Don’t Look a Gift Horse in the Mouth

As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to overcome Crawford with respect to a lab report because the preparer is (choose one): dead, retired and has moved away, on National Guard duty in Afghanistan, or scheduled for a C-section. Here’s how the typical conversation goes:

ME:                       Did you give notice under the notice and demand statute?

PROSECUTOR:    What notice and demand statute?

The failure to take advantage of these statutes is so pervasive that a recent criminal case went all the way up the N.C. Supreme Court before the State realized it had neglected to argue notice and demand. In that recent case–State v. Jones–the N.C. Court of Appeals issued an opinion awarding the defendant a new trial in part because the trial court committed plain error by admitting a SBI crime lab report into evidence without testimony by the analyst. The court reasoned that the report was testimonial and its admission violated Crawford. The State then filed petitions for writ of supersedeas and discretionary review with the N.C. Supreme Court, arguing that the court of appeals erred by ordering a new trial. After the Court granted the petitions, the State filed a motion to amend the record on appeal to include a copy of the SBI report and a copy of the notice given under the applicable notice and demand statute. These documents weren’t in the record filed in the court of appeals and the State didn’t argue notice and demand in its original brief. The Court granted the motion to amend the record and remanded the case for reconsideration in light of the amended record. On the second go-around the court of appeals easily disposed of the case: the State gave proper notice; the defendant never objected; the confrontation issue was waived.

The General Assembly gave the State a gift when it enacted new and amended existing notice and demand statutes after Melendez-Diaz. Again, these statutes provide a vehicle for obtaining a constitutional waiver of confrontation rights. But prosecutors have to open the gift to realize its benefits. As a refresher, here’s a cheat sheet of North Carolina’s seven notice and demand statutes: