When filing a motion to supress evidence in Superior Court, defense counsel must remember to prepare and file an affidavit to accompany the motion. While N. C. Gen. Stat. Section 15A-977(a) explicitly requires the affidavit, many practitioners fail to include the affidavit with their written motion. In State v. Pearson, ___N.C. App.___, No. COA98-23, (November 3, 1998)the Court of Appeals stated that this practice would not be allowed, and reversed the Superior Court's order suppressing certain evidence because no affidavit was attached to the motion to suppress.

Fed. R. Evid. 801(d)(1)(B) states that prior consistent statements are not hearsay if they are consistent with the witness's trial testimony and are offered to rebut a claim of recent fabrication or improper influence or motive. N. C. R. Evid 801, on the other hand, makes no mention at all of prior consistent statements. Thus, under the codified rules of evidence in North Carolina, prior consistent statements are hearsay and should be inadmissible unless they fall within a recognized exception under N. C. R. Evid. 803 or 804. Why then are such statements routinely admitted even when they do not fall within any exception listed in the rules? The answer lies in what North Carolina courts refer to as "the prior consistent statement exception" to the hearsay rule." Don't waste your time looking for it in the codified rules though, its not there. It is entirely the invention of the courts.

And while it is an "exception" whose abolition is long overdue, it looks like it will be with us for the foreseeable future. In fact, much to the delight of prosecutors, the North Carolina Supreme Court has recently announced a dangerous expansion of the "exception." Until now, the main limitation on a prosecutor's ability to bolster his case by prior consistent statements has been the requirement that the prior statement include only facts which were clearly testified to by the witness at trial. In other words, if the witness omitted a fact at trial, the prosecutor could not sneak it in by admitting the entire text of the witness's prior statement. In State v. Lee,348 N.C.474, 483-84 (1998), the North Carolina Supreme Court announced the erosion of this limitation:

"One exception to the general bar against admitting hearsay is the prior consistent statement exception to the hearsay rule. Under this exception in North Carolina, there is a liberal policy in allowing prior consistent statements to be admissible even when the witness has not been impeached. (cite omitted) To be admissible, the prior consistent statement must first, however, corroborate the testimony of the witness. (cite omitted) To constitute corroborative evidence, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony. Our prior statements are disapproved to the extent that they indicate that additional or "new" information, contained in the witness's prior statement but not referred to in his trial testimony, may never be admitted as corroborative evidence."

Of course, almost any evidence which the rosecutor wants in from the witness's prior statement will arguably "add weight" to the witness's trial testimony. A real danger is that now prosecutors will have their officers make detailed written statements of their main witnesses exactly the way they would like it to be presented at trail. Then, when the witness omits something from his trial testimony, the officer can be called as a kind of "summary witness" to read the entire scripted version under the guise of a prior consistent statement. You can bet that the "scripted version," while containing details absent from the witness's trial testimony, will "add weight" to whatever the witness had to say at trial.

So you've just spent two hours in front of Judge Overruled trying to convince him why your motion in limine should be allowed. You've filed affidavits with your motion, you presented documents, photographs, a tape recording, even a live witness to supplement your twenty page brief. The Judge says he is overwhelmed by your thorough showing, but is convinced by the prosecutor's argument that your client's 3 year old drug conviction is relevant in his pending trial for date rape. You're confident the Court of Appeals will agree with you should an appeal be necessary. Have you done everything you need to to preserve the issue for appeal?

No, says the North Carolina Supreme Court. Though the logic is lost on many of us, the Supreme Court says you must object to the evidence at trial in order to preserve your objection. Martin v. Benson, et al., ___N. C.___, (July 9, 1998), citing State. v. Conaway, 339 N. C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U. S. 884, 133 L. Ed. 2d 153 (1995).

Suppose the State has moved in limine to keep out your evidence that alleged rape victim admitted to making a false rape allegation against a former boyfriend a year earlier. Judge Overruled granted the motion, and tells you may not offer the evidence at trial. Once again, you are confident the Court of Appeals will agree with you, should it come to that. Is the issue adequately preserved for appeal?