225.1Examination of Witnesses
- All witnesses are presumed competent to testify, unless shown otherwise.
- Witnesses (and interpreters) must testify under oath or solemn affirmation.
- Rules of evidence limit the scope of questions a witness may be asked.
- Remote testimony, such as by closed-circuit television, is permissible under certain circumstances.
As referenced in the Official Commentary to Rule 603, there are all kinds of witnesses -- not just victims, police officers and defendants, but also religious practitioners and atheists, military veterans and conscientious objectors, mentally ill adults and young children. Prosecutors must not only be knowledgeable of the rules governing witness testimony, but also be prepared to deal with each witness in the manner that will be most effective for the case.
The following entry briefly summarizes the procedure for calling witnesses, the applicable rules governing their testimony, and other noteworthy points of courtroom procedure affecting their testimony. For more information on particular topics, see the related entries on: (i) Securing Attendance of Witnesses; (ii) Sequestering a Witness; (iii) Examination of Witnesses: Direct Examination; or (iv) Examination of Witnesses: Cross-examination.
Order and Format of Calling Witnesses
In North Carolina, attorneys must conduct their witness examinations from a seated position behind the counsel table - if the attorney needs to approach the witness to show the witness a document or hand the witness an item to authenticate or examine, the attorney must first ask the judge for permission to approach the witness. See N.C. Gen. R. Prac. Super. & Dist. Ct. 12; State v. Bass, 5 N.C. App. 429 (1969).
In general, the parties are given wide latitude in examining witnesses, but the court has discretion under Rule 611(a) to exercise reasonable control over the mode and order of interrogating witnesses to ensure effective ascertainment of the truth, avoid needless waste of time, and protect witnesses from undue harassment or embarrassment. See also State v. Fleming, 350 N.C. 109 (1999); State v. Satterfield, 300 N.C. 621 (1980); State v. Arnold, 284 N.C. 41 (1979).
The presentation of evidence and calling of witnesses generally proceeds in this order:
- State’s Evidence
The state has the burden of proof in a criminal case, and therefore it should go first in presenting its case in chief and calling witnesses. See G.S. 15A-1221(a)(5).
- Defendant’s Evidence
The defendant may offer evidence if he chooses, and if he reserved his opening statement at the beginning of trial, then he may precede his offer of evidence and calling of witnesses by making an opening statement. G.S. 15A-1221(a)(6).
- Rebuttal Evidence
The state and the defendant may then offer “successive rebuttals” (including a “surrebuttal,” or a rebuttal to a rebuttal) of evidence concerning matters elicited in the other party’s case in chief. In the court’s discretion, this may also include evidence that could have been offered in the case in chief or an earlier rebuttal - the trial judge has the discretion to allow either party to introduce additional evidence at any time prior to verdict. G.S. 15A-1221(a)(7); 15A-1226.
Taking witnesses out of order?
“The order of a jury trial, in general, is as follows:” first “the State must offer evidence,” after which “the defendant may offer evidence.” G.S. 15A-1221(a)(5), (6). But can the trial judge depart from the normal order and direct the defendant to begin calling his witnesses to testify before the state rests – for example, if the state’s final witness is unavailable for several days, and the judge does not want to unnecessarily delay the trial?
There is limited case law on this issue, but similar practices have been allowed on the grounds that the trial court has inherent authority to alter the order of presentation of evidence, as long as it is not an abuse of discretion that unfairly prejudices the defense. See State v. Temple, 302 N.C. 1 (1981) (“the order of presentation at trial is a rule of practice, not of law, and it may be departed from whenever the court, in its discretion, considers it necessary to promote justice”); State v. Jones, 291 N.C. 681 (1977) (“The order of proof and presentation of witnesses is a matter completely within the discretionary control of the trial judge. The court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial.”) (internal quotation omitted).
Competency of Witnesses
Every person is deemed competent to be a witness, except as otherwise provided in the rules of evidence. See G.S. 8C-1, Rule 601(a); see also G.S. 8-49 (witness not excluded by interest or crime). For example, children as young as four years old have been found competent to testify. See State v. Kivett, 321 N.C. 404 (1988); State v. Robinson, 310 N.C. 530 (1984). Courts have similarly found elderly, disabled, mentally ill, or drug-addicted witnesses to be competent, as long as they satisfied the criteria for competency under the rules of evidence. See, e.g., State v. Forte, 206 N.C. App. 699 (2010) (elderly witness who had intermittent difficulty understanding the truth and testifying coherently was still competent); State v. Oliver, 85 N.C. App. 1 (1987) (16-year-old witness with mental functioning of a child was competent); In re Will of Leonard, 82 N.C. App. 646 (1986) (“unsoundness of mind is not per se grounds for ruling a witness incompetent under Rule 601”); State v. Fields, 315 N.C. 191 (1985) (witnesses who were abusers of alcohol and hallucinogens, and were impaired on the night in question, were not incompetent to testify).
However, the broad qualification of all competent witnesses is limited by several key exceptions applicable to criminal cases, including:
- A witness is disqualified if he is unable to express himself or herself in a manner that can be understood, either directly or through an interpreter, or is incapable of understanding the duty to tell the truth. G.S. 8C-1, Rule 601(b).
- A witness (other than an expert witness – see Rule 703) must have personal knowledge of the matter about which he or she is called to testify. G.S. 8C-1, Rule 602.
- Neither the presiding judge nor a jury member sitting on the case may be called as a witness in that case. G.S. 8C-1, Rule 605, 606(a). (But note Rule 606(b), regarding limited ability to call a juror to testify at an inquiry into the validity of a verdict or indictment.)
- And, of course, the 5thAmendment forbids the state from calling the defendant to testify against himself.
Challenging and Determining Competency of a Witness
If the opposing party believes that a witness is not competent to testify, that party may object on competency grounds when the witness is called. The trial judge must determine witness competency if the issue is raised by a party or circumstances, and this is typically done by conducting a voir dire examination of the witness before he or she testifies to the jury. See State v. Eason, 328 N.C. 409 (1991); State v. Fearing, 315 N.C. 167 (1988). The party opposing the witness’s competency has the burden of proof, since witnesses are presumptively competent under Rule 601 unless shown otherwise. Competency is a preliminary question of fact, so the rules of evidence do not apply, and the court may consider relevant information that might not otherwise be admissible at a trial, such as hearsay. See In re Will of Leonard, 82 N.C. App. 646 (1986).
The judge must make a sufficient inquiry to satisfy himself or herself the witness is or is not competent to testify, but the "form and manner of that inquiry rests in the discretion of the trial judge." In re Will of Leonard, 82 N.C. App. 646 (1986); but see State v. Huntley, 104 N.C. App. 732 (1991) (no authority for court to order witness to undergo psychological evaluation to determine competency). Typically, the judge will allow the proponent of a witness to examine the witness at the beginning of the voir dire, and then the opponent of the witness generally should be given an opportunity to cross-examine the witness, but denial of that opportunity does not necessarily violate the defendant’s rights. See State v. Beane, 146 N.C. App. 220 (2001) (not allowing defense to cross-examine proposed child witness was harmless error, and cross-examination cured any prejudice); see also State v. Spaugh, 321 N.C. 550 (1988) (“When, as here, the evidence clearly supports a conclusion that the witness is competent, the trial court's failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness's competency is, at worst, harmless error.”)
Competent vs. Credible
Even if a witness is deemed ‘competent’ to testify under Rule 601, the witness is still subject to impeachment and rigorous cross-examination regarding his or her credibility, truthfulness, ability to remember accurately, etc. See, e.g., State v. Williams, 330 N.C. 711 (1992); State v. Fields, 315 N.C. 191 (1985) (“it is in the jury’s province to weigh his evidence, not in the court’s to bar it”).
Oath or Affirmation Before Testifying
Before testifying, Rule 603 requires that every witness must declare that he or she will testify truthfully, by oath or affirmation administered in a form to awaken the witness’s conscience and impress his or her mind with the duty to do so. See State v. James, 322 N.C. 320 (1988). The oath may be administered by the judge or another person empowered to administer oaths, such as the clerk. G.S. 11-2. To take the oath, the witness must place their hand on the “Holy Scriptures” (G.S. 11-2) or, if the witness has conscientious scruples against taking the oath upon touching a holy gospel, he or she may take the oath with his or her “right hand lifted up towards heaven” (G.S. 11-3). The oath or affirmation must be delivered with “utmost solemnity.” G.S. 11-1; see State v. Robinson, 310 N.C. 530 (1984). The witness must swear that he or she will tell “the truth, the whole truth, and nothing but the truth, so help me God.” See G.S. 11-11.
If the witness has conscientious scruples against taking an oath in either manner just described, he or she may alternatively “affirm” by stating the same words in G.S. 11-11, but replacing “swear” with “affirm,” and deleting the words “so help me God” at the end. G.S. 11-4.
Interpreters must make a similar oath or affirmation, vowing to render a true translation of the words that are said. See G.S. 8C-1, Rule 604; G.S. 8B-7. If testimony (or a translation) is offered without the witness (or interpreter) having been first placed under oath, the defendant must object to the testimony at that time or else the issue is waived on appeal. State v. Robinson, 310 N.C. 530 (1984).
The trial court has statutory authority to allow remote testimony (typically done by one-way or two-way video, through a closed-circuit television system) in the case of a witness who is: (i) a minor under the age of sixteen at the time of his or her testimony (see G.S. 15A-1225.1); (ii), a witness with developmental disability or intellectual disability (still referred to as “mental retardation” in the pertinent statute, G.S. 15A-1225.2); or (iii) a forensic analyst testifying regarding the results of forensic testing conducted pursuant to G.S. 8-58.20 (see G.S. 15A-1225.3), as long as the qualifying criteria are met and the correct procedures are followed for giving notice and presenting the testimony in court. See Maryland v. Craig, 497 U.S. 836 (1990) (affirming use of one-way closed circuit television for child’s testimony, and finding no confrontation clause violation); State v. Jackson, 216 N.C. App. 225 (2011) (child victim’s testimony by one-way closed-circuit television did not violate defendant’s confrontation rights); State v. Lanford, 225 N.C. App. 189 (2013) (no confrontation violation where child witness testified before jury and attorneys, but defendant had to watch on closed-circuit television from another room).
Other witnesses besides the three types listed in the statutes above may also be permitted to testify remotely in a particular case, as long as the confrontation clause concerns discussed in Craig and Crawford are met, that is: (i) the accommodation is necessary to further an important state interest and (ii) the methodology used to reliably present the testimony does not offend the defendant’s right to confront the witnesses against him. See, e.g., State v. Seelig, 226 N.C. App. 147 (2013) (allowing remote testimony via internet video from out-of-state for an expert witness who could not travel due to hospitalization for a panic attack). For additional information about Crawford and potential issues involving the use of remote testimony, see the related entry on Expert Witnesses: Crawford, Substitute Analysts, and Remote Testimony.
Examination by the Court
On its own motion or at the request of a party, the judge may also call and interrogate witnesses. G.S. 8C-1, Rule 614(a), (b). The parties are entitled to cross-examine any witnesses thus called by the court. G.S. 8C-1, Rule 614(a). No objection is required as to any witness being called by the court; instead, there is a presumption that an objection has been made and overruled. G.S. 8C-1, Rule 614(c). Per the official commentary, it is anticipated that the court will exercise this power to call its own witnesses only in “extraordinary circumstances.” Id.
In addition, a trial judge may ask his or her own questions of a witness who was called by one of the parties in order to clarify the witness’s testimony, but the judge may not ask questions to impeach the witness or to suggest an opinion as to the weight of the evidence or credibility of the witness in violation of G.S. 15A-1222. See State v. Hill, 105 N.C. App. 489 (1992); State v. Hunt, 297 N.C. 258 (1979).
Rules of Evidence Affecting Witnesses’ Testimony
The most significant Rules of Evidence which impact the examination of witnesses at trial are briefly summarized below for reference.
- Rule 403: Prejudice -- Rule 403 states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the charges of unfair prejudice, confusion of the issues.” Note that Rule 403 governs admissibility of all character evidence, except Rule 609(a) evidence (impeachment by prior conviction).
- Rule 406: Evidence of habit or routine practice.
- Rule 607: Impeachment -- This rule states that “the credibility of a witness may be attacked by any party, including the party calling him." See State v. Williams, 341 N.C. 1 (1995) (state was properly permitted to impeach its own witness with prior inconsistent statement where state was surprised by the state witness’s testimony at trial); State v. Banks, 210 N.C. App. 30 (2011) (not error to allow state to impeach its witness when she claimed not to remember what she had said and trial judge gave limiting instruction); State v. Minter, 111 N.C. App. 40 (1993) (proper to impeach witness with transcribed grand jury testimony). The witness may be confronted and challenged on the subject of the impeachment, but there are limitations on the use of extrinsic evidence to prove impeachment of collateral matters. See State v. Whitley, 311 N.C. 656 (1984); State v. Jacobs, 174 N.C. App. 1 (2005); State v. Riccard, 142 N.C. App. 298 (2001); State v. Jarrells, 98 N.C. App. 318 (1990).
The adoption of Rule 607 eliminated the old “voucher” rule, which prohibited a party from impeaching its own witness under the theory that, by calling the witness, the party was necessarily vouching for that witness’s credibility. See State v. Hyleman, 324 N.C. 506 (1989); State v. Williams, 322 N.C. 452 (1989). However, even under Rule 607, the state is still restricted from impeaching its own witness if the state knew beforehand that the witness would testify in a manner making him subject to such impeachment. See, e.g., State v. Hunt, 324 N.C. 343 (1989) (state may not impeach its witness with prior inconsistent statements when the state knew, before calling the witness, that the witness had recanted the prior statements).
- Rule 608: Opinion and reputation evidence.
- Rule 609: Evidence of prior convictions.
- Rule 610: Evidence of religious beliefs -- this rule explicitly states that belief in a religion (or the absence of such belief) “is not admissible for the purpose of showing that by reason of their nature [the witness’s] credibility is impaired or enhanced.” Absent some special relevance, religion is not an appropriate subject to question the witness’s credibility. See State v. Reilly, 71 N.C. App. 1 (1984); State v. Kimbrell, 84 N.C. App. 59 (1987) (evidence of defendant’s knowledge of and participation in “devil worship” inadmissible)
- Rule 611: Procedure for examining witnesses -- This rule continues the longstanding practice of giving significant discretion to the trial judge concerning the manner and order of interrogating witnesses and presenting evidence. See G.S. 15A-1221 and 15A-1226. Under this rule the trial judge should act to: (a) make the interrogation and presentation effective to ascertain the truth; (b) avoid needless consumption of time; and, (c) protect witnesses from harassment or undue embarrassment.
- Rule 701: Lay Witness Opinion Testimony -- this rule allows non-expert witnesses to offer opinions or draw inferences based on their first-hand knowledge.
- Rule 501, Privilege: Finally, some witnesses may assert a privilege not to testify about particular facts, transactions, or communications. These privileges only apply to certain communications or acts arising within the scope of specified types of relationships. See, e.g., G.S. 8-53; 53.1 (physician/patient); G.S. 8-53.2 (clergy/communicant); G.S. 8-53.3 (psychologist/patient); G.S. 8-53.4 (school counselor); G.S. 8-53.5 (therapist/patient); G.S. 8-53.6 (marriage counselor); G.S. 8-53.7 (social worker); G.S. 8-53.8 (counselor); G.S. 8-53.9 (optometrist/patient); G.S. 8-53.10 (peer support counselor); G.S. 8-53.11 (news media, journalists); G.S. 8-53.12 (rape crisis center workers); G.S. 8-53.13, 53.1 (nurses).
For more information about privileges, see Robert Farb, "Privileged Communications," NC Superior Court Judges' Benchbook, January 2016. See also the related entries on Securing Attendance of Witnesses: Generally (Section A.5, “Privileges and Protections”) and Subpoena to Produce Documents: Compliance and Objections (Section D., “Court Order to Override Objection or Motion to Quash).