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Smith v. Arizona and So Many Unanswered Questions

I recently gave a criminal law case update to a group of judges.  I had quite a few cases that I planned to cover in relatively short order. I started with Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court held that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. For that reason, their admission at the defendant’s trial on drug charges raised Confrontation Clause concerns. To my chagrin, twenty minutes later, I was still talking about Smith, attempting to helpfully respond to a barrage of questions from trial court judges about the practical import of the decision for various kinds of testimony frequently proffered by the State during a criminal trial. Those questions included the following:

  • The substitute analysts I see don’t typically rely on another analyst’s report. Instead, they examine the underlying testing data and reach an opinion based on that. Is that testimony admissible?
  • May a supervising analyst who reviewed the testing done by and conclusions of another analyst pursuant to laboratory protocols testify to the conclusions the supervising analyst reached about the identity of the substance?
  • Suppose a new analyst retests a substance. Will he or she be able to establish a sufficient chain of custody for the substance tested given that the substance was initially received and examined by an analyst who is not available to testify?

This post will review what we knew about substitute analyst testimony before Smith was decided, will recap the Court’s analysis in Smith (analyzed in detail here), and will provide some thoughts about Smith’s import that may inform a court’s analysis of the questions posed above.

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Juvenile Remediation to Attain Capacity to Proceed: New NC Law

A new law governing capacity to proceed in delinquency cases is set to take effect beginning with offenses committed on or after January 1, 2025. Part V. of Session Law 2023-114 creates a juvenile capacity standard and establishes procedures to be used when capacity to proceed is challenged. You can find a description of much of the new law in my blog from September. This post explains the juvenile remediation process that will be available under the new law for certain cases in which a juvenile is found to lack capacity to proceed.

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Border Searches of Electronic Devices

North Carolina doesn’t have a land border with Mexico or Canada, so most people don’t think of us as a border state. But we are. We have a maritime border and several international airports that courts have deemed the functional equivalent of a border. Fourth Amendment protections are greatly reduced at the border, and United States Customs and Border Protection (CBP), the federal agency responsible for securing the border, reports that in 2023 it conducted border searches of electronic devices belonging to 41,467 travelers. This post considers when law enforcement officers may search an international traveler’s electronic devices.

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News Roundup

In the aftermath of the widespread destruction wrought by Hurricane Helene, federal and state officials have begun providing relief assistance to affected residents in western North Carolina. These efforts have been complicated by widespread misinformation regarding the Federal Emergency Management Agency (FEMA) and others. This past weekend, someone called 911 to report that an armed man near a FEMA relief center was allegedly threatening to harm relief workers and who supposedly spoke of “truckloads of militia members” in the area. According to this report, FEMA took the threat seriously, suspending door to door visits with residents and temporarily scaling back relief efforts in response. The man in question was found with an assault rifle and a pistol and was charged with going armed to the terror of the public. The Rutherford County Sheriff’s Department ultimately determined that the man was acting alone and that the report of armed militias in the area was untrue. The Governor’s office, FEMA, and other agencies have denounced this incident and other instances of misleading and inaccurate information about disaster relief efforts. My colleague, Kristi Nickodem, recently published a blog post over at Coates’ Canons addressing what local governments can do to combat misinformation in this context, which you can read here. Read on for more criminal law news.

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Extension of the Chief Justice’s Emergency Order for Certain Counties

In response to the devastation caused by Hurricane Helene, the Chief Justice of the North Carolina Supreme Court entered an emergency order applicable to certain impacted counties on September 29, 2024, as amended September 30 (the “Original Order”). The Original Order extended “the time and periods of limitation for filing and of acts due to be done” in the following 28 counties: Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Cherokee, Clay, Cleveland, Gaston, Graham, Haywood, Henderson, Jackson, Lincoln, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes, and Yancey.

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New Resources for Protecting Vulnerable Adults in North Carolina

In state fiscal year 2022-2023, county departments of social services in North Carolina received 35,400 reports alleging the abuse, neglect, or exploitation of vulnerable adults. Fifty-six counties across the state have addressed this problem through creating adult protection multidisciplinary teams (MDTs)—groups of professionals from different disciplines who work together to prevent and respond to abuse, … Read more

News Roundup

Our hearts remain with the communities in Western North Carolina devastated by Hurricane Helene. On Wednesday, lawmakers unanimously passed “The Disaster Recovery Act of 2024” allocating $273 million to meet immediate needs and begin the recovery process. The bill also contains provisions for a recovery fund for Brunswick County and the Carolina Beach area after major flooding during a storm in September, and a similar fund for Rocky Mount to assist with recovery after a tornado caused by Helene damaged buildings and caused injuries. Notable provisions of the bill expand eligibility for serving as a volunteer poll worker and for submitting absentee ballots, and authorize the Governor to waive certain DMV fees, such as duplicate license/identification card fees and late fees for motor vehicle registration renewals. Additionally, the bill temporarily extends the deadline for preliminary hearings for post-release supervision and parole violations once a supervisee has been arrested from seven to twenty-one working days. Governor Roy Cooper signed the bill into law Thursday morning. Read on for more criminal law news.

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