Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
Jessica Smith
Riley and Retroactivity
Last month the U.S. Supreme Court held that under the Fourth Amendment to the U.S. Constitution, officers can’t search a cell phone as a search incident to arrest. Riley v. California, __ U.S. __, 134 S.Ct. 2473 (2014). For background on those cases, see the blog post here. Since then I’ve had a bunch of … Read more
With Cert Denials, Hope Fades for Clarification on Use of Substitute Analysts
Mumford & Sons has a song called Hopeless Wanderer. When it comes to substitute analysts and the confrontation clause, that song title sums me up, and maybe you as well. Anyone who practices criminal law knows that Confrontation Clause issues have been a big deal ever since the United States Supreme Court handed down its … Read more
Statutorily Mandated Sentences: An Exception to G.S. 15A-1335
G.S. 15A-1335 provides that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe than the prior sentence less the … Read more
15A-1335: When Is a Sentence “More Severe”?
G.S. 15A-1335 provides that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe than the prior sentence less the … Read more
A 2013 Rollback of State Procedural Protections for Defendants
Most folks who are involved in appellate litigation and post-conviction motions know about G.S. 15A-1335. For those who don’t, it is a N.C. statute providing that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the … Read more
Miller Retroactivity: Where Are We?
Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided continues to be a thorny one for the nation’s courts. Miller held that under the Eighth Amendment a sentencing scheme that mandates life without parole … Read more
Hearsay Exceptions: Statements Against Penal Interest
In this, my last post in a long series on hearsay exceptions, I’ll address the Rule 804 exception for statements against penal interest. Rule 804(b)(3) creates a hearsay exception for a “statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to … Read more
Hearsay Exceptions: Former Testimony and Dying Declarations
Rule 804 contains five hearsay exceptions that apply when the declarant is unavailable. I addressed one of them—the residual exception—in a prior post. Another one of the five—statements of family history—rarely arises in the criminal law so I won’t spend any time on it. In this post I’ll tackle two of the Rule 804 exceptions: … Read more
Hearsay Exceptions: What Does “Unavailability” Mean?
In earlier posts I covered the major Rule 803 hearsay exceptions, for which unavailability is immaterial. Rule 804 contains additional hearsay exceptions, but they only apply when the declarant is unavailable. What does unavailability mean? The Rule specifies five circumstances when a declarant is unavailable. The sections below explore them. Privilege. A witness is unavailable … Read more