The Appeals Process for Evictions in North Carolina

Part 2: Rules of Evidence

By Pat Finn

In Part 1 of this series, we discussed a high-level overview of the process that an eviction goes through once it has been appealed to District Court from Small Claims. One of the major differences between District Court and Small Claims is the stringent application of the rules of evidence.

In North Carolina, the “Evidence Code” is codified in Chapter 8C of the North Carolina General Statutes – https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_8C.html. There are countless scholarly works dedicated to the understanding of this area of the law, as well as decades of court decisions at the State and Federal level on these issues, so the focus of this blog post is to help you think through your preparation for court as part of a Summary Ejectment proceeding.

“Hearsay” is a term that nearly everyone has heard in tv/movies or read in books. So what exactly is hearsay, it is defined as a statement that was made outside of court – by someone who is not in court – which is now being presented to prove the truth of the matter asserted (i.e. that the event or thing actually happened). While there are exceptions outlined in the Rules of Evidence, the simplest way to prepare for court is to remember that if someone wants to tell the Judge or Jury something, that person MUST be in court to testify. You will need to think through all of the evidence that you want the Judge or Jury to review, and determine who has the first hand knowledge to testify to each piece of evidence. For instance, if a police officer witnesses illegal activity at an apartment community and tells the property manager, the police officer would have to come to court to testify about what they saw. The property manager isn’t allowed to testify to what the police officer told them, as that would be hearsay.

Laying a legal foundation for a piece of evidence is another aspect that is often overlooked. In order to hand a District Court Judge and/or a Jury any documents that you wish to be used to prove your case, you must first lay a proper legal foundation. This is the who/what/where/when about the document. And in order to be allowed to submit that document as evidence, someone with firsthand knowledge of the document MUST be in court to testify. Like with hearsay, there are exceptions to the rule, but the best practice when preparing for court is to think through who the proper witness is to lay the legal foundation for each piece of evidence. For instance, if the assistant property manager drafts a notice that they send to a tenant, then that assistant property manager would need to be in court to introduce that specific notice. The property manager (who was not involved in the drafting or delivering of the notice) will not be able to lay the proper foundation for that document without the assistant property manager. For purposes of entering exhibits, be sure to have a copy for the Judge/Jury, the witness, the opposing party and yourself.

In the interests of judicial efficiency and fairness to the parties, Small Claims Court is typically more relaxed in the application of the above rules, giving the parties more freedom to present their cases. However, once a case is appealed to District Court, the rules of evidence will be more strictly applied. Having the proper witnesses present with you in court is the best way to avoid those types of issues in the District Court trial.