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News Roundup

The biggest news story of the week is a gunman’s attempt to assassinate former president and current presidential candidate Donald Trump during a campaign rally in Butler, Pennsylvania on Saturday. The gunman, identified as 20-year-old Thomas Matthew Crooks, fired eight rounds from a semiautomatic AR-style rifle in Trump’s direction. Trump was struck in the ear, rally attendee Corey Comperatore was killed, and two other men were critically wounded in the attack. The New York Times analyzed video, audio, and photographs of the event and created this narrative video timeline. The Times video ends with this question: Why was the former president allowed to remain on stage when the threat emerged minutes before shots rang out?

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Supreme Court: Bump Stocks Are Legal

The Supreme Court’s big Second Amendment case this term was United States v. Rahimi, 602 U.S. __ (2024), which I wrote about here. But readers interested in firearms law should know that the Court also decided Garland v. Cargill, 602 U.S. 406 (2024), a case addressing the legal status of bump stocks. The case isn’t a criminal case, and it mostly isn’t a Second Amendment case, but it is an interesting case with important implications for administrative law and perhaps for the future of gun regulations.

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U.S. Supreme Court Curtails Substitute Analyst Testimony

The U.S. Supreme Court recently decided Smith v. Arizona, 602 U.S. ___; 2024 WL 3074423 (June 21, 2024) (Kagan, J.). The case settled a lingering question in Sixth Amendment Confrontation Clause jurisprudence: Does the Confrontation Clause permit substitute analyst testimony?

Courts have been split on the question, with North Carolina and Arizona among the jurisdictions that have generally allowed this type of expert testimony. Substitute analyst testimony arises when the person who performed forensic testing for use in a criminal trial is not available to testify, and the prosecution uses a substitute expert—one who was not necessarily involved in the testing—to present an independent opinion based on the original analyst’s forensic report. This practice derives from the evidentiary rule that an expert is allowed to rely on inadmissible information when it is used to form the basis of the expert’s opinion. N.C. R. Evid. 703. The underlying forensic report is treated as non-hearsay, offered only as the basis of the testifying expert’s opinion, not as substantive evidence. Instead, it is the testifying analyst’s independent opinion that is admitted substantively, and the defendant is only entitled to cross-examine the testifying expert (and not the person who performed the testing). This practice does not offend the Confrontation Clause, the argument has gone, because only testimonial hearsay statements are covered by the Confrontation Clause. Since the underlying forensic report is not offered for its truth when used as the basis of opinion, it is not hearsay and does not implicate the Confrontation Clause. State v. Ortiz-Zape, 367 N.C. 1 (2013)

Not so, according to the U.S. Supreme Court. “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2. Smith thus overrules Ortiz-Zape and its progeny on this question, and represents a significant shift in state law. (If this topic sounds familiar, I wrote a blog post last year previewing the Smith case.) Today’s post examines the impact and reach of Smith in North Carolina and offers advice for defenders facing substitute analyst issues. Read on for the details.

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News Roundup

Back in May, it appeared that North Carolina lawmakers were moving toward a repeal of automatic expunctions of dismissed charges. However, in recent weeks, they have reversed course and a law providing for such expunctions was signed by the Governor this week. The law requires cases to be automatically expunged between six and seven months after all charges are dismissed. Expunged files are to be retained by the clerk and will be available to the person whose case was expunged as well as the district attorney. The new law incorporates recommendations of a committee tasked with addressing logistical problems that arose after the passage of a previous automatic expunction law.

Read on for more criminal law news.

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Fearrington v. City of Greenville:  North Carolina Supreme Court Reverses Court of Appeals and Upholds City’s Red Light Camera Enforcement Program as Constitutional

Two men fined in 2018 for failing to stop at red light camera locations in Greenville, NC filed declaratory judgment actions arguing that the program violated the Fines and Forfeitures Clause of the North Carolina Constitution because the local school board received less than the clear proceeds of the civil penalties the city collected. The Court of Appeals in Fearrington v. City of Greenville, 282 N.C. App. 218 (2022) (discussed here), agreed, concluding that the funding framework violated the state constitution. The North Carolina Supreme Court granted discretionary review and, in an opinion issued on May 23, 2024, reversed the court of appeals ruling on the constitutional issue. Fearrington v. City of Greenville, ___ N.C. ___, 900 S.E.2d 851 (2024).

This post will discuss red light camera programs, their relationship to the Fines and Forfeiture Clause, and the Supreme Court’s decision in Fearrington.

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Kidnapping by Pursuit: Evading Criminal Liability in State v. Andrews.

In a case decided earlier this month, the Court of Appeals overturned the defendant’s conviction for kidnapping when the evidence showed only an unsuccessful carjacking. See State v. Andrews, No. COA23-675 (N.C. Ct. App. July 2, 2024). Given the particular facts of the case – the defendant threatened the victim with a firearm, the victim fled in his car, and the defendant gave chase in his van – the Court of Appeals might have concluded that a car chase does not constitute the sort of confinement, restraint, or removal that G.S. 14-39 (kidnapping) was intended to address. Instead, it held that the defendant’s high-speed pursuit of the victim was a restraint that was not sufficiently distinct from that inherent in the attempted armed robbery. Citing double jeopardy concerns, the Court of Appeals reversed the kidnapping conviction. This post examines the opinion in Andrews.

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Short Stop in the Short Session

The North Carolina General Assembly has temporarily adjourned for the short session, with plans to reconvene a few more times throughout the remainder of the year. So far in 2024, a handful of bills have been enacted that affect criminal law and procedure. One of these bills includes laws that have already taken effect, summarized in this post. Listed at the end of this post are brief highlights of other noteworthy enactments.

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