Search search/retroactivity: retroactivity

My colleagues have covered the retroactivity rules many times before on the blog but the analysis for determining the retroactivity of new federal rules has changed in the last few years. Considering that and the recent Confrontation Clause rule for substitute analyst testimony announced in Smith v. Arizona, 602 U.S. ___; 144 S.Ct. 1785 (2024) (summarized here), an update is in order. Today’s post reviews the federal retroactivity analysis and examines how it may be applied to Smith. Read on for the details.

On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it.

Last month the U.S. Supreme Court held that under the Fourth Amendment to the U.S. Constitution, officers can’t search a cell phone as a search incident to arrest. Riley v. […]

Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided […]

On June 1, 2010, the N.C. Court of Appeals applied Arizona v. Gant in State v. Johnson and held that the defendant’s Fourth Amendment rights were violated when the police […]

In my last post on this topic, I addressed the “new rule” prong of Teague retroactivity analysis as it applies to Melendez-Diaz. I ended that post by noting that another […]

Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), decided by the United States Supreme Court last month, already has had significant implications for criminal prosecutions in North […]

The fallout from the Supreme Court’s recent decision in Arizona v. Gant, see my initial post here, has been fast and furious.  Most questions I’ve received have been about how […]

My colleagues have been blogging about some of the changes to our criminal law wrought by recent legislation. Session Law 2025-70 also amends G.S. 15A-1415, which governs the grounds that a defendant may assert by motion for appropriate relief (MAR), and establishes limitations as to time. Whereas the statute previously listed grounds that a defendant may assert by MAR at any time after the verdict, the recent amendments create a seven-year limit on most noncapital MARs. This post addresses the changes to G.S. 15A-1415 (effective Dec. 1, 2025).

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 derives from the evidentiary rule that an expert is allowed to rely on otherwise 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.