Evidence

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State v. McKoy and Opening the Door

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?

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Substitute Analyst Testimony and Smith v. Arizona

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.

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

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.

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Authenticating Photographs Obtained from Social Media Platforms

In my last post, I wrote about how a party might authenticate a Facebook direct message or other text-based electronic communication. That post focused on how the proponent of the evidence might establish who wrote the message, i.e., authorship. But what if a party wants to introduce a photograph that was posted on a social media platform? The concept of authorship doesn’t really apply, and in the age of Photoshop and AI-generated images, courts may have serious concerns about the accuracy of online images.

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

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.

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How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?

Suppose that a defendant is charged with possessing fentanyl with the intent to sell it. The state’s evidence includes a Facebook direct message, purportedly from the defendant to an informant, saying “just got some China Girl, you want any?” An officer took a photograph of the direct message as it appeared on the informant’s smartphone, and everyone is satisfied that the photograph fairly and accurately depicts the message. But the defendant objects to the introduction of the message on the grounds that there’s no way to be sure that he wrote it. How might the state respond?

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Failure to Appear at Civil No-Contact Hearing Was a Prior Opportunity for Cross-Examination and Constituted an Implied Waiver of Confrontation Rights at Subsequent Criminal Trial

The Confrontation Clause of the Sixth Amendment generally guarantees a criminal defendant the right to confront and cross-examine his accusers in person. If a witness was available for an earlier trial or other proceeding and the defendant had an opportunity and motive to cross-examine the witness there, the witness testimony from the earlier proceeding may be admitted at a later criminal trial without offending the Confrontation Clause if the witness is unavailable at the time of trial. We have known for some time that this “prior opportunity for cross-examination” can be met at various stages of a criminal proceeding. See State v. Rollins, 226 N.C. App. 129 (2013) (testimony from plea hearing provided prior opportunity for cross); State v. Ross, 216 N.C. App. 337 (2011) (same for testimony at probable cause hearing); State v. Ramirez, (2003) (same for testimony at bond hearing, although the case was decided under hearsay rules and not expressly as a confrontation issue); State v. Chandler, 324 N.C. 172 (1989) (same for testimony from a prior trial); State v. Giles, 83 N.C. App. 487 (1986) (same for testimony from a juvenile transfer hearing). In all those cases, though, the defendant was present at the earlier proceeding, was represented by counsel, and the earlier proceedings could naturally be viewed as a part of the underlying criminal case. In State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (2022), the Court of Appeals expands the concept of prior opportunity to cross to a civil hearing where the defendant did not attend the hearing and was not entitled to counsel. Read on for the details.

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Fall 2022 Cannabis Update

It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.

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Additions and Amendments to Organized Retail Theft Laws

The North Carolina General Assembly recently passed S.L. 2022-30 (S 766) which increases the penalties for organized retail theft, provides additional penalties for damage to property or assault of a person during the commission of organized retail theft, and clarifies the procedure for the return of seized property to the lawful owner. The new criminal provisions go into effect on December 1, 2022 and apply to offenses committed on or after that date.

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