts for the defendant. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

Once a plaintiff waives his right to prohibit disclosures of confidences by his physicians, he may not assert the physician-patient privilege to prevent them from testifying as experts for his opponent. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

IV. COMPELLED DISCLOSURE.

Legislative Intent. - The legislature intended to employ the phrase "may compel such disclosure" in this section in such manner as to authorize the court to require disclosure in all situations governed by this section without exception, when disclosure "is necessary to a proper administration of justice." In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, cert. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

Disclosure May Be Compelled Prior to Trial or Filing of Charges. - Construing this section and G.S. 8-53.3 so as to give effect to the obvious intention of the legislature as manifested in the entire act and other acts in pari materia, the language of both of these sections is sufficient to allow the trial court to compel disclosure prior to trial and prior to the filing of criminal charges when such action is necessary to the exercise of its implied or inherent powers to provide for the proper administration of justice. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, cert. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

Trial Judge May Compel Disclosure. - The legislature was careful to make provision to avoid injustice and suppression of truth by putting it in the power of the trial judge to compel disclosure. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

The judge, in the exercise of discretion and by the authority of the proviso in this section, may follow the procedure for the admission of testimony and admit hospital records in evidence. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

The statutory privilege is a qualified one, and the judge may compel disclosure by the physician if he finds, in his discretion, that it is necessary for the proper administration of justice. State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979); State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated and remanded for further consideration at State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).

The procedural aspects of the statutory physician-patient privilege, established in this section, are qualified. It is within the discretion of the trial judge alone to compel a physician called as a witness to testify for the proper administration of justice as to matters within the physician-patient relationship. Carter v. Colonial Life & Accident Ins. Co., 52 N.C. App. 520, 278 S.E.2d 893, cert. denied, 304 N.C. 193, 285 S.E.2d 96 (1981).

This section creates only a limited physician-patient privilege, because a trial judge may compel disclosure and deny defendant the benefit of the privilege if this is necessary for the proper administration of justice. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 104 S. Ct. 37, 77 L. Ed. 2d 1456 (1983).

The trial court may compel the physician or surgeon to disclose communications and information obtained by him if in the judge's opinion the same is necessary to a proper administration of justice. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified, 321 N.C. 1, 361 S.E.2d 734 (1987).

This section affords the trial judge wide discretion in determining what is necessary for a proper administration of justice. Cates v. Wilson, 83 N.C. App. 448, 350 S.E.2d 898 (1986), modified, 321 N.C. 1, 361 S.E.2d 734 (1987).

But Only as to Matters Necessary to Proper Administration of Justice. - The trial judge may ascertain from the physician the nature of the evidence involved and may determine what part, if any, should be disclosed as necessary to the proper administration of justice. Obviously, the proper administration of justice might require disclosure as to certain but not as to all matters under the privilege. Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67 (1964).

This section requires, and the decisions of the Supreme Court are to the effect, that the trial judge may admit communication between physician and patient if in his opinion such is necessary to a proper administration of justice. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

Privileged medical information may still be discoverable if disclosure is necessary to a proper administration of justice; the decision that disclosure is necessary to a proper administration of justice is one made in the discretion of the trial judge, and the defendant must show an abuse of discretion in order to successfully challenge the ruling. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

Explicit Finding Not Required. - This section does not require an explicit finding that disclosure is necessary to a proper administration of justice; the finding is implicit in the admission of the evidence. State v. Smith, 347 N.C. App. 453, 496 S.E.2d 357 (1998).

Unclear Whether Specific Findings Required - Whether the trial court has to make a specific finding that disclosure of privileged material is necessary for the proper administration of justice is unclear as this section does not require such an explicit finding, and the finding is implicit in the admission of the evidence; however, caselaw has held that a trial court may permit opinion evidence by non-party treating physicians only after finding, pursuant to the statute, that the proper administration of justice necessitates such testimony, and that the trial court is required to make a finding, appearing in the record, that disclosure is necessary to a proper administration of justice. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

And He Should Not Hesitate to Do So. - Judges should not hesitate to require disclosure where it appears to them to be necessary in order that the truth be known and justice be done. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962); State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

Judge's Finding of Record That Testimony Is Necessary. - Before a physician may testify to matters arising in his confidential relationship with his patient, this section requires that the trial judge find that in his opinion such testimony is "necessary to a proper administration of justice," and in the absence of such finding appearing of record on appeal, it is reversible error for the trial judge upon defendant's exception to admit testimony of the insured's physician tending to show that the insured in his application for life insurance had made misstatements of material facts that would avoid the insurer's liability in his suit to cancel the policy issued thereon. Metropolitan Life Ins. Co. v. Boddie, 194 N.C. 199, 139 S.E. 228 (1927). See Creech v. Sovereign Camp, W.O.W., 211 N.C. 658, 191 S.E. 840 (1937); Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297 (1954).

If the statements were privileged under this section, then in the absence of a finding by the presiding judge, duly entered upon the record, that the testimony was necessary to a proper administration of justice, it was incompetent, and upon defendant's objection should have been excluded. Sawyer v. Weskett, 201 N.C. 500, 160 S.E. 575 (1931).

Where the presiding judge compels disclosure, as provided by this section, he shall enter upon the record his finding that the testimony is necessary to a proper administration of justice. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

In the absence of a finding by the trial court that, in its opinion, the admission of hospital records was necessary to a proper administration of justice, the appellate court is compelled to hold that their exclusion was not error. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962).

The superior court's finding, inserted in the record, that the evidence of a physician was necessary to a proper administration of justice, takes the physician's evidence out of the privileged communication rule provided in this section. State v. Howard, 272 N.C. 519, 158 S.E.2d 350 (1968).

A judge of superior court at term may, in his discretion, compel disclosure of physician-patient communications if, in his opinion, it is necessary to a proper administration of justice and he so finds and enters such finding on the record. Neese v. Neese, 1 N.C. App. 426, 161 S.E.2d 841 (1968).

In construing this section it is incumbent on the presiding judge to find the fact, and this should appear in the record in substance, that, in his opinion, the disclosure is necessary to a proper administration of justice. State v. Bryant, 5 N.C. App. 21, 167 S.E.2d 841 (1969).

Express Recital of Findings Held Unnecessary. - Although the trial judge made no express recital of findings that the testimony of a psychiatrist in a sterilization proceeding was necessary to the proper administration of justice, his opinion that such was the case was implicit when he overruled respondent's objection to the testimony asserting the privilege under this section. It must be assumed that the judge was aware of the statute when he made the ruling, and that under these circumstances the very act of ruling was in itself a finding that its admission was necessary to a proper administration of justice. In re Johnson, 36 N.C. App. 133, 243 S.E.2d 386 (1978).

Substantial Compliance with Section. - Where the district attorney filed a motion requesting the court to compel disclosure of defendant's medical records and the court found that "the results of the analysis of the defendant's blood is needed for evidence" and ordered the hospital to furnish the reports of all tests and treatment of defendant for the dates in question, this constituted substantial compliance with the statute. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986), appeal dismissed and cert. denied, 317 N.C. 711, 347 S.E.2d 448 (1986).

Failure to give defendant notice of the hearing on the motion to compel disclosure and defendant's absence when the motion was heard was not reversible error, since defendant could have appealed the disclosure order and any prejudice to defendant was cured when defendant had the opportunity to be heard on this matter at the pretrial voir dire hearing of defendant's motion to suppress the results of defendant's blood test. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986).

Child Abuse Cases. - By virtue of G.S. 8-53.2 and 7A-551 [see now G.S. 7B-310], the physician-patient privilege, created by G.S. 8-53 is not available in cases involving child abuse. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Any privilege which the defendant, who sought treatment of a sexually transmittable disease after he had been charged with sexual crimes against his children and taken into custody, might have been entitled to this section was nullified by G.S. 8-53.1 and 7A-551 [see now G.S. 7B-310]. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Disclosure Properly Compelled. - In a prosecution for possession of heroin, the trial court did not err in ruling that a physician should be required in the interests of justice to give testimony concerning a matchbox containing heroin found on defendant's person when she was undressed in a hospital emergency room in order that the physician could determine the cause of her unconsciousness. State v. Wooten, 18 N.C. App. 269, 196 S.E.2d 603, appeal dismissed, 283 N.C. 670, 197 S.E.2d 879 (1973).

Where the trial court received evidence and heard arguments before ruling that the privilege should be waived and the testimony allowed into evidence, the record failed to establish that this ruling could not have been the result of a reasoned decision. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990).

When defendant was charged with second-degree murder for causing another's death by his drunk driving, his medical records, showing the concentration of alcohol in his blood immediately after the incident, were properly admitted, under G.S. 8-53, because the trial court did not abuse its discretion in finding that the admission of such records was necessary for the proper administration of justice. State v. Westbrook, 175 N.C. App. 128, 623 S.E.2d 73 (2005).

Trial court did not abuse its discretion in ordering a driver to produce privileged medical records, which mentioned or reflected the results of any tests performed to determine the driver's blood alcohol content and the presence of controlled substances in his body at the time of the accident, in the interest of justice. Roadway Express, Inc. v. Hayes, 178 N.C. App. 165, 631 S.E.2d 41 (2006).

It was not an abuse of discretion to partially compel the discovery of medical records of former patients who were not parties to a malpractice case; careful consideration was given since only some of the records had to be produced, information was redacted, and the need for an in camera inspection was recognized. Brewer v. Hunter, 236 N.C. App. 1, 762 S.E.2d 654 (2014).

Disclosure Improperly Compelled - Driver did not waive physician-patient privilege simply by driving, and the trial court abused its discretion in compelling the production of her medical records where the injured party did not contend that the driver's medical condition contributed to the accident, and the driver did not contend that she was injured, but merely denied the allegation of negligence and asserted contributory negligence of the injured party, in the alternative. Mims v. Wright, 157 N.C. App. 339, 578 S.E.2d 606 (2003).

§ 8-53.1. Physician-patient and nurse privilege; limitations.

Notwithstanding the provisions of G.S. 8-53 and G.S. 8-53.13, the physician-patient or nurse privilege shall not be a ground for excluding evidence regarding the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries to such child or the cause thereof in any judicial proceeding related to a report pursuant to the North Carolina Juvenile Code, Chapter 7B of the General Statutes of North Carolina.
Nothing in this Article shall preclude a health care provider, as defined in G.S. 90-21.11, from disclosing information pursuant to G.S. 90-21.20B.

History

(1965, c. 472, s. 2; 1971, c. 710, s. 2; 1981, c. 469, s. 24; 1998-202, s. 13(b); 2004-186, s. 16.2; 2006-253, s. 18; 2007-115, s. 4.)

Effect of Amendments. - Session Laws 2007-115, s. 4, effective June 27, 2007, substituted "limitations" for "waived in child abuse; disclosure of information in impaired driving accident cases" in the section heading, and substituted "pursuant to" for "to a law enforcement agency investigating a vehicle crash under the provisions of" near the end of subsection (b).

Legal Periodicals. - For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For article, "What's the Harm in Asking?: A Discussion of Waiver of the Physician-Patient Privilege and Ex Parte Interviews with Treating Physicians," see 19 N.C. Cent. L.J. 1 (1990).

CASE NOTES

This section is read in pari materia with the Juvenile Code (G.S. 7A-516, et seq.), in particular, G.S. 7A-551. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983); State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Section applies irrespective of when the medical information was obtained. - G.S. 7A-551 [see now G.S. 7B-310] and this section plainly facilitate the prosecution of child abusers, without regard to whether the medical information was obtained before or after the accused was officially charged with a crime. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Evidence That Defendant Sought Treatment of Sexually Transmitted Disease. - Any privilege which defendant, who sought treatment of a sexually transmittable disease after he had been charged with sexual crimes against his children and taken into custody, might have been entitled to by G.S. 8-53 was nullified by this section and G.S. 7A-551 [see now G.S. 7B-310]. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Evidence That Defendant in Sexual Abuse Case Had Gonorrhea. - Unequivocal evidence that a seven-year old girl had been sexually abused would invoke this section and G.S. 7A-551 [see now G.S. 7B-310]. Therefore, medical records maintained by a county health department, revealing that the defendant had been treated for gonorrhea, were admissible as evidence with regard to the cause or source of the child's disease. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983).

Cited in Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984).

§ 8-53.2. Communications between clergymen and communicants.

No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred.

History

(1959, c. 646; 1963, c. 200; 1967, c. 794.)

Legal Periodicals. - For note, "Privileged Communications - The New North Carolina Priest-Penitent Statute," see 46 N.C.L. Rev. 427 (1968).

For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For note on the clergy-communicant privilege, see 65 N.C.L. Rev. 1390 (1987).

CASE NOTES

Privilege Is Statutory. - Apart from this statute, there is no privilege with reference to communications between a clergyman or other spiritual advisor and his communicants or others who seek his advice and comfort. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967), commented on in 45 N.C.L. Rev. 863, 884, 924 (1967).

Two Statutory Requirements. - For the clergyman's privilege to apply the defendant must be seeking the counsel and advice of his minister, and the information must be entrusted to the minister as a confidential communication. State v. Andrews, 131 N.C. App. 370, 507 S.E.2d 305 (1998).

Expectation of Trust and Confidentiality in Covered Communications. - The legislature's excision of the term "confidential" from the current version of this statute was clearly not intended to broaden application of the privilege to all genre of general conversation with one's spiritual mentor, but merely to broaden the range of advisory and counseling practices to which it applies. The expectation of trust and confidentiality inherent in communications covered under the prior statute was not affected by the legislature's modification in 1967 of that statute's wording. State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986).

No Discretion in Court to Compel Disclosure When Privilege Exists. - The 1967 amendment to this section revealed the General Assembly's intent to remove from the trial courts any discretion to compel disclosure when the clergy-communicant's privilege exists. State v. Barber, 317 N.C. 502, 346 S.E.2d 441 (1986).

Minister Related to Defendant. - In a criminal trial, the trial court erred in allowing the mother of the victim, who was also the defendant's aunt and a minister, to testify with respect to statements made by defendant when she visited defendant while he was in jail, as this witness was acting at least in part in her professional capacity as a minister. State v. Jackson, 77 N.C. App. 832, 336 S.E.2d 437 (1985), cert. denied, 316 N.C. 199, 341 S.E.2d 572 (1986).

Limited Waiver Was Proper. - Trial court did not err by allowing a husband a limited waiver of the clergy-communicant privilege to allow examination of a minister regarding the husband's marriage counseling sessions with his wife during one month, but refusing to allow him to elicit testimony from the minister regarding other counseling sessions because the clergy-communicant privilege was absolute; further, the trial court reviewed the minister's notes and properly found that the notes contained no references during the time frames specified by defendant that established an earlier "discovery date" by the husband of the affair that was the basis of the underlying criminal conversation lawsuit. Misenheimer v. Burris, 183 N.C. App. 408, 644 S.E.2d 611 (2007).

Privilege Held Inapplicable. - This section was not applicable where the person to whom defendant confided was not an ordained or licensed minister of any church and did not hold any office in any church, although he had preached from the pulpit several times and had taught Sunday school, and where the court found that the defendant did not make statements while seeking spiritual comfort and guidance, but that they were conversational statements in which he confided to a friend. State v. Barber, 317 N.C. 502, 346 S.E.2d 441 (1986).

Where preacher, who had told defendant's wife the day before that defendant needed help and that he was going to try to help him, sought out defendant for that purpose, and meeting attended by defendant, preacher and the preacher's wife was not one in which defendant had any reason to expect confidentiality, as the conversation appeared to be one in which the preacher was offering his advice and counsel, but not one in which defendant's admissions were entrusted to him in pursuit of such counsel and advice, this section did not apply. State v. West, 317 N.C. 219, 345 S.E.2d 186 (1986).

Clergy-communicant privilege was not applicable to statements defendant made in the presence of a church elder who was not an ordained minister or clergyman. State v. Pulley, 180 N.C. App. 54, 636 S.E.2d 231 (2006), review denied, 361 N.C. 574, 651 S.E.2d 375 (2007).

Cited in Spencer v. Spencer, 61 N.C. App. 535, 301 S.E.2d 411 (1983); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

§ 8-53.3. Communications between psychologist and client or patient.

No person, duly authorized as a licensed psychologist or licensed psychological associate, nor any of his or her employees or associates, shall be required to disclose any information which he or she may have acquired in the practice of psychology and which information was necessary to enable him or her to practice psychology. Any resident or presiding judge in the district in which the action is pending may, subject to G.S. 8-53.6, compel disclosure, either at the trial or prior thereto, if in his or her opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.

Notwithstanding the provisions of this section, the psychologist-client or patient privilege shall not be grounds for failure to report suspected child abuse or neglect to the appropriate county department of social services, or for failure to report a disabled adult suspected to be in need of protective services to the appropriate county department of social services. Notwithstanding the provisions of this section, the psychologist-client or patient privilege shall not be grounds for excluding evidence regarding the abuse or neglect of a child, or an illness of or injuries to a child, or the cause thereof, or for excluding evidence regarding the abuse, neglect, or exploitation of a disabled adult, or an illness of or injuries to a disabled adult, or the cause thereof, in any judicial proceeding related to a report pursuant to the Child Abuse Reporting Law, Article 3 of Chapter 7B of the General Statutes, or to the Protection of the Abused, Neglected, or Exploited Disabled Adult Act, Article 6 of Chapter 108A of the General Statutes.

History

(1967, c. 910, s. 18; 1983, c. 410, ss. 3, 7; 1987, c. 323, s. 2; 1993, c. 375, s. 2; c. 553, s. 78; 1998-202, s. 13(c).)

Legal Periodicals. - For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For comment on the evidentiary implications at trial of the physician-patient privilege, see 12 Wake Forest L. Rev. 849 (1976).

For survey of 1979 law on evidence, see 58 N.C.L. Rev. 1456 (1980).

For article discussing the psychotherapist-patient privilege, see 60 N.C.L. Rev. 893 (1982).

For note on the admissibility of a criminal defendant's hypnotically refreshed testimony, see 10 Campbell L. Rev. 311 (1988).

CASE NOTES

This section does not require an explicit finding of the necessity to compel discovery of privileged information, but rather, such a finding is implicit in the admission of such evidence. State v. Williams, 350 N.C. 1, 510 S.E.2d 626 (1999), cert. denied 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162 (1999).

G.S. 8-53 and this section are to be read in pari materia. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, cert. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

Thus, Disclosure May Be Compelled Prior to Trial or Filing of Charges. - Construing G.S. 8-53 and this section so as to give effect to the obvious intention of the legislature as manifested in the entire act and other acts in pari materia, the language of both of these sections is sufficient to allow the trial court to compel disclosure prior to trial and prior to the filing of criminal charges when such action is necessary to the exercise of its implied or inherent powers to provide for the proper administration of justice. In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818, cert. denied, 298 N.C. 297, 259 S.E.2d 298 (1979).

This section as written favors a policy of nondisclosure. Flora v. Hamilton, 81 F.R.D. 576 (M.D.N.C. 1978).

But judges should not hesitate where it appears to them that disclosure is necessary in order that the truth be known and justice done. Flora v. Hamilton, 81 F.R.D. 576 (M.D.N.C. 1978).

Testimony Proper Where No Privilege Existed. - Where defendant to a charge of first-degree sexual offense telephoned a clinical psychologist and made an appointment, but doctor recognized a conflict of interest because she was also treating defendant's wife and stepdaughters, doctor telephoned defendant to refer him to another psychologist, and defendant then stated to her that he had been seduced by his stepdaughter, the trial court, by allowing this testimony and compelling disclosure over defendant's objection on the basis that it was "necessary to the proper administration of justice" as allowed by this section, acted properly, since under the second paragraph of this section the psychologist-patient privilege did not exist. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, cert. denied, 325 N.C. 230, 381 S.E.2d 789 (1989).

Applicability of Privilege to Competency Examination. - No psychologist-client privilege is created when a defendant is examined at his request by a court-appointed psychologist for purposes of evaluating defendant's mental status, and even if they were the court could compel disclosure if the records were "necessary to the proper administration of justice." State v. Williams, 350 N.C. 1, 510 S.E.2d 626 (1999), cert. denied 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162 (1999).

Authority to Compel Evidence. - It was not error for a trial court to admit certain evidence in a child neglect and dependency case that violated the mother's psychologist-patient privilege; under G.S. 8-53.3, the court had the authority to compel disclosure of otherwise privileged information if, in his or her opinion, it was necessary to a proper administration of justice, and the mother's psychological condition was a major issue in the determination that her son was neglected. In re K.D., 178 N.C. App. 322, 631 S.E.2d 150 (2006).

Order Compelling Disclosure Upheld. - Trial court's order that the marriage counselor disclose counseling session records was not erroneous in light of the state's theory of the case, that defendant conspired with and aided and abetted her lover in the murder of her husband, as the testimony of the marriage counselor was surely relevant. State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008).

Applied in State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979); State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

Cited in State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983); Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984); State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158 (1986); State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997), cert. denied, 522 U.S. 918, 118 S. Ct. 306, 139 L. Ed. 2d 236 (1997); In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003); Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507 (2007); Mosteller v. Stiltner, 221 N.C. App. 486, 727 S.E.2d 601 (2012).

§ 8-53.4. School counselor privilege.

No person certified by the State Department of Public Instruction as a school counselor and duly appointed or designated as such by the governing body of a public school system within this State or by the head of any private school within this State shall be competent to testify in any action, suit, or proceeding concerning any information acquired in rendering counseling services to any student enrolled in such public school system or private school, and which information was necessary to enable him to render counseling services; provided, however, that this section shall not apply where the student in open court waives the privilege conferred. Any resident or presiding judge in the district in which the action is pending may compel disclosure, either at the trial or prior thereto, if in his opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be the district court judge, and if the case is in superior court the judge shall be a superior court judge.

History

(1971, c. 943; 1983, c. 410, ss. 4, 5.)

Legal Periodicals. - For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

CASE NOTES

Cited in Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

§ 8-53.5. Communications between licensed marital and family therapist and client(s).

No person, duly licensed as a licensed marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information which the person may have acquired in rendering professional marriage and family therapy services, and which information was necessary to enable the person to render professional marriage and family therapy services. Any resident or presiding judge in the district in which the action is pending may, subject to G.S. 8-53.6, compel disclosure, either at the trial or prior thereto, if in the court's opinion disclosure is necessary to a proper administration of justice. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.

History

(1979, c. 697, s. 2; 1983, c. 410, ss. 6, 7; 1985, c. 223. s. 1; 2001-487, s. 40(a); 2004-203, s. 18.)

Legal Periodicals. - For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

CASE NOTES

Cited in Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

§ 8-53.6. No disclosure in alimony and divorce actions.

In an action pursuant to G.S. 50-5.1, 50-6, 50-7, 50-16.2A, and 50-16.3A if either or both of the parties have sought and obtained marital counseling by a licensed physician, licensed psychologist, licensed psychological associate, licensed clinical social worker, or licensed marriage and family therapist, the person or persons rendering such counseling shall not be competent to testify in the action concerning information acquired while rendering such counseling.

History

(1983, c. 410, s. 8; 2001-152, s. 1.)

Legal Periodicals. - For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

CASE NOTES

Cited in In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

§ 8-53.7. Social worker privilege.

No person engaged in delivery of private social work services, duly licensed or certified pursuant to Chapter 90B of the General Statutes shall be required to disclose any information that he or she may have acquired in rendering professional social services, and which information was necessary to enable him or her to render professional social services: provided, that the presiding judge of a superior or district court may compel such disclosure, if in the court's opinion the same is necessary to a proper administration of justice and such disclosure is not prohibited by G.S. 8-53.6 or any other statute or regulation.

History

(1983, c. 495, s. 2; 2001-152, s. 2; 2001-487, s. 40(b).)

CASE NOTES

Standing. - In a custody dispute, wherein a mother sought to depose the father's therapist, a licensed clinical social worker, and sought production of certain treatment records, the therapist lacked standing to assert the social worker privilege under G.S. 8-53.7 because there was no indication the husband, as the patient, raised any objection to the therapist's testimony or the production of documents; the privilege belonged to the husband and his failure to object constituted an implied waiver of the privilege. Mosteller v. Stiltner, 221 N.C. App. 486, 727 S.E.2d 601 (2012).

Cited in In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003); Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507 (2007).

§ 8-53.8. Counselor privilege.

No person, duly licensed pursuant to Chapter 90, Article 24, of the General Statutes, shall be required to disclose any information which he or she may have acquired in rendering clinical mental health counseling services, and which information was necessary to enable him or her to render clinical mental health counseling services: Provided, that the presiding judge of a superior or district court may compel such disclosure, if in the court's opinion the same is necessary to a proper administration of justice and such disclosure is not prohibited by other statute or regulation.

History

(1983, c. 755, s. 2; 1993, c. 514, s. 2; 2019-240, s. 3(a).)

Editor's Note. - Session Laws 2019-240, s. 3(k), provides: "The Codifier of Rules shall make any conforming rule changes necessary to reflect the name changes made by this act.”

Effect of Amendments. - Session Laws 2019-240, s. 3(a), effective January 1, 2020, substituted "clinical mental health" for "professional" twice.

CASE NOTES

Cited in State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158 (1986); In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003); Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507 (2007).

§ 8-53.9. Optometrist/patient privilege.

No person licensed pursuant to Article 6 of Chapter 90 of the General Statutes shall be required to disclose any information that may have been acquired in rendering professional optometric services and which information was necessary to enable that person to render professional optometric services, except that the presiding judge of a superior or district court may compel this disclosure, if, in the court's opinion, disclosure is necessary to a proper administration of justice and disclosure is not prohibited by other statute or rule.

History

(1997-75, s. 4; 1997-304, s. 3.)

CASE NOTES

Cited in In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

§ 8-53.10. Peer support group counselors.

Definitions. - The following definitions apply in this section:
1. Client law enforcement employee. - Any law enforcement employee or a member of his or her immediate family who is in need of and receives peer counseling services offered by the officer's employing law enforcement agency.
2. Immediate family. - A spouse, child, stepchild, parent, or stepparent.
3. Peer counselor. - Any law enforcement officer or civilian employee of a law enforcement agency who:
  1. Has received training to provide emotional and moral support and counseling to client law enforcement employees and their immediate families; and
  2. Was designated by the sheriff, police chief, or other head of a law enforcement agency to counsel a client law enforcement employee.
4. Privileged communication. - Any communication made by a client law enforcement employee or a member of the client law enforcement employee's immediate family to a peer counselor while receiving counseling.
A peer counselor shall not disclose any privileged communication that was necessary to enable the counselor to render counseling services unless one of the following apply:
1. The disclosure is authorized by the client or, if the client is deceased, the disclosure is authorized by the client's executor, administrator, or in the case of unadministrated estates, the client's next of kin.
2. The disclosure is necessary to the proper administration of justice and, subject to G.S. 8-53.6, is compelled by a resident or presiding judge. If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.
The privilege established by this section shall not apply:
1. If the peer counselor was an initial responding officer, a witness, or a party to the incident that prompted the delivery of peer counseling services.
2. To communications made while the peer counselor was not acting in his or her official capacity as a peer counselor.
3. To communications related to a violation of criminal law. This subdivision does not require the disclosure of otherwise privileged communications related to an officer's use of force.
Notwithstanding the provisions of this section, the peer counselor privilege shall not be grounds for failure to report suspected child abuse or neglect to the appropriate county department of social services, or for failure to report a disabled adult suspected to be in need of protective services to the appropriate county department of social services. Notwithstanding the provisions of this section, the peer counselor privilege shall not be grounds for excluding evidence regarding the abuse or neglect of a child, or an illness of or injuries to a child, or the cause thereof, or for excluding evidence regarding the abuse, neglect, or exploitation of a disabled adult, or an illness of or injuries to a disabled adult, or the cause thereof, in any judicial proceeding related to a report pursuant to the Child Abuse Reporting Law, Article 3 of Chapter 7B, or to the Protection of the Abused, Neglected, or Exploited Disabled Adult Act, Article 6 of Chapter 108A of the General Statutes.

History

(1999-374, s. 1.)

§ 8-53.11. Persons, companies, or other entities engaged in gathering or dissemination of news.

Definitions. - The following definitions apply in this section:
1. Journalist. - Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.
2. Legal proceeding. - Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.
3. News medium. - Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.
A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.
In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:
1. Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
2. Cannot be obtained from alternate sources; and
3. Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.
Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.

Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.

History

(1999-267, s. 1.)

Editor's Note. - This section was enacted as G.S. 8-53.9 and was redesignated as G.S. 8-53.11 pursuant to directions from the Revisor of Statutes.

Legal Periodicals. - For comment, "Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King?," see 33 Campbell L. Rev. 173 (2010).

CASE NOTES

No Appeal from Interlocutory Denial of Motion to Compel Discovery Based on Privilege. - Appeal of a trial court's denial of police officers' motion to compel discovery was dismissed because the case law did not mandate appellate review of an interlocutory order upholding an G.S. 8-53.11 privilege asserted by the parties sued in a defamation case. James v. Bledsoe, 198 N.C. App. 339, 679 S.E.2d 494 (2009).

§ 8-53.12. Communications with agents of rape crisis centers and domestic violence programs privileged.

Definitions. - The following definitions apply in this section:
1. Agent. - An employee or agent of a center who has completed a minimum of 20 hours of training as required by the center, or a volunteer, under the direct supervision of a center supervisor, who has completed a minimum of 20 hours of training as required by the center.
2. Center. - A domestic violence program or rape crisis center.
3. Domestic violence program. - A nonprofit organization or program whose primary purpose is to provide services to domestic violence victims.
4. Domestic violence victim. - Any person alleging domestic violence as defined by G.S. 50B-1, who consults an agent of a domestic violence program for the purpose of obtaining, for himself or herself, advice, counseling, or other services concerning mental, emotional, or physical injuries suffered as a result of the domestic violence. The term shall also include those persons who have a significant relationship with a victim of domestic violence and who have sought, for themselves, advice, counseling, or other services concerning a mental, physical, or emotional condition caused or reasonably believed to be caused by the domestic violence against the victim.
5. Rape crisis center. - Any publicly or privately funded agency, institution, organization, or facility that offers counseling and other services to victims of sexual assault and their families.
6. Services. - Includes, but is not limited to, crisis hotlines; safe homes and shelters; assessment and intake; children of violence services; individual counseling; support in medical, administrative, and judicial systems; transportation, relocation, and crisis intervention. The term does not include investigation of physical or sexual assault of children under the age of 16.
7. Sexual assault. - Any alleged violation of G.S. 14-27.21, 14-27.22, 14-27.24, 14-27.25, 14-27.26, 14-27.27, 14-27.29, 14-27.30, 14-27.31, 14-27.32, or 14-202.1, whether or not a civil or criminal action arises as a result of the alleged violation.
8. Sexual assault victim. - Any person alleging sexual assault, who consults an agent of a rape crisis center for the purpose of obtaining, for themselves, advice, counseling, or other services concerning mental, physical, or emotional injuries suffered as a result of sexual assault. The term shall also include those persons who have a significant relationship with a victim of sexual assault and who have sought, for themselves, advice, counseling, or other services concerning a mental, physical, or emotional condition caused or reasonably believed to be caused by sexual assault of a victim.
9. Victim. - A sexual assault victim or a domestic violence victim.
Privileged Communications. - No agent of a center shall be required to disclose any information which the agent acquired during the provision of services to a victim and which information was necessary to enable the agent to render the services; provided, however, that this subsection shall not apply where the victim waives the privilege conferred. Any agent or center that receives a request for such information shall make every effort to inform the victim of the request and provide the victim a copy of the request if the request was in writing. Any resident or presiding judge in the district in which the action is pending shall compel disclosure, either at the trial or prior thereto, if the court finds, by a preponderance of the evidence, a good faith, specific and reasonable basis for believing that (i) the records or testimony sought contain information that is relevant and material to factual issues to be determined in a civil proceeding, or is relevant, material, and exculpatory upon the issue of guilt, degree of guilt, or sentencing in a criminal proceeding for the offense charged or any lesser included offense, (ii) the evidence is not sought merely for character impeachment purposes, and (iii) the evidence sought is not merely cumulative of other evidence or information available or already obtained by the party seeking the disclosure or the party's counsel. If the case is in district court, the judge shall be a district court judge, and if the case is in superior court, the judge shall be a superior court judge.
Duty in Case of Abuse or Neglect. - Nothing in this section shall be construed to relieve any person of any duty pertaining to abuse or neglect of a child or disabled adult as required by law.

The judge in any court proceeding subject to this section shall inquire as to whether the victim is present and wishes to be heard. If the victim is present and wishes to be heard, the court shall grant the victim an opportunity to be reasonably heard. The right to be reasonably heard may be exercised, at the victim's discretion, through an oral statement, submission of a written statement, or submission of an audio or video statement. Before requiring production of records, the court must find that the party seeking disclosure has made a sufficient showing that the records are likely to contain information subject to disclosure under this subsection. If the court finds a sufficient showing has been made, the court shall order that the records be produced for the court under seal, shall examine the records in camera, and may allow disclosure of those portions of the records which the court finds contain information subject to disclosure under this subsection. After all appeals in the action have been exhausted, any records received by the court under seal shall be returned to the center, unless otherwise ordered by the court. The privilege afforded under this subsection terminates upon the death of the victim.

History

(2001-277, s. 1; 2015-181, s. 31; 2019-216, s. 1.5.)

Editor's Note. - Session Laws 2019-216, s. 17, made the second sentence in the first paragraph and the first three sentences in the second paragraph of subsection (b), as added by Session Laws 2019-216, s. 1.5, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2015-181, s. 31, effective December 1, 2015, and applicable to offenses committed on or after that date, substituted "G.S. 14-27.21, 14-27.22, 14-27.24, 14-27.25, 14-27.26, 14-27.27, 14-27.29, 14-27.30, 14-27.31, 14-27.32c for "G.S. 14-27.2, 14-27.3, 14-27.4, 14-27.5, 14-27.7, 14-27.7A" in subdivision (a)(7).

Session Laws 2019-216, s. 1.5, in subsection (b), added the second sentence in the first paragraph, and added the first three sentences in the second paragraph. For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "Criminalizing Coercive Control Within the Limits of Due Process," see 70 Duke L.J. 1321 (2021).

§ 8-53.13. Nurse privilege.

No person licensed pursuant to Article 9A of Chapter 90 of the General Statutes shall be required to disclose any information that may have been acquired in rendering professional nursing services, and which information was necessary to enable that person to render professional nursing services, except that the presiding judge of a superior or district court may compel disclosure if, in the court's opinion, disclosure is necessary to a proper administration of justice and disclosure is not prohibited by other statute or rule. Nothing in this section shall preclude the admission of otherwise admissible written or printed medical records in any judicial proceeding, in accordance with the procedure set forth in G.S. 8-44.1, after a determination by the court that disclosure should be compelled as set forth herein.

History

(2003-342, s. 1; 2004-186, s. 16.1.)

§ 8-53.14. Communications between behavior analyst and client or patient.

No individual authorized as a licensed behavior analyst, or any of the individual's employees or associates, shall be required to disclose any information that the individual may have acquired in the practice of behavior analysis and which information was necessary to enable the individual to practice behavior analysis. Any resident or presiding judge in the district in which the action is pending may, subject to G.S. 8-53.6, compel disclosure, either at or before trial, if in the judge's opinion, disclosure is necessary to a proper administration of justice. If the case is in district court, the judge shall be a district court judge, and if the case is in superior court, the judge shall be a superior court judge.

Notwithstanding the provisions of this section, the behavior analyst-client or behavior analyst-patient privilege shall not be grounds for failure to report suspected child abuse or neglect to the appropriate county department of social services or for failure to report a disabled adult suspected to be in need of protective services to the appropriate county department of social services. Notwithstanding the provisions of this section, the behavior analyst-client or behavior analyst-patient privilege shall not be grounds for excluding any evidence of abuse, neglect, illness, or injuries of a child or for excluding any evidence regarding the abuse, neglect, exploitation, illness, or injuries of a disabled adult in any judicial proceeding related to a report pursuant to Article 3 of Chapter 7B of the General Statutes.

History

(2021-22, s. 3.)

Editor's Note. - Session Laws 2021-22, s. 4, made this section effective May 17, 2021, and applicable to licenses granted or renewed on or after that date.

§ 8-54. Defendant in criminal action competent but not compellable to testify.

In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him. But every such person examined as a witness shall be subject to cross-examination as other witnesses. Except as above provided, nothing in this section shall render any person, who in any criminal proceeding is charged with the commission of a criminal offense, competent or compellable to give evidence against himself, nor render any person compellable to answer any question tending to criminate himself.

History

(1856-7, c. 23; 1866, c. 43, s. 3; 1868-9, c. 209, s. 4; 1881, c. 89, s. 3; c. 110, ss. 2, 3; Code ss. 1353, 1354; Rev., ss. 1634, 1635; C.S., s. 1799.)

Cross References. - As to rights of accused, see N.C. Const., Art. I, § 23.

As to exceptions, i.e., where witness is not excused from testifying on ground that testimony will tend to incriminate him, see G.S. 1-357, 14-38, 14-354.

Legal Periodicals. - For article discussing self-incrimination, see 15 N.C.L. Rev. 229 (1937).

For note concerning confessions, see 23 N.C.L. Rev. 364 (1945).

As to compelling accused to speak so that witness may identify his voice, see note in 27 N.C.L. Rev. 262 (1949).

For note, "Constitutional Law - Is the Restricted Cross-Examination Rule Embodied in the Fifth Amendment?", see 45 N.C.L. Rev. 1030 (1967).

For note discussing sua sponte instructions on a defendant's failure to testify, see 54 N.C.L. Rev. 1001 (1976).

For comment on impeaching a criminal defendant by prior acquittals, see 17 Wake Forest L. Rev. 561 (1981).

For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

CASE NOTES

I. General Consideration.
II. Evidence of Defendant's Character.
III. Cross-Examination of Defendant.
- A. Scope of Questioning.
- B. Particular Areas of Inquiry.
IV. Defendant Not Testifying.

I. GENERAL CONSIDERATION.

Change from Common Law. - To correctly interpret and apply this section, it should be remembered that at common law, both in England and in this country, parties were not competent witnesses and were not permitted to testify. Nonetheless, an admission of guilt by defendant was competent evidence just as it is competent today. Then, as now, the law applied and gave effect to the assumption that one charged with crime and wrongful conduct would not remain silent when he had an opportunity to speak. Such silence was evidence of guilt. Thus, when the barrier was removed preventing the accused from testifying and according him a privilege, it was proper to provide that his failure to utilize the privilege so given should not be regarded as an implied admission. State v. Walker, 251 N.C. 465, 112 S.E.2d 61 (1960), cert. denied, 364 U.S. 832, 81 S. Ct. 45, 5 L. Ed. 2d 58 (1960), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

Prior to the adoption of this section defendants in criminal actions were not competent to testify in their own behalf. The prevailing theory prior to the adoption of this section was that the frailty of human nature and the overpowering desire for freedom would ordinarily induce a person charged with crime, if permitted to testify, to swear falsely. State v. Williams, 6 N.C. App. 611, 170 S.E.2d 640 (1969).

When the common-law rules of evidence, which declared that parties were incompetent to testify, were changed by this section, an important privilege was extended to defendants, guarded by the provision that a failure to exercise it should raise no presumption of guilt against them. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

The common-law disqualification against interested parties testifying was removed by this section. State v. Howard, 222 N.C. 291, 22 S.E.2d 917 (1942).

Privilege and Not a Duty. - A defendant in a criminal matter can only be examined as a witness by his own request. State v. Ellis, 97 N.C. 447, 2 S.E. 525 (1887).

This section gives a criminal defendant the privilege of testifying in his own behalf. It is not his duty to do so, and he cannot be compelled to testify. If he does, however, he occupies the position of any other witness. He is entitled to the same privileges and is equally liable to be impeached or discredited. State v. Austin, 20 N.C. App. 539, 202 S.E.2d 293, rev'd on other grounds, 285 N.C. 364, 204 S.E.2d 675 (1974).

The word "presumption" as used in this section is equivalent to what is at present generally understood by the word "inference." State v. Bailey, 4 N.C. App. 407, 167 S.E.2d 24 (1969).

The law is that the jury is not to infer guilt from the fact that the defendant neither testifies nor presents evidence. State v. Willis, 22 N.C. App. 465, 206 S.E.2d 729 (1974).

Defendant Treated as Other Witnesses. - When the defendant exercises this privilege he is treated just as any other witness and thereby subjects himself to all the disadvantages of that position. State v. Efler, 85 N.C. 585 (1881); State v. Hawkins, 115 N.C. 712, 20 S.E. 623 (1894); State v. Auston, 223 N.C. 203, 25 S.E.2d 613 (1943).

Where a defendant in a criminal prosecution testifies in his own behalf he waives his constitutional privilege not to answer questions tending to incriminate him and is subject to cross-examination for the purpose of impeaching his credibility as other witnesses. State v. Griffin, 201 N.C. 541, 160 S.E. 826 (1931).

If a defendant in a criminal action testifies, he occupies the position of any other witness, and he is entitled to the same privileges and is equally liable to be impeached or discredited. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

No Forfeiture of Right to Silence. - Defendant did not forfeit defendant's constitutional right to silence because, when defendant gave pre-trial notice of defendant's intent to invoke affirmative defense of duress under a statute, defendant did not give up defendant's right to remain silent or defendant's right to not testify, and the State of North Carolina was not permitted during the State's case-in-chief to offer evidence to preemptively impeach defendant's credibility when defendant had not testified. State v. Shuler, 378 N.C. 337, 861 S.E.2d 512 (2021).

No Instruction Required When Defendant Testifies. - When the defendant testifies, the trial court is not required to instruct the jury, upon request or otherwise, that the defendant cannot be compelled to testify. State v. Walden, 311 N.C. 667, 319 S.E.2d 577 (1984).

Contradiction of Testimony. - Defendant's privilege against self-incrimination was not violated where State was permitted to show for purposes of impeachment that defendant had not voluntarily turned himself in to the police, and defendant had already testified to the contrary. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Comment on Failure to Produce Exculpatory Evidence. - A prosecutor may not make any reference to or comment on a defendant's failure to testify. However, a defendant's failure to produce exculpatory evidence or to contradict evidence presented by the state may properly be brought to the jury's attention by the state in its closing argument. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986).

Where the prosecutor did no more than comment on defendant's failure to produce witnesses and evidence to refute the state's case, her statements did not constitute an impermissible comment on defendant's failure to take the stand. State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986).

Evidence of Other Offenses Where Defendant Does Not Testify. - When the defendant in a criminal trial does not testify, evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; such evidence will be admissible, however, if that evidence is used to show intent, design, guilty knowledge, or scienter or to make out the res gestae or to exhibit a chain of circumstances in respect of the matter on trial, when the other offenses are so connected with the offense charged as to throw light on one or more of these questions. State v. Allen, 50 N.C. App. 173, 272 S.E.2d 785 (1980), appeal dismissed, 302 N.C. 399, 279 S.E.2d 353 (1981).

Where There Are Two or More Defendants. - Even prior to the enactment of this section on a trial for an affray, one defendant could not oppose the testifying of his codefendant for himself, the State's counsel not objecting. State v. Hamlett, 85 N.C. 520 (1881).

Failure of Codefendant to Take Stand. - A codefendant on trial cannot be required over his own objection to testify as a witness for defendant. State v. Hanford, 16 N.C. App. 353, 191 S.E.2d 910, cert. denied, 282 N.C. 428, 192 S.E.2d 841 (1972).

Defendant may properly raise a violation of this section for the first time on appeal. State v. Fleming, 33 N.C. App. 216, 234 S.E.2d 431, cert. denied and appeal dismissed, 293 N.C. 161, 236 S.E.2d 705 (1977).

In the absence of an indication to the trial court that defendant wished to take the stand, it could not be said that the court denied defendant his right to testify. State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985).

Testimony May Be Used in Subsequent Trial. - Where a defendant, in a prosecution for another crime, testified in his own behalf, after having been informed of his privilege not to testify, admissions made by him are competent evidence against him in a subsequent trial. State v. Simpson, 133 N.C. 676, 45 S.E. 567 (1903).

Error in Sustaining Objections Held Waived. - In a prosecution for first-degree murder, where defendant contended that the trial court erred in sustaining the State's objections to several of his attempts to explain his answers, thereby violating his right to testify in his own behalf pursuant to this section, any error by the trial court in sustaining the State's objections was cured when the evidence sought to be admitted was subsequently admitted without objection. State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981).

Applied in State v. Turner, 253 N.C. 37, 116 S.E.2d 194 (1960); State v. Stephens, 262 N.C. 45, 136 S.E.2d 209 (1964); State v. Boone, 39 N.C. App. 218, 249 S.E.2d 817 (1978); State v. Joseph, 59 N.C. App. 436, 297 S.E.2d 173 (1982); State v. Farrow, 66 N.C. App. 147, 310 S.E.2d 418 (1984); State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991); State v. Smith, 357 N.C. 604, 588 S.E.2d 453 (2003), cert. denied, - U.S. - , 124 S. Ct. 2915, 159 L. Ed. 2d 819 (2004); State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Cited in State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927); State v. McLeod, 198 N.C. 649, 152 S.E. 895 (1930); State v. Spivey, 198 N.C. 655, 153 S.E. 255 (1930); State v. Vernon, 208 N.C. 340, 180 S.E. 590 (1935); York v. York, 212 N.C. 695, 194 S.E. 486 (1938); State v. Davis, 272 N.C. 102, 157 S.E.2d 671 (1967); State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974); State v. Thompson, 293 N.C. 713, 239 S.E.2d 465 (1977); State v. Alston, 35 N.C. App. 691, 242 S.E.2d 523 (1978); State v. Holder, 331 N.C. 462, 418 S.E.2d 197 (1992); State v. Griffin, 109 N.C. App. 131, 425 S.E.2d 722 (1993); State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994); State v. Thompson, 118 N.C. App. 33, 454 S.E.2d 271 (1995); State v. Porter, 340 N.C. 320, 457 S.E.2d 716 (1995); State v. James, 342 N.C. 589, 466 S.E.2d 710 (1996); State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001).

II. EVIDENCE OF DEFENDANT'S CHARACTER.

Defendant's General Character Can Be Shown. - When a prosecutor or defendant in a criminal action goes upon the stand as a witness he becomes just as any other witness, and his general character can be proven, not only as it was before a charge affecting it was made, but as it is at the date he goes upon the stand. State v. Spurling, 118 N.C. 1250, 24 S.E. 533 (1896).

But His Character Is Not in Issue Unless So Placed. - Where a defendant goes on the witness stand and testifies, he does not thereby put his character in issue, but only puts his testimony in issue, and the State may introduce evidence tending to show the bad character of the witness solely for the purpose of contradicting him. State v. Foster, 130 N.C. 666, 41 S.E. 284 (1902); State v. Cloninger, 149 N.C. 567, 63 S.E. 154 (1908).

And When He Does Not Testify, His Character Is Not in Issue. - When defendant does not go upon the stand, and does not offer evidence of good character, his character is not in issue and it may not be impeached by the State. State v. Proctor, 213 N.C. 221, 195 S.E. 816 (1938).

Unless a defendant in a criminal prosecution testifies as a witness, thereby subjecting himself to impeachment, or produces evidence of his good character to repel the charge of crime, the State may not show his bad character for any purpose. State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952).

Introduction of Evidence of Good Character by Defendant. - The right of the defendant to offer testimony of his good character does not depend upon his having been examined as a witness in his own behalf. State v. Hice, 117 N.C. 782, 23 S.E. 357 (1895); State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943).

When the defendant introduces evidence himself to prove his good character, then that evidence is substantive evidence, and may be considered by the jury as such. State v. Cloninger, 149 N.C. 567, 63 S.E. 154 (1908).

Use of Character Evidence Introduced by State. - Where, in the trial of a criminal action, the defendant testified in his own behalf and introduced no evidence as to his general character, but the State introduced evidence to show that such character was bad, it was held that such evidence by the State could be considered only as affecting the credibility of the defendant as a witness and not as a circumstance in determining the question of his guilt or innocence. State v. Traylor, 121 N.C. 674, 28 S.E. 493 (1897).

III. CROSS-EXAMINATION OF DEFENDANT.

A. SCOPE OF QUESTIONING.

Extent of Cross-Examination Permitted. - Cross-examination of a defendant under this section is not confined to matters brought out on direct examination, but questions are admissible to impeach, diminish or impair the credit of the witness. State v. Dickerson, 189 N.C. 327, 127 S.E. 256 (1925).

When a defendant voluntarily becomes a witness in his own behalf, he is subject to cross-examination and impeachment as any other witness, and it is proper for the solicitor (now district attorney) to ask him questions concerning his prior criminal record for the purpose of impeaching him, provided the questions are based on information and are asked in good faith. State v. Weaver, 3 N.C. App. 439, 165 S.E.2d 15 (1969).

It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Poole, 289 N.C. 47, 220 S.E.2d 320 (1975); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death penalty vacated, Carter v. North Carolina, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

In order to impeach a defendant's credibility as a witness, the solicitor (now district attorney) is permitted to cross-examine the defendant as to collateral matters, including other criminal offenses, if the questions are based upon information and are asked in good faith. State v. Lea, 17 N.C. App. 71, 193 S.E.2d 383 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154 (1973).

While defendant in a criminal action may not be required to become a witness unless he voluntarily does so, once he does so, he becomes subject to cross-examination and may be required to answer questions designed to impeach or discredit him as a witness. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Cross-examination by the State is permitted for the purpose of impeaching the credibility of a witness, including a defendant in a criminal case, and not for the purpose of proving prior offenses. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

In cross-examination, the witness, including a defendant in a criminal case, may be asked all sorts of disparaging questions and he may be particularly asked whether he has committed specified criminal acts or has been guilty of specified reprehensible or degrading conduct. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

A testifying defendant is subject to impeachment by cross-examination, generally to the same extent as any other witness. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Once a defendant testifies, he assumes the status of any other witness and is subject to impeachment by the questions and arguments of opposing counsel. These arguments may include comments on the witness's failure to explain or deny incriminating evidence since, if an innocent explanation exists or a denial can properly be made, the witness may reasonably be expected to provide it. State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978).

For purposes of impeachment, a defendant as witness may be cross-examined by the district attorney concerning prior inconsistent statements, prior convictions, and any specific acts of misconduct which tend to impeach his character. State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979).

Same - Discretion of Trial Judge. - The limits of legitimate cross-examination of a defendant are largely within the discretion of the trial judge and, absent a showing that the verdict was improperly influenced by his rulings on the scope of that cross-examination, those rulings will not be held for error. State v. Lea, 17 N.C. App. 71, 193 S.E.2d 383 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154 (1973).

The scope of cross-examination of a criminal defendant is subject to the discretion of the trial judge and the questions must be asked in good faith. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death penalty vacated, Carter v. North Carolina, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

The scope of the cross-examination of a defendant with regard to specific acts of criminal and degrading conduct for which there has been no conviction is normally subject to the discretion of the trial judge, and the questions must be asked in good faith. The purpose of this rule permitting such a wide scope for impeachment is that such evidence is a proper and relevant means of aiding the jury in assessing and weighing the credibility of the defendant. State v. Ross, 295 N.C. 488, 246 S.E.2d 780 (1978).

B. PARTICULAR AREAS OF INQUIRY.

Cross Examination as to Unproved Accusations or Arrests for Unrelated Offenses. - For purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

Witness, including a defendant in a criminal case, cannot be impeached by cross-examination as to whether he has been arrested for, indicted for, or accused of an unrelated criminal offense. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

A defendant may not be asked on cross-examination for impeachment purposes if he has been accused, arrested or indicted for a particular crime, but he may be asked if he in fact committed the crime. State v. Poole, 289 N.C. 47, 220 S.E.2d 320 (1975); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death penalty vacated, Carter v. North Carolina, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

It is improper to cross-examine a witness, including a defendant in a criminal trial, as to indictments, warrants or arrests which may have been made against him. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Cross-Examination as to Other Offenses for Which Defendant Has Been Indicted. - For purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been indicted or is under indictment for a criminal offense other than that for which he is then on trial. In respect of this point, State v. Maslin, 195 N.C. 537, 143 S.E. 3 (1928), and decisions in accord with Maslin, are overruled, on the basic ground that an indictment cannot rightly be considered as more than an unproved accusation. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

The rule that a witness, including the defendant in a criminal case, may no longer be cross-examined for impeachment purposes as to whether he has been indicted or is under indictment for a criminal offense other than that for which he is then on trial applies only to trials begun after December 15, 1971, the date of the decision in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). State v. Harris, 281 N.C. 542, 189 S.E.2d 249 (1972).

Cross-Examination with Respect to Prior Convictions. - A witness, including the defendant in a criminal case, may be cross-examined for purposes of impeachment with respect to prior convictions of crime. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Ross, 295 N.C. 488, 246 S.E.2d 780 (1978).

Cross-examination for impeachment purposes is not limited to conviction of crimes. State v. Poole, 289 N.C. 47, 220 S.E.2d 320 (1975).

Trial judge did not err in admitting defendant's testimony under cross-examination of prior criminal convictions where the district attorney repeatedly asked defendant what he had been convicted of, not what he had been charged with, it was defendant who unresponsively volunteered information as to charges, and defendant's motion to strike all testimony as to charges was allowed and the judge instructed the jury to disregard all of it. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Inquiry of a witness, including a defendant, into prior convictions for certain crimes is relevant to impeach the witness. State v. Collins, 29 N.C. App. 120, 223 S.E.2d 575 (1976).

Where the defendant on cross-examination testified about an additional conviction for assault with a firearm which he had failed to mention during his direct examination, this was relevant impeachment evidence, thus, it was not only proper, it was also prudent for the prosecutor to attempt to elicit further details about defendant's prior convictions. State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384 (1980).

And Specific Acts of Misconduct. - Where a defendant in a criminal case testifies in his own behalf, specific acts of misconduct may be brought out on cross-examination to impeach his testimony. State v. Poole, 289 N.C. 47, 220 S.E.2d 320 (1975).

An accused person who testifies as a witness may be cross-examined regarding prior acts of misconduct. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Trial judge did not err in allowing cross-examination of defendant concerning the circumstances of his undesirable discharge from military service. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Cross-examination for purposes of impeachment of a defendant who testifies in his own behalf is not limited to questions concerning prior convictions, but also extends to questions relating to specific acts of criminal and degrading conduct for which there has been no conviction. State v. Ross, 295 N.C. 488, 246 S.E.2d 780 (1978).

When a defendant becomes a witness and testifies in his own behalf, he is subject to cross-examination like any other witness, and, for purposes of impeachment, he may be cross-examined by the district attorney concerning any specific acts of misconduct which tend to impeach his character. State v. Galloway, 304 N.C. 485, 284 S.E.2d 509 (1981).

By choosing to testify, a defendant is subject to cross-examination as other witnesses; defendant waived his privilege against self-incrimination regarding bad acts when he elected to testify. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905 (1988).

Where defendant testified on direct examination that he had no intent of selling cocaine until he was approached by the informant, he raised the issue of entrapment, and G.S. 8C-1, Rule 404(b) allowed the State on cross-examination to question defendant concerning the prior sale to undercover police to prove absence of entrapment; therefore defendant's privilege against self-incrimination was not violated by the questions. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905 (1988).

Where defendant first testified that he had never possessed any cocaine, it was then proper impeachment for the district attorney to ask the defendant about bags containing cocaine residue found in the defendant's possession when he was arrested. State v. Wooten, 104 N.C. App. 125, 408 S.E.2d 202 (1991).

Cross-Examination as to Conviction Subsequently Set Aside. - While it was improper for the solicitor (now district attorney) to cross-examine defendant concerning a conviction for felonious assault when this conviction had been subsequently set aside and on retrial defendant had been convicted only of simple assault - if the solicitor (now district attorney) knew such was the case - defendant was hardly prejudiced when he had admitted convictions for a large number of different criminal offenses committed over a long period of years. State v. Weaver, 3 N.C. App. 439, 165 S.E.2d 15 (1969).

Denial of Impeaching Questions. - When defendant denies impeaching questions as to his prior criminal record, his answers are conclusive in the sense that they cannot be rebutted by other evidence, but the solicitor is not precluded from rephrasing his questions to include such details as the docket number of the case, the name of the court, the date of trial, the offense charged, and the sentence imposed. State v. Weaver, 3 N.C. App. 439, 165 S.E.2d 15 (1969).

Contradicting Witness's Denial of Prior Offenses. - Denial of prior offenses by a witness, including a defendant in a criminal case, may not be contradicted by introducing the record of his conviction or otherwise proving by other witnesses that he was, in fact, convicted. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

Defendant May Be Recalled for Further Cross-Examination. - A defendant who avails himself of the privilege of testifying in his own behalf is subject to being recalled for further cross-examination, since the court has full discretion to allow a witness to be examined at any stage of the trial out of the usual order or to be recalled for reexamination. State v. Austin, 20 N.C. App. 539, 202 S.E.2d 293, rev'd on other grounds, 285 N.C. 364, 204 S.E.2d 675 (1974).

IV. DEFENDANT NOT TESTIFYING.

A. EFFECT.

No Presumption from Failure to Take Stand. - The failure of a defendant charged with homicide to take the witness stand voluntarily will not create a presumption against him. State v. Bynum, 175 N.C. 777, 95 S.E. 101 (1918).

A defendant's failure to testify may not be considered an admission of the truth of testimony which tends to incriminate him. State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975).

North Carolina cases do not prescribe any mandatory formula with regard to defendant's failure to testify not creating any presumption against him, but instead look to see if the spirit of this section has been complied with. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976).

B. FACT COMMENTED ON.

This section unquestionably prohibits any comment before the jury concerning defendant's failure to testify. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976); State v. Hughes, 54 N.C. App. 117, 282 S.E.2d 504 (1981).

It is the privilege, but not the duty, of a party to an action to offer himself as a witness in his own behalf, and he is not the proper subject for unfriendly criticism because he declines to exercise a privilege conferred upon him for his own benefit merely. The fact is not the subject of comment at all, certainly not unless under very peculiar circumstances, which must be necessarily passed upon by the judge presiding at the trial, as a matter of sound discretion. Gragg v. Wagner, 77 N.C. 246 (1877).

Comment by Court. - The failure of defendant to testify in his own behalf should not be made the subject of comment by the court except to inform the jury that a defendant may or may not testify in his own behalf as he may see fit, and that his failure to testify does not create any presumption against him. State v. McNeill, 229 N.C. 377, 49 S.E.2d 733 (1948); State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951); State v. Bailey, 4 N.C. App. 407, 167 S.E.2d 24 (1969); State v. Bryant, 283 N.C. 227, 195 S.E.2d 509 (1973); State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 794 (1976).

Trial court in a prosecution for armed robbery did not improperly comment on defendant's failure to testify when defense counsel stated he was going to introduce defendant into evidence and the court replied, "He'll have to take the witness stand," since the court's remark merely explained evidentiary procedure. State v. Hughes, 54 N.C. App. 117, 282 S.E.2d 504 (1981).

Any comment or explanation by the parties or the court on a defendant's election not to testify is improper. State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988).

Counsel may not comment upon the failure of a defendant in a criminal prosecution to testify. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

This section is interpreted as denying the right of counsel to comment on the failure of a defendant to testify. The reason for the rule is that extended comment from the court or from counsel for the State or defendant would tend to nullify the declared policy of the law that the failure of one charged with crime to testify in his own behalf should not create a presumption against him or be regarded as a circumstance indicative of guilt or unduly accentuate the significance of his silence. To permit counsel for a defendant to comment upon or offer explanation of the defendant's failure to testify would open the door for the prosecution and create a situation that this section was intended to prevent. State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989); State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982); State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984).

The decisions of the Supreme Court referring to this statute have interpreted its meaning as denying the right of counsel to comment on the failure of a defendant to testify. The reason for the rule is that extended comment from the court or from counsel for the State or defendant would tend to nullify the declared policy of the law that the failure of one charged with crime to testify in his own behalf should not create a presumption against him or be regarded as a circumstance indicative of guilt or unduly accentuate the significance of his silence. To permit counsel for a defendant to comment upon or offer explanation of the defendant's failure to testify would open the door for the prosecution and create a situation the statute was intended to prevent. State v. Walden, 311 N.C. 667, 319 S.E.2d 577 (1984).

This section prohibits the district attorney from making any reference to or comment on defendant's failure to testify. State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

This section prohibits the district attorney from making direct, or even indirect, references to a defendant's failure to testify. State v. Ferrell, 75 N.C. App. 156, 330 S.E.2d 225, cert. denied and appeal dismissed, 314 N.C. 333, 333 S.E.2d 492 (1985).

And any reference by the State regarding defendant's failure to testify violates his constitutional right to remain silent. State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984).

New Trial Ordered. - Defendant was entitled to a new trial because the trial court erroneously overruled his objection to the prosecution's closing comments about defendant's decision not to testify in trial for felonious breaking or entering; the error was prejudicial and required a new trial. State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993).

Statement That Defendant Was Hiding Behind Wife's Coat Tail. - Where defendant's wife and several other witnesses testified in his behalf, but he did not testify, to say that the defendant was "hiding behind his wife's coat tail" was tantamount to commenting on his failure to testify, which is not permitted by this section. State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952).

Statement by prosecutor that he had not said a word about defendant not going to the witness stand violated this section. State v. Roberts, 243 N.C. 619, 91 S.E.2d 589 (1956).

Inquiry in Superior Court as to Failure to Testify Below. - In a superior court trial for driving under the influence, the State, by inquiring into defendant's failure to testify in district court, did more than attempt to impeach the defendant with his prior silence, considering his allegedly belated attempt to establish a defense, but also adversely implicated defendant's right not to testify in district court. State v. Ferrell, 75 N.C. App. 156, 330 S.E.2d 225, cert. denied, 314 N.C. 333, 333 S.E.2d 492 (1985).

This section does not restrict the prosecuting attorney from making comments upon the evidence and drawing such deductions therefrom as would have been legitimate before the passage of the act, for, while enlarging the rights of the defendants, this section did not abridge the privileges of the prosecution. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

The purpose of this section is not to restrict the prosecutor from making such comments upon the evidence and drawing such deductions therefrom so long as the prosecutor does not call attention to defendant's failure to testify. State v. Richardson, 342 N.C. 772, 467 S.E.2d 685 (1996), cert. denied, 519 U.S. 890, 117 S. Ct. 229, 136 L. Ed. 2d 160 (1996).

Statements made by prosecutor regarding the demeanor of the defendant were not comparable to statements previously held to be improper comments on a defendant's failure to testify. State v. Bates, 343 N.C. 564, 473 S.E.2d 269 (1996), cert. denied, 519 U.S. 1131, 117 S. Ct. 992, 136 L. Ed. 2d 873 (1997).

A bare statement by the prosecution to the effect that the State's evidence was uncontradicted was not an improper reference to the defendant's failure to testify. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

Although the prosecution is forbidden from commenting on the failure of a defendant to testify at trial, a prosecutor's statement that the state's evidence was uncontradicted does not constitute an improper reference to defendant's failure to testify. State v. Richardson, 342 N.C. 772, 467 S.E.2d 685 (1996), cert. denied, 519 U.S. 890, 117 S. Ct. 229, 136 L. Ed. 2d 160 (1996).

Veiled Reference to Defendant's Failure to Testify. - Trial judge did not err in failing to intervene ex mero motu where any reference by the district attorney to defendant's failure to testify was at the most "a veiled reference," so brief and indirect as to make improbable any contention that the jury inferred guilt from the failure of the defendant to testify. State v. Styles, 93 N.C. App. 596, 379 S.E.2d 255 (1989).

The State may fairly draw the jury's attention to the failure of the defendant to produce exculpatory evidence or to contradict the State's case. State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977).

The district attorney had a right to comment on defendant's failure to account for the hours between 4:30 and 6:45 p.m., especially after the defendant had offered evidence tending to establish an alibi. The prosecutor's remarks were directed solely at defendant's failure to offer evidence rebutting the State's case, rather than at his failure to take the stand. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial erred by failing to intervene ex mero motu to exclude comments made by the prosecutor during closing arguments. The prosecution responded to defendant's attacks on two individuals and made permissible comments on defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State; the prosecution's remarks did not constitute a direct reference to his failure to testify and did not require a curative instruction. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009), review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).

Prosecutor's calling the jury's attention to defendant's demeanor made no reference to or inference about his decision not to testify, and did not violate his constitutional and statutory privilege not to testify. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Comment by Defense Counsel on Defendant's Failure to Testify. - Defense counsel was entitled to read to the jury that clause of U.S. Const., Amend. V, material to his election not to testify, i.e., "No person . . . shall be compelled in any criminal case to be a witness against himself" and to say simply that because of this provision, the jury must not consider defendant's election not to testify adversely to him, or words to this effect. State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988).

Comments Elicited by Defense Counsel. - Trial court did not err in allowing police officer's comments on murder defendant's decision to exercise her constitutional right to remain silent upon her arrest; the comments were elicited by the defense counsel and defense counsel repeatedly asked officer to explain his answers and did not object to, or move to strike the comments. State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993), cert. denied, 510 U.S. 1028, 114 S. Ct. 644, 126 L. Ed. 2d 602 (1994).

Prohibiting Defense from Reading U.S. Const., Amend. V to the Jury Held Not Reversible Error. - The trial court did not commit reversible error in prohibiting the reading to the jury of that portion of U.S. Const., Amend. V, pertinent to the defendant's election not to testify, where in his general instructions to the jury, the judge gave an accurate and complete statement of the law applicable to defendant's election not to testify. State v. Banks, 322 N.C. 753, 370 S.E.2d 398 (1988).

Exception to improper remarks of counsel during the argument must be taken before verdict. The rationale for this rule is that a party cannot be allowed to speculate upon his chances for a verdict, and then complain because counsel were not arrested in their comments upon the case. Such exceptions, like those to the admission of incompetent evidence, must be made in apt time, or else be lost. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977).

Exception in Death Cases. - The general rule that exception to improper remarks of counsel during the argument must be taken before verdict has been modified in recent years so that it does not apply to death cases, when the argument of counsel is so prejudicial to the defendant that in this court's opinion, it is doubted that the prejudicial effect of such argument could have been removed from the jurors' minds by any instruction the trial judge might have given. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977).

A slip of the tongue in an instruction on defendants' failure to testify will not be held to be prejudicial error if not called to the attention of the court and if it does not appear that the jury could have been prejudiced thereby. State v. Willis, 22 N.C. App. 465, 206 S.E.2d 729 (1974).

Prosecution's statements directed at defendant's failure to produce rebuttal or alibi evidence at trial for robbery with dangerous weapon, were not directed at defendant's failure to testify on his own behalf; therefore, these comments were not in error. State v. Thompson, 110 N.C. App. 217, 429 S.E.2d 590 (1993).

Failure to Object - Trial court did not err by allowing a detective to testify that defendant refused to make a statement to police because defendant did not object to that testimony during trial; also, the trial court did not have an obligation to give the jury a curative instruction, sua sponte, after a witness who testified stated during cross-examination that, if defendant didn't agree with what the witness said, defendant should defend himself. State v. Batchelor, 157 N.C. App. 421, 579 S.E.2d 422 (2003).

C. INSTRUCTIONS TO JURY.

Improper comment on defendant's failure to testify may be cured by an instruction from the court that the argument is improper, followed by prompt and explicit instructions to the jury to disregard it. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984).

If the defendant elects not to testify as a witness in his own defense, any comment by the solicitor (now district attorney) calling attention to this failure is improper; but where the presiding judge carefully instructs the jury that defendant's failure to testify in his own defense should not be construed in anywise to his prejudice, the presiding judge properly and effectively removes any prejudicial effect that might result from the solicitor's (now district attorney) argument. State v. Lewis, 256 N.C. 430, 124 S.E.2d 115 (1962).

If the district attorney improperly comments on defendant's failure to testify, the error may be cured by a withdrawal of the remark or by a statement from the court that it was improper, followed by an instruction to the jury not to consider the failure of the accused to offer himself as a witness. State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Soloman, 40 N.C. App. 600, 253 S.E.2d 270 (1979).

When a prosecutor improperly comments upon the accused's failure to testify, the error may be cured if the trial judge (1) sustains an objection to the comment; (2) tells the jury that the comment was improper; and (3) instructs the jury to disregard the comment and not to consider the failure of the accused to offer himself as a witness. State v. Oates, 65 N.C. App. 112, 308 S.E.2d 507 (1983), cert. denied, 310 N.C. 747, 315 S.E.2d 708 (1984).

An instruction by the trial court immediately after sustaining an objection to a prosecutor's comment on the defendant's failure to testify, that the defendant's exercise of his right not to testify shall not be used against him, is insufficient absent an instruction that the argument was improper and that it should be disregarded. State v. Oates, 65 N.C. App. 112, 308 S.E.2d 507 (1983), cert. denied, 310 N.C. 747, 315 S.E.2d 708 (1984).

Trial court's curative instruction to the jury following the prosecutor's comment at trial was sufficient, even though not made immediately after the prosecutor's comments, as the the trial court stated that the comment was improper, and the statement was followed by an instruction to the jury not to consider the failure of the accused to offer the accused as a witness. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).

To be effective, the trial court's instruction should immediately follow the offensive remark and should explain why the remark was improper. The fact that the remark was made by a private prosecutor makes no difference. State v. Oates, 65 N.C. App. 112, 308 S.E.2d 507 (1983), cert. denied, 310 N.C. 747, 315 S.E.2d 708 (1984).

New Trial If No Curative Instruction on Improper Argument Is Given. - When there is an objection to prohibited statements on the failure of the defendant to testify, it is the duty of the court not only to sustain objection to the prosecuting attorney's improper and erroneous argument but also to instruct the jury that the argument was improper with prompt and explicit instructions to disregard it. If no proper curative instruction is given, the prejudicial effect of the argument requires a new trial. State v. Soloman, 40 N.C. App. 600, 253 S.E.2d 270 (1979).

Failure to Request Curative Instruction. - Where defendants failed to promptly object to the prosecutor's statement and decided against requesting a curative instruction when this was suggested by the trial court, they were not entitled to a new trial for the failure of the trial court to grant relief, since the statement was not so grossly improper as to require the trial court to act ex mero motu. State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984).

It is better practice not to instruct on the defendant's failure to testify. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976).

Unless Defendant Requests Such an Instruction. - Ordinarily, it would seem better to give not instruction concerning a defendant's failure to testify unless such an instruction is requested by the defendant. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, cert. denied, 279 N.C. 396, 183 S.E.2d 243 (1971); State v. Rankin, 282 N.C. 572, 193 S.E.2d 740 (1973); State v. Bryant, 283 N.C. 227, 195 S.E.2d 509 (1973); State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 794 (1976).

Right to Instruction Upon Request. - A nontestifying defendant has the right, upon proper request, to have the court tell the jury in substance that his failure to take the witness stand and testify in his own behalf does not create any presumption against him. State v. Leffingwell, 34 N.C. App. 205, 237 S.E.2d 550 (1977).

This statute prohibits the prosecution, the defense, or the trial judge from commenting upon the defendant's failure to testify. A nontestifying defendant, however, has the right upon request to have the trial court instruct the jury that his failure to testify may not be held against him. State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984).

Such Instruction Is Discretionary Absent Request. - Court need not charge that failure of defendant to testify should not be considered against him in absence of request. State v. Jordan, 216 N.C. 356, 5 S.E.2d 156 (1939); State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977).

The failure of the trial court to instruct the jury upon the effect of defendant's failure to testify is not error, because such an instruction is not required unless specifically requested by defendant. State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539 (1975), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

Under this section the trial judge is not required to instruct the jury that a defendant's failure to testify creates no presumption against him unless defendant requests the instruction. In fact, it is better not to give such an instruction unless defendant requests it. State v. Chambers, 52 N.C. App. 713, 280 S.E.2d 175 (1981).

But Giving Unrequested Proper Instructions Is Not Reversible Error. - Giving unrequested proper instructions relating to the failure of the defendant to exercise his right to testify or refrain from testifying under the provisions of this section is not reversible error. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, cert. denied, 279 N.C. 396, 183 S.E.2d 243 (1971).

While it is the better practice to give no instructions on the defendant's failure to testify, there is no error in giving an unrequested instruction on defendants' failure to testify if it correctly states the law. State v. Willis, 22 N.C. App. 465, 206 S.E.2d 729 (1974).

The trial court did not err in instructing the jury regarding defendant's failure to testify, even though defendant did not request the instruction. State v. Hill, 34 N.C. App. 347, 238 S.E.2d 201 (1977).

It is not always prejudicial error to give an unrequested instruction regarding defendant's failure to testify or present evidence. There is no prejudicial error if the instruction makes clear to the jury that the defendant has the right to offer or to refrain from offering evidence as he sees fit and that his failure to testify should not be considered by the jury as basis for any inference adverse to him. State v. Chambers, 52 N.C. App. 713, 280 S.E.2d 175 (1981).

What Instruction Must State. - Any instruction is incomplete and prejudicially erroneous unless it makes clear to the jury that the defendant has the right to offer or to refrain from offering evidence as he sees fit and that his failure to testify should not be considered by the jury as basis for any inference adverse to him. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976); State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 794 (1976).

Language of Statute Should be Used. - The better practice is for the trial judge to use the language employed in this section without additions if there is a request for such instructions. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, cert. denied, 279 N.C. 396, 183 S.E.2d 243 (1971).

An instruction which incorporates the precise language of this section is not only acceptable, but it has often been suggested as being the preferred instruction. State v. Penland, 20 N.C. App. 73, 200 S.E.2d 672 (1973), appeal dismissed, 284 N.C. 621, 201 S.E.2d 692 (1974).

Instructions Upheld. - The court's remarks to the jury in instructing them that defendant was within his rights in not testifying, and that his failure to testify should not be considered against him, were held without error upon defendant's exception. State v. Horne, 209 N.C. 725, 184 S.E. 470 (1936).

A charge to the effect that a defendant has a right not to testify and that his failure to testify should not be considered as a circumstance against him will not be held for error on the ground that it called to the jury's attention the fact of defendant's absence from the stand. State v. Wood, 230 N.C. 740, 55 S.E.2d 491 (1949).

No hard and fast form of expression or consecrated formula is required, but the jury may be instructed that, as to the defendant, the jury should scrutinize his testimony in the light of his interest in the outcome of the prosecution, but that if after such scrutiny the jury believes that the witness has told the truth, it should give his testimony the same weight it would give the testimony of any other credible witness. It was not mandatory that the judge charge the jury in this respect, but the charge was permissible and appeared to be the uniform practice. State v. Williams, 6 N.C. App. 611, 170 S.E.2d 640 (1969).

The trial judge's statement in his charge to the jury did not constitute prejudicial error where the charge, taken as a whole, did not give the jury the impression that defendant's failure to present evidence was to be taken against him. State v. Harlow, 16 N.C. App. 312, 191 S.E.2d 900 (1972).

Trial court's instruction that the jury must be very careful not to allow defendant's silence to influence their decision in any way did not constitute prejudicial error, though an instruction more nearly in the language of this section would have been preferable. State v. House, 17 N.C. App. 97, 193 S.E.2d 327 (1972); State v. Phifer, 17 N.C. App. 101, 193 S.E.2d 413 (1972), cert. denied, 283 N.C. 108, 194 S.E.2d 636 (1973).

Although it is the better practice to give no instruction concerning the failure of defendant to testify unless he requests it, the trial court's instruction in a first degree murder case to the effect that defendant's failure to testify should not be considered by the jury was not prejudicial to defendant. State v. Bryant, 283 N.C. 227, 195 S.E.2d 509 (1973).

Where an instruction was unduly repetitious, but stripped of unnecessary verbiage the instruction was that a defendant may or may not testify in his own behalf as he sees fit, and that his failure to testify shall not be held against him to any extent, this instruction met the requirements of this section. State v. Caron, 288 N.C. 467, 219 S.E.2d 68 (1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 794 (1976).

Trial judge's instruction to the jury that they "should" not consider defendant's failure to take the stand against him, rather than that they "shall" not consider his failure to take the stand against him, was not error. State v. Sellers, 289 N.C. 268, 221 S.E.2d 264 (1976).

While it is better practice to use the words of the statute, i.e., "shall not create any presumption against him," the use of the words "should not" in an instruction concerning defendant's failure to testify was not such error as to require a new trial. State v. Boone, 293 N.C. 702, 239 S.E.2d 459 (1977).

Instructions Held Improper. - While the interpretations of this section require defendant's testimony to be scrutinized, it was the province of the jury to determine from his demeanor and the attending circumstances the weight which they would accord his testimony, and a charge of the court that "the law presumes" that he is naturally laboring under the temptation to testify to whatever he thinks may be necessary to clear himself and that the jury should take into consideration what a conviction would mean to defendant, etc., was held to impose a burden and cast a shadow upon his testimony greater than the law required and constituted reversible error. State v. Wilcox, 206 N.C. 691, 175 S.E. 122 (1934).

While it is proper for the court to instruct the jury to scrutinize testimony of a defendant in a criminal prosecution because of his interest in the verdict, it was error for the court to fail to follow such instructions with a charge that if after such scrutiny the jury found him worthy of belief they should give his testimony as full credit as they would that of any other witness. State v. Dee, 214 N.C. 509, 199 S.E. 730 (1938).

A charge to the jury to "very carefully and very cautiously scrutinize" defendant's testimony is not to be commended. State v. Auston, 223 N.C. 203, 25 S.E.2d 613 (1943).

Instruction that the defendants "did not offer any evidence as they have the right to do" was incomplete and prejudicially erroneous. State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974).

Court's instruction to disregard the remark, "Why in the world did the defendant sit here for these one-and-a-half days remaining mute and not come to the stand?" was insufficient where the court did not instruct that the remark was improper nor why it was improper. State v. Oates, 65 N.C. App. 112, 308 S.E.2d 507 (1983), cert. denied, 310 N.C. 747, 315 S.E.2d 708 (1984).

§ 8-55. Testimony enforced in certain criminal investigations; immunity.

If any justice, judge or magistrate of the General Court of Justice shall have good reason to believe that any person within his jurisdiction has knowledge of the existence and establishment of any faro bank, faro table or other gaming table prohibited by law, or of any place where alcoholic beverages are sold contrary to law, in any town or county within his jurisdiction, such person not being minded to make voluntary information thereof on oath, then it shall be lawful for such justice, magistrate, or judge to issue to the sheriff of the county in which such faro bank, faro table, gaming table, or place where alcoholic beverages are sold contrary to law is supposed to be a subpoena, capias ad testificandum, or other summons in writing, commanding such person to appear immediately before such justice, magistrate, or judge and give evidence on oath as to what he may know touching the existence, establishment and whereabouts of such faro bank, faro table or other gaming table, or place where alcoholic beverages are sold contrary to law, and the name and personal description of the keeper thereof. Such evidence, when obtained, shall be considered and held in law as an information on oath, and the justice, magistrate or judge may thereupon proceed to seize and arrest such keeper and destroy such table, or issue process therefor as provided by law. No person shall be excused, on any prosecution, from testifying touching any unlawful gaming done by himself or others; but no discovery made by the witness upon such examination shall be used against him in any penal or criminal prosecution, and he shall be altogether pardoned of the offenses so done or participated in by him.

History

(R.C., c. 35, s. 50; 1858-9, c. 34, s. 1; Code, ss. 1050, 1215; 1889, c. 355; Rev., ss. 1637, 3721; 1913, c. 141; C.S., s. 1800; 1969, c. 44, s. 22; 1971, c. 381, s. 4; 1981, c. 412, s. 4(4); c. 747, s. 66.)

CASE NOTES

For case upholding the constitutionality of this section, see In re Briggs, 135 N.C. 118, 47 S.E. 403 (1904).

Witness Compellable to Testify. - In a prosecution for gaming a witness may be compelled to testify, although his answer tends to criminate him, since he is pardoned for the offense. State v. Morgan, 133 N.C. 743, 45 S.E. 1033 (1903).

Cited in State v. Foster, 228 N.C. 72, 44 S.E.2d 447 (1947).

§ 8-56. Husband and wife as witnesses in civil action.

In any trial or inquiry in any suit, action or proceeding in any court, or before any person having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as herein stated, be competent and compellable to give evidence, as any other witness on behalf of any party to such suit, action or proceeding. No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.

History

(1866, c. 43, ss. 3, 4; C.C.P., s. 341; Code, s. 588; Rev., s. 1636; 1919, c. 18; C.S., s. 1801; 1945, c. 635; 1977, c. 547; 1983 (Reg. Sess., 1984), c. 1037, s. 3.)

Legal Periodicals. - For note on privileged communications between husband and wife, see 15 N.C.L. Rev. 282 (1937).

As to competency of husband and wife to testify in action for criminal conversation, see 26 N.C.L. Rev. 206 (1948).

For note on privileged communications between husband and wife, see 46 N.C.L. Rev. 643 (1968).

For note on testimony by one spouse against the other concerning adultery, see 48 N.C.L. Rev. 131 (1969).

For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For comment on adverse marital testimony in criminal actions after the modification of the common-law rule by State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981), see 60 N.C.L. Rev. 874 (1982).

For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

CASE NOTES

I. General Consideration.
II. Confidential Communications.

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the cases annotated below were decided prior to the 1983 (Reg. Sess., 1984) amendment to this section, which deleted language providing that in actions for adultery, divorce on account of adultery, or criminal conversation, husbands and wives would not be competent or compellable to give evidence for or against the other, with certain exceptions.

Husbands and wives are competent and compellable to give evidence for or against each other, save only in the particular cases mentioned in the section. Barringer v. Barringer, 69 N.C. 179 (1873).

Common Law. - At common law, husband and wife could not testify in an action to which either was a party. Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Federal law and North Carolina law on spousal privilege are in sharp conflict. Walker v. Lewis, 127 F.R.D. 466 (W.D.N.C. 1989).

Applicability of Federal Privilege Law in Federal Case with Pendent State Claims. - In a federal question case with pendent state law claims, where the issue is discoverability of evidence which is relevant to federal and state law claims, any conflict between federal and state privilege law must be resolved in favor of the body of federal law favoring admission of the evidence. Walker v. Lewis, 127 F.R.D. 466 (W.D.N.C. 1989).

Severance of State Law Claims from Federal Case so as to Preserve State Privilege. - In a federal question case with pendent state law claims, where the issue is admissibility of evidence at trial which is relevant to a federal question and to a pendent state law claim, the court must apply federal privilege law. However, because of liberal discovery, the court and the parties can intelligently choose whether to give effect to state privilege law by severing the trial of the state law claims in federal court or dismissing the state law claims so that they can be tried in state court. Walker v. Lewis, 127 F.R.D. 466 (W.D.N.C. 1989).

Adultery and Criminal Conversation. - For cases dealing with former provision of this section as to incompetence of one spouse to testify for and against the other in certain proceedings involving adultery and criminal conversation, see Horne v. Horne, 75 N.C. 101 (1876); Perkins v. Perkins, 88 N.C. 41 (1883); Chestnut v. Sutton, 204 N.C. 476, 168 S.E. 680 (1933); Knighten v. McClain, 227 N.C. 682, 44 S.E.2d 79 (1947); Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969); Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258, appeal withdrawn, 282 N.C. 151, 191 S.E.2d 365 (1972); VanDooren v. VanDooren, 37 N.C. App. 333, 246 S.E.2d 20, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978); Haddon v. Haddon, 42 N.C. App. 632, 257 S.E.2d 483 (1979); Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982); Spencer v. Spencer, 61 N.C. App. 535, 301 S.E.2d 411, cert. denied, 308 N.C. 678, 304 S.E.2d 757 (1983).

Applied in Rouse v. Creech, 203 N.C. 378, 166 S.E. 174 (1932); Watts v. Watts, 44 N.C. App. 46, 260 S.E.2d 170 (1979); Freeman v. St. Paul Fire & Marine Ins. Co., 72 N.C. App. 292, 324 S.E.2d 307 (1985); Warner Bros. Records, Inc. v. Souther, - F. Supp. 2d - (W.D.N.C. June 1, 2006).

Cited in Nelson v. Nelson, 197 N.C. 465, 149 S.E. 585 (1929); Earles v. Earles, 26 N.C. App. 559, 216 S.E.2d 739 (1975); Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325 (1984); Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006).

II. CONFIDENTIAL COMMUNICATIONS.

Confidential Communications During Marriage Are Protected. - The confidential communications made between husband and wife which neither will be compelled to disclose are those which are communicated "during their marriage." Whitford v. North State Life Ins. Co., 163 N.C. 223, 79 S.E. 501 (1913).

The confidential communications between husband and wife cannot, on the grounds of public policy, be admitted in evidence. State v. Brittain, 117 N.C. 783, 23 S.E. 433 (1895).

And Privileged. - A confidential communication between husband and wife is privileged and neither spouse may be compelled to disclose it when testifying as a witness. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967).

Whatever is known by reason of marriage should be regarded as knowledge confidentially acquired, and neither husband nor wife should be allowed to divulge it to the danger or disgrace of the other. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967).

But Communications in Presence of Others Are Not Protected. - A communication made in the known presence of a third person, or one relating to business matters which in their nature might be expected to be divulged, is not protected. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967).

Nonwitness spouse holds the privilege and may prevent the witness spouse from testifying about confidential communications. Scott v. Kiker, 59 N.C. App. 458, 297 S.E.2d 142 (1982).

A tape recording, made by the husband without the wife's knowledge, of a conversation between them while alone, except for the presence of their eight-year-old child who was singing and playing at the time, was incompetent evidence over the wife's objection. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967).

Letters from Husband to Wife. - In a suit in equity to set aside a judgment rendered in an action at law for fraud, letters from the plaintiff in the former action to his wife respecting fraud in that action were properly excluded, when the letters were obtained by a third party with the consent of the wife, the letters being privileged communications and inadmissible against either the husband or the wife. McCoy v. Justice, 199 N.C. 602, 155 S.E. 452 (1930).

Where a witness for the State had written a letter to his wife, and his wife, without his knowledge or consent, had given the letter to the defendant, the witness could not be cross-examined relative to the letter in an attempt to prove bias. State v. Banks, 204 N.C. 233, 167 S.E. 851 (1933).

Acts of Sexual Intercourse. - In the wife's action for alimony and alimony pendente lite, the wife may not be compelled to answer interrogatories which seek to elicit her answers under oath as to acts of sexual intercourse between the husband and wife, since such an act is a "confidential communication" within the meaning of this section. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972).

Admission of a police officer's testimony that he heard defendant say to his wife, "I am in real trouble this time" did not violate the marital privilege since the communication was not confidential as it was made within the hearing of a third party, and at any rate the privilege refers only to testimony by a spouse about the confidential communication. State v. Setzer, 42 N.C. App. 98, 256 S.E.2d 485, cert. denied, 298 N.C. 571, 261 S.E.2d 127 (1979).

Transactions Between Spouse and Ward. - Where testimony did not relate to confidential communications between the witness and her husband during their marriage, but to the relationship and transactions between the witness and ward and between defendant and ward, there was no error in admitting it. Ashley v. Delp, 59 N.C. App. 608, 297 S.E.2d 905 (1982), cert. denied, 308 N.C. 190, 302 S.E.2d 242 (1983).

§ 8-57. Husband and wife as witnesses in criminal actions.

The spouse of the defendant shall be a competent witness for the defendant in all criminal actions, but the failure of the defendant to call such spouse as a witness shall not be used against him. Such spouse is subject to cross-examination as are other witnesses.
The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings, except that the spouse of the defendant shall be both competent and compellable to so testify:
1. In a prosecution for bigamy or criminal cohabitation, to prove the fact of marriage and facts tending to show the absence of divorce or annulment;
2. In a prosecution for assaulting or communicating a threat to the other spouse;
3. In a prosecution for trespass in or upon the separate lands or residence of the other spouse when living separate and apart from each other by mutual consent or court order;
4. In a prosecution for abandonment of or failure to provide support for the other spouse or their child;
5. In a prosecution of one spouse for any other criminal offense against the minor child of either spouse, including any child of either spouse who is born out of wedlock or adopted or a foster child.
No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.

History

(1856-7, c. 23; 1866, c. 43; 1868-9, c. 209; 1881, c. 110; Code, ss. 588, 1353, 1354; Rev., ss. 1634, 1635, 1636; C.S., s. 1802; 1933, c. 13, s. 1; c. 361; 1951, c. 296; 1957, c. 1036; 1967, c. 116; 1971, c. 800; 1973, c. 1286, s. 11; 1983, c. 170, s. 1; 1985 (Reg. Sess., 1986), c. 843, s. 5; 1987 (Reg. Sess., 1988), c. 1040, s. 1; 1989 (Reg. Sess., 1990), c. 1039, s. 4; 1991, c, 686, s. 3; 2013-198, s. 2.)

Editor's Note. - Session Laws 1985 (Reg. Sess., 1986), c. 843, s. 6, initially provided that the act, which amended subsection (b), would become effective October 1, 1986, and expire October 1, 1988, but that the expiration date would not affect the term or authority of a grand jury constituted at that time. Session Laws 1987 (Reg. Sess., 1988), c. 1040, s. 1, as amended by Session Laws 1989 (Reg. Sess., 1990), c. 1039, s. 4, extended the expiration date of Session Laws 1985 (Reg. Sess., 1986), c. 843, s. 6, to October 1, 1993. Subsequently, Session Laws 1991, c. 686, s. 3, amended Session Laws 1985, c. 843, s. 6, as amended by Session Laws 1987, c. 1040, so as to delete the October 1, 1991 expiration provision. However, the 1991 amendment, which was in the coded bill drafting format set out at G.S. 120-20.1, did not mention or take account of Session Laws 1989 (Reg. Sess., 1990), c. 1039, s. 4.

Effect of Amendments. - Session Laws 2013-198, s. 2, effective June 26, 2013, substituted "child of either spouse who is born out of wedlock or adopted or a foster child" for "illegitimate or adopted or foster child of either spouse" in subdivision (b)(5).

Legal Periodicals. - For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For survey of 1976 case law on evidence, see 55 N.C.L. Rev. 1033 (1977).

For article recommending adoption of a broader privilege for spouses who do not want to testify against their husbands or wives in criminal cases, see 13 N.C. Cent. L.J. 1 (1981).

For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For comment on adverse marital testimony in criminal actions after the modification of the common-law rule by State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981), see 60 N.C.L. Rev. 874 (1982).

For survey of 1983 law of evidence, see 62 N.C.L. Rev. 1290 (1984).

For article, "An Analysis of the New North Carolina Evidence Code," see 20 Wake Forest L. Rev. 1 (1984).

For article, "The Danger to Confidential Communications in the Mismatch Between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges," see 32 Campbell L. Rev. 147 (2010).

CASE NOTES

I. General Consideration.
II. To What Extent Spouse Was Competent and Compellable Witness Prior to 1983 Amendment.
III. Cross-Examination of Spouse.
IV. Failure to Testify.

I. GENERAL CONSIDERATION.

Evidence rendered incompetent by this section is excludable and failure to do so is reversible error. State v. Holmes, 101 N.C. App. 229, 398 S.E.2d 873 (1990), aff'd, 330 N.C. 826, 412 S.E.2d 660 (1992).

Applicability of Section to Common-Law Marriages. - Common-law marriages are invalid in North Carolina. Hence, the husband-wife testimonial privilege granted in this section may not be asserted by a criminal defendant to disqualify a witness alleged to be his spouse by virtue of a common-law marriage contracted in North Carolina. This State, however, will recognize as valid a common-law marriage if the acts alleged to have created it took place in a state in which such a marriage is valid. State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979).

Privilege Belongs to Spouse. - Under subsection (b) of this section, the privilege belongs to the spouse, not to the defendant. Once challenged, the better practice is for the trial judge to advise the spouse that he or she cannot be compelled to testify in cases where this statute applies, and then to determine whether the spouse is in fact still willing to testify. State v. Britt, 320 N.C. 705, 360 S.E.2d 660 (1987).

The sole prohibition of subsection b is now directed to compelled testimony. State v. Rush, 340 N.C. 174, 456 S.E.2d 819 (1995).

As amended in 1986, this section embodies the common law rule that a defendant's spouse may be compelled to testify against a defendant for the State, and reflects judicial abrogation of the common law rule that a spouse is incompetent to testify against the defendant spouse. State v. Rush, 340 N.C. 174, 456 S.E.2d 819 (1995).

The spousal privilege does not bar nonconfidential, out-of-court statements made by a spouse and introduced against a defendant spouse for the State through a third party. State v. Rush, 340 N.C. 174, 456 S.E.2d 819 (1995).

Rationale of cases decided prior to State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981), holding that a spouse's out-of-court statements are inadmissible against the defendant spouse for the State, no longer applies. State v. Rush, 340 N.C. 174, 456 S.E.2d 819 (1995).

Spousal Privilege Not Bar to Statement. - Defendant's counsel did not provide ineffective assistance of counsel by not renewing an objection to the admissibility of a statement that defendant made to the defendant's spouse regarding the killing of the victim; the statement did not involve a confidential communication pursuant to G.S. 8-57(c) because it was made within the hearing of a third person and, thus, the statement was admissible. State v. Kirby, 187 N.C. App. 367, 653 S.E.2d 174 (2007), appeal dismissed, review denied, 362 N.C. 241, 660 S.E.2d 493 (2008).

This section preserves the rule against disclosure of confidential communications. While this section modifies the rule against adverse spousal testimony, it preserves the rule against disclosure of confidential marital communications. State v. Holmes, 330 N.C. 826, 412 S.E.2d 660 (1992).

A confidential communication between husband and wife is privileged and that this privilege, even in criminal cases, survives both the North Carolina Rules of Evidence and the 1983 amendment to this section. The statute makes it clear that neither spouse may be compelled to disclose confidential communications between husband and wife when testifying as a witness. State v. Holmes, 330 N.C. 826, 412 S.E.2d 660 (1992).

Effect of Termination of Marriage. - When the marital relationship terminates, the asserted reasons for this section, the preservation of the sanctity of the home and the fictional oneness of husband and wife, are no longer pertinent; but evidence that defendant and his wife were experiencing less than harmonious marital relations is insufficient to terminate the privilege. State v. Reavis, 19 N.C. App. 497, 199 S.E.2d 139 (1973).

Defendant who asked third parties to leave before he spoke to his wife in their home had the right to assert privilege against his wife and prohibit her from testifying both about his statements to her and about his actions in taking a gun out of a kitchen cabinet. State v. Holmes, 101 N.C. App. 229, 398 S.E.2d 873 (1990), aff'd, 330 N.C. 826, 412 S.E.2d 660 (1992).

Prejudicial Error Not Shown. - Assuming, arguendo, that defendant's wife was compelled to testify against defendant, the error was not prejudicial, where she essentially corroborated other witnesses' testimony, and there was not a reasonable possibility that a different result would have been reached had she not testified. State v. Britt, 320 N.C. 705, 360 S.E.2d 660 (1987).

Admission Not Marital Communication. - Defendant's admission to his wife that he had sexual intercourse with his stepdaughter was not a marital communication induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship; rather, defendant's confession was driven by his own psychological motivations and was not a marital communication. State v. Smith, 113 N.C. App. 827, 440 S.E.2d 322 (1994).

Trial court did not err by failing to exclude the testimony of defendant's former wife about defendant's crying while looking at the composite sketch of the victim's assailant as a confidential marital communication under G.S. 8-57(c) where the incident occurred as the wife was driving with defendant sitting in the passenger seat, the wife did not see defendant looking at the sketch, and no testimony indicated that defendant intended to communicate anything to his wife. State v. Matsoake, 243 N.C. App. 651, 777 S.E.2d 810 (2015), review denied, 781 S.E.2d 485, 2016 N.C. LEXIS 77 (2016).

Portions of testimony defendant challenged were not confidential communications for purposes of the marital communications privilege. Defendant's statements demanding sex from his wife after having repeatedly stabbed her and while still wielding a knife were not prompted by the affection, confidence, and loyalty engendered by such relationship. State v. Harris, - N.C. App. - , - S.E.2d - (Mar. 4, 2021), review dismissed, 856 S.E.2d 111, 2021 N.C. LEXIS 351 (N.C. 2021).

Conversations between defendant and his wife in the visiting areas of three correctional facilities were not admissible into evidence, based upon the marital privilege under G.S. 8-57(c), because the wife, as a result of the marital relationship, induced defendant to make the statements, which were not overheard by a third party and were only obtained through the wife's participation with the police in getting defendant to make the statements. State v. Rollins, 189 N.C. App. 248, 658 S.E.2d 43 (2008).

Conversations between defendant and his wife in the public areas of state department of correction (DOC) facilities where defendant was incarcerated did not qualify as confidential communications under G.S. 8-57(c) because defendant had no reasonable expectation of privacy in any conversation that took place in a public visiting area of a DOC facility; for purposes of the Fourth Amendment, the traditional right to privacy was fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. State v. Rollins, 363 N.C. 232, 675 S.E.2d 334 (2009).

Applied in State v. Spain, 3 N.C. App. 266, 164 S.E.2d 486 (1968); State v. Ward, 34 N.C. App. 598, 239 S.E.2d 291 (1977); State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100 (1985); State v. Josey, 328 N.C. 697, 403 S.E.2d 479 (1991); State v. Martin, 105 N.C. App. 182, 412 S.E.2d 134 (1992); State v. Rollins, 200 N.C. App. 105, 682 S.E.2d 411 (2009).

Cited in State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972); State v. Byrd, 21 N.C. App. 734, 205 S.E.2d 326 (1974); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976); State v. Thompson, 293 N.C. 713, 239 S.E.2d 465 (1977); State v. Holmes, 120 N.C. App. 54, 460 S.E.2d 915 (1995); State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999); Cooper v. Shealy, 140 N.C. App. 729, 537 S.E.2d 854 (2000); Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006); Rogers v. State, 189 P.3d 265 (Wyo. July 31, 2008); Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014); State v. Young, 368 N.C. 188, 775 S.E.2d 291 (2015).

II. TO WHAT EXTENT SPOUSE WAS COMPETENT AND COMPELLABLE WITNESS PRIOR TO 1983 AMENDMENT.

A. IN GENERAL.

Editor's Note. - The cases below were decided under this section as it read prior to the 1983 amendment. Formerly the section made the spouse of the defendant competent to testify for him, but not competent or compellable to testify against him, with certain exceptions.

Common Law. - At common law the husband or wife of the defendant in a criminal case was incompetent to testify either for the State or for the defense. State v. Alford, 274 N.C. 125, 161 S.E.2d 575 (1968).

At common law, a husband or a wife was incompetent to testify either for or against his or her defendant-spouse in a criminal action. This section changed this rule to the effect that a husband or a wife can testify for a defendant-spouse. The common law rule remains in effect, however, regarding testimony against a spouse in a criminal action. State v. Suits, 296 N.C. 553, 251 S.E.2d 607 (1979).

Common-Law Rule Modified. - The common-law rule prohibiting one spouse from testifying against another in a criminal action is modified so as to prohibit such testimony only if the substance of the testimony concerns a "confidential communication" between the marriage partners made during the duration of their marriage. State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981).

In effect, this section left intact the common-law rule that a spouse is incompetent to testify against the other spouse in a criminal case. However, the common-law rule was modified so that spouses are now incompetent to testify against one another in a criminal proceeding only if the substance of the testimony concerns a confidential communication. State v. Waters, 308 N.C. 348, 302 S.E.2d 188 (1983).

Effect of Section. - Under this section the husband or wife was a competent witness for the defendant in all criminal actions or proceedings. But neither was competent or compellable to give evidence against the other in any criminal proceeding. State v. Harbison, 94 N.C. 885 (1886). See State v. Watson, 215 N.C. 387, 1 S.E.2d 886 (1939).

Under this section a wife was neither competent nor compellable to testify against her husband in a criminal proceeding; hence, hearsay evidence of her declarations, not made in his presence or by his authority, which would be prejudicial to the husband, was inadmissible. State v. Reid, 178 N.C. 745, 101 S.E. 104 (1919). See State v. Cotton, 218 N.C. 577, 12 S.E.2d 246 (1940).

This section in effect forbade the testimony of one spouse against another in criminal proceedings unless the case fell within one of the exceptions enumerated in the statute. State v. Reavis, 19 N.C. App. 497, 199 S.E.2d 139 (1973).

This section is an evidentiary rule and applies to a spouse testifying, or to the admission of a statement by a spouse into evidence. State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976).

Incompetency of Spouse to Testify for State. - Although this section made a spouse competent to testify as a witness for the defense, it did not make a spouse competent to testify in a criminal case for the State. State v. Waters, 308 N.C. 348, 302 S.E.2d 188 (1983).

Declarations of One Spouse While Not in Presence of the Other. - The statutory prohibition against compelling a spouse to give evidence against the other spouse has been extended to testimony concerning declarations made by the husband or wife of the defendant, while not in the presence of the defendant, even though there was no objection interposed to such testimony. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978).

Testimony of a State's witness of a declaration of defendant's wife to the effect that if defendant had not been driving so slow "he wouldn't have been caught" entitled defendant to a new trial notwithstanding his failure to move to strike the answer, since testimony of the wife against the husband was forbidden by this section, and a fortiori her declarations against him not made in his presence or by his authority were precluded by this section. State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (1952); State v. Dillahunt, 244 N.C. 524, 94 S.E.2d 479 (1956).

Confidential Communications Not Admissible. - This section prohibited the admission of evidence of statements made by one spouse implicating the other. State v. Overton, 60 N.C. App. 1, 298 S.E.2d 695 (1982), cert. denied and appeal dismissed, 307 N.C. 580, 299 S.E.2d 652, 307 N.C. 581, 299 S.E.2d 652, 307 N.C. 581, 299 S.E.2d 653 (1983).

The confidential communications between husband and wife cannot, on the grounds of public policy, be admitted in evidence. State v. Brittain, 117 N.C. 783, 23 S.E. 433 (1895).

When Communications Are Confidential. - In determining whether a spouse's testimony includes a "confidential communication," the question is whether the communication, whatever it contains, was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship. State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981).

As to exclusion of act as declaration of spouse, see State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); State v. Suits, 296 N.C. 553, 251 S.E.2d 607 (1979).

Admissibility of Statements Made as Agent of Spouse. - This section is a codification of a common-law rule of evidence and, as such, is subject to the same exceptions which pertain to the common-law rule. One of the exceptions is that, when one spouse is made the agent of the other spouse, the statements of the agent are admissible against the principal despite the spousal relationship. State v. Overton, 60 N.C. App. 1, 298 S.E.2d 695 (1982), cert. denied and appeal dismissed, 307 N.C. 580, 299 S.E.2d 652, 307 N.C. 581, 299 S.E.2d 652, 307 N.C. 581, 299 S.E.2d 653 (1983).

This section does not prohibit a husband or wife from making voluntary statements to police officers during the investigatory stage of a criminal proceeding. State v. Aaron, 29 N.C. App. 582, 225 S.E.2d 117, cert. denied, 290 N.C. 663, 228 S.E.2d 455 (1976), 430 U.S. 908, 97 S. Ct. 1180, 51 L. Ed. 2d 585 (1977).

Failure to Exclude Incompetent Testimony. - When evidence rendered incompetent by this section was admitted, it became the duty of the trial judge to exclude the testimony, and his failure to do so was held reversible error whether exception was noted or not. State v. Porter, 272 N.C. 463, 158 S.E.2d 626 (1968); State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976); State v. McKenzie, 46 N.C. App. 34, 264 S.E.2d 391 (1980).

B. PARTICULAR ACTIONS.

Abandonment of Wife. - Under this section the wife is a competent witness against her husband as to the fact of abandonment or neglect to provide adequate support. State v. Brown, 67 N.C. 470 (1872).

Proof of Marriage. - The wife is competent to prove the fact of marriage under an indictment against her husband for abandonment. State v. Chester, 172 N.C. 946, 90 S.E. 697 (1916).

Bigamy. - In an indictment for bigamy the first wife of the defendant is a competent witness to prove the marriage, public cohabitation as man and wife being public acknowledgments of the relation and not coming within the nature of the confidential relations which the policy of the law forbids either to give in evidence. State v. Melton, 120 N.C. 591, 26 S.E. 933 (1897). See also, State v. McDuffie, 107 N.C. 885, 12 S.E. 83 (1890).

By the express provisions of this section, defendant's legal wife was a competent witness before the grand jury, which was considering an indictment against him charging him with a violation of the provisions of G.S. 14-183, "to prove the fact of marriage . . . ." State v. Vandiver, 265 N.C. 325, 144 S.E.2d 54 (1965).

Prior to the 1957 amendment to this section, it was held that while in a prosecution for bigamous cohabitation, as in a prosecution for bigamy, the wife was competent to testify against the husband to prove the fact of marriage; her testimony was limited to proof of the fact of marriage, and any testimony by her as to other incriminating facts, such as testimony tending to show that they had not been divorced, was incompetent. State v. Setzer, 226 N.C. 216, 37 S.E.2d 513 (1946); State v. Hill, 241 N.C. 409, 85 S.E.2d 411 (1955).

Felony Committed by One Spouse Against the Other. - It appears that an exception to the general common-law rule that one spouse was not a competent witness against the other in a criminal proceeding was applicable where one spouse was tried for a felony committed against the other spouse. State v. Robinson, 15 N.C. App. 362, 190 S.E.2d 270, cert. denied, 281 N.C. 762, 191 S.E.2d 363 (1972).

Where defendant was charged with a serious felony which she and others allegedly perpetrated against the man she contended was her husband, the public's interest in having her brought to justice far outweighed any conceivable interest the public might have had in precluding her alleged husband from testifying against her. State v. Robinson, 15 N.C. App. 362, 190 S.E.2d 270, cert. denied, 281 N.C. 762, 191 S.E.2d 363 (1972).

Assault. - In case of assault and battery with intent to kill by poison, with evidence tending to show the previous threats of the wife, and that the poison was put into the food prepared by the daughter in her mother's presence at their home, and that the husband was poisoned from eating thereof, the testimony of the husband as to his wife's previous threats was not inadmissible under the provisions of this section, but was admissible for the purpose of showing knowledge and identifying the perpetrators of the crime, and was distinguishable from the rule that threats are ordinarily inadmissible on trials for assault and battery. State v. Alderman, 182 N.C. 917, 110 S.E. 59 (1921).

The rule that neither the husband nor wife is competent to testify against the other in criminal cases does not apply to proof of assault by the one upon the other. State v. French, 203 N.C. 632, 166 S.E. 747 (1932).

Effect of Marriage Subsequent to Assault. - The fact that subsequent to an assault the defendant married the prosecuting witness did not render her an incompetent witness against him at the trial. State v. Price, 265 N.C. 703, 144 S.E.2d 865 (1965).

C. ILLUSTRATIVE CASES.

Threats. - In a homicide case, where there was a plea and evidence of self-defense, it was competent for defendant's wife to testify to a threat made by deceased against her husband, which she communicated to defendant before the killing. State v. Rice, 222 N.C. 634, 24 S.E.2d 483 (1943).

Wife's Statements to Husband in Presence of Witness. - Testimony of witness that at the time of the arrest of defendant by the officers of the law his wife was present and said to him: "I told you that you would get into it if you did not stay with me like I wanted you to," to which he replied: "Hush," was not a confidential communication between husband and wife within the contemplation of this section, could be testified to by the witness who was present and heard it, and was some evidence of guilt in connection with the other evidence in the case. State v. Freeman, 197 N.C. 376, 148 S.E. 450 (1929).

Testimony of Wife Who Witnessed Killing by Husband. - This section does not render the testimony invalid of a wife who witnessed the killing by her husband of a passenger in the car she was driving as such testimony does not fit the definition of a "confidential communication" between marriage partners. State v. Funderburk, 56 N.C. App. 119, 286 S.E.2d 884 (1982).

Testimony as to Adultery prior to Marriage. - Where a man and woman were indicted for fornication and adultery, and a nol. pros. was entered as to the woman, her husband was a competent witness to show adultery between the defendants committed before he married the woman. State v. Wiseman, 130 N.C. 726, 41 S.E. 884 (1902).

Testimony as to Conduct prior to Divorce. - A divorced husband was incompetent to testify against his divorced wife in the trial of an indictment against her for fornication and adultery which occurred prior to the divorce. State v. Raby, 121 N.C. 682, 28 S.E. 490 (1877).

Where former husband or wife is prosecuted for a felony, the divorced spouse is a competent witness to testify for the State as to what occurred during the subsistence of their marriage in his or her presence when the alleged felony was being committed. State v. Alford, 274 N.C. 125, 161 S.E.2d 575 (1968).

Conduct as Declaration Against Spouse. - Where in response to the officer's inquiry as to whether the defendant had a knife, the jury was informed that the defendant's wife left the room and returned with a pocket knife, identified as State's Exhibit Number 3, this conduct was equivalent to the wife stating, "Yes, the defendant has a knife, and here it is." Thus, the court committed prejudicial error in allowing the police officer to testify to the wife's actions. State v. Suits, 296 N.C. 553, 251 S.E.2d 607 (1979).

A wife under this section was not competent to testify against her husband in a prosecution for felonious burning and the admission of her testimony entitled him to a new trial. State v. Kluttz, 206 N.C. 726, 175 S.E. 81 (1934).

A wife's testimony that her husband shot and killed her brother in her presence in a public place was competent in a prosecution of the husband for first-degree murder of her brother, since the actions of the husband in a public place and in the presence of a third person could not have been a communication made in the confidence of the marital relationship or one which was induced by affection and loyalty in the marriage. State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981).

Prosecutions Against Both Husband and Wife. - Where husband and wife were separately indicted for the same homicide and the prosecutions were consolidated and tried together over their objections, and the wife's testimony, though admitted only as to her, was to the effect that her husband killed deceased and forced her, through fear, to confess and attempt to exculpate him, her testimony was necessarily inculpatory of the husband and impinged this section, and his motion for a mistrial and severance at the conclusion of the State's evidence should have been granted. State v. Cotton, 218 N.C. 577, 12 S.E.2d 246 (1940).

Where testimony disclosed that any part of husband's extrajudicial statement implicating codefendant wife was deleted by the State, there was no violation of the rule of this section. State v. Mathis, 13 N.C. App. 359, 185 S.E.2d 448 (1971).

Wife as Witness for Husband. - Where the defendant husband was alleged to have stolen certain property, it was competent for him to introduce his wife as a witness to prove from what source he got the money to pay for such property, but unless he introduced her in proper time it rested within the discretion of the trial judge whether her testimony would be received. State v. Lemon, 92 N.C. 790 (1885).

III. CROSS-EXAMINATION OF SPOUSE.

Scope of Cross-Examination - When Spouse Testifies Against Defendant. - A wife cannot be compelled to testify against her husband in a criminal action; but when she takes the stand in his behalf, she is subject to cross-examination in the same manner and to the same extent as any other witness. State v. Tola, 222 N.C. 406, 23 S.E.2d 321 (1942).

Same - When Spouse Testifies for Defendant. - Where defendant's wife testifies in his behalf, she is subject to be cross-examined to the same extent as if unrelated to him. State v. Bell, 249 N.C. 379, 106 S.E.2d 495 (1959); State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

Prior Inconsistent Statements. - In a prosecution for murder committed in the perpetration of an armed robbery and for conspiracy to commit armed robbery, if based on information and asked in good faith, it was permissible for the district attorney to ask defendant's wife about her prior inconsistent statements as they related to her previous relationship with the trigger man for purposes of impeachment. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

A statement by defendant's wife was admissible where the statement was not induced by the confidence of the marital relationship but, instead, was at most a casual observation. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).

A statement by defendant's wife was admissible where the defendant took no steps to ensure confidentiality while obtaining the weapon and the wife's presence was merely incidental. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).

A statement by defendant's wife was admissible where the statement merely indicated that the communication regarding the shooting took place and where the defendant was allowed to put on his brother's testimony that, immediately after the shooting, defendant telephoned and told his brother that he thought he had killed someone, thereby demonstrating that defendant did not treat his statement to his wife as a confidential matter. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).

IV. FAILURE TO TESTIFY.

Spousal Testimony. - In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court properly admitted the videotaped statement that defendant's wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial. State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Failure of Spouse to Testify May Not Be Used Against Defendant. - The failure of the wife to be examined as a witness in behalf of a husband tried for a criminal offense was expressly excluded as evidence to the husband's prejudice by this section, though she was competent to testify. State v. Harris, 181 N.C. 600, 107 S.E. 466 (1921).

Duty of Court Where Improper Evidence Is Placed Before Jury. - When evidence forbidden by this section was argumentatively placed before the jury and used to the prejudice of the defense, it was the duty of the judge ex mero motu to intervene and promptly instruct the jury that the wife's failure to testify and the improper argument concerning that fact had to be disregarded and under no circumstances used to the prejudice of the defendant. State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976).

Failure to Instruct Held Error. - In a prosecution for first-degree murder, where the district attorney in his argument to the jury used the failure of defendant's wife to testify on defendant's behalf to the prejudice of the defense, the failure of the trial judge to intervene on his own motion and promptly instruct the jury that the wife's failure to testify and the improper argument regarding that fact must be disregarded and under no circumstances used to the prejudice of the defendant was reversible error. State v. McCall, 289 N.C. 570, 223 S.E.2d 334 (1976).

Error in Jury Instruction Not Prejudicial - Although the trial court initially erred in permitting the prosecutor to comment upon the defendant's failure to call the defendant's spouse to testify at trial, the trial court later issued a peremptory instruction that the jury should disregard the argument and that the failure of the defendant to call the defendant's spouse should not be held against the defendant; therefore, despite the fact that the instruction was insufficiently detailed, the error was not prejudicial given the additional evidence concerning defendant's guilt. State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002).

Action of Court Held Insufficient to Remove Prejudice. - During the absence of the judge, the solicitor (now district attorney) in his argument to the jury called the jury's attention to the fact that defendant's wife had not testified in his behalf, and persisted in the argument after objection by defendant's counsel. Upon his return, the judge sustained the objection, and near the conclusion of his charge to the jury stated that the law did not permit such comment and that the jury should not let the argument influence it. The solicitor's (district attorney's) comment violated this section, and was prejudicial, and called for prompt peremptory and certain caution by the court, not only that the argument should be disregarded, but that the failure of defendant's wife to testify should not be considered to his prejudice, and the action of the court in merely sustaining the objection and the caution later given by the court near the conclusion of the charge was insufficient to free the case of prejudice. State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940).

In a prosecution for second-degree murder, it was error for the trial judge merely to sustain an objection, without a curative instruction, to the prosecutor's comment during closing argument on the failure of the defendant's wife to testify. State v. Robinson, 74 N.C. App. 323, 328 S.E.2d 309 (1985).

Failure to Give Additional Instruction Not Error. - Where the trial judge had properly excluded from consideration by the jury testimony relating to the wife's failure to appear and testify in behalf of her husband on his trial for a homicide, the defendant could not successfully complain of error on appeal in the failure of the trial judge to again instruct the jury thereon, when there had been no exception taken to the charge of the court or the refusal of any prayer for instruction on the subject. State v. Harris, 181 N.C. 600, 107 S.E. 466 (1921).

§ 8-57.1. Husband-wife privilege waived in child abuse.

Notwithstanding the provisions of G.S. 8-56 and G.S. 8-57, the husband-wife privilege shall not be ground for excluding evidence regarding the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries to such child or the cause thereof in any judicial proceeding related to a report pursuant to the Child Abuse Reporting Law, Article 3 of Chapter 7B of the General Statutes of North Carolina.

History

(1971, c. 710, s. 3; 1998-202, s. 13(d).)

Legal Periodicals. - For comment surveying North Carolina law of relational privilege, see 50 N.C.L. Rev. 630 (1972).

For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For note, "Family Law - Lovers' Triangle Turns Bermuda Triangle: The Natural Father's Right to Rebut the Marital Presumption - Michael H. v. Gerald D.," see 25 Wake Forest L. Rev. 617 (1990).

CASE NOTES

Applicability. - Trial court did not err by applying this section to defendant's criminal prosecution for child sexual abuse and admitting evidence about consensual sexual activity between defendant and his wife because G.S. 8-57.1 was applicable in any judicial proceeding in which the abuse of a child was in issue. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820 (2016).

§ 8-57.2. Presumed father or mother as witnesses where paternity at issue.

Whenever an issue of paternity of a child born or conceived during a marriage arises in any civil or criminal proceeding, the presumed father or the mother of such child is competent to give evidence as to any relevant matter regarding paternity of the child, including nonaccess to the present or former spouse, regardless of any privilege which may otherwise apply. No parent offering such evidence shall thereafter be prosecuted based upon that evidence for any criminal act involved in the conception of the child whose paternity is in issue and/or for whom support is sought, except for perjury committed in this testimony.

History

(1981, c. 634, s. 1.)

Legal Periodicals. - For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).

For survey of 1981 law on evidence, see 60 N.C.L. Rev. 1359 (1982).

CASE NOTES

Rule rendering wife incompetent to prove nonaccess has now been abrogated entirely in all civil and criminal proceedings in which paternity is at issue. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, cert. denied and appeal dismissed, 304 N.C. 587, 289 S.E.2d 564 (1981).

Applied in Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983).

Cited in Wake County ex rel. Manning v. Green, 53 N.C. App. 26, 279 S.E.2d 901 (1981).

§ 8-58: Repealed by Session Laws 1973, c. 1286, ss. 11, 26.

Editor's Note. - Session Laws 1973, c. 1286, repealed, transferred, and amended numerous sections in the General Statutes, largely relating to pretrial procedure, and enacted Chapter 15A, the Criminal Procedure Act.

§ 8-58.1. Injured party as witness when medical charges at issue.

Whenever an issue of hospital, medical, dental, pharmaceutical, or funeral charges arises in any civil proceeding, the injured party or his guardian, administrator, or executor is competent to give evidence regarding the amount paid or required to be paid in full satisfaction of such charges, provided that records or copies of such charges showing the amount paid or required to be paid in full satisfaction of such charges accompany such testimony.
The testimony of a person pursuant to subsection (a) of this section establishes a rebuttable presumption of the reasonableness of the amount paid or required to be paid in full satisfaction of the charges. However, in the event that the provider of hospital, medical, dental, pharmaceutical, or funeral services gives sworn testimony that the charge for that provider's service either was satisfied by payment of an amount less than the amount charged, or can be satisfied by payment of an amount less than the amount charged, then with respect to that provider's charge only, the presumption of the reasonableness of the amount charged is rebutted and a rebuttable presumption is established that the lesser satisfaction amount is the reasonable amount of the charges for the testifying provider's services. For the purposes of this subsection, the word "provider" shall include the agent or employee of a provider of hospital, medical, dental, pharmaceutical, or funeral services, or a person with responsibility to pay a provider of hospital, medical, dental, pharmaceutical, or funeral services on behalf of an injured party.
The fact that a provider charged for services provided to the injured person establishes a permissive presumption that the services provided were reasonably necessary but no presumption is established that the services provided were necessary because of injuries caused by the acts or omissions of an alleged tortfeasor.

History

(1983, c. 776, s. 1; 2011-283, s. 1.2; 2011-317, s. 1.1.)

Effect of Amendments. - Session Laws 2011-283, s. 1.2, as amended by Session Laws 2011-317, s. 1.1, effective October 1, 2011, and applicable to actions arising on or after that date, added the subsection (a) designation, and therein inserted "paid or required to be paid in full satisfaction" and "showing the amount paid or required to be paid in full satisfaction of such charges"; added the subsection (b) designation, and therein, in the first sentence, substituted "testimony of a person pursuant to subsection (a) of this section" for "testimony of such a person" and inserted "paid or required to be paid in full satisfaction," and added the last two sentences; and added subsection (c).

CASE NOTES

Presumption of Reasonableness Created. - G.S. 8-58.1 creates a mandatory presumption of reasonableness for a plaintiff's medical expenses if the medical expenses are an issue and evidence is presented showing the total charges. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).

Total Charges Must Be Reasonable. - When plaintiff proffers the evidence required by this section, the fact-finder must find that the total amount of the alleged medical charges is reasonable, unless defendant carries its burden of going forward by rebutting the presumed fact of reasonableness. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368 (1996).

Presumption Does Not Preclude Finding of Unreasonableness. - The medical expenses presumption does not operate to preclude the jury from finding that plaintiff's medical expenses were not reasonably necessary for the proper treatment of his injuries. Jacobsen v. McMillan, 124 N.C. App. 128, 476 S.E.2d 368 (1996).

Failure to Rebut Presumption. - Where the injured party testified as to her injuries and treatment and introduced her medical bills, and the tortfeasor failed to introduce any evidence to rebut the presumption that the charges in the medical bills were reasonable, the reasonableness of the charges was conclusively established. McCurry v. Painter, 146 N.C. App. 547, 553 S.E.2d 698 (2001).

Failure to Instruct As to Statutory Presumption of Reasonableness Held Not Error. - Trial court did not err by failing to instruct the jury that the amount of a passenger's medical expenses was presumed reasonable under G.S. 8-58.1, even though G.S. 8C-1, N.C. R. Evid. 301, required the trial court to instruct the jury of a statutory presumption; all parties stipulated to the amount of the passenger's medical charges and to the reasonableness of the charges, and any instruction regarding the medical expenses would have been redundant and confusing to the jury. Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), cert. denied, 358 N.C. 375, 598 S.E.2d 135 (2004).

Where evidence challenged whether an injured person's medical treatment and expenses from a collision were reasonable and necessary, and showed that the injured person had been receiving care for six years before the accident for back pain resulting from a prior collision, the trial court's refusal to charge on the G.S. 8-58.1 presumption as to medical expenses was proper. Osetek v. Jeremiah, 174 N.C. App. 438, 621 S.E.2d 202 (2005), aff'd, 360 N.C. 471, 628 S.E.2d 760 (2006).

Applied in Chamberlain v. Thames, 131 N.C. App. 705, 509 S.E.2d 443 (1998); Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 518 S.E.2d 205 (1999), cert. denied, 351 N.C. 186, 541 S.E.2d 709 (1999).

§§ 8-58.2 through 8-58.5: Reserved for future codification purposes.

ARTICLE 7A. Restrictions on Evidence in Rape Cases.

§§ 8-58.6 through 8-58.11: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 2.

Cross References. - As to evidence in rape or sex offense cases, see G.S. 8C-1, Rule 412.

As to admissibility of evidence of reputation and prior convictions in prostitution cases, see G.S. 14-206.

ARTICLE 7B. Expert Testimony.

§§ 8-58.12 through 8-58.14: Repealed by Session Laws 1983 (Regular Session, 1984), c. 1037, s. 9.

§§ 8-58.15 through 8-58.19: Reserved for future codification purposes.

ARTICLE 7C. Admissibility of Forensic Evidence.

Sec.

§ 8-58.20. Forensic analysis admissible as evidence.

In any criminal prosecution, a laboratory report of a written forensic analysis, including an analysis of the defendant's DNA, or a forensic sample alleged to be the defendant's DNA, as that term is defined in G.S. 15A-266.2(2), that states the results of the analysis and that is signed and sworn to by the person performing the analysis may be admissible in evidence without the testimony of the analyst who prepared the report in accordance with the requirements of this section.
A forensic analysis, to be admissible under this section, shall be performed by a laboratory that is accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement For Testing for the submission, identification, analysis, and storage of forensic analyses. The analyses of DNA samples and typing results of DNA samples shall be performed by a laboratory that is accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the ILAC Mutual Recognition Arrangement For Testing.
The analyst who analyzes the forensic sample and signs the report shall complete an affidavit on a form developed by the State Crime Laboratory. In the affidavit, the analyst shall state (i) that the person is qualified by education, training, and experience to perform the analysis, (ii) the name and location of the laboratory where the analysis was performed, and (iii) that performing the analysis is part of that person's regular duties. The analyst shall also aver in the affidavit that the tests were performed pursuant to the accrediting body's standards for that discipline and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory. The affidavit shall be sufficient to constitute prima facie evidence regarding the person's qualifications. The analyst shall attach the affidavit to the laboratory report and shall provide the affidavit to the investigating officer and the district attorney in the prosecutorial district in which the criminal charges are pending. An affidavit by a forensic analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any criminal proceeding with respect to the forensic analysis administered and the procedures followed.
The district attorney shall serve a copy of the laboratory report and affidavit and indicate whether the report and affidavit will be offered as evidence at any proceeding against the defendant on the attorney of record for the defendant, or on the defendant if that person has no attorney, no later than five business days after receiving the report and affidavit, or 30 business days before any proceeding in which the report may be used against the defendant, whichever occurs first.
Upon receipt of a copy of the laboratory report and affidavit, the attorney of record for the defendant or the defendant if that person has no attorney, shall have 15 business days to file a written objection to the use of the laboratory report and affidavit at any proceeding against the defendant. The written objection shall be filed with the court in which the matter is pending with a copy provided to the district attorney.
If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection with the court to the use of the laboratory report and affidavit within the time allowed by this section, then the objection shall be deemed waived and the laboratory report and affidavit shall be admitted in evidence in any proceeding without the testimony of the analyst subject to the presiding judge ruling otherwise at the proceeding when offered. If, however, a written objection is filed, this section does not apply and the admissibility of the evidence shall be determined and governed by the appropriate rules of evidence.
Procedure for Establishing Chain of Custody of Evidence Subject to Forensic Analysis Without Calling Unnecessary Witnesses. -
1. For the purpose of establishing the chain of physical custody or control of evidence that has been subjected to forensic analysis performed as provided in subsection (b) of this section, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
2. The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (a) of this section.
3. The provisions of this subsection may be utilized by the State only if (i) the State notifies the defendant at least 15 business days before any proceeding at which the statement would be used of its intention to introduce the statement into evidence under this subsection and provides the defendant with a copy of the statement and (ii) the defendant fails to file a written notification with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the statement into evidence.
4. In lieu of the notice required in subdivision (3) of this subsection, the State may include the statement with the laboratory report and affidavit, as provided in subsection (d) of this section.
5. If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file the written objection as provided in this subsection, then the objection shall be deemed waived and the statement shall be admitted into evidence without the necessity of a personal appearance by the person signing the statement.
6. Upon filing a timely objection, the admissibility of the statement shall be determined and governed by the appropriate rules of evidence.
This section does not apply to chemical analyses under G.S. 20-139.1.

Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement.

History

(2004-124, s. 15.2(c); 2007-484, s. 1; 2009-473, s. 7; 2011-19, s. 7; 2011-307, s. 9; 2012-168, s. 6; 2013-171, ss. 2, 3; 2013-194, s. 2; 2013-338, s. 1; 2014-100, s. 17.1(u); 2015-173, s. 1.)

Cross References. - As to the North Carolina State Crime Laboratory Ombudsman, see G. S. 114-62.

Editor's Note. - Session Laws 2005-276, s. 15.7(c), as amended by Session Laws 2011-19, s. 5, provides: "Except as provided otherwise by this subsection, the Department of Justice shall hire only nonsworn personnel to fill vacant positions in the North Carolina State Crime Laboratory. A position may be filled with a sworn agent in any of the following circumstances: (i) the position is a promotion for a sworn agent who was employed at the State Crime Laboratory prior to July 1, 2005, (ii) the position is a forensic drug chemist position that has as a primary duty 'responding to clandestine methamphetamine laboratories,' or (iii) the position is a forensic impressions analyst position that has as a primary duty 'responding to clandestine methamphetamine laboratories.'"

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5 is a severability clause.

Session Laws 2011-19, s. 1, provides: "This act shall be known as 'The Forensic Sciences Act of 2011.'"

Session Laws 2011-19, s. 3, provides: "The State Bureau of Investigation (SBI) shall encourage and seek collaborative opportunities and grant funds for research programs, in association, whenever possible, with the university system or independent nationally recognized forensic institutions, on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analysis are influenced by knowledge regarding the background of the suspect and the investigator's theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with the North Carolina Forensic Sciences Advisory Board, the North Carolina State Crime Laboratory should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the extent possible, potential bias and sources of human error in forensic science. These standard operating procedures should apply to all forensic analyses that may be used in litigation."

Session Laws 2011-19, s. 4, as amended by Session Laws 2011-307, s. 8, and as amended by Session Laws 2012-168, s. 6.1, provides: "Forensic Scientists I, II, and III, forensic science supervisors, and forensic scientist managers at the State Crime Laboratory shall be required to obtain individual certification consistent with international and ISO standards within 18 months of the date the scientist becomes eligible to seek certification according to the standards of the certifying entity or by January 1, 2013, or as soon as practicable after that date unless no certification is available. All such forensic scientists shall have access to the certification process."

Session Laws 2011-19, s. 11, as amended by Session Laws 2011-307, s. 9, as amended by Session Laws 2012-168, s. 6, and as amended by Session Laws 2013-338, s. 1, provides: "Sections 1 through 5 and Sections 9 through 11 are effective when this act becomes law [March 31, 2011], and Section 6 becomes effective July 1, 2011. Sections 7 and 8 of this act are effective when they become law; however, until July 1, 2016, the provisions of those sections shall apply only to the North Carolina State Crime Laboratory, and on or after July 1, 2016, the provisions of Sections 7 and 8 shall apply to all laboratories conducting forensic or chemical analysis for admission in the courts of this State. Nothing in this act is intended to amend or modify either the statutory or common law applicable to discovery in criminal cases which was applicable prior to the effective date of this act. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Effect of Amendments. - Session Laws 2007-484, s. 1, effective August 30, 2007, in subsection (b), substituted "accredited" for "certified," substituted "Directors/Laboratory Accreditation Board (ASCLD/LAB)" for "Directors (ASCLD)," and substituted "ASCLD/LAB-accredited" for "ASCLD-certified"; and substituted "ASCLD/LAB" for "ASCLD" in subsection (c).

Session Laws 2009-473, ss. 1 and 2, effective October 1, 2009, and applicable to offenses committed on or after that date, in subsection (d), inserted "and indicate whether the report and affidavit will be offered as evidence at any proceeding against the defendant" near the middle; and added subsection (g).

Session Laws 2011-19, s. 7, rewrote subsection (b); and substituted "accrediting body's standards" for "ASCLD/LAB standards" in the third sentence of subsection (c). For effective date and applicability, see editor's note.

Session Laws 2013-171, s. 2, effective December 1, 2013, substituted "shall be admitted" for "may be admitted" in subsection (f) and subdivision (g)(5). For applicability, see editor's note.

Session Laws 2013-194, s. 2, effective June 26, 2013, added subsection (h).

Session Laws 2014-100, s. 17.1(u), effective July 1, 2014, substituted "State Crime Laboratory" for "State Bureau of Investigation" in the first sentence of subsection (c).

Session Laws 2015-173, s. 1, effective July 31, 2015, and applicable to notices of intent to introduce a statement or report provided by the State on or after that date, inserted "the objection shall be deemed waived and" in subsection (f) and subdivision (g)(5).

Legal Periodicals. - For article, "Another 'Straightforward Application': The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases," see 33 Campbell L. Rev. 1 (2010).

For comment, "Corrosion of the Confrontation Clause in North Carolina: A Comparison of State v. Brewington and State v. Ortiz-Zape with State v. Craven," see 36 N.C. Cent. L. Rev. 295 (2014).

§§ 8-58.21 through 8-58.49: Reserved for future codification purposes.

ARTICLE 7D. Environmental Audit Privilege and Limited Immunity.

Sec.

§ 8-58.50. (Article has a contingent effective date - see note) Purpose.

In order to encourage owners and operators of facilities and persons conducting activities regulated under those portions of the General Statutes set forth in G.S. 8-58.52, or conducting activities regulated under other environmental laws, to conduct voluntary internal environmental audits of their compliance programs and management systems and to assess and improve compliance with statutes, an environmental audit privilege is recognized to protect the confidentiality of communications relating to voluntary internal environmental audits.
Nothing in this Article shall be construed to protect owners and operators of facilities and regulated persons from a criminal investigation or prosecution carried out by any appropriate governmental entity.
Any privilege granted by this Article shall apply only to those communications, oral or written, pertaining to and made in connection with the environmental audit and shall not apply to the facts relating to the violation itself.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - Session Laws 2015-286, s. 4.1(b)-(d), provides: "(b) No later than 30 days after this bill becomes law, the Department of Environment and Natural Resources [see now Department of Environmental Quality] shall submit Part 7D [Article 7D] of Chapter 8 of the General Statutes, Environmental Audit Privilege and Limited Immunity, as enacted by this section, to the United States Environmental Protection Agency and shall request the Agency's approval to implement the Part [Article] in concert with the State's legal authority to continue administering delegated, approved, or authorized federal environmental programs within the State.

"(c) No later than December 1, 2015, the Department shall report to the Environmental Review Commission on its activities conducted pursuant to subsection (b) of this section and shall report monthly thereafter until approval to implement Part 7D [Article] of Chapter 8 of the General Statutes, Environmental Audit Privilege and Limited Immunity, as enacted by this section, is received from the United States Environmental Protection Agency.

"(d) This section becomes effective upon the date approval to implement Part 7D [Article] of Chapter 8 of the General Statutes, Environmental Audit Privilege and Limited Immunity, as enacted by this section, is received from the United States Environmental Protection Agency."

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.51. (Article has a contingent effective date - see note) Definitions.

The following definitions apply in this Article:

"Department" means the Department of Environmental Quality.
"Enforcement agencies" means the Department, any other agency of the State, and units of local government responsible for enforcement of environmental laws.
"Environmental audit" means a voluntary, internal evaluation or review of one or more facilities or an activity at one or more facilities regulated under federal, State, regional, or local environmental law, or of compliance programs or management systems related to the facility or activity if designed to identify and prevent noncompliance and to improve compliance with these laws. For the purposes of this Article, an environmental audit does not include an environmental site assessment of a facility conducted solely in anticipation of the purchase, sale, or transfer of the business or facility. An environmental audit may be conducted by the owner or operator, the parent corporation of the owner or operator or by their officers or employees, or by independent contractors. An environmental audit must be a discrete activity with a specified beginning date and scheduled ending date reflecting the auditor's bona fide intended completion schedule.
"Environmental audit report" means a document marked or identified as such with a completion date existing either individually or as a compilation prepared in connection with an environmental audit. An environmental audit report may include field notes and records of observations, findings, opinions, suggestions, recommendations, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs, and surveys, provided the supporting information is collected or developed for the primary purpose and in the course of an environmental audit. An environmental audit report, when completed, may include all of the following components:
1. An audit report prepared by an auditor, which may include the scope and date of the audit and the information gained in the audit, together with exhibits and appendices and may include conclusions, recommendations, exhibits, and appendices.
2. Memoranda and documents analyzing any portion of the audit report or issues relating to the implementation of an audit report.
3. An implementation plan that addresses correcting past noncompliance, improving current compliance, or preventing future noncompliance.
"Environmental laws" means all provisions of federal, State, and local laws, rules, and ordinances pertaining to environmental matters.

History

(2015-241, s. 14.30(u); 2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (1).

§ 8-58.52. (Article has a contingent effective date - see note) Applicability.

This Article applies to activities regulated under environmental laws, including all of the following provisions of the General Statutes, and rules adopted thereunder:
1. Article 7 of Chapter 74.
2. Chapter 104E.
3. Article 25 of Chapter 113.
4. Articles 1, 4, and 7 of Chapter 113A.
5. Article 9 of Chapter 130A, except as provided in subsection (b) of this section.
6. Articles 21, 21A, and 21B of Chapter 143.
7. Part 1 of Article 7 of Chapter 143B.
This Article shall not apply to activities regulated under the Coal Ash Management Act of 2014 under Part 2I of Article 9 of Chapter 130A of the General Statutes and rules promulgated pursuant to that Part.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.53. (Article has a contingent effective date - see note) Environmental audit report; privilege.

An environmental audit report or any part of an environmental audit report is privileged and, therefore, immune from discovery and is not admissible as evidence in civil or administrative proceedings, except as provided in G.S. 8-58.54 and G.S. 8-58.56. Provided, however, all of the following documents are exempt from the privilege established by this Article:
1. Information obtained by observation of an enforcement agency.
2. Information obtained from a source independent of the environmental audit.
3. Documents, communication, data, reports, or other information required to be collected, maintained, otherwise made available, or reported to an enforcement agency or any other entity by environmental laws, permits, orders, consent agreements, or as otherwise provided by law.
4. Documents prepared either prior to the beginning of the environmental audit or subsequent to the completion date of the audit report and, in all cases, any documents prepared independent of the audit or audit report.
5. Documents prepared as a result of multiple or continuous self-auditing conducted in an effort to intentionally avoid liability for violations.
6. Information that is knowingly misrepresented or misstated or that is knowingly deleted or withheld from an environmental audit report, whether or not included in a subsequent environmental audit report.
7. Information in instances where the material shows evidence of noncompliance with environmental laws, permits, orders, consent agreements, and the owner or operator failed to either promptly take corrective action or eliminate any violation of law identified during the environmental audit within a reasonable period of time.
If an environmental audit report or any part of an environmental audit report is subject to the privilege provided for in subsection (a) of this section, no person who conducted or participated in the audit or who significantly reviewed the audit report may be compelled to testify regarding the audit report or a privileged part of the audit report except as provided for in G.S. 8-58.53(d), 8-58.54, or 8-58.56.
Nothing in this Article shall be construed to restrict a party in a proceeding before the Industrial Commission from obtaining or discovering any evidence necessary or appropriate for the proof of any issue pending in an action before the Commission, regardless of whether evidence is privileged pursuant to this Article. Further, nothing in this Article shall be construed to prevent the admissibility of evidence that is otherwise relevant and admissible in a proceeding before the Industrial Commission, regardless of whether the evidence is privileged pursuant to this Article. Provided, however, the Commission, upon motion made by a party to the proceeding, may issue appropriate protective orders preventing disclosure of information outside of the Commission's proceeding.
Nothing in this Article shall be construed to circumvent the employee protection provisions provided by federal or State law.
The privilege created by this Article does not apply to criminal investigations or proceedings. Where an audit report is obtained, reviewed, or used in a criminal proceeding, the privilege created by this Article shall continue to apply and is not waived in civil and administrative proceedings and is not discoverable or admissible in civil or administrative proceedings even if disclosed during a criminal proceeding.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.54. (Article has a contingent effective date - see note) Waiver of privilege.

The privilege established under G.S. 8-58.53 does not apply to the extent that it is expressly waived in writing by the owner or operator of a facility at which an environmental audit was conducted and who prepared or caused to be prepared the audit report as a result of the audit.
The audit report and information generated by the audit may be disclosed without waiving the privilege established under G.S. 8-58.53 to all of the following persons:
1. A person employed by the owner or operator or the parent corporation of the audited facility.
2. A legal representative of the owner or operator or parent corporation.
3. An independent contractor retained by the owner or operator or parent corporation to conduct an audit on or to address an issue or issues raised by the audit.
Disclosure of an audit report or information generated by the audit under all of the following circumstances shall not constitute a waiver of the privilege established under G.S. 8-58.53:
1. Disclosure made under the terms of a confidentiality agreement between the owner or operator of the facility audited and a potential purchaser of the business or facility audited.
2. Disclosure made under the terms of a confidentiality agreement between governmental officials and the owner or operator of the facility audited.
3. Disclosure made under the terms of a confidentiality agreement between a customer, lending institution, or insurance company with an existing or proposed relationship with the facility.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

§ 8-58.55. (Article has a contingent effective date - see note) Notification of audit.

In order to assert the privilege established under G.S. 8-58.53, the owner or operator of the facility conducting the environmental audit shall, upon inspection of the facility by an enforcement agency, or no later than 10 working days after completion of an agency's inspection, notify the enforcement agency of the existence of any audit relevant to the subject of the agency's inspection, as well as the beginning date and completion date of that audit. Any environmental audit report shall include a signed certification from the owner or operator of the facility that documents the date the audit began and the completion date of the audit.

History

(2015-286, s. 4.1(A).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

§ 8-58.56. (Article has a contingent effective date - see note) Revocation of privilege in civil and administrative proceedings.

In a civil or administrative proceeding, an enforcement agency may seek by motion a declaratory ruling on the issue of whether an environmental audit report is privileged. The court shall revoke the privilege established under G.S. 8-58.53 for an audit report if the factors set forth in this section apply. In a civil proceeding, the court, after an in camera review, shall revoke the privilege established under G.S. 8-58.53 if the court determines that disclosure of the environmental audit report was sought after the effective date of this Article and either of the following apply:

The privilege is asserted for purposes of deception or evasion.
The material shows evidence of significant noncompliance with applicable environmental laws; the owner or operator of the facility has not promptly initiated and pursued with diligence appropriate action to achieve compliance with these environmental laws or has not made reasonable efforts to complete any necessary permit application; and, as a result, the owner or operator of the facility did not or will not achieve compliance with applicable environmental laws or did not or will not complete the necessary permit application within a reasonable period of time.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.57. (Article has a contingent effective date - see note) Privilege in criminal proceedings.

The privilege established under G.S. 8-58.53 is not applicable in any criminal proceeding.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

§ 8-58.58. (Article has a contingent effective date - see note) Burden of proof.

A party asserting the privilege established under G.S. 8-58.53 has the burden of proving that (i) the materials claimed as privileged constitute an environmental audit report as defined by this Article, and (ii) compliance has been achieved or will be achieved within a reasonable period of time. A party seeking disclosure under G.S. 8-58.56 has the burden of proving the condition for disclosure set forth in that section.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.59. (Article has a contingent effective date - see note) Stipulations; declaratory rulings.

The parties to a proceeding may at any time stipulate to entry of an order directing that specific information contained in an environmental audit report is or is not subject to the privilege. In the absence of an ongoing proceeding, where the parties are not in agreement, an enforcement agency may seek a declaratory ruling from a court on the issue of whether the materials are privileged under G.S. 8-58.53 and whether the privilege, if existing, should be revoked pursuant to G.S. 8-58.56.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

§ 8-58.60. (Article has a contingent effective date - see note) Construction of Article.

Nothing in this Article limits, waives, or abrogates any of the following:

The scope or nature of any statutory or common law privilege, including the work-product privilege or the attorney-client privilege.
Any existing ability or authority under State law to challenge privilege.
An enforcement agency's ability to obtain or use documents or information that the agency otherwise has the authority to obtain under State law adopted pursuant to federally delegated programs.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.61. (Article has a contingent effective date - see note) Voluntary disclosure; limited immunity from civil and administrative penalties and fines.

An owner or operator of a facility is immune from imposition of civil and administrative penalties and fines for a violation of environmental laws voluntarily disclosed subject to the requirements and criteria set forth in this section. Provided, however, that waiver of penalties and fines shall not be granted until the applicable enforcement agency has certified that the violation was corrected within a reasonable period of time. If compliance is not certified by the enforcement agency, the enforcement agency shall retain discretion to assess penalties and fines for the violation.
If a person or entity makes a voluntary disclosure of a violation of environmental laws discovered through performance of an environmental audit, that person has the burden of proving (i) that the disclosure is voluntary by establishing the elements set forth in subsection (c) of this section and (ii) that the person is therefore entitled to immunity from any administrative or civil penalties associated with the issues disclosed. Nothing in this section may be construed to provide immunity from criminal penalties.
For purposes of this section, disclosure is voluntary if all of the following criteria are met:
1. The disclosure is made within 14 days following a reasonable investigation of the violation's discovery through the environmental audit.
2. The disclosure is made to an enforcement agency having regulatory authority over the violation disclosed.
3. The person or entity making the disclosure initiates an action to resolve the violation identified in the disclosure in a diligent manner.
4. The person or entity making the disclosure cooperates with the applicable enforcement agency in connection with investigation of the issues identified in the disclosure.
5. The person or entity making the disclosure diligently pursues compliance and promptly corrects the noncompliance within a reasonable period of time.
A disclosure is not voluntary for purposes of this section if any of the following factors apply:
1. Specific permit conditions require monitoring or sampling records and reports or assessment plans and management plans to be maintained or submitted to the enforcement agency pursuant to an established schedule.
2. Environmental laws or specific permit conditions require notification of releases to the environment.
3. The violation was committed intentionally, willfully, or through criminal negligence by the person or entity making the disclosure.
4. The violation was not corrected in a diligent manner.
5. The violation posed or poses a significant threat to public health, safety, and welfare; the environment; and natural resources.
6. The violation occurred within one year of a similar prior violation at the same facility, and immunity from civil and administrative penalties was granted by the applicable enforcement agency for the prior violation.
7. The violation has resulted in a substantial economic benefit to the owner or operator of the facility.
8. The violation is a violation of the specific terms of a judicial or administrative order.
If a person meets the burden of proving that the disclosure is voluntary, the burden shifts to the enforcement agency to prove that the disclosure was not voluntary, based upon the factors set forth in this section. The person claiming immunity from civil or administrative penalties or fines under this section retains the ultimate burden of proving the violations were voluntarily disclosed.
A voluntary disclosure made pursuant to this section is subject to disclosure pursuant to the Public Records Act in accordance with the provisions of Chapter 132 of the General Statutes.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

§ 8-58.62. (Article has a contingent effective date - see note) Additional limitations on exercise of privilege or immunity.

An owner or operator of a facility who makes a voluntary disclosure of a violation of environmental laws discovered through performance of an environmental audit shall only be entitled to exercise of the privilege or immunity established by this Article once in a two-year period, not more than twice in a five-year period, and not more than three times in a 10-year period.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

§ 8-58.63. (Article has a contingent effective date - see note) Preemption of local laws.

No local law, rule, ordinance, or permit condition may circumvent or limit the privilege established by this Article or the exercise of the privileges or the presumption and immunity established by this Article.

History

(2015-286, s. 4.1(a).)

Article Has a Contingent Effective Date. - For contingent effective date, see the note under G.S. 8-58.50.

Editor's Note. - At the direction of the Revisor of Statutes, "this Article" was substituted for "this Part" throughout the section.

ARTICLE 8. Attendance of Witness.

Sec.

§ 8-59. Issue and service of subpoena.

In obtaining the testimony of witnesses in causes pending in the trial divisions of the General Court of Justice, subpoenas shall be issued and served in the manner provided in Rule 45 of the Rules of Civil Procedure for civil actions. Provided that in criminal cases any employee of a local law-enforcement agency may effect service of a subpoena for the attendance of witnesses by telephone communication with the person named. However, in the case of a witness served by telephone communication pursuant to this section, neither an order to show cause nor an order for arrest shall be issued until such person has been served personally with the written subpoena.

History

(1777, c. 115, s. 36, P.R.; R.C., c. 31, s. 59; Code, s. 1355; Rev., s. 1639; C.S., s. 1803; 1959, c. 522, s. 2; 1967, c. 954, s. 3; 1971, c. 381, s. 5; 1981, c. 267; 1989, c. 262, s. 2.)

Local Modification. - Cumberland: 1957, c. 1324, s. 2.

Cross References. - As to duty of clerk to issue subpoena, see G.S. 7A-103.

Editor's Note. - The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1.

CASE NOTES

Applied in State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976).

Cited in North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451 (M.D.N.C. 1976); State v. Clonts, 254 N.C. App. 95, 802 S.E.2d 531 (2017), aff'd, review improvidently allowed, in part, 371 N.C. 191, 813 S.E.2d 796, 2018 N.C. LEXIS 426 (2018).

§ 8-60: Repealed by Session Laws 1967, c. 954, s. 4.

§ 8-61. Subpoena for the production of documentary evidence.

Subpoenas for the production of records, books, papers, documents, or tangible things may be issued in criminal actions in the same manner as provided for civil actions in Rule 45 of the Rules of Civil Procedure.

History

(1797, c. 476, P.R.; R.C., c. 31, s. 81; Code, s. 1372; Rev., s. 1641; C.S., s. 1805; 1967, c. 954, s. 3; c. 1168.)

Editor's Note. - The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1.

§ 8-62: Repealed by Session Laws 1967, c. 954, s. 4.

Cross References. - For present provisions relating to subpoenas after removal of cause, see G.S. 1-87.

§ 8-63. Witnesses attend until discharge; effect of nonattendance.

Every witness, being summoned to appear in any of the said courts, in manner before directed, shall appear accordingly, and, subject to the provisions of G.S. 6-51, continue to attend from session to session until discharged, when summoned in a civil action or special proceeding, by the court or the party at whose instance such witness shall be summoned, or, when summoned in a criminal prosecution, until discharged by the court, the prosecuting officer, or the party at whose instance he was summoned; and in default thereof shall forfeit and pay, in civil actions or special proceedings, to the party at whose instance the subpoena issued, the sum of forty dollars ($40.00), to be recovered by motion in the cause, and shall be further liable to his action for the full damages which may be sustained for the want of such witness's testimony; or if summoned in a criminal prosecution shall forfeit and pay eighty dollars ($80.00) for the use of the State, or the party summoning him. If the civil action or special proceeding shall, in the vacation, be compromised and settled between the parties, and the party at whose instance such witness was summoned should omit to discharge him from further attendance, and for want of such discharge he shall attend the next session, in that case the witness, upon oath made of the facts, shall be entitled to a ticket from the clerk in the same manner as other witnesses, and shall recover from the party at whose instance he was summoned the allowance which is given to witnesses for their attendance, with costs.

No execution shall issue against any defaulting witness for the forfeiture aforesaid but after notice made known to him to show cause against the issuing thereof; and if sufficient cause be shown of his incapacity to attend, execution shall not issue, and the witness shall be discharged of the forfeiture without costs; but otherwise the court shall, on motion, award execution for the forfeiture against the defaulting witness.

History

(1777, c. 115, ss. 37, 38, 43, P.R.; 1799, c. 528, P.R.; 1801, c. 591, P.R.; R.C., c. 31, ss. 60, 61, 62; Code, s. 1356; Rev., s. 1643; C.S., s. 1807; 1965, c. 284; 1971, c. 381, s. 12.)

Cross References. - As to payment of witness fees in advance, see G.S. 6-51.

As to announcement of discharge of witnesses, see G.S. 6-62.

CASE NOTES

Duty to Attend. - When a subpoena has been served on a witness, he is required by this section to attend from term to term until discharged. State v. Gwynn, 61 N.C. 445 (1868).

Attorney Not Exempt. - A witness who fails to appear when the case is called in which he has been subpoenaed to testify is not justified in his default because he is a practicing attorney at law and has cases to try in another county at the date upon which the case was called wherein he was a witness, and the party who subpoenaed him can recover the penalty, with the costs of the motions. In re Pierce, 163 N.C. 247, 79 S.E. 507 (1913).

A witness who is summoned in this State while casually here, but who resides in another state, cannot be required to pay a forfeiture for nonattendance, if he has returned to his own state and is there at his domicile. Kinzey v. King, 28 N.C. 76 (1845).

Test of Inability to Attend. - Where a witness alleges that he was unable to attend court, this inability must be decided by reference to the modes of traveling which are in use in the community. Eller v. Roberts, 25 N.C. 11 (1842).

Nonattendance Need Not Be Willful. - This section does not require that the failure of the witness to attend should be "willful." In re Pierce, 163 N.C. 247, 79 S.E. 507 (1913).

When Witness May Elect. - Where two subpoenas are served upon a witness, requiring his attendance on the same day at different places distant from each other, he is not bound to obey the writ which may have been first served, but may make his election between them. Icehour v. Martin, 44 N.C. 478 (1853).

An issue in bastardy is not a "criminal prosecution" so as to subject a defaulting witness to the fine of eighty dollars ($80.00), prescribed by this section. Ward v. Bell, 52 N.C. 79 (1859).

Attendance Was Not Required. - ""From session to session" means that first there must be a ""session" of court at which a particular case is scheduled to be heard to trigger compulsory attendance for that case; from that point onward, a properly subpoenaed witness is required to appear "from session to session" for that case until discharged. Therefore, defendant was entitled to a new trial because the trial court committed a prejudicial error when it ordered defense counsel's legal assistant to appear as a witness; the assistant was directed to appear for specific dates, and the trial court did not hold a session of court at which this case was calendared on Friday, November 8, 2013. State v. Johnson, 238 N.C. App. 500, 767 S.E.2d 89 (2014).

Applied in State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976).

Cited in State v. Clonts, 254 N.C. App. 95, 802 S.E.2d 531 (2017), aff'd, review improvidently allowed, in part, 371 N.C. 191, 813 S.E.2d 796, 2018 N.C. LEXIS 426 (2018).

§ 8-64. Witnesses exempt from civil arrest.

Every witness shall be exempt from arrest in civil actions or special proceedings during his attendance at any court, or before a commissioner, arbitrator, referee, or other person authorized to command the attendance of such witness, and during the time such witness is going to and returning from the place of such attendance, allowing one day for every thirty miles such witness has to travel to and from his place of residence.

History

(1777, c. 115, s. 44, P.R.; R.C., c. 31, s. 70; Code, s. 1367; Rev., s. 1644; C.S., s. 1808.)

CASE NOTES

Common Law Rule Not Repealed. - This section does not serve to repeal the common law rule of exemption of witnesses from civil arrest. Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947 (1898).

Exemption Not Applicable to Criminal Proceeding. - The exemption of witnesses from civil arrest accorded by this section, and of nonresident parties and witnesses voluntarily attending court here, on grounds of public policy does not apply to parties arrested in criminal proceedings. White v. Underwood, 125 N.C. 25, 34 S.E. 104 (1899).

Nonresident Attorney. - This section does not prevent service of summons on a nonresident attorney in this State to represent his clients in a matter pending in the federal court. Greenleaf v. People's Bank, 133 N.C. 292, 45 S.E. 638 (1903).

Procedure for Claiming Exemption. - Where a party has not been granted the exemption from service of summons (which the courts seem to have placed on the same plane as the exemption from civil arrest), his remedy is not a motion to dismiss the action, but a motion, on special appearance, to set aside the return of service. Dell School v. Pierce, 163 N.C. 424, 79 S.E. 687 (1913). This is because the service is not void but voidable. Cooper v. Wyman, 122 N.C. 784, 29 S.E. 947 (1898).

ARTICLE 9. Attendance of Witnesses from Without State.

§ 8-65: Transferred to G.S. 15A-811 through 15A-816 by Session Laws 1973, c. 1286, s. 9.

ARTICLE 10. Depositions.

Sec.

§§ 8-71 through 8-73: Repealed by Session Laws 1967, c. 954, s. 4.

§ 8-74. Depositions for defendant in criminal actions.

In all criminal actions, hearings and investigations it shall be lawful for the defendant in any such action to make affidavit before the clerk of the superior court of the county in which said action is pending, that it is important for the defense that he have the testimony of any person, whose name must be given, and that such person is so infirm, or otherwise physically incapacitated, or nonresident of this State, that he cannot procure his attendance at the trial or hearing of said cause. Upon the filing of such affidavit, it shall be the duty of the clerk to appoint some responsible person to take the deposition of such witness, which deposition may be read in the trial of such criminal action under the same rules as now apply by law to depositions in civil actions: provided, that the district attorney or prosecuting attorney of the district, county or town in which such action is pending have 10 days' notice of the taking of such deposition, who may appear in person or by representative to conduct the cross-examination of such witness.

History

(Code, s. 1357; 1891, c. 522; 1893, c. 80; Rev., s. 1652; 1915, c. 251; C.S., s. 1812; 1971, c. 381, s. 6; 1973, c. 47, s. 2.)

Cross References. - As to attendance of witnesses in criminal proceedings, see G.S. 15A-801 et seq.

As to discovery in criminal proceedings, see G.S. 15A-901 et seq.

Legal Periodicals. - For article discussing constitutional considerations with respect to criminal discovery for the defense and prosecution, see 50 N.C.L. Rev. 437 (1972).

CASE NOTES

Section Does Not Entitle Defendant to List of State's Witnesses. - This section provides for taking the deposition of an incapacitated defense witness, whose name must be given to the court. Patently this section has no application to defendant's motion for a list of the State's witnesses. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972).

In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972).

Where there are several defendants in the same bill of indictment, it is not necessary to notify each of the others of the taking of a deposition by one for use as evidence on his behalf. State v. Finley, 118 N.C. 1161, 24 S.E. 495 (1896).

A deposition taken under this section is competent to be read in favor of one prisoner, although it contains testimony charging his codefendant with committing the crime. When so read, it is the duty of the presiding judge to instruct the jury that they are not to consider it as evidence against the codefendant thus charged with the crime, but only as evidence in favor of the prisoner who offers it. State v. Finley, 118 N.C. 1161, 24 S.E. 495 (1896).

§ 8-75: Repealed by Session Laws 1971, c. 381, s. 13.

§ 8-76. Depositions before municipal authorities.

Any board of aldermen, board of town or county commissioners or any person interested in any proceeding, investigation, hearing or trial before such board, may take the depositions of all persons whose evidence may be desired for use in said proceeding, investigation, hearing or trial; and to do so, the chairman of such board or such person may apply in person or by attorney to the superior court clerk of that county in which such proceeding, investigation, hearing or trial is pending, for a commission to take the same, and said clerk, upon such application, shall issue such commission, or such deposition may be taken by a notary public of this State or of any other state or foreign country without a commission issuing from the court; and the notice and proceedings upon the taking of said depositions shall be the same as provided for in civil actions; and if the person upon whom the notice of the taking of such deposition is to be served is absent from or cannot after due diligence be found within this State, but can be found within the county in which the deposition is to be taken, then, and in that case, said notice shall be personally served on such person by the commissioner appointed to take such deposition or by the notary taking such deposition, as the case may be; and when any such deposition is returned to the clerk it shall be opened and passed upon by him and delivered to such board, and the reading and using of such deposition shall conform to the rules of the superior court.

History

(1889, c. 151; Rev., s. 1653; C.S., s. 1814; 1943, c. 543.)

§ 8-77: Repealed by Session Laws 1995, c. 379, s. 9.

§ 8-78. Commissioner may subpoena witness and punish for contempt.

Commissioners to take depositions appointed by the courts of this State, or by the courts of the states or territories of the United States, arbitrators, referees, and all persons acting under a commission issuing from any court of record in this State, are hereby empowered, they or the clerks of the courts respectively in this State, to which such commission shall be returnable, to issue subpoenas, specifying the time and place for the attendance of witnesses before them, and to administer oaths to said witnesses, to the end that they may give their testimony. And any witness appearing before any of the said persons and refusing to give his testimony on oath touching such matters as he may be lawfully examined unto shall be committed, by warrant of the person before whom he shall so refuse, to the common jail of the county, there to remain until he may be willing to give his evidence; which warrant of commitment shall recite what authority the person has to take the testimony of such witness, and the refusal of the witness to give it.

History

(1777, c. 115, s. 42, P.R.; 1805, c. 685, ss. 1, 2, P.R.; 1848, c. 66; 1850, c. 188; R.C., c. 31, s. 64; Code, s. 1362; Rev., s. 1649; C.S., s. 1816.)

Cross References. - As to willful refusal to be sworn or to testify amounting to criminal contempt, see G.S. 5A-11(4).

CASE NOTES

Power Not Exclusively in Commissioner. - The power to commit to jail a person refusing to testify before a commissioner, as provided for in this section, is not given exclusively, if at all, to the commissioner, but he may invoke the aid of the judge from whom he derives his appointment and whose authority is defied. Bradley Fertilizer Co. v. Taylor, 112 N.C. 141, 17 S.E. 69 (1893).

§ 8-79. Attendance before commissioner enforced.

The sheriff of the county where the witness may be shall execute all such subpoenas, and make due return thereof before the commissioner, or other person, before whom the witness is to appear, in the same manner, and under the same penalties, as in case of process of a like kind returnable to court; and when the witness shall be subpoenaed five days before the time of his required attendance, and shall fail to appear according to the subpoena and give evidence, the default shall be noted by the commissioner, arbitrator, or other person aforesaid; and in case the default be made before a commissioner acting under authority from courts without the State, the defaulting witness shall forfeit and pay to the party at whose instance he may be subpoenaed fifty dollars, and on the trial for such penalty the subpoena issued by the commissioner, or other person, as aforesaid, with the indorsement thereon of due service by the officer serving the same, together with the default noted as aforesaid and indorsed on the subpoena, shall be prima facie evidence of the forfeiture, and sufficient to entitle the plaintiff to judgment for the same, unless the witness may show his incapacity to have attended.

History

(1848, c. 66, s. 2; 1850, c. 188, ss. 1, 2; R.C., c. 31, s. 65; Code, s. 1363; Rev., s. 1650; C.S., s. 1817.)

§ 8-80. Remedies against defaulting witness before commissioner.

But in case the default be made before a commissioner, arbitrator, referee or other person, acting under a commission or authority from any of the courts of this State, then the same shall be certified under his hand, and returned with the subpoena to the court by which he was commissioned or empowered to take the evidence of such witness; and thereupon the court shall adjudge the defaulting witness to pay to the party at whose instance he was summoned the sum of forty dollars ($40.00); but execution shall not issue therefor until the same be ordered by the court, after such proceedings had as shall give said witness an opportunity to show cause, if he can, against the issuing thereof.

History

(1850, c. 188, s. 2; R.C., c. 31, s. 66; Code, s. 1364; Rev., s. 1651; C.S., s. 1818.)

§ 8-81. Objection to deposition before trial.

At any time before the trial, or hearing of an action or proceeding, any party may make a motion to the judge or court to reject a deposition for irregularity in the taking of it, either in whole or in part, for scandal, impertinence, the incompetency of the testimony, for insufficient notice, or for any other good cause. The objecting party shall state his exceptions in writing.

History

(1869-70, c. 227, ss. 13, 17; Code, s. 1361; 1895, c. 312; 1903, c. 132; Rev., s. 1648; C.S., s. 1819.)

Legal Periodicals. - For article, "The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice," see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Purpose of Section. - The purpose of this section is to settle the depositions as evidence before the trial or hearing and thus prevent surprise, misapprehension, confusion and delay on the trial. Carroll v. Hodges, 98 N.C. 418, 4 S.E. 199 (1887).

The purpose of this section is to give the party in whose behalf a deposition has been taken notice of any objection to the deposition and of the grounds for same before the trial. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962).

Time and Manner of Objection. - As stated by this section, exceptions to a deposition, especially those which relate to its regularity, should be disposed of, at the latest, before the trial is entered upon. Barnhardt v. Smith, 86 N.C. 473 (1882); Carroll v. Hodges, 98 N.C. 418, 4 S.E. 199 (1887); Ivey v. Bessemer City Cotton Mills, 143 N.C. 189, 55 S.E. 613 (1906). Such objection must be made in writing. Brittain v. Hitchcock, 127 N.C. 400, 37 S.E. 474 (1900).

Objection to the incompetency of testimony and motion to reject the evidence must be made in writing before trial unless the parties shall consent to a waiver of this provision. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962).

Same - When Allowed at Trial. - Where it appeared that no notice had been given to the adverse party of the taking of a deposition, and that it had not been passed upon by the clerk, it was held that an objection to its reception might be taken on the trial of the action. Bryan v. Jeffreys, 104 N.C. 242, 10 S.E. 167 (1889).

When Trial Begins. - Once the case is reached on the calendar and the jury called into the box, "the hurry of a trial" has begun and the time for deliberation and scrutiny of a deposition has passed. The purpose of this section would not be served by a holding that the trial did not begin until after the jury was impaneled. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962); State v. Swann, 5 N.C. App. 385, 168 S.E.2d 429, rev'd on other grounds, 275 N.C. 644, 170 S.E.2d 611 (1969).

The trial begins when the jurors are called into the box for examination as to their qualifications - when the work of impaneling the jury begins - and the calling of a jury is a part of the trial. State v. Swann, 5 N.C. App. 385, 168 S.E.2d 429, rev'd on other grounds, 275 N.C. 644, 170 S.E.2d 611 (1969).

Waiver of Formal Defects. - Where a party attends upon and takes part in taking depositions, he thereby waives all objections of a formal character, but a void process will not be vitalized unless there is an amendment without prejudice to third parties. McArter v. Rhea, 122 N.C. 614, 30 S.E. 128 (1898).

The failure to insert the name of the commissioner in the commission to take the deposition is waived by the objecting party appearing at the taking of the deposition and making no objection thereto until after the trial was begun. Womack v. Gross, 135 N.C. 378, 47 S.E. 464 (1904); Tomlinson Chair Mfg. Co. v. Townsend, 153 N.C. 244, 69 S.E. 145 (1910).

Where the provisions of this section as to making the objection before trial and in writing are not complied with, the objection to the deposition is waived. Woodley v. Hassell, 94 N.C. 157 (1886).

Cited in Hood Sys. Indus. Bank v. Dixie Oil Co., 205 N.C. 778, 172 S.E. 360 (1934); State v. Montgomery, 33 N.C. App. 693, 236 S.E.2d 390 (1977); Moore v. Reynolds, 63 N.C. App. 160, 303 S.E.2d 839 (1983).

§ 8-82. Deposition not quashed after trial begun.

No deposition shall be quashed, or rejected, on objection first made after a trial has begun, merely because of an irregularity in taking the same, provided it shall appear that the party objecting had notice that it had been taken, and it was on file long enough before the trial to enable him to present his objection.

History

(1869-70, c. 227, s. 12; Code, s. 1360; Rev., s. 1647; C.S., s. 1820.)

Legal Periodicals. - For article, "The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice," see 16 Wake Forest L. Rev. 915 (1980).

CASE NOTES

Objection Should Be Made Before Trial. - Where a deposition was open and on file before the trial, and an objection thereto was made for the first time on the trial, it was held that the objection could not be sustained. Morgan v. Royal Fraternal Ass'n, 170 N.C. 75, 86 S.E. 975 (1915). And this is true whether the motion is to quash the deposition in whole or in part. Carroll v. Hodges, 98 N.C. 418, 4 S.E. 199 (1887).

Where deposition of a witness is duly taken with full opportunity of cross-examination by the adverse party, with no objection before trial, and the witness is out of the State at the time of trial, exception to the deposition at the trial is without merit. Fleming v. Atlantic C.L.R.R., 236 N.C. 568, 73 S.E.2d 544 (1952).

Filing as Notice. - Where the deposition had been on file for two or three months before the trial, the appellant's counsel having notice and being present when it was opened by the clerk and ordered by him to be read in evidence on the trial, and they making no objections thereto, it was held that such deposition could not be quashed on oral objection made at the trial. Carroll v. Hodges, 98 N.C. 418, 4 S.E. 199 (1887).

Manner of Objection. - Since a deposition can be quashed only for irregularities in the taking or the incompetency of witnesses, objection should be taken to the questions and answers of the deponent by way of exception and not by motion to quash the depositions. Jeffords v. Albemarle Waterworks, 157 N.C. 10, 72 S.E. 624 (1911).

Preservation of Exception. - Where a commissioner to take depositions has, over the objection and exceptions of a party litigant, denied him the right of cross-examination of a witness of his opponent, and the litigant has appealed therefrom to the trial court, and preserved his right, the exception gives notice of the grounds upon which it was based, and on his motion on the trial, the deposition relating to that part of the evidence will be stricken. Sugg v. St. Mary's Oil Engine Co., 193 N.C. 814, 138 S.E. 169 (1927).

As to when objection is allowed at trial, see Bryan v. Jeffreys, 104 N.C. 242, 10 S.E. 167 (1889).

Cited in Gulf States Steel Co. v. Ford, 173 N.C. 195, 91 S.E. 844 (1917).

§ 8-83. When deposition may be read on the trial.

Every deposition taken and returned in the manner provided by law may be read on the trial of the action or proceeding, or before any referee, in the following cases, and not otherwise:

If the witness is dead, or has become insane since the deposition was taken.
If the witness is a resident of a foreign country, or of another state, and is not present at the trial.
If the witness is confined in a prison outside the county in which the trial takes place.
If the witness is so old, sick or infirm as to be unable to attend court.
If the witness is the President of the United States, or the head of any department of the federal government, or a judge, district attorney, or clerk of any court of the United States, and the trial shall take place during the term of such court.
If the witness is the Governor of the State, or the head of any department of the State government, or the president of the University, or the head of any other incorporated college in the State, or the superintendent or any physician in the employ of any of the hospitals for the insane for the State.
If the witness is a justice of the Supreme Court, judge of the Court of Appeals, or a judge, presiding officer, clerk or district attorney of any court of record, and the trial shall take place during the term of such court.
If the witness is a member of the Congress of the United States, or a member of the General Assembly, and the trial shall take place during a time that such member is in the service of that body.
Except in actions or proceedings governed by the Rules of Civil Procedure, if the witness has been duly summoned, and at the time of the trial is out of the State, or is more than seventy-five miles by the usual public mode of travel from the place where the court is sitting, without the procurement or consent of the party offering his deposition.
If the action is pending in a magistrate's court the deposition may be read on the trial of the action, provided the witness is more than 75 miles by the usual public mode of travel from the place where the court is sitting.
Except in actions or proceedings governed by the Rules of Civil Procedure, if the witness is a physician duly licensed to practice medicine in the State of North Carolina, and resides or maintains his office outside the county in which the action is pending.

If any provision of this section conflicts with the Rules of Civil Procedure, then those Rules shall control in actions or proceedings governed by them.

History

(1777, c. 115, ss. 39, 40, 41, P.R.; 1803, c. 633, P.R.; 1828, ch. 24, ss. 1, 2; 1836, c. 30; R.C., c. 31, s. 63; 1869-70, c. 227, s. 11; 1881, c. 279, ss. 1, 3; Code, s. 1358; 1905, c. 366; Rev., s. 1645; 1919, c. 324; C.S., s. 1821; 1965, c. 675; 1969, c. 44, s. 23; 1971, c. 381, s. 7; 1973, c. 47, s. 2; 1991, c. 491, s. 1.)

Cross References. - As to depositions in criminal actions, see G.S. 8-74 and note thereto.

As to manner, form, and time of taking exceptions, see G.S. 8-81, 8-82 and notes thereto.

For the Rules of Civil Procedure, see G.S. 1A-1.

Legal Periodicals. - For article, "The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice," see 16 Wake Forest L. Rev. 915 (1980).

For article, "Taking a Deposition Under North Carolina Law," see 21 N.C. Cent. L.J. 215 (1995).

CASE NOTES

To the extent they are in conflict, § 1A-1, Rule 32 takes precedence over this section. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826 (1979).

But insofar as it does not conflict with G.S. 1A-1, Rule 32, this section remains in effect. Wright v. American Gen. Life Ins. Co., 59 N.C. App. 591, 297 S.E.2d 910 (1982), cert. denied, 307 N.C. 583, 299 S.E.2d 653 (1983).

This section is not a "differing procedure" from that of G.S. 1A-1, Rule 32 within the contemplation of the language of Rule 1. Nytco Leasing, Inc. v. Southeastern Motels, Inc., 40 N.C. App. 120, 252 S.E.2d 826 (1979).

Deposition of Party. - While under subdivisions (2) and (9) of this section the presence of a witness in court is a proper basis for excluding the witness's deposition, it is no basis for excluding the deposition of a party, which G.S. 1A-1, Rule 32(a)(3) makes useable without restriction, if otherwise admissible under the rules of evidence. Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329 (1984).

Selected Parts of Depositions. - It is not permissible to introduce selected portions of depositions without offering the whole. Sternberg v. Crockon & Roden Co., 172 N.C. 731, 90 S.E. 935 (1916); Enloe v. Charlotte Coca-Cola Bottling Co., 210 N.C. 262, 186 S.E. 242 (1936).

Meaning of "Duly Summoned". - By reasonable construction subdivision (9) of this section means that where the deposition has been regularly taken, and where the witness is more than 75 miles from the place of trial without the consent of the party, and the presence of the witness cannot be procured, the deposition may be read if a subpoena has been duly issued - not necessarily served. Tomlinson Chair Mfg. Co. v. Townsend, 153 N.C. 244, 69 S.E. 145 (1910). See Sparrow v. Blount, 90 N.C. 514 (1884).

Where Plaintiff Dies But Action Survives. - Where the deposition de bene esse of the plaintiff in an action had been taken in accordance with law, and the plaintiff had since died, but the cause of action survived, the deposition could properly be read in evidence in behalf of those who survived him in interest, and had properly been made parties to the original action. Barbee v. Cannady, 191 N.C. 529, 132 S.E. 572 (1926).

Witness Unable to Talk. - The deposition of a witness adjudged to be unable to talk or remain in court was admissible in evidence under this section. Willeford v. Bailey, 132 N.C. 402, 43 S.E. 928 (1903).

Deposition Taken in Prior Action. - In the trial of an action a deposition regularly taken in another action between the same parties and involving the same subject matter is admissible as substantive evidence. Hartis v. Charlotte Elec. Ry., 162 N.C. 236, 78 S.E. 164 (1913). It may be introduced whether the deponent was examined as a witness in the case being tried or not. Mabe v. Mabe, 122 N.C. 552, 29 S.E. 843 (1898).

Applied in Glenn v. Smith, 264 N.C. 706, 142 S.E.2d 596 (1965); Gemini Drilling & Found., LLC v. Nat'l Fire Ins. Co., 192 N.C. App. 376, 665 S.E.2d 505 (2008).

Cited in Barnhardt v. Smith, 86 N.C. 473 (1882); Stern v. Herren, 101 N.C. 516, 8 S.E. 221 (1888); Jeffords v. Albemarle Waterworks, 157 N.C. 10, 72 S.E. 624 (1911); Norburn v. Mackie, 264 N.C. 479, 141 S.E.2d 877 (1965).

§ 8-84: Repealed by Session Laws 1975, c. 762, s. 4.

ARTICLE 11. Perpetuation of Testimony.

Sec.

§ 8-85. Court reporter's certified transcription.

Testimony taken and transcribed by a court reporter and certified by the reporter or by the judge who presided at the trial at which the testimony was given, may be offered in evidence in any court as the deposition of the witness whose testimony is so taken and transcribed, in the manner, and under the rules governing the introduction of depositions in civil actions.

History

(1971, c. 377, s. 1.)

Editor's Note. - The above section is the seventh paragraph of former G.S. 7-89. It was revised and transferred to its present position by Session Laws 1971, c. 377, s. 1, effective October 1, 1971. Former G.S. 8-85 was repealed by Session Laws 1967, c. 954, s. 4, effective January 1, 1970.

§§ 8-86 through 8-88: Repealed by Session Laws 1967, c. 954, s. 4.

ARTICLE 12. Inspection and Production of Writings.

§ 8-89: Repealed by Session Laws 1967, c. 954, s. 4.

Cross References. - For present provisions as to discovery and production of documents for inspection, copying or photographing, see G.S. 1A-1, Rule 34.

§ 8-89.1: Repealed by Session Laws 1975, c. 762, s. 4.

§§ 8-90, 8-91: Repealed by Session Laws 1967, c. 954, s. 4.

Cross References. - For present provisions as to discovery and production of documents for inspection, copying or photographing, see G.S. 1A-1, Rule 34.

§§ 8-92 through 8-96: Reserved for future codification purposes.

ARTICLE 13. Photographs.

Sec.

§ 8-97. Photographs as substantive or illustrative evidence.

Any party may introduce a photograph, video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustrating the testimony of a witness.

History

(1981, c. 451, s. 1.)

Cross References. - As to admissibility of the contents of writings, recordings and photographs, see G.S. 8C-1, Rule 1001 et seq.

Legal Periodicals. - For survey of 1981 law on evidence, see 60 N.C.L. Rev. 1359 (1982).

For survey of 1982 law on evidence, see 61 N.C.L. Rev. 1126 (1983).

CASE NOTES

Limiting Instruction. - It would seem to be the better practice for a party wishing to limit the use of evidence offered by his opponent to request a limiting instruction at the time of its admission. State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986); State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988).

Where many if not all of the photographs which were received into evidence could properly have been considered by the jury as substantive evidence, for the trial judge to give a proper instruction limiting the State's exhibits to illustrative use would have required that the defendant specifically identify those exhibits which he contended were subject only to illustrative use. State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986).

Defendant in robbery case argued that the judge erred in allowing the jury to view a videotape without first instructing them that it was admissible solely for the purpose of illustrating the victim's testimony; however, defendant did not request a limiting instruction, and since the State laid a proper foundation to introduce the videotape for either substantive or illustrative purposes, no limiting instruction was necessary. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988), rev'd on other grounds, 326 N.C. 27, 387 S.E.2d 450 (1990).

Admissibility of Videotape Recordings. - The basic principles governing the admissibility of photographs apply also to motion pictures. Videotape recordings may be admitted into evidence where they are relevant and have been properly authenticated. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

Videotapes are admissible under North Carolina law for both illustrative and substantive purposes; the trial court properly admitted a videotape for the sole purpose of illustrating the testimony of an officer, where the trial judge properly instructed the jury that the videotape was being received into evidence for the limited purpose of illustrating the witness's testimony. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 83 (2004).

Defendant's conviction of robbery with a firearm was proper; the State set a proper foundation for the admission of a videotape of the robbery under G.S. 8-97 by presenting testimony that the tape came from a store security camera, and had been in police custody and had not been altered, and the probative value of the videotape was not outweighed by any undue prejudice under G.S. 8C-1, N.C. R. Evid. 403. State v. Ayscue, 169 N.C. App. 548, 610 S.E.2d 389 (2005).

Pursuant to G.S. 8-97 and G.S. 8C-1-901, the trial court properly admitted the videotape evidence of defendant committing sexual acts with the victim, a minor child, and the photographs taken therefrom, because: (1) a state agent established an unbroken chain of custody from the time the tape was found in defendant's residence; (2) the state agent testified that the room depicted in the videotape shown to the jury was identical to the master bedroom in defendant's residence and that the man on the videotape was defendant; (3) the victim's mother, who had previously dated defendant, testified that defendant owned a camcorder and a tripod, which he had used to videotape them having sexual intercourse in the master bedroom of defendant's residence; (4) the victim's mother identified the room depicted in the videotape as defendant's master bedroom and the man on the videotape as defendant; (5) the victim's mother identified the young girl on the videotape as the victim, her daughter; (6) there was testimony that defendant's camcorder was in working condition; and (7) there was sufficient evidence from the testimony regarding the chain of custody to establish that the videotape had not been edited or altered, and that the same videotape seized from defendant's residence was the same videotape reviewed by the jury. State v. Prentice, 170 N.C. App. 593, 613 S.E.2d 498 (2005), cert. denied, appeal dismissed, - N.C. - , 622 S.E.2d 628 (2005).

Videos were properly admitted where there was testimony that the videos accurately depicted the events surrounding the subject incident and that the tape had not been changed or altered, and the portions of the tape that defendant contended were inflammatory were not shown at trial. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366 (2005).

Trial court did not err in admitting an edited videotape of planes flying over the adjoining property owners' property in a case where they sued the airport operators based on the contention that operation of the airport was a private nuisance; the adjoining property owners laid a proper foundation for admission of that evidence and the airport operators did not argue that the videotaping system was not properly maintained or properly functioning. Broadbent v. Allison, 176 N.C. App. 359, 626 S.E.2d 758 (2006), review dismissed, review denied, 361 N.C. 350, 644 S.E.2d 4 (2007).

Even assuming that videotapes from a food store were not properly admitted into evidence, reversal was not required because defendant was not prejudiced by their admission given the admittance of defendant's statement in which defendant confessed to using the victim's credit card to purchase beer and cigarettes at the food store. State v. Brooks, 178 N.C. App. 211, 631 S.E.2d 54 (2006), review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

Trial court did not commit reversible error by admitting, as substantive evidence, a videotape recording of a controlled drug buy involving defendant, pursuant to G.S. 8-97, because the State offered the testimony of the police officers who maintained and operated the camera and the State adequately established the chain of custody; the State did not need the confidential informant to testify that the tape accurately depicted the events because the videotape was admitted, without volume, for substantive purposes that defendant committed a crime. State v. Collins, 216 N.C. App. 249, 716 S.E.2d 255 (2011).

Trial court did not abuse its discretion by admitting surveillance video footage, pursuant to G.S. 8-97, collected from the scene because the State's witness testified he viewed the video as a technician made a copy of the footage immediately following the incident, and further testified the footage presented in court was the same as that which he viewed when the copy was being made from the surveillance system's servers a few days after the theft; thus, the surveillance video footage was properly authenticated. State v. Cook, 218 N.C. App. 245, 721 S.E.2d 741 (2012), dismissed and review denied 724 S.E.2d 917, 2012 N.C. LEXIS 333 (N.C. 2012).

State properly authenticated a surveillance video because it presented evidence that the video surveillance system was reliable and that the video presented at trial had not been altered; the testimony of a regional loss prevention manager for the department store was sufficient to authenticate the video because the manager testified that the recording equipment was industry standard and that the videos produced by the surveillance system contained safeguards to prevent tampering. State v. Snead, 368 N.C. 811, 783 S.E.2d 733 (2016).

Under this section videotapes now may be introduced as substantive evidence upon laying a proper foundation. However, the particular nature of the video portrayal on the tape may place upon the State the burden to meet other applicable evidentiary requirements. State v. Peoples, 60 N.C. App. 479, 299 S.E.2d 311 (1983), rev'd on other grounds, 311 N.C. 515, 319 S.E.2d 177 (1984).

Videotapes generally are admissible into evidence under North Carolina law for both illustrative and substantive purposes. Campbell ex rel. McMillan v. Pitt County Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff'd, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other grounds, Johnson v. Ruark Obstetrics & Assoc., 327 N.C. 283, 395 S.E.2d 85, rehearing denied, 327 N.C. 644, 399 S.E.2d 133 (1990).

Surveillance Video of Personal Injury Plaintiffs Admissible. - A surveillance videotape was relevant and admissible in a personal injury trial on damages, where the occupants of a van were shown engaging in various physical activities, and this evidence was relevant to whether and to what extent the occupants were disabled by the injuries they sustained in a rear end collision. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998).

Within Discretion of Court. - A "day in the life" videotape of child allegedly injured by negligence of defendant hospital at the time of her birth was properly admitted. The plaintiffs' failure to provide notice to the opposing counsel and the trial court prior to taping did not render the tape inadmissible; rather, the admissibility of the videotape under the particular facts and circumstances of the action lay solely within the sound discretion of the trial court. Campbell ex rel. McMillan v. Pitt County Mem. Hosp., 84 N.C. App. 314, 352 S.E.2d 902, aff'd, 321 N.C. 260, 362 S.E.2d 273 (1987).

Preview of Videotape. - Where a videotape depicts conduct of a defendant in a criminal case, the trial judge should grant a request from the defense to preview the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

Insufficient Authentication of Videotape. - The state failed to sufficiently authenticate the contents of a videotape, or to establish an unbroken chain of custody, or to show that a store security system was properly functioning on the day of the robbery at issue, where (1) two state witnesses expressed the opinion that the security system was in working order but neither one knew anything about the maintenance or operation of the camera system, and (2) trial testimony was insufficient to establish that the tape accurately represented the events it purported to show or an unbroken chain of custody. State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10 (2001).

Admitting a videotape erred because no foundation was laid, as (1) the only foundation witness was not present when recording occurred or in charge of recording equipment, and (2) no chain of custody was proved, since nothing showed who copied the recording onto a compact disc (CD) admitted at trial, how or when the CD was copied, or who took custody after copying. State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344 (2015).

Incriminating Statements in Videotape. - If a videotape contains incriminating statements by the defendant, upon his objection, the judge must conduct a voir dire to determine the admissibility of any in-custody statements or admissions in the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707 (1991).

A tape recording of a hypnosis session was not admissible as corroboration of the testimony of a witness stating his present recall of prior incidents. State v. Peoples, 60 N.C. App. 479, 299 S.E.2d 311 (1983), rev'd on other grounds, 311 N.C. 515, 319 S.E.2d 177 (1984).

For discussion of admissibility of maps, surveys and the like, see Presley v. Griggs, 88 N.C. App. 226, 362 S.E.2d 830 (1987).

Proper Authentication of Photographs. - Where the witness clearly indicated that the photographs accurately portrayed what he had observed, the photographs were properly authenticated for illustrative purposes. State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988).

Confidential informant's testimony was sufficient to authenticate two of three photographs as people from whom the informant had purchased drugs in the past and the third photograph as defendant, such that it was properly admitted. However, the testimony from a police detective was not sufficient to authenticate the two photographs as photographs depicting defendant's sons. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452 (2013).

Trial court did not err in admitting the photographs of defendant and his tattoos taken at the jail after his arrest as there was no authentication issue with the photographs because the custodial photographs did not purport to show defendant's arm at the time of the robbery; and defendant did not contest that the photographs fairly and accurately depicted his arm while he was in custody. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478 (2014).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the detective testified as to how the victim located the photograph and used it to identify defendant and thus, authenticated the photograph. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Foundation Held Sufficient. - Where victim testified that the videotape was a factual representation of the events on the night of the robbery, the business had installed the camera approximately six weeks before the robbery, and that the camera was working properly before and after the night of the robbery, and on voir dire a police department detective testified that he had exclusive care and custody of the video camera film since the night of the robbery, there was sufficient evidence for the trial judge to find that the State had laid a proper foundation to introduce the videotape into evidence for either substantive or illustrative purposes. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990).

Where surveillance videos which an employer sought to introduce were a recording of events occurring in the service area at the employer's business, the employer laid a sufficient foundation, which consisted of evidence concerning the operation of the video camera, the chain of custody of the DVDs, and testimony that the videotape had not been edited and that the picture fairly and accurately recorded the actual appearance of the area photographed, to support admission of the surveillance videos; thus, the Industrial Commission erred by refusing to consider the surveillance videos as evidence. Bowman v. Cox Toyota Scion, 224 N.C. App. 1, 737 S.E.2d 384 (2012).

Trial court did not err by admitting two screenshots taken from defendant's social media webpage where the State presented substantial evidence that tended to show that it was defendant's webpage, as it contained content unique to defendant, including his nickname, pictures of defendant and his dog, and videos of his dog, and the content was directly related to whether defendant had been criminally negligent in allowing his dog to attack and kill the victim. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98 (2016).

Foundation Held Insufficient. - The State failed to lay a proper foundation for the admissibility and authenticity of certain confiscated videotapes depicting the defendant/ex-felon handling weapons where there was no testimony by anyone present at the time of the filming as to the "checking and operation" of the video equipment; the only testimony purporting to authenticate the tape was evidence that the chain of custody had not been broken; the State did not call any witnesses to testify that the camera was operating properly or that the information depicted on the videotape was an accurate representation of the events at the time of filming. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000).

A proper foundation was laid for admission of a videotape of an armed robbery, where the robbery victim and two police officers testified that the taping equipment was operating properly on the day of the robbery, and an officer who viewed the videotape on the day of the robbery and at trial testified that the tape was in the same condition on both occasions. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).

While the State failed to offer a proper foundation for the introduction of the surveillance video and the trial court erred by admitting the video into evidence, the error was not prejudicial, as there was no reasonable possibility that the jury would have failed to convict defendant absent the video. State v. Moore, - N.C. App. - , 800 S.E.2d 734 (2017).

Admission of Prejudicial Videotapes Resulted in Reversal. - The defendant's conviction for possession with intent to sell and deliver a controlled substance was reversed where the court's admission of two videotapes - one depicting him handling various weapons and communicating some sort of intimidation or threat and the other showing the defendant holding money, talking on a cell phone and holding a beer - was so prejudicial that their improper admission infected the entire trial proceeding and where the only other evidence presented was that he was arrested in a home containing drugs, as well as seven other people, and that he had $433 in cash, a cell phone and a beeper on his person. State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000).

Admission of Photographs Held Proper. - Trial court's admission of nine photographs of victims' bodies was not error despite defendant's argument that photographs were repetitive and their relevancy was outweighed by their potential to inflame passions of the jury, since each autopsy photograph showed a different wound, and the photographs were not gory or gruesome. State v. Rogers, 323 N.C. 658, 374 S.E.2d 852 (1989).

Photocopy of the check was properly admitted to illustrate the testimony of a witness. State v. McSwain, - N.C. App. - , - S.E.2d - (May 18, 2021).

Erroneous Admission Not Prejudicial. - Photographs of a hole which caused injury to a moped rider were properly admitted into evidence even though they were taken five months after the accident; there was no evidence in the record suggesting that conditions had changed between the time of the accident and the time the photographs were taken. Sellers v. CSX Transp., Inc., 102 N.C. App. 563, 402 S.E.2d 872 (1991).

There was no abuse of discretion in the admission under G.S. 8-97 of eight autopsy photographs in defendant's criminal trial that arose from the murder of a victim in a gunfight, as there was an issue as to whether defendant shot the victim in self-defense and the photographs depicted the location of the wounds and illustrated the manner of the killing; the photographs were probative and any prejudicial effect under G.S. 8C-1, N.C. R. Evid. 403 was outweighed. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).

Trial court did not err in relying on photographs that showed work completed by a carpentry company as substantive evidence in the company's breach of contract action against a builder, as a proper foundation was laid for their admission pursuant to G.S. 8-97; although the photographs were initially to be admitted for illustrative purposes only, the trial court had authority to change its evidentiary ruling, and the builder did not show any prejudice as a result thereof. Accelerated Framing, Inc. v. Eagle Ridge Builders, Inc., 207 N.C. App. 722, 701 S.E.2d 280 (2010).

Trial court properly admitted a photograph because it illustrated a detective's testimony that the victim used the photograph to identify defendant; the trial court properly instructed the jury that it was only to consider the photograph for its limited purpose of illustrating and explaining detective's testimony, and the photograph was relevant to the victim's identification of defendant. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689 (2017).

Although the trial court erred in admitting the surveillance video because the State failed to offer a proper foundation for it as either illustrative or substantive evidence, the error was not prejudicial because other evidence pertained to the issue of whether defendant was the driver. State v. Moore, 254 N.C. App. 544, 803 S.E.2d 196 (2017), review denied, writ denied, stay denied, mot. dismissed, as moot, 805 S.E.2d 690, 2017 N.C. LEXIS 887 (N.C. 2017).

Chain of Custody. - The chain of custody of a videotape was not broken by its being viewed by a district attorney on the morning of an armed robbery trial, where a police officer who had viewed the tape showing the defendant commit the robbery both on the day of the offense and at trial testified that it was in the same condition and had not been edited. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).

Applied in State v. Snyder, 66 N.C. App. 191, 310 S.E.2d 799 (1984); Harris v. Scotland Neck Rescue Squad, Inc., 75 N.C. App. 444, 331 S.E.2d 695 (1985); State v. Elkins, 210 N.C. App. 110, 707 S.E.2d 744 (2011).

Cited in State v. Woods, 56 N.C. App. 193, 287 S.E.2d 431 (1982); State v. Cabey, 307 N.C. 496, 299 S.E.2d 194 (1983); State v. Perry, 69 N.C. App. 477, 317 S.E.2d 428 (1984); City of Statesville v. Cloaninger, 106 N.C. App. 10, 415 S.E.2d 111 (1992); State v. Rourke, 143 N.C. App. 672, 548 S.E.2d 188 (2001).

§§ 8-98 through 8-102: Reserved for future codification purposes.

ARTICLE 14. Chain of Custody.

Sec.

§ 8-103. Courier service and contract carriers.

For purposes of maintaining a chain of custody for any item of evidence, depositing the item with the State courier service operated by the Department of Administration or a common or contract carrier shall be considered the same as depositing such item in first class United States mail.

History

(1983, c. 375, s. 1.)

§§ 8-104 through 8-109: Reserved for future codification purposes.

ARTICLE 15. Mediation Negotiations.

Sec.

§ 8-110. Inadmissibility of negotiations.

Evidence of statements made and conduct occurring during mediation at a community mediation center authorized by G.S. 7A-38.5 shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other actions on the same claim, except in proceedings to enforce a settlement of the action. No such settlement shall be binding unless it has been reduced to writing and signed by the parties against whom enforcement is sought. No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed during mediation.
No mediator shall be compelled to testify or produce evidence in any civil proceeding concerning statements made and conduct occurring in a mediation conducted by a community mediation center authorized by G.S. 7A-38.5. A civil proceeding includes any civil matter in any administrative agency or the General Court of Justice, including a proceeding to enforce a settlement reached at the mediation. For purposes of this subsection, a mediator is a person assigned by the center to conduct the mediation and any staff person employed by the center to provide supervision of that person. This subsection does not excuse a mediator from the reporting requirements of G.S. 7B-301 or G.S. 108A-102.
Except as provided in this subsection, no mediator shall be compelled to testify or produce evidence in any criminal misdemeanor or felony proceeding concerning statements made and conduct occurring in a mediation conducted at a community mediation center authorized by G.S. 7A-38.5. A judge presiding over the trial of a felony may, however, compel disclosure of any evidence unrelated to the dispute that is the subject of the mediation if it is to be introduced in the trial or disposition of the felony and the judge determines that the introduction of the evidence is necessary to a proper administration of justice, and the evidence may not be obtained from any other source. For purposes of this subsection, a mediator is a person assigned by the center to conduct the mediation and any staff person employed by the center to provide supervision of that person. This subsection does not excuse a mediator from the reporting requirements of G.S. 7B-301 or G.S. 108A-102.

History

(1999-354, s. 4; 2015-57, s. 5.)

Effect of Amendments. - Session Laws 2015-57, s. 5, effective July 1, 2015, added "against whom enforcement is sought" at the end of the second sentence of subsection (a). For applicability, see editor's note.

Legal Periodicals. - For article, "Transparency and Disclosure of Medical Errors: It's the Right Thing to Do, So Why the Reluctance?," see 35 Campbell L. Rev. 333 (2013).