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Character Evidence

What does “propensity to commit a crime” mean and when is 404(b) “Character Evidence” admissible in a trial for CRIMINAL LAWYER OBX NCcriminal allegations?

The Rules of Evidence affect the disposition of civil causes of action, such as tort claims for accidents and personal injury matters, as well as criminal charges in North Carolina.

Law schools that focus on trial advocacy skills understand the importance of a sound, comprehensive understanding of the Rules of Evidence and their impact on day-to-day litigation.

It doesn’t matter if the legal issue involves a DWI on the Outer Banks, felony drug trafficking charges in Dare County, or an accusation of domestic violence in Hatteras NC, criminal defense lawyers and prosecutors regularly spar over the admissibility of evidence.

As such, ordinarily, by the second semester of the 2L year, law students have taken “evidence.”

After completing torts, criminal law, contracts, and property, the next step in a well-rounded legal education involves the real-world application of how evidence is admitted, or precluded from admission by a Motion to Suppress.

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To be clear, reasonable minds can and regularly do dispute what is relevant, what is prejudicial, and what should and should not be allowed into evidence at a trial.

Admissibility of Evidence at Trial

The Rules of Evidence are by no means something new.  Indeed, some might say there is “nothing new under the sun” when it comes to issues regarding relevance, character evidence, and the “balancing process” consistent with Rule 403.

When an opinion is issued by the NC Court of Appeals, particularly one involving the admission of Character Evidence, that tends to grab the attention of criminal lawyers.

Reading opinions is something we do as criminal defense attorneys on the Outer Banks.  In my opinion, no attorney has ever been harmed by reviewing and reconsidering their understanding of the Rules of Evidence – Danny Glover, OBX Lawyer

On December 1, 2020 the Court of Appeals, in an opinion by Judge Dietz, issued its ruling in North Carolina v. Adell Grady (No. COA19-1025).

Should I Waive Probable Cause? 

For the uninitiated, defense lawyers in NC, judges, and prosecutors may also refer to the matter at State v. Grady. 

Appellate courts in North Carolina review conclusions of law regarding the admissibility of evidence under Rule 404(b) de novo or “anew.”

That is a different legal standard than the appellate review of the balancing process regarding probative value versus prejudicial effect consistent with rule 403.

For such matters, which involve the trial court reviewing the evidence and coming to certain factual conclusions, rule 403 determinations are reviewed for “abuse of discretion.”

Abuse of discretion review would allow for a reversal of the trial court’s ruling only in the event such ruling was arbitrary and could not have been the result of a decision based on reason.

Reversing a trial court, alleging Abuse of Discretion, is really difficult.  Even if the Court of Appeals would themselves come to another conclusion, the decision will stand in many if not most circumstances – Danny Glover, DWI Lawyer Outer Banks NC

What is Rule 404(b) “Character Evidence?”

 A person facing criminal accusations is said to be presumed innocent until proven guilty.

As such, their “bad character” or propensity for wrongdoing ordinarily cannot be used against them.

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It is a fundamental precept of the constitution of the United States and the constitutional protections afforded under the North Carolina constitution to assume nothing about the guilt of the accused.

As such, to admit evidence for the purpose of showing the accused has done wrong in the past, is a bad person, and therefore is likely to have committed the crime as alleged is, big picture, precluded.

At the same time, evidence of prior wrongdoing is not specifically excluded or otherwise inadmissible if it shows something other than bad character or a likelihood or propensity to commit criminal acts.

Under rule 404(b) in North Carolina, evidence of wrongdoing, crimes, or specific criminal acts, is not admissible to show the character of the defendant and that the accused acted in conformity with a negative character trait.

As stated, evidence of other wrongdoing in crimes may be admissible for other purposes.

OBX Assault Charges 

Prior bad acts may tend to show the opportunity to commit a crime, the defendant’s motive in criminal wrongdoing, preparation to commit a crime, intent to commit a criminal act, the knowledge of the defendant, a plan or common scheme, the identity of the accused, entrapment, absence of mistake, or even accident.

Rule of Inclusion 

The rules of evidence also include what lawyers refer to as the Rule of Inclusion.  That pertains to evidence that is relevant to other criminal acts, crimes, felony or misdemeanor, and legal wrongs committed by a defendant.

There is an exception to the Rule of Inclusion that requires the exclusion of such evidence if its only value, specifically probative value, is to show that the defendant has the disposition or propensity to commit an offense.

The admission to show the character, disposition, and or propensity to commit a crime based on prior bad acts, solely for the purpose of showing the defendant commits the nature of the type of criminal charge (felony or misdemeanor), would be properly suppressed.

At the same time, evidence of another criminal offense or criminal wrongdoing may be admissible if it is deemed relevant to any issue or fact other than the character of the defendant.  

There are restraints on the Rule of Inclusion.

Evidence is constrained by the requirements of temporal proximity and similarity.   See North Carolina v. Al-Bayyinah, 356 N.C. 150 (2002)

Similarity and Temporal Proximity may take into consideration prior wrongful criminal acts of the defendant if such were part of a chain of events that explain the preparation, motive, planning, and overall commission of the crime.

The ultimate test of admissibility is a determination of whether or not the prior criminal wrongdoing, and the incidents associated with criminal accusations, are sufficiently similar and not so remote in temporal proximity (time) that the admission of such evidence would be overly prejudicial consistent with the balancing test under Rule 403.

Prejudicial Evidence and the Balancing Test

Evidence that is prejudicial against the defendant is not necessarily inadmissible or improper.

Indeed, evidence that is probative in the state’s case-in-chief will almost always have a prejudicial effect on the defendant’s defense to the charges.

The issue is not whether something is necessarily prejudicial; the legal question for the trial court to determine is whether or not prejudicial evidence is unfair.

And that balancing processes and legal ruling is left within the sound discretion of the court.

If the trial court admits evidence that is unfairly prejudicial, our Court of Appeals in North Carolina will only overturn the discretionary ruling if it is lacking in reasoning or manifestly arbitrary.

Abuse of Discretion is a tremendously difficult legal burden to overcome.

Outer Banks Criminal Defense – OBX DWI Lawyer – Danny Glover

If you have questions about the admissibility of evidence, and how criminal charges on the Outer Banks are handled, Danny Glover may be able to help.

We help explain what are at times difficult legal concepts and rulings.  That’s part of what we do as defense lawyers – Danny Glover, OBX DWI Defense

You may email Danny Glover now at
















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