712.1Applicability of Rules [Rule 1101]

The Basic Rule

Rule 1101 – Applicability of Rules

G.S. 8C-1101.

The rules of evidence apply to “all actions and proceedings” in North Carolina courts, unless there is a specific rule or statute that says otherwise. G.S. 8C-1101(a); G.S. 8C-101 (“These rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101”); see, e.g., State v. Foster, 222 N.C. App. 199 (2012) (noting that "[u]nder the doctrine of expressio unius est exclusio alterius, a statute's expression of specific exceptions implies the exclusion of other exceptions," and holding that the rules of evidence therefore applied to hearings on motions for post-conviction DNA testing, because “motions for post-conviction DNA testing are not listed as an exception”).

When the Rules Don’t Apply

In accordance with Rule 1101(a), other statutes may modify or eliminate the applicability of the rules of evidence. See, e.g., G.S. 15A-1334(b) (formal rules of evidence do not apply at sentencing hearings); G.S. 15A-1345(e) (formal rules of evidence do not apply at probation revocation hearings). Aside from such statutes, the only exceptions to the applicability of the rules of evidence (excluding privileges) are the four types of hearings or proceedings listed in Rule 1101(b).

The four exceptions listed in Rule 1101(b) are summarized below:

Preliminary Questions of Fact

First, the rules of evidence do not apply when the court is determining a “fact preliminary to admissibility” in accordance with Rule 104(a). G.S. 8C-1101(b)(1). Rule 104(a) likewise states that the court “is not bound by the rules of evidence except those with respect to privileges” when making preliminary factual determinations. G.S. 8C-104(a). See also G.S. 8C-1101, Official Commentary (noting that these rules overlap, and explaining that Rule 1101(b)(1) “restates, for convenience, the provisions of the second sentence of Rule 104(a)”).

Rule 104(a) applies to “preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.” G.S. 8C-104(a). Therefore, the rules of evidence do not apply in hearings on matters such as suppression motions, voir dire of expert witnesses, or the authentication of other items of evidence. See, e.g., State v. Ingram, 242 N.C. App. 173 (2015) (at hearing on defendant’s motion to suppress, trial judge was permitted to make substantive findings based on a nurse’s note, even though the note constituted hearsay, because the rules of evidence did not apply at the suppression hearing); State v. Ginyard, 122 N.C. App. 25 (1996) (question of admissibility of prior inconsistent statement was matter to be decided by the judge, outside presence of the jury, after hearing any evidence that either party may offer); State v. Goode, 341 N.C. 513 (1995) (similar ruling regarding evaluating a proffer of expert testimony); In re Will of Leonard, 82 N.C. App. 646 (1986) (concluding that trial judge did not err by considering records of commitment proceedings in making preliminary determination of witness’s competency; stating that “in deciding preliminary matters, the trial court will consider any relevant and reliable information that comes to its attention, whether or not that information is technically admissible under the rules of evidence”).

For more information, see the related Evidence entry on Preliminary Questions [Rule 104].

Grand Jury

“Proceedings before grand juries” are specifically exempted by Rule 1101(b)(2). Therefore evidence that would be excluded by other evidentiary rules (such as hearsay) is admissible in grand jury proceedings. See G.S. 8C-1101(b)(2). See also State v. Bryant, 282 N.C. 92 (1972) (decided before adoption of the rules of evidence, but holding that “an indictment is not subject to being quashed on the ground that the testimony before the Grand Jury was based on hearsay”); accord, State v. Williams, 279 N.C. 663 (1971); State v. Wall, 273 N.C. 130 (1968).

For more information, see the related Pretrial entry on Grand Jury Proceedings.

Miscellaneous Proceedings

The third prong of Rule 1101(b) lists several types of “miscellaneous proceedings” at which the rules of evidence do not apply:

• Proceedings for extradition or rendition;
• First appearances before a district court judge;
• Probable cause hearings (but see G.S. 15A-611(b), partially limiting the use of hearsay testimony at probable cause hearings);
• Sentencing hearings;
• Hearings granting or revoking probation;
• Proceedings related to the issuance of a search warrant, arrest warrant, or criminal summons (see also the related Pretrial entry on Motions to Suppress); and
• Hearings related to release on bail or other pretrial release conditions.

G.S. 8C-1101(b)(3). If a hearing or proceeding falls within one of these seven categories, the court is not bound by the rules of evidence (except for those related to privilege) and otherwise inadmissible evidence such as hearsay may be admitted. See, e.g., State v. Murchison, 367 N.C. 461 (2014) (trial court properly admitted hearsay testimony at defendant’s probation revocation hearing: “Because the proceeding was a probation revocation hearing, the trial court was not bound by the formal rules of evidence and acted within its discretion when it admitted the hearsay evidence.”); State v. Augustine, 359 N.C. 709 (2005) (“The rules of evidence do not apply in sentencing proceedings […] and any competent evidence which the court deems to have probative value may be received [….] Accordingly, the parties may present a wide array of evidence at a sentencing proceeding.”); State v. Warren, 347 N.C. 309 (1997) (“The trial court has broad discretion over the scope of cross-examination” and “[i]n a sentencing proceeding, the Rules of Evidence do not limit this discretion because they do not apply.”).

4. Contempt Proceedings

Finally, Rule 1101(b)(4) states that the rules of evidence do not apply when the court is conducting summary contempt proceedings. G.S. 8C-1101(b)(4). See also G.S. 5A-14 (“Summary Proceedings for Contempt”); In re Owens, 128 N.C. App. 577 (1998), aff’d per curiam, 350 N.C. 656 (1999) (not directly addressing Rule 1101, but noting generally that the contempt statutes are not intended to require a formal evidentiary hearing or “anything approaching a hearing;” the statutes only require that the person be given notice and an opportunity to respond). For more information about the procedures for conducting summary contempt proceedings, see the related Trial entry on Criminal Contempt.

Court’s Discretion and Due Process

The fact that the rules of evidence do not apply at a hearing does not mean that all proffered evidence must be accepted and admitted by the court. Instead, the trial judge exercises his or her discretion in deciding whether to allow or exclude the evidence. See, e.g., State v. Augustine, 359 N.C. 709 (2005) (when the rules of evidence don’t apply the court may receive any competent evidence which it deems to have probative value); State v. Blakeney, 352 N.C. 287 (2000) (the rules of evidence did not apply in capital sentencing proceedings, so the trial court had great discretion to admit any evidence relevant to sentencing); State v. Smith, 352 N.C. 531 (2000) (trial court has considerable leeway and discretion in governing the conduct of a sentencing proceeding where the rules of evidence do not apply).

In exercising that discretion and deciding whether to admit or exclude the proffered evidence, the court may reference the rules of evidence for guidance on evaluating issues such as relevance, prejudice, probative value, and reliability. See, e.g., State v. Davis, 353 N.C. 1 (2000) (the rules of evidence do not apply in sentencing proceedings, but: (i) they may be used as a guideline for evaluating reliability and relevance; (ii) hearsay statements introduced therein must be relevant and bear indicia of reliability; and (iii) judge must determine the admissibility of such evidence subject to general rules excluding evidence that is repetitive or unreliable, or lacks an adequate foundation); State v. Greene, 351 N.C. 562 (2000) (the rules of evidence do not apply in sentencing proceedings, but may be helpful as a guide for evaluating reliability and relevance).

Additionally, even when the rules of evidence do not apply, constitutional due process requirements limit the court’s decision to admit or exclude evidence. See, e.g., Holmes v. South Carolina, 547 U.S. 319 (2006) (defendant has a due process right to present a defense); Bearden v. Georgia, 461 U.S. 660 (1983) (probation revocation determination must include inquiry into reasons for failure to pay fines or restitution); Gardner v. Florida, 430 U.S. 349 (1977) (confrontation rights applied at capital sentencing hearing); Morrissey v. Brewer, 408 U.S. 471 (1972) (due process requirements applied in parole revocation proceeding).

The extent to which general due process requirements may impact the admissibility of evidence has to be determined on a case-by-case basis, considering the nature of the proceeding and the relative interests at stake. See, e.g., State v. Lombardo, 306 N.C. 594 (1982) (holding that the exclusionary rule did not apply in probation revocation hearings and therefore unconstitutionally seized evidence could be offered against the defendant, because the underlying rationale for excluding illegally obtained evidence in order to deter police misconduct did not apply in this context).