Defendants can lose confrontation rights a number of ways. Under the various notice and demand statutes, failure to object and demand the presence of the witness in a timely manner following receipt of the State’s notice results in waiver of the right to personally confront the witness. See, e.g., G.S. 90-95(g); G.S. 20-139.1(e1) (among others). A defendant can also forfeit his or her right to confrontation by wrongdoing—where the State can prove that the defendant’s conduct resulted in the unavailability of a witness, the defendant loses the right to confront that witness. Giles v. California, 554 U.S. 353 (2005). Stipulations to the admissibility of evidence, the subject of today’s post, are another form of waiver. When the defendant stipulates to a lab result, the right to personally confront the analyst is lost. What process is due before the judge accepts such a stipulation? Is the stipulation itself sufficient to waive confrontation rights? Or should the trial judge personally engage the defendant to ensure the waiver of confrontation rights is knowing and voluntary before accepting the stipulation? The Court of Appeals answered that question in a recent case. Continue reading
Category Archives: Evidence
In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?
In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?
The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.
That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting. Continue reading →
Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause: Continue reading →
Back in April 2017, I blogged about State v. Jacobs, ___ N.C. App. ___, 798 S.E.2d 532 (March 12, 2017) here. That post focused on the preservation aspect of the case—the defendant failed to preserve a constitutional challenge to the trial court’s exclusion of evidence in a sexual assault prosecution. The alleged victim, the defendant’s minor daughter, had two sexually-transmitted diseases (“STDs”) that the defendant did not. The defendant wished to present expert testimony about the different test results. The trial court excluded the evidence under Rule 412, the rape shield rule, and the Court of Appeals unanimously affirmed. Because no constitutional challenge to the ruling was made at trial, the Court of Appeals refused to consider the argument that the exclusion of the STD evidence violated the defendant’s right to present a defense. In a 6 to 1 opinion, the N.C. Supreme Court reversed the Court of Appeals on the Rule 412 issue early last month, granting the defendant a new trial. State v. Jacobs, ___ N.C. ___, 811 S.E.2d 579 (April 6, 2018). Today’s post summarizes the Supreme Court decision, which adds a new wrinkle to the application of Rule 412 in rape and sexual offense cases. Continue reading →
The State of North Carolina goes to trial against Donnie Defendant, who is alleged to be the infamous “Tarheel State Killer” and charged with committing a series of brutal assaults and murders several decades ago. The state’s case depends heavily on matching DNA evidence from the crime scene to a sample of DNA taken off a cigarette butt discarded by Donnie. At trial, Special Agent Wanda Witness testifies as an expert in forensic DNA analysis for the state. After explaining the science behind PCR, STR, loci, and markers, Wanda opines that Donnie’s DNA is indeed a match to the DNA recovered from the crime scene.
Sounds like good news for the state, but what exactly does a “match” mean? And how may the significance or statistical probability of that “match” be expressed to the jury? It’s an important question, because what might sound like two similar ways of expressing the same probability can have dramatically different meanings – and possibly even be considered error on appeal.
The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).
Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance. Continue reading →
A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.
What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up. Continue reading →
I wrote a post (here) about the recorded recollection exception to the hearsay rule, in which I noted that this exception often is confused with the technique of present recollection refreshed under Evidence Rule 612. We see a little of that in the recent court of appeals decision, State v. Brown. Let’s take a look. Continue reading →
Sometimes the crime is caught on video. When this happens, can an officer identify the perpetrator as the defendant? This issue came up in State v. Weldon, a recent court of appeals case. Let’s go through the rules. Continue reading →