Character Witness Cross-Examination
In State v. Hunt, 287 N.C. 360, 215 S.E.2d 40 (1975), defendant was tried for (then capital) rape, armed robbery, and felonious assault. Defendant did not testify himself, but called a witness who testified to his good character and reputation.
On cross-examination, the assistant solicitor asked defendant's character witness if the witness were aware of defendant's "police record," that the defendant had "served time," and that defendant was on probation for possession of marijuana and assault.
Over objection, the trial court allowed the character witness to answer that he did not know those things about defendant, and would not have been able to say that defendant had a good reputation if he had known those things about him.
The following morning, defendant Hunt moved for a mistrial; the trial court denied the motion but gave the following instructions to the jury:
"THE COURT: Members of the jury, the witness, the last witness who testified for the defendant, and testified as to the general character and reputation of the defendant, was asked a number of questions on cross examination by the Solicitor. the first question asked on cross-examination was: you say you have known him for a long time.
Answer: Yes, sir. Members of the jury, there were a number of other questions asked by the Solicitor of the witness, two of those questions under objection by defendant's counsel, and the Court overruled the objection.
I now reverse my ruling and sustain the objection, not only to those two questions, but I instruct you that you will not consider for any purpose the other questions propounded by the Solicitor.
The Court instructs you that you will disregard each of these questions propounded by the Solicitor of the witness, Mr. X, and erase the matter from your minds. You will disabuse your minds of those questions on cross examination by the Solicitor of the witness.
"Members of the jury, questions are not evidence. Questions by counsel or by the Solicitor are not evidence, they are simply questions. Evidence is the sworn testimony that comes from the lips of the witnesses on the stand." Hunt, 287 N.C. at 373-74, 215 S.E.2d at 49.
After discussing the general rules with regard to incompetent evidence and the effect of curative instructions, our Supreme Court held that the defendant in Hunt was entitled to a new trial because the "harmful effect of the evidence could not have been removed by the Court's instructions." Hunt, 287 N.C. at 377, 215 S.E.2d at 50.
In so ordering, the Supreme Court emphasized that the instructions then given were not specific as to the content of the challenged questions, and by this time the evidence must have found secure lodgment in the minds of the jurors.