Remote Testimony by Lab Analysts Authorized in District Court Prosecutions – Even Without Defendants’ Consent

The United States Supreme Court held in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that sworn forensic reports prepared by laboratory analysts for purposes of prosecution are testimonial statements, rendering their authors – the analysts – witnesses for purposes of the Sixth Amendment. A defendant has the right to be confronted with such a witness at trial, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. The upshot is that the State generally may not introduce these kinds of forensic reports in a criminal trial without calling the analyst to testify in person.

Since 2014, G.S. 15A-1225.3 and G.S. 20-139.1 have permitted forensic and chemical analysts to testify remotely in a criminal or juvenile proceeding via a means that allows the trier of fact and the parties to observe the analyst’s demeanor in a similar manner as if the analyst were testifying in the location where the hearing or trial is being conducted. Both statutes, however, have permitted such remote testimony only in circumstances in which the defendant fails to object to the analyst testifying remotely, thereby waiving the right to face-to-face confrontation.

This legislative session, the General Assembly amended G.S. 15A-1225.3 and G.S. 20-139.1 to authorize remote testimony by analysts in district court criminal proceedings regardless of whether the defendant objects.

These amendments become effective January 1, 2022 for criminal proceedings beginning on or after that date.

Forensic analysts. Section 16.17 of S.L. 2021-180 (S 105), the 2021 Appropriations Act, enacts new G.S. 15A-1225.3(b1), which provides that a forensic analyst may testify remotely in any criminal hearing or trial in district court if: (1) The State has provided a copy of the analyst’s report to the defendant’s attorney of record or to the defendant if he or she is unrepresented; and (2) the State notifies the defendant’s attorney or the unrepresented defendant at least 15 business days before the proceeding at which the evidence would be used of its intention to introduce the testimony regarding the results of forensic testing into evidence using remote testimony in real time. If these procedures are followed, the testimony of each person in the associated chain of custody also may be provided remotely.

Chemical analysts. S.L. 2021-180 also enacts new G.S. 20-139.1(c6), which permits a laboratory analyst to testify remotely in a district court proceeding regarding the results of a chemical analysis of blood or urine reported by the analyst if two conditions are met. First, the State has provided a copy of the analyst’s report to the defendant’s attorney of record or to the defendant if he or she is unrepresented. Second, the State has notified the defendant’s attorney or the unrepresented defendant at least 15 business days before the proceeding at which the evidence would be used of its intention to introduce remote testimony regarding the chemical analysis. If these procedures are followed, the testimony of each person in the associated chain of custody also may be provided remotely.

Both statutes require that the method used for remote testimony permit the trier of fact and all parties to observer the demeanor of the remote witness in a similar manner as if the witness were testifying in person. The court must ensure that the defendant’s attorney or an unrepresented defendant has a full and fair opportunity to examine and cross-examine the witness.

The rationale. The legislature made fifteen findings in support of the change. The General Assembly first noted that defendants were entitled to court proceedings without undue delay – a right that is jeopardized by “perpetual district court backlog,” a problem that in turn has been exacerbated by the pandemic. Next, the legislature characterized district court as functioning “essentially as a preliminary proceeding” to ensure that criminal cases are not unreasonably delayed as they would be if district courts did not exist. The legislature then reviewed a defendant’s right to appeal for trial de novo before a jury in superior court as contrasted with the State’s inability to appeal from a district court acquittal. The General Assembly opined that “[s]imultaneous, two-way audio and video remote testimony in real time . . . allows a defendant to observe and cross-examine a witness” and permits the district court judge to weigh the credibility and veracity of the witness’s testimony. In addition, the legislature noted that forensic and chemical analysts were not responsible for initiating criminal prosecutions. And, for their part, chain of custody witnesses are merely testifying about performing a ministerial function in the course of their work.

Constitutional concerns. Whether this new statutory scheme adequately protects a defendant’s right to confront the witnesses against him or her is almost sure to be litigated. As previously noted, the legislature made numerous findings in support of its view that the procedures satisfy constitutional requirements. Those findings, while relevant, do not definitively resolve the question of the measure’s constitutionality. See Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289 (2012) (stating that “[a]lthough the legislative findings and declaration of policy have no magical quality to make valid that which is invalid, and are subject to judicial review, they are entitled to weight in construing the statute” (internal citations omitted)).

North Carolina’s appellate courts have recognized exceptions to a defendant’s right to face-to-face confrontation in at least two contexts: (1) permitting child witnesses to testify about abuse in criminal trials out of the presence of their alleged abusers, who could watch the testimony live on closed circuit television, see, e.g., State v. Lanford, 225 N.C. App. 189 (2013), and (2) permitting a seriously ill witness who was unable to travel to North Carolina to testify from another state via live closed-circuit web broadcast, see State v. Seelig, 226 N.C. App. 147 (2013). They have not considered whether testimony from laboratory analysts categorically may be provided via remote procedures. Cf. State v. Rogerson, 855 N.W.2d 495, 496 (Iowa 2014) (holding that the trial court erred in permitting two-way videoconference testimony from witnesses, including lab technicians, in the defendant’s impaired driving trial absent a showing of necessity to further an important public interest); State v. Smith, 308 P.3d 135 (N.M. App. 2013) (district court erred in permitting an analyst from the state’s laboratory to testify at trial via video conference as to the conduct and results of a blood test because it did not establish the requisite necessity for allowing video testimony rather than live testimony). Nor have they considered, post-Crawford v. Washington, 541 U.S. 35 (2004), whether the right to appeal for trial de novo permits the State to initially prosecute a defendant in a forum that does not afford the full right to face-to-face confrontation. Cf. State v. Smith, 312 N.C. 361 (1984) (reasoning that that any constitutional right the defendant had to confront the chemical analyst who conducted a breath test was guaranteed during the de novo trial on appeal to Superior Court “which offers the second factfinding opportunity in the continuous proceeding provided by our two-tier court system”; upholding as constitutional statutory provision that allowed introduction of chemical analyst’s affidavit without live testimony from analyst). Utilization of the newly authorized remote testimony procedures for analysts will tee up both issues.