This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals during December 2022. Cases of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries are available here.
Phil Dixon
Failure to Appear at Civil No-Contact Hearing Was a Prior Opportunity for Cross-Examination and Constituted an Implied Waiver of Confrontation Rights at Subsequent Criminal Trial
The Confrontation Clause of the Sixth Amendment generally guarantees a criminal defendant the right to confront and cross-examine his accusers in person. If a witness was available for an earlier trial or other proceeding and the defendant had an opportunity and motive to cross-examine the witness there, the witness testimony from the earlier proceeding may be admitted at a later criminal trial without offending the Confrontation Clause if the witness is unavailable at the time of trial. We have known for some time that this “prior opportunity for cross-examination” can be met at various stages of a criminal proceeding. See State v. Rollins, 226 N.C. App. 129 (2013) (testimony from plea hearing provided prior opportunity for cross); State v. Ross, 216 N.C. App. 337 (2011) (same for testimony at probable cause hearing); State v. Ramirez, (2003) (same for testimony at bond hearing, although the case was decided under hearsay rules and not expressly as a confrontation issue); State v. Chandler, 324 N.C. 172 (1989) (same for testimony from a prior trial); State v. Giles, 83 N.C. App. 487 (1986) (same for testimony from a juvenile transfer hearing). In all those cases, though, the defendant was present at the earlier proceeding, was represented by counsel, and the earlier proceedings could naturally be viewed as a part of the underlying criminal case. In State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (2022), the Court of Appeals expands the concept of prior opportunity to cross to a civil hearing where the defendant did not attend the hearing and was not entitled to counsel. Read on for the details.
Fall 2022 Cannabis Update
It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.
Summer 2022 Cannabis Update
It’s been nearly a year since I’ve written about cannabis issues in the state. Many of the issues I’ve discussed here before remain unresolved, but there has been recent legislation and a new case impacting this area. This post examines the current state of the law on hemp and marijuana.
Case Summaries: Fourth Circuit Court of Appeals (July 2022)
This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals during July 2022. Cases of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries are available here.
New Podcast: The N.C. Criminal Debrief
I’m pleased to announce that a new project, the North Carolina Criminal Debrief Podcast, is up and running. As you might guess, the podcast focuses on criminal law issues affecting the state. The idea is to provide another platform for folks to stay abreast of developments in the field in a way that is accessible … Read more
Determining Eligibility for Return of Guns
Lately I have received a number of questions relating to whether it is appropriate to return guns following a temporary firearms disqualification. The issue seems to arise most commonly when a domestic violence restraining order (“DVPO”) is issued under Chapter 50B of the North Carolina General Statutes, which requires the surrender of guns by a defendant in certain circumstances and allows the defendant to seek return of the guns following the expiration of the order and final disposition of any related criminal charges. See G.S. 50B-3.1.
The issue of returning guns could pop up in other circumstances involving the seizure or surrender of guns. An interplay of state and federal law determines whether a person is disqualified from possessing firearms, temporarily or permanently, and some of the wrinkles are counterintuitive. This post examines some of the most common grounds for disqualification and discusses some limits of state authority in this area. It’s long, but I hope readers find it useful.