Evidence Archives – North Carolina Criminal Law

Smith v. Arizona and So Many Unanswered Questions

October 24, 2024 Shea Denning

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.

Smith v. Arizona and Retroactivity

August 14, 2024August 14, 2024 Phil Dixon

My colleagues have covered the retroactivity rules many times before on the blog but the analysis for determining the retroactivity of new federal rules has changed in the last few years. Considering that and the recent Confrontation Clause rule for substitute analyst testimony announced in Smith v. Arizona, 602 U.S. ___; 144 S.Ct. 1785 (2024) (summarized here), an update is in order. Today’s post reviews the federal retroactivity analysis and examines how it may be applied to Smith. Read on for the details.

Spring 2024 Cannabis Update (Part II)

April 10, 2024 Phil Dixon

In Part I of my Spring 2024 cannabis update, I discussed the search and seizure issues arising in North Carolina courts around cannabis. Part II explores drug identification evidence issues surrounding marijuana prosecutions and examines potential challenges defenders might raise. This post will also cover recent developments on the state, federal, and tribal levels impacting cannabis.

Is Rule 608(b) a Rule of Exclusion?

December 13, 2023December 12, 2023 Joseph L. Hyde

In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court “was an inappropriate form of impeachment.” Slip Op. p. 13. In support of this conclusion, the Court of Appeals cited, among other things, Evidence Rule 608(b). That rule generally bars evidence of specific instances of a witness’s conduct for the purpose of attacking or supporting his credibility; however, specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness. N.C.G.S. § 8C-1, Rule 608 cmt. This post examines the use of Rule 608(b) in Hamilton to determine how a prosecutor can avoid improper impeachment.

Questions of Law: Untangling Admissibility in State v. Gibbs.

November 14, 2023November 14, 2023 Joseph L. Hyde

Is fentanyl an opiate? That’s the question the prosecutor asked a witness in State v Gibbs. The trial court overruled the defendant’s objection, and the witness was permitted to testify that fentanyl was both an opioid and an opiate. In an unpublished opinion (“Gibbs I”), the Court of Appeals ruled this was error, reversing a conviction for trafficking by possession. Our Supreme Court then reversed the Court of Appeals. In a concise, per curiam opinion, our Supreme Court declared that whether fentanyl is an opiate is a question of law, and it remanded for reconsideration. In a subsequent unpublished opinion (“Gibbs II”), the Court of Appeals determined that fentanyl is an opiate as a matter of law. Reasoning that there was no need for an expert witness to testify on the issue, the Court of Appeals concluded that there was no error in the defendant’s conviction for trafficking. Of course, whether such testimony is necessary does not resolve whether this particular evidence was admissible. Gibbs is an evidence case, but the rule it illustrates is elusive. This post examines Gibbs to ascertain whether the prosecutor asked a permissible question.

State v. McKoy and Opening the Door

October 27, 2023 Shea Denning

Suppose the defendant is on trial for murder. He argues he shot the victim in self-defense.

The State elicits testimony from the victim’s father that the victim, who lived at home with his parents, was “always a happy guy.” The father states that he does not allow guns in his home and that, to his knowledge, the victim did not have a gun with him on the day he was shot or have a gun at any other time.

Counsel for the defendant then asks the father: After your son died, did you see pictures on his cell phone of him with his friends holding guns?

The State objects. The defendant argues that, while the evidence would otherwise be inadmissible, the State opened the door to its admission.

How should the trial court rule?

Substitute Analyst Testimony and Smith v. Arizona

July 15, 2024October 17, 2023 Phil Dixon

I mentioned in a recent News Roundup that the U.S. Supreme Court granted review in Smith v. Arizona. The case tees up a question that has been lingering since at least 2012: Does the Confrontation Clause permit the admission of substitute forensic analyst testimony? This issue arises when a forensic report is prepared for use in a criminal case, but the testing analyst is not available for trial. Instead of admitting the report through the original analyst, the State calls a different expert—one not necessarily involved in the original testing—to offer an opinion about the accuracy of the report. North Carolina generally allows such testimony, but there is a split among jurisdictions on the issue. Smith has the potential to alter the legal landscape here and elsewhere regarding the use of substitute analyst testimony, so today’s post dives into the legal issues and potential impact of the case.

Case Summary — State v. Richardson, No. 272A14 (N.C. Sept. 1, 2023).

September 13, 2023September 12, 2023 Joseph L. Hyde

Presented with an appalling set of facts, the North Carolina Supreme Court unanimously upheld the defendant’s convictions for murder, kidnapping, sex offense, and felony child abuse. The majority affirmed a sentence of death. Justice Berger’s concurring opinion, addressing only a Miranda issue, was joined by four other justices, making it “the supplemental opinion of the Court.” Justice Earls dissented with regard to capital punishment, concluding the defendant was entitled to a new sentencing hearing. This post summarizes the 225-page opinion in Richardson.

How Does the Confrontation Clause Impact the Introduction of a Defendant’s Medical Records in a DWI Trial?

April 27, 2023 Shea Denning

Two weeks ago, I wrote about the foundational requirements for introducing a defendant’s medical records in a DWI trial. Soon after I posted, a reader asked whether introducing those records through an affidavit from a records custodian violates a defendant’s Sixth Amendment right to confront witnesses against him or her. My answer is, generally speaking, no.