North Carolina’s Notice and Demand Statute for Chemical Analyses in Drug Cases Is Constitutional

In Melendez-Diaz v. Massachussetts, the United States Supreme Court held that forensic laboratory reports—such as those identifying a substance as a controlled substance—are testimonial and subject to the new Crawford Confrontation Clause rule. For more detail on that decision, you can review a paper posted here. Under the Crawford rule, testimonial statements by declarants who do not testify at trial may not be admitted unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. The effect of the Melendez-Diaz decision is that absent an exception to the Crawford rule or a waiver of Confrontation Clause rights by a defendant, the prosecution must, as a general rule, produce a forensic analyst in order to overcome a Confrontation Clause objection to the admissibility of forensic laboratory reports. As to the waiver issue, Melendez-Diaz deemed constitutional “simple” notice and demand statutes. These statutes require the State to give notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he or she may object to the admission of the evidence absent the analyst’s appearance live at trial. Approving of these statutes, the Court noted that states are free to adopt procedural rules governing the time within which a defendant must assert a Confrontation Clause objection.

As I have detailed elsewhere, the North Carolina General Assembly responded to Melendez-Diaz by enacting S.L. 2009-473 (S. 252), modifying existing notice and demand statutes and enacting new ones. The law took effect October 1, 2009, and North Carolina now has seven notice and demand statutes, covering among other things, chemical analyst affidavits and chemical analyses in drug cases. In State v. Steele, decided on January 5, 2010, the North Carolina Court of Appeals held that the notice and demand statute in G.S. 90-95(g) for chemical analyses in drug cases, is a “simple” notice and demand statute and is constitutional. The current version of that statute provides that in certain circumstances, a forensic report is admissible, without the presence of the analyst, as evidence of the identity, nature, and quantity of matter analyzed. Specifically, the report may be admitted without testimony by the preparer if the State gives notice of such use 15 business days before the proceeding and the defendant fails to timely lodge an objection. Steele concluded that because the defendant had failed to object to introduction of the report without the presence of the preparer, he had waived his right to confront the analyst. It is worth noting that at issue in Steele was the pre-S.L. 2009-473 version of the statute. However, the 2009 amendments to G.S. 90-95(g) were relatively minor and arguably only further strengthen the constitutionality of the statute’s notice and demand procedure. Finally, Steele strongly suggests that North Carolina’s other “simple” notice and demand statutes will withstand constitutional scrutiny as well.

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