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.

Facts. State v. Perez, ___ N.C. App. ___ (July 3, 2018) involved a Guilford County prosecution for multiple counts of trafficking cocaine over 400 grams. The defendant did not speak English and needed an interpreter for trial. Before trial began, the prosecution and defense agreed to stipulate to the admissibility of three Drug Enforcement Agency reports. One report noted the lack of any fingerprints on the bricks of cocaine; the other two established the (considerable) weight of two batches of drugs. The lawyers had apparently already signed the stipulations, and the defendant signed a hand-drawn signature line on the document the morning of trial. The defendant’s interpreter had been sworn and was present in the courtroom when this occurred, and the defendant did not ask any questions about the stipulation. The trial judge did not personally conduct any kind of colloquy with the defendant about the stipulations or its impact on the defendant’s trial rights before accepting them. When the State moved to admit the stipulations at trial, the trial judge allowed the evidence without objection. The defendant was convicted and received three consecutive active sentences of 175-222 months (about 44 years).

Appeal. On appeal, the defendant complained that the trial judge should have engaged him in a colloquy to ensure he understood that the stipulation waived his confrontation and other rights, particularly in light of his inability to understand English. In addition to waiving the right to confront the analyst, the stipulations relieved the State of its burden to show both that the substance was cocaine and that it weighed over 400 grams, two elements of trafficking. This, the defendant argued, violated the defendant’s due process rights to have the State prove every element, to have a jury determine his guilt, and his right against self-incrimination, in addition to waiving his confrontation rights. Before accepting the stipulations and consequent waiver of the defendant’s constitutional rights, the trial judge should have determined that the waiver was knowing, intelligent, and voluntary.

Impact of State v. English. The defendant pointed to State v. English, 171 N.C. App. 277 (2005), in support of his argument. In English, the parties agreed that a lab report identifying the substance at issue as cocaine could be admitted without the testimony of the analyst. Before accepting the stipulation, the trial judge engaged in an extensive colloquy with the defendant. The court informed the defendant that he had the right to a trial by jury and the right to have each element proved beyond a reasonable doubt. The judge also confirmed that the defendant agreed with the stipulation, established that the stipulation was voluntarily given by the defendant, and confirmed that he understood the impact of the stipulation on the proceedings. On appeal, the English court rejected the defendant’s complaint that the admission of the stipulation violated his confrontation rights:

The trial court’s thorough inquiry ensured not only that the defendant stipulated to the contents of the lab report but also understood the nature of the question being put to him. Defendant clearly waived his Sixth Amendment right to confront the preparer of the laboratory report. English at 283-84.

In Perez, no colloquy whatsoever was conducted. The defendant argued that he was entitled to have the trial judge inform him of the nature and impact of the stipulations and establish that his waiver of rights was knowing and voluntary, as the trial judge had done in English.

No Colloquy by Trial Judge Required for Stipulations. The Court of Appeals in Perez disagreed. “The waiver of Confrontation Clause rights does not require the sort of extensive colloquy needed to waive the right to counsel or to enter a plea of guilty.” Perez slip op. at 5. The court agreed that the stipulations here operated to waive important constitutional rights of the defendant but declined to read English as mandating any sort of colloquy by the trial judge with the defendant regarding the stipulations:

We decline Perez’s request to impose on the trial courts an obligation ‘to personally address a defendant whose attorney seeks to waive any of his constitutional rights via stipulation with the State.’ If Perez did not understand the implications of stipulating to the admission of the lab reports at trial, his recourse is to pursue a motion for appropriate relief asserting ineffective assistance of counsel. Accordingly, we reject Perez’s argument and find no error in the trial court’s judgment. Id. at 6.

The court relied on a pre-Crawford North Carolina Supreme Court decision in support. In State v. Moore, 275 N.C. 198 (1969), the court determined that where the defendant and his three attorneys all signed a stipulation that operated to waive confrontation of a witness, no confrontation violation occurred. The Moore court did not discuss the need for any colloquy with the defendant.

Federal Cases. There is a split among federal courts on this issue. A majority of circuits have held that where defense counsel stipulates without objection from the defendant, the confrontation clause is not violated, a result consistent with Perez. In the 1st, 2d, 5th, 7th, 9th, and 10th circuits, it appears that counsel’s stipulation can waive confrontation rights, at least where the defendant doesn’t object and the stipulation can reasonably be viewed as a strategic decision. See, e.g., Janosky v. Amand, 594 F.3d 39 (1st Cir. 2010).

In contrast, in the 6th and 8th Circuits, the defendant must personally waive confrontation rights under the federal constitution. See Carter v. Sowders, 5 F.3d 975 (6th Cir. 1993); Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997). The Fourth Circuit has not directly answered the question, but where defense counsel stipulated to a lab report over the objection of the defendant, the Fourth Circuit found reversible error. U.S. v. Williams, 632 F.3d 129 (4th Cir. 2011). The court in Williams noted that in addition to a confrontation clause violation, “a stipulation may also be grounds for a violation of the defendant’s right to a jury.” Williams at 133, n.2.

Takeaway. Under Perez, the responsibility falls on defense counsel to ensure that the defendant fully understands the impact of any proposed stipulation and what rights are implicated. As the Perez court notes, there may be valid tactical reasons to stipulate in a given trial. However, the Fourth Circuit’s decision in Williams indicates that it would be error for the court to accept a stipulation over the defendant’s objection. That result seems consistent with our case law, which requires counsel to follow the client’s wishes if the attorney and client reach an absolute impasse even on tactical decisions. State v. Ali, 329 N.C. 394 (1991). Absent an objection from the defendant, however, a stipulation can waive confrontation and other important trial rights without the need for any inquiry from the trial judge.