A UNC School of Government Blog
Under the new Crawford confrontation clause analysis, testimonial hearsay statements by witnesses who do not appear at trial cannot be admitted unless the prosecution shows unavailability and a prior opportunity for cross-examination. As discussed in more detail in my paper here, the U.S. Supreme Court has recognized a forfeiture by wrongdoing exception to the Crawford … Read more
“It’s the economy, stupid,” was a catch phrase in Bill Clinton’s successful 1992 presidential campaign. I have my own catch phrase, but it’s for trying drug cases. Here it is: “It’s testimonial, stupid.” Nearly everyone is having a difficult adjustment to the new confrontation clause regime after the U.S. Supreme Court’s Crawford decision and its … Read more
The N.C. Court of Appeals’ recent decision in State v. Harrison raises an issue that arises with some frequency in N.C. criminal trials: When can the State use evidence of a defendant’s pre- and post-arrest silence at trial? In this post I’ll address that issue. In Harrison, the defendant was convicted of larceny of a … Read more
Several earlier posts (here, here, here and here) and this article discuss the North Carolina Supreme Court’s ruling in State v. Ward, 364 N.C. 133 (2010), that the identification of a controlled substance based upon mere visual inspection is insufficiently reliable to serve as the basis for an expert’s opinion pursuant to Rule 702 of … Read more
A couple of months ago, the court of appeals decided State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011). The defendant was convicted of first-degree murder notwithstanding his claim of self-defense. A passage from the court’s opinion caught my eye: Dave Cloutier, an expert in use-of-force science and self-defense tactics, testified that, given … Read more
Suppose a person who speaks only Spanish is stopped on suspicion of impaired driving by two officers, Officer A and Officer B. Officer A speaks and understands only English. Officer B is fluent in English and Spanish. Officer B asks the defendant if he has been drinking. The defendant states, in Spanish, that he drank … Read more
According to my teenaged kids, “corpus delicti” sounds like something that will get you in trouble if you write about it on a government-sponsored blog. It is, however, an issue that arises in criminal cases. The term “corpus delicti” (sometimes spelled corpus delecti) means the body of the crime. Black’s Law Dictionary 310 (5th ed. … Read more
As blog readers well know, the new Crawford confrontation clause rule provides that absent an exception or a waiver of rights, testimonial hearsay statements of a declarant who does not testify at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. This is a tough … Read more
G.S. 20-138.1(a)(2) prohibits a person from driving a vehicle upon a highway, street or public vehicular area after having consumed sufficient alcohol that the person has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. S.L. 2006-253 amended this subsection to provide, effective for offenses committed on or after December 1, … Read more
Eating the evidence might yield a stomach ache but it won’t ensure an acquittal. That is the lesson learned from State v. James, a case recently decided by the N.C. Court of Appeals. In James, an officer was patrolling in an unmarked vehicle when the defendant waived her over. As the officer opened her car … Read more