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.
Evidence
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.
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.
Biological Evidence in the Courtroom: Mandatory Judicial Inquiry
What comes to mind when you think about physical evidence that is also biological evidence? It might be a bloodstained shirt or the contents of a sexual assault examination kit. What about a bedspread or a laundry basket? How about a door or a phone booth? These are all items I have seen in evidence rooms across North Carolina in my work with the North Carolina Conference of Clerks of Superior Court on receiving, storing, and disposing of evidence. It is possible that each of these items meets the statutory definition of biological evidence. G.S. 15A-268 establishes that definition and provides explicit requirements around the preservation and disposal of biological evidence, including a specific inquiry into biological evidentiary value that courts must engage in each time physical evidence is offered or admitted into evidence in a criminal proceeding.
Business Records: Posts, Chats, and Texts
Several prior posts on this blog have addressed authenticating and admitting digital evidence like social media posts and text messages (see here, here, here, and here) and we’ve also previously covered the basic rules and requirements for using the business records hearsay exception (see here, here and here), but we’ve not yet explored the questions and issues that arise when those two topics collide.
For example, if the state obtains a complete copy of a suspect’s account records from Facebook, Twitter, or AT&T, including user-generated content such as messages, chats, texts, and posts, can that evidence be admitted as a business record? I recently had an opportunity to talk about digital evidence with prosecutors in several other states, and there are opposing views in different jurisdictions about the correct answer to this question. This post looks at the conflicting interpretations, the North Carolina guidance we have so far, and an interesting alternative approach.
New Guidance on Authenticating Social Media
Nearly half of the 7.7 billion people in the world are on social media, and each of those users has an average of 8 different accounts. The rate is even higher in the U.S., with around 70% of the population active on social media for an average of 2 hours every day. You can find more jaw-dropping statistics here.
Given these trends, it’s no surprise that social media evidence is showing up more frequently in criminal cases. A quick search for criminal cases mentioning the most common social media platforms brought up well over 100 North Carolina cases decided in the last decade, but only a few of those cases have directly analyzed the authentication requirements for this type of evidence. The Court of Appeals recent decision in State v. Clemons, __ N.C. App. __ (Dec. 1, 2020) provides some additional guidance in this important area.
Resurrecting the Good Faith Exception in North Carolina?
Conventional wisdom says that unlike the federal court system, we do not have a good faith exception under North Carolina law. Even though G.S. 15A-974 was amended in 2011 and now expressly provides for a statutory good faith exception, most practitioners agree that its use remains off limits under our state constitution unless and until State v. Carter is overruled.
If you had asked me a month ago, I would have confidently said “yep, that’s the law.” Today, I’m a little less sure. Two recent Court of Appeals decisions have renewed the question of whether Carter actually says what we think it does.
Case Summaries – North Carolina Court of Appeals (July 7, 2020)
This post summarizes published criminal opinions of the Court of Appeals decided on July 7, 2020.
Summer 2020 Hemp Update
On Thursday, June 4, 2020, the North Carolina General Assembly passed S.B. 315, referred to as the State Farm Bill, which was subsequently signed into law by the Governor. The bill was pending all last session and stalled, allegedly over a dispute about how to treat smokable hemp. As I understand it, the bill originally intended to clarify that hemp in all forms (including smokable hemp) was legal (here is an earlier version of the bill taking that approach). After hearing objections from law enforcement and prosecutors (as detailed in the SBI memo on the subject), the proposed bill was changed to ban smokable hemp and regulate the rest of the hemp industry in a variety of ways. When the bill was last being discussed in the news, the dispute at the General Assembly had apparently narrowed to when the smokable hemp ban was to kick in. But, the bill never passed last session, and we were without a Farm Bill until this month. So, what big changes does the bill have in store for hemp in North Carolina?
New Video Tech, Same Old Rules
My colleagues and predecessors here at the School of Government have written about video evidence many times over the years, summarizing the basic rules and significant cases in posts available here, here, here, here, and here.
Recently, though, I’ve been getting questions about a relatively new but increasingly common type of video evidence: high-tech, app-controlled, and remotely stored videos taken by automated devices ranging from doorbell cameras to wifi-enabled, cloud-connected, teddy bear spy cams. Do the old rules still work the same way for these new video tools? Is it substantive or illustrative evidence? If it’s substantive, how is it authenticated? Is a lay witness qualified to testify about how these cameras work? Does the proponent need the original video? Come to think of it, what is the “original” of a video that exists only as bits of data floating somewhere in the cloud…?