blank

Sherlock Holmes and Modern Forensics

My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet?

Read more

blank

UNC vs. UK in London!

It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points.

Read more

blank

State v. Osborne: Another Wrinkle in Drug ID

Back in February, I blogged about State v. Bridges, ___ N.C. App. ___, 810 S.E.2d 365 (Feb. 6, 2018), and drug identification. In short, Bridges held that the defendant’s out-of-court admission to an officer that a substance was “meth” was sufficient to meet the State’s burden of proving the identity of the substance, at least where the defendant failed to object to the testimony. This decision arguably signified an expansion of the Nabors exception to the Ward rule that a chemical analysis is generally required to establish drug identity (subject to other exceptions covered in the post). For a more thorough review of the topic, see that previous post. The Court of Appeals recently decided another drug ID case, State v. Osborne, ___ N.C. App. ___ (October 2, 2018), adding a new wrinkle to the rules.

Read more

blank

Triple Testimony: Expert Witness, Fact Witness, and Lay Opinion

Like most of the rest of the country, I followed the recent confirmation hearings for Judge (now Justice) Kavanaugh with great interest.

As the readers of this blog already know, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Judge Kavanaugh sexually assaulted her in high school. Much of her testimony recounted her recollection of that event, but some of her testimony was of a different nature. In addition to telling the Committee what she recalled, Dr. Ford also described the biological and chemical processes of memory itself, such as the way that neurotransmitters encode memories into the hippocampus.

In other words, Dr. Ford testified in dual roles: she was both a fact witness and a de facto expert witness.

Most of us will never participate in a Supreme Court confirmation hearing, but a similar type of dual testimony can arise in criminal trials in state court, and it raises some interesting issues.

Read more

blank

May the State Rely on an ACIS Printout to Prove Habitual Felon Status?

A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.

In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.

Read more

blank

Does a Stipulation to Lab Results Waive Confrontation Rights?

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.

Read more

blank

Who Goes Last?

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.

Read more

blank

New NC Case on Testimonial Nature of Victim’s Statements to Officers

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:

Read more

blank

N.C. Supreme Court Issues New Rule 412 Opinion

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.

Read more

blank

DNA Test Results: Probability vs. Fallacy

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.

Read more