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U.S. Supreme Court Curtails Substitute Analyst Testimony

The U.S. Supreme Court recently decided Smith v. Arizona, 602 U.S. ___; 2024 WL 3074423 (June 21, 2024) (Kagan, J.). The case settled a lingering question in Sixth Amendment Confrontation Clause jurisprudence: Does the Confrontation Clause permit substitute analyst testimony?

Courts have been split on the question, with North Carolina and Arizona among the jurisdictions that have generally allowed this type of expert testimony. Substitute analyst testimony arises when the person who performed forensic testing for use in a criminal trial is not available to testify, and the prosecution uses a substitute expert—one who was not necessarily involved in the testing—to present an independent opinion based on the original analyst’s forensic report. This practice drives from the evidentiary rule that an expert is allowed to rely on inadmissible information when it is used to form the basis of the expert’s opinion. N.C. R. Evid. 703. The underlying forensic report is treated as non-hearsay, offered only as the basis of the testifying expert’s opinion, not as substantive evidence. Instead, it is the testifying analyst’s independent opinion that is admitted substantively, and the defendant is only entitled to cross-examine the testifying expert (and not the person who performed the testing). This practice does not offend the Confrontation Clause, the argument has gone, because only testimonial hearsay statements are covered by the Confrontation Clause. Since the underlying forensic report is not offered for its truth when used as the basis of opinion, it is not hearsay and does not implicate the Confrontation Clause. State v. Ortiz-Zape, 367 N.C. 1 (2013)

Not so, according to the U.S. Supreme Court. “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2. Smith thus overrules Ortiz-Zape and its progeny on this question, and represents a significant shift in state law. (If this topic sounds familiar, I wrote a blog post last year previewing the Smith case.) Today’s post examines the impact and reach of Smith in North Carolina and offers advice for defenders facing substitute analyst issues. Read on for the details.

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News Roundup

Back in May, it appeared that North Carolina lawmakers were moving toward a repeal of automatic expunctions of dismissed charges. However, in recent weeks, they have reversed course and a law providing for such expunctions was signed by the Governor this week. The law requires cases to be automatically expunged between six and seven months after all charges are dismissed. Expunged files are to be retained by the clerk and will be available to the person whose case was expunged as well as the district attorney. The new law incorporates recommendations of a committee tasked with addressing logistical problems that arose after the passage of a previous automatic expunction law.

Read on for more criminal law news.

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Fearrington v. City of Greenville:  North Carolina Supreme Court Reverses Court of Appeals and Upholds City’s Red Light Camera Enforcement Program as Constitutional

Two men fined in 2018 for failing to stop at red light camera locations in Greenville, NC filed declaratory judgment actions arguing that the program violated the Fines and Forfeitures Clause of the North Carolina Constitution because the local school board received less than the clear proceeds of the civil penalties the city collected. The Court of Appeals in Fearrington v. City of Greenville, 282 N.C. App. 218 (2022) (discussed here), agreed, concluding that the funding framework violated the state constitution. The North Carolina Supreme Court granted discretionary review and, in an opinion issued on May 23, 2024, reversed the court of appeals ruling on the constitutional issue. Fearrington v. City of Greenville, ___ N.C. ___, 900 S.E.2d 851 (2024).

This post will discuss red light camera programs, their relationship to the Fines and Forfeiture Clause, and the Supreme Court’s decision in Fearrington.

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Short Stop in the Short Session

The North Carolina General Assembly has temporarily adjourned for the short session, with plans to reconvene a few more times throughout the remainder of the year. So far in 2024, a handful of bills have been enacted that affect criminal law and procedure. One of these bills includes laws that have already taken effect, summarized in this post. Listed at the end of this post are brief highlights of other noteworthy enactments.

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2024 HIPAA Final Rule: The New Attestation Requirement

On June 25, 2024, changes to the HIPAA Privacy Rule aimed at supporting reproductive health care privacy went into effect. Last week, I published a blog post about these changes, including the creation of three new types of prohibited uses and disclosures of protected health information (PHI). This post addresses another major change to the law: a new attestation requirement that applies to four types of uses and disclosures when the PHI at issue is “potentially related” to reproductive health care. It’s not just covered entities and business associates that need to understand this new requirement- judicial officials, law enforcement, health oversight agencies, and medical examiners who frequently request PHI to carry out their official duties will likely encounter situations that require them to comply with the new attestation requirement, too.

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Child Advocacy Centers, Child Medical Evaluations, and Multidisciplinary Team Information Sharing: New Law in Effect as of July 1

Across North Carolina, there are 55 child advocacy centers (CACs) providing services to children who have experienced maltreatment, including physical or sexual abuse.  Local law enforcement agencies and county departments of social services often coordinate with CACs to conduct child medical evaluations and forensic interviews in investigations of child maltreatment. On July 1, 2024, a … Read more

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News Roundup

Last week, Louisiana became the first state to allow surgical castration as punishment for sex crimes against children. Effective August 1, the legislation gives Louisiana judges the option to sentence someone to surgical castration after the person has been convicted of certain aggravated sex crimes — including rape, incest and molestation — against a child under 13. The punishment is not a mandatory one, and a judge will be able to order the punishment at his or her discretion.

According to this AP article, a handful of states, including Louisiana, California, Florida and Texas, have laws allowing for chemical castration for those guilty of certain sex crimes. In some of those states, offenders can instead opt for the surgical procedure, but no other state allows judges to impose surgical castration outright. Chemical castration uses medications that block testosterone production to decrease sex drive. Surgical castration is a much more invasive procedure that involves the removal of both testicles or ovaries.

Proponents of the law hope the new possible punishment will deter people from committing sex crimes against children. Opponents argue that it is “cruel and unusual” punishment in violation of the U.S. Constitution and that it is sure to face legal challenges.

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The Court’s Obligation to Determine Disposition in a Delinquency Matter

Is the court bound to order a certain disposition in a delinquency matter when the juvenile and the prosecutor agree to that disposition as part of an agreement? The short answer is no. The Juvenile Code requires the court to engage in certain procedures, to consider certain factors, and to order disposition in accord with certain parameters when developing and ordering a delinquency disposition. The mandates on the court cannot be delegated to the parties and they are not optional. This post describes these mandates and explores the implications for dispositional outcomes that are agreed upon by the juvenile and the prosecutor.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part III, How to Handle the Video

This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video.

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News Roundup

The biggest story in criminal law this week was undoubtedly the arrest of Justin Timberlake, former member of The Mickey Mouse Club and NSYNC, on charges of driving while intoxicated. A police officer in Sag Harbor, New York, reportedly observed a gray 2025 BMW run a stop sign, and when the officer pulled the car over, he found the Prince of Pop Justin Timberlake (the title is shared with Justin Bieber and Bruno Mars) behind the wheel. According to the arrest report filed Tuesday, Timberlake had bloodshot eyes and a strong odor of alcohol on his breath and was unsteady on his feet. He performed poorly on field sobriety tests. NBC News reports that Timberlake told the officer he had one martini. His wife Jessica Biel is reportedly not happy about her husband’s arrest.

Read on for more criminal law news.

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