When Can the State Use Testimony from the Probable Cause Hearing at Trial?

My colleague, Phil Dixon, blogged about the Court of Appeals’ decision in State v. Joyner, 284 N.C. App. 681 (2022), here. In Joyner, the court ruled that the State did not run afoul of the Confrontation Clause when it introduced the victim’s testimony from a civil 50C hearing at the defendant’s criminal trial. Last year, the court decided State v. Smith, 287 N.C. App. 614 (2023) (unpublished), a case that provides an interesting counterpoint to Joyner. In Smith, the State recorded the victim’s testimony from the probable cause hearing in district court and moved to admit the testimony at trial in superior court after the victim became unavailable. The trial court admitted the testimony, but the Court of Appeals reversed. It ruled that the opportunity to cross-examine the victim at the probable cause hearing was not “adequate” to comport with constitutional requirements, vacated the convictions for first-degree kidnapping and human trafficking, and ordered a new trial.

Although the opinion is unpublished, the State did not seek further review, and the Smith decision has important implications for practitioners. This post examines those issues and offers advice for defenders when the State attempts to introduce recorded testimony from a probable cause hearing at trial.

Read more

blank

Substitute Analyst Testimony and Smith v. Arizona

I mentioned in a recent News Roundup that the U.S. Supreme Court granted review in Smith v. Arizona. The case tees up a question that has been lingering since at least 2012: Does the Confrontation Clause permit the admission of substitute forensic analyst testimony? This issue arises when a forensic report is prepared for use in a criminal case, but the testing analyst is not available for trial. Instead of admitting the report through the original analyst, the State calls a different expert—one not necessarily involved in the original testing—to offer an opinion about the accuracy of the report. North Carolina generally allows such testimony, but there is a split among jurisdictions on the issue. Smith has the potential to alter the legal landscape here and elsewhere regarding the use of substitute analyst testimony, so today’s post dives into the legal issues and potential impact of the case.

Read more

blank

How Does the Confrontation Clause Impact the Introduction of a Defendant’s Medical Records in a DWI Trial?

Two weeks ago, I wrote about the foundational requirements for introducing a defendant’s medical records in a DWI trial. Soon after I posted, a reader asked whether introducing those records through an affidavit from a records custodian violates a defendant’s Sixth Amendment right to confront witnesses against him or her. My answer is, generally speaking, no.

Read more

blank

Failure to Appear at Civil No-Contact Hearing Was a Prior Opportunity for Cross-Examination and Constituted an Implied Waiver of Confrontation Rights at Subsequent Criminal Trial

The Confrontation Clause of the Sixth Amendment generally guarantees a criminal defendant the right to confront and cross-examine his accusers in person. If a witness was available for an earlier trial or other proceeding and the defendant had an opportunity and motive to cross-examine the witness there, the witness testimony from the earlier proceeding may be admitted at a later criminal trial without offending the Confrontation Clause if the witness is unavailable at the time of trial. We have known for some time that this “prior opportunity for cross-examination” can be met at various stages of a criminal proceeding. See State v. Rollins, 226 N.C. App. 129 (2013) (testimony from plea hearing provided prior opportunity for cross); State v. Ross, 216 N.C. App. 337 (2011) (same for testimony at probable cause hearing); State v. Ramirez, (2003) (same for testimony at bond hearing, although the case was decided under hearsay rules and not expressly as a confrontation issue); State v. Chandler, 324 N.C. 172 (1989) (same for testimony from a prior trial); State v. Giles, 83 N.C. App. 487 (1986) (same for testimony from a juvenile transfer hearing). In all those cases, though, the defendant was present at the earlier proceeding, was represented by counsel, and the earlier proceedings could naturally be viewed as a part of the underlying criminal case. In State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (2022), the Court of Appeals expands the concept of prior opportunity to cross to a civil hearing where the defendant did not attend the hearing and was not entitled to counsel. Read on for the details.

Read more

blank

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.

Read more

blank

COVID-19 and the Use of Masks by Testifying Witnesses in Criminal Trials

As jury trials resume across the state, many criminal courts will soon confront the issue of whether to permit State’s witnesses to wear masks while testifying. CDC guidance suggests that there can be substantial health risks to allowing unmasked testimony in the confines of a courtroom, but as I explore below, the allowance of masked testimony presents its own significant constitutional risks.

Read more

blank

New NC Case on Testimonial Nature of Victim’s Statements to Officers

Under the Crawford Confrontation Clause rule, testimonial statements by witnesses who aren’t subject to cross-examination at trial can’t be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. Smith, A Guide to Crawford and the Confrontation Clause, in NC Superior Court Judges Benchbook (UNC School of Government Aug. 2015). In the Davis case, the US Supreme Court set out a two-part rule for determining whether or not statements are testimonial for purposes of the Confrontation Clause:

Read more

blank

Summer Confrontation Clause Cases

This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.

Read more

blank

Does Crawford Apply in Pretrial Proceedings?

A caller recently asked me: Does Crawford apply at pretrial proceedings, such as suppression hearings and hearing on motions in limine? Neither Crawford nor any of the Court’s subsequent cases provide an answer for this simple reason: in all of the cases to reach the high Court, the defendant was challenging evidence admitted at the … Read more

blank

 Ohio v. Clark: What Does It Mean for Child Protective Services?

[Editor’s note: This post was originally published on the SOG’s civil law blog, On the Civil Side. Nonetheless, given its coverage of Confrontation Clause issues arising from a criminal case, we thought that it would be of interest to many of our readers.]

Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services?

Read more