How is a statute supposed to read when the General Assembly amends it in May and then amends it again in July without acknowledging the prior amendment? Let me clarify with an example. Continue reading
In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law: Continue reading →
On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it. Continue reading →
A caller recently asked me: Does Crawford apply at pretrial proceedings, such as suppression hearings and hearing on motions in limine? Neither Crawford nor any of the Court’s subsequent cases provide an answer for this simple reason: in all of the cases to reach the high Court, the defendant was challenging evidence admitted at the actual criminal trial. Nor do we have a North Carolina post-Crawford published case on point. However, a look at post-Crawford published cases from other jurisdictions shows that the overwhelming weight of authority holds that Crawford doesn’t apply in pretrial proceedings. In fact, there appears to be just one published case applying Crawford to such proceedings. Here are the cases:
Proceedings to determine probable cause
Peterson v. California, 604 F.3d 1166, 1169-70 (9th Cir. 2010) (in this §1983 case the court held that Crawford does not apply in a pretrial probable cause determination; “[T]he United States Supreme Court has repeatedly stated that the right to confrontation is basically a trial right.”); State v. Lopez, 314 P.3d 236, 237, 239 (N.M. 2013) (same; “The United States Supreme Court consistently has interpreted confrontation as a right that attaches at the criminal trial, and not before.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005 (Nev. 2006) (same); State v. Timmerman, 218 P.3d 590, 593-594 (Utah 2009) (same); State v. Leshay, 213 P.3d 1071, 1074-76 (Kan. 2009) (same); State v. O’Brien, 850 N.W.2d 8, 16-18 (Wis. 2014) (same); Gresham v. Edwards, 644 S.E.2d 122, 123-24 (Ga. 2007) (same), overruled on other grounds, Brown v. Crawford, 715 S.E.2d 132 (Ga. 2011); Com v. Ricker, __ A.3d __, 2015 WL 4381095 (Pa. Super. Ct. July 17, 2015) (same).
Notwithstanding this authority, it’s worthwhile to note that in North Carolina, while Evidence Rule 1101(b) provides that the rules of evidence, other than with respect to privileges, do not apply to probable cause hearings, the criminal statutes limit the use of hearsay evidence at those hearings. Specifically, G.S. 15A-611(b) provides that subject to two exceptions, “[t]he State must by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule, show that there is probable cause to believe that the offense charged has been committed and that there is probable cause to believe that the defendant committed it.” The two exceptions are for (1) reports by experts or technicians and (2) certain categories of reliable hearsay, such as that to prove value or ownership of property. Id. at (b)(1) & (2).
State v. Rivera, 192 P.3d 1213, 1214, 1215-18 (N.M. 2008) (confrontation rights “do not extend to pretrial hearings on a motion to suppress”); State v. Woinarowicz, 720 N.W.2d 635, 640-41 (N.D. 2006) (same); Oakes v. Com., 320 S.W.3d 50, 55-56 (Ky. 2010) (same); State v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App. 2010) (same); State v. Williams, 960 A.2d 805, 820 (N.J. Super. Ct. App. Div. 2008) (same), aff’d on other grounds, 2013 WL 5808965 (N.J. Super. Ct. App. Div. Oct. 30, 2013) (unpublished); People v. Brink, 818 N.Y.S.2d 374, 374 (N.Y. App. Div. 2006) (same); People v. Felder, 129 P.3d 1072, 1073-74 (Colo. App. 2005) (same); Vanmeter v. State, 165 S.W.3d 68, 69-75 (Tex. App. 2005) (same); Ford v. State, 268 S.W.3d 620, 621 (Tex. App. 2008), rev’d on other grounds, 305 S.W.3d 530 (Tex. Crim. App. 2009).
Preliminary hearings on the admissibility of evidence
United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (Crawford does not apply to a pretrial hearing on the admissibility of evidence at trial; at the pretrial hearing, grand jury testimony was used to authenticate certain business records); State v. Daly, 775 N.W.2d 47, 66 (Neb. 2009) (same; Daubert hearing).
Pretrial release & detention determinations
United States v. Hernandez, 778 F. Supp. 2d 1211, 1219-27 (D.N.M. 2011) (confrontation clause does not apply at a pretrial detention hearing; “[T]he Supreme Court has consistently held that the Sixth Amendment is a trial right . . . .”); United States v. Bibbs, 488 F. Supp.2d 925, 925-26 (N.D. Cal. 2007) (“Nothing in Crawford requires or even suggests that it be applied to a detention hearing under the Bail Reform Act, which has never been considered to be part of the trial.”); Godwin v. Johnson, 957 So. 2d 39, 39-40 (Fla. Dist. Ct. App. 2007) (“The confrontation clause of the Sixth Amendment expressly applies in ‘criminal prosecutions.’ . . . [T]his does not include proceedings on the issue of pretrial release.”)
Proceedings to determine jurisdiction under federal law
United States v. Campbell, 743 F.3d 802, 804, 806-08 (11th Cir. 2014) (holding that Crawford does not apply to a pretrial determination of jurisdiction under the Maritime Drug Law Enforcement Act; “[T]he Supreme Court has never extended the reach of the Confrontation Clause beyond the confines of a trial.”); United States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011) (same).
The only contrary authority that I found in the published case law is one Texas decision, that creates a split among sister courts on the issue. See Curry v. State, 228 S.W.3d 292, 296-298 (Tex. App. 2007) (disagreeing with Vanmeter, cited above, and holding that the confrontation clause applies at pretrial suppression hearings). If you know of other law on point, please chime in!
Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues. Continue reading →
Once a plea is entered pursuant to a plea agreement, the parties are bound by the agreement and failure to comply with it constitutes a breach. Occasionally questions arise about whether a breach has occurred and if so, what remedy should apply. Continue reading →
Sometimes a party to a plea agreement has buyer’s remorse and wants to get out of the deal. The standard for evaluating such a request varies, depending on when the motion is made. Continue reading →
In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis. Continue reading →
Indictment issues are the bane of the prosecutor’s existence. The rules about how an offense must be alleged in the indictment are highly technical. And because the rules are neither intuitive nor entirely consistent across offenses, they are hard to keep straight. Not surprisingly indictment issues account for a lot of black ink in the appellate reporters. Just how much? In my Criminal Case Compendium, which catalogues all types of criminal cases decided since 2008, there are a full 26 pages of case annotations on indictment issue cases! Continue reading →