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.
Tag Archives: confrontation clause
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: Continue reading →
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. Continue reading →
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 actual criminal trial. Nor do we have a North Carolina post-Crawford published case on point. However, a look at post-Crawford published cases from other jurisdictions shows that the overwhelming weight of authority holds that Crawford doesn’t apply in pretrial proceedings. In fact, there appears to be just one published case applying Crawford to such proceedings. Here are the cases:
Proceedings to determine probable cause
Peterson v. California, 604 F.3d 1166, 1169-70 (9th Cir. 2010) (in this §1983 case the court held that Crawford does not apply in a pretrial probable cause determination; “[T]he United States Supreme Court has repeatedly stated that the right to confrontation is basically a trial right.”); State v. Lopez, 314 P.3d 236, 237, 239 (N.M. 2013) (same; “The United States Supreme Court consistently has interpreted confrontation as a right that attaches at the criminal trial, and not before.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005 (Nev. 2006) (same); State v. Timmerman, 218 P.3d 590, 593-594 (Utah 2009) (same); State v. Leshay, 213 P.3d 1071, 1074-76 (Kan. 2009) (same); State v. O’Brien, 850 N.W.2d 8, 16-18 (Wis. 2014) (same); Gresham v. Edwards, 644 S.E.2d 122, 123-24 (Ga. 2007) (same), overruled on other grounds, Brown v. Crawford, 715 S.E.2d 132 (Ga. 2011); Com v. Ricker, __ A.3d __, 2015 WL 4381095 (Pa. Super. Ct. July 17, 2015) (same).
Notwithstanding this authority, it’s worthwhile to note that in North Carolina, while Evidence Rule 1101(b) provides that the rules of evidence, other than with respect to privileges, do not apply to probable cause hearings, the criminal statutes limit the use of hearsay evidence at those hearings. Specifically, G.S. 15A-611(b) provides that subject to two exceptions, “[t]he State must by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule, show that there is probable cause to believe that the offense charged has been committed and that there is probable cause to believe that the defendant committed it.” The two exceptions are for (1) reports by experts or technicians and (2) certain categories of reliable hearsay, such as that to prove value or ownership of property. Id. at (b)(1) & (2).
State v. Rivera, 192 P.3d 1213, 1214, 1215-18 (N.M. 2008) (confrontation rights “do not extend to pretrial hearings on a motion to suppress”); State v. Woinarowicz, 720 N.W.2d 635, 640-41 (N.D. 2006) (same); Oakes v. Com., 320 S.W.3d 50, 55-56 (Ky. 2010) (same); State v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App. 2010) (same); State v. Williams, 960 A.2d 805, 820 (N.J. Super. Ct. App. Div. 2008) (same), aff’d on other grounds, 2013 WL 5808965 (N.J. Super. Ct. App. Div. Oct. 30, 2013) (unpublished); People v. Brink, 818 N.Y.S.2d 374, 374 (N.Y. App. Div. 2006) (same); People v. Felder, 129 P.3d 1072, 1073-74 (Colo. App. 2005) (same); Vanmeter v. State, 165 S.W.3d 68, 69-75 (Tex. App. 2005) (same); Ford v. State, 268 S.W.3d 620, 621 (Tex. App. 2008), rev’d on other grounds, 305 S.W.3d 530 (Tex. Crim. App. 2009).
Preliminary hearings on the admissibility of evidence
United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (Crawford does not apply to a pretrial hearing on the admissibility of evidence at trial; at the pretrial hearing, grand jury testimony was used to authenticate certain business records); State v. Daly, 775 N.W.2d 47, 66 (Neb. 2009) (same; Daubert hearing).
Pretrial release & detention determinations
United States v. Hernandez, 778 F. Supp. 2d 1211, 1219-27 (D.N.M. 2011) (confrontation clause does not apply at a pretrial detention hearing; “[T]he Supreme Court has consistently held that the Sixth Amendment is a trial right . . . .”); United States v. Bibbs, 488 F. Supp.2d 925, 925-26 (N.D. Cal. 2007) (“Nothing in Crawford requires or even suggests that it be applied to a detention hearing under the Bail Reform Act, which has never been considered to be part of the trial.”); Godwin v. Johnson, 957 So. 2d 39, 39-40 (Fla. Dist. Ct. App. 2007) (“The confrontation clause of the Sixth Amendment expressly applies in ‘criminal prosecutions.’ . . . [T]his does not include proceedings on the issue of pretrial release.”)
Proceedings to determine jurisdiction under federal law
United States v. Campbell, 743 F.3d 802, 804, 806-08 (11th Cir. 2014) (holding that Crawford does not apply to a pretrial determination of jurisdiction under the Maritime Drug Law Enforcement Act; “[T]he Supreme Court has never extended the reach of the Confrontation Clause beyond the confines of a trial.”); United States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011) (same).
The only contrary authority that I found in the published case law is one Texas decision, that creates a split among sister courts on the issue. See Curry v. State, 228 S.W.3d 292, 296-298 (Tex. App. 2007) (disagreeing with Vanmeter, cited above, and holding that the confrontation clause applies at pretrial suppression hearings). If you know of other law on point, please chime in!
[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? Continue reading →
On June 18th the U.S. Supreme Court decided Ohio v. Clark, 576 U.S. __, 135 S. Ct. 2173 (2015), holding that a child abuse victim’s statements to his preschool teachers were non-testimonial under the Crawford confrontation clause analysis. As the first Crawford case addressing statements by a child victim, Clark is an important decision for child abuse prosecutions. Also, because it’s the Court’s first case assessing the testimonial nature of statements made to persons other than the police or their agents, it has broader significance for the Crawford analysis. Continue reading →
In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions. Continue reading →
Mumford & Sons has a song called Hopeless Wanderer. When it comes to substitute analysts and the confrontation clause, that song title sums me up, and maybe you as well.
Anyone who practices criminal law knows that Confrontation Clause issues have been a big deal ever since the United States Supreme Court handed down its regime changing Crawford decision in 2004. Crawford v. Washington, 541 U.S. 36 (2004). For prosecutors, another hammer came down in 2009 when the Court said, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), that forensic reports were testimonial and covered by the new Crawford rule. Since then prosecutors have tried a variety of techniques for introducing forensic reports when the preparing analyst isn’t available for trial, with the most common being use of a substitute analyst. While we hoped for a definitive ruling on the constitutionality of that practice when the Supreme Court took up the Williams case, the Court stuck a big fat pin in our hope balloon when it finally issued its decision. As I discuss in detail here, while the decision affirmed a conviction involving use of a substitute analyst at trial, Williams was a fractured opinion in which no rationale garnered five votes. Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221 (2012). It thus left judges and litigants largely in the dark about the constitutionality of substitute analyst testimony. As I explain here, in July of 2013, the North Carolina Supreme Court issued several post-Williams decisions. Those decisions gave the OK to substitute analyst testimony, provided the expert testifies to an independent opinion based on information reasonably relied upon by experts in the field. Cert petitions were filed in two of those cases, and in ten others from around the country dealing with similar issues. Sadly for us, the United States Supreme Court recently denied cert in all but one of those cases. They include:
- Arauz v. California (No. 13-9118)
- Brewington v. North Carolina (No. 13-504)
- Edwards v. California (No. 13-8618)
- Galloway v. Mississippi (No. 13-761)
- Marshall v. Colorado (No. 13-7768)
- Maxwell v. United States (No. 13-7394)
- Ortiz-Zape v. North Carolina (No. 13-633)
- Turner v. United States (No. 13-127)
- Walker v. Wisconsin (No. 13-8743)
- Williams v. Massachusetts (No. 13-9330)
- Yohe v. Pennsylvania (No. 13-885)
A conference on the one remaining case–Derr v. Maryland (No. 13-637)–is set for June 5th. The question presented in that case is:
Whether the Sixth Amendment permits the State’s expert witness to present to a jury the results of forensic tests that she neither performed nor witnessed as substantive evidence to support her conclusion that Petitioner was the source of DNA evidence, when the State does not call the analysts who performed the tests as witnesses or show that they are unavailable and previously subject to cross-examination?
Maybe we’ll get lucky and the Court will grant cert in Derr. But hope seems to be fading that we’ll get clarification soon. Meanwhile, prosecutors, courts and legislatures continue to struggle with pressures created by Melendez-Diaz. Just one example of how they’re struggling to deal with this is the recent bill introduced in North Carolina that would enact a notice and demand statute for remote testimony by forensic analysts. If you’re interested, the bill is here. And my paper on the constitutionality of remote testimony generally is here.
Stay tuned. I’ll keep you updated as things develop.
If you’re on my listserv, you know that the NC Supreme Court recently issued several confrontation clause decisions, all dealing with substitute analysts (if you’re not on my listserv, you can sign up here for my case summaries). I’ve previously written (here) about Williams v. Illinois, the US Supreme Court’s most recent confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it left judges and litigants largely in the dark about the constitutionality of substitute analyst testimony. And this is a big deal. In a state as geographically large as NC and in tough budget times, getting the testing analyst to court is no easy matter, and in some cases impossible. In its most recent decisions the NC Supreme Court weighed in, with prosecution-pleasing results. Below I summarize my main take-away points from these cases. But here’s a cautionary note: While these cases are the law in NC, the final word from the US Supreme Court is still to come. Smart defenders will make objections at trial, thus preserving the issue.
1. Substitute analyst testimony is OK if the expert testifies to an independent opinion based on information reasonably relied upon by experts in the field. This was the holding of State v. Ortiz-Zape, __ N.C. __ (June 27, 2013), a cocaine drug case. Over the defendant’s objection, the trial court allowed the State’s expert witness, Tracey Ray of the CMPD crime lab to testify about the lab’s practices and procedures, her review of the testing in the case, and her opinion that the substance at issue was cocaine. Ray was not involved in the actual testing of the substance at issue; her opinion was based on tests done by a non-testifying analyst. The trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The NC Supreme Court upheld the conviction, finding that no confrontation clause violation occurred. It explained:
[W]hen an expert gives an opinion, [i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence. Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert.
Ortiz-Zape, slip op. at 12-13 (quotations and citations omitted). State v. Brewington, __ N.C. __ (June 27, 2013), another cocaine case, followed Ortiz-Zape and found no error where the testifying expert gave an independent opinion. A third decision, State v. Hurt, __ N.C. __ (June 27, 2013), applied Ortiz-Zape to a case involving substitute analysts in serology and DNA.
2. The State must lay a proper foundation for substitute analyst testimony. The Ortiz-Zape court found that the prosecutor had laid a proper foundation for Ray’s testimony. Specifically, that the information she relied upon—the tests done by the non-testifying analyst—was reasonably relied upon by experts in the field and that Ray was asserting her own independent opinion. Ortiz-Zape, slip op. at 18. In a footnote it elaborated on the foundational requirements: “[W]e suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule of Evidence 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Ortiz-Zape, slip op. at 19 n.3.
3. “Surrogate” testimony isn’t OK. This was the holding of State v. Craven, __ N.C. __ (June 27, 2013), another cocaine drug prosecution. In that case, the testifying expert was asked whether she agreed with non-testifying analysts’ conclusions in two lab reports. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. In Craven the court concluded that the substitute analyst did not offer an independent opinion regarding the identity of the substance but rather was merely a surrogate who “parroted” the conclusions of the non-testifying analysts. Craven, slip op. at 8. This, the court held, is impermissible. See also Ortiz-Zape, slip op. at 13 (expert must present an independent opinion and “not merely ‘surrogate testimony’ parroting otherwise inadmissible statements”); Brewington, slip op. at 5 (expert gave an independent opinion, not “mere surrogate testimony”).
4. A defendant’s admission that the substance is a controlled substance may be sufficient evidence for conviction. This conclusion is suggested by two of the cases. First, in State v. Williams, __ N.C. __ (June 27, 2013), a cocaine drug case, the court held that even if a confrontation clause error occurred with regard to the substitute analyst’s testimony, it was harmless beyond a reasonable doubt because the defendant testified that the substance at issue was cocaine. Slip op. at 8. In Ortiz-Zape, the court found that any possible confrontation error was harmless, noting in part that the defendant told the arresting officer that the substance was cocaine. Ortiz-Zape, slip op. at 21. In retrospect, the court’s decision in State v. Nabors (discussed here) may have hinted at this result.
5. “Machine-generated” raw data likely will be non-testimonial. The Ortiz-Zape court stated in dicta that “machine-generated raw data,” such as a printout from a gas chromatograph, is non-testimonial. Ortiz-Zape, slip op. at 14. As a result, the court suggested, if such data is reasonably relied upon by experts in the field, this information may be disclosed at trial. Id. at 15. Note however that a non-testifying analyst’s opinion based on machine-generated data is testimonial. Craven, slip op. at 8. Thus while the raw data may be admissible, the non-testifying analyst’s conclusion based on that data is not. Id.
Those are my main take away points. If you have others, please weigh in.
Rule 45. This rule surprised me. Before I learned about it, I assumed that when a party sought to introduce hospital medical records at trial, a records custodian appeared in court to testify that the records met the requirements for the business records hearsay exception. Turns out, however, that because of this rule, custodians of hospital medical records, unlike custodians of other types of business records do not routinely have to appear in court to authenticate such records or establish the hearsay exception.
Subsection (c)(2) of Rule 45 of the North Carolina Rules of Civil Procedure permits the custodian of hospital medical records that are the subject of a subpoena to tender along with the records an affidavit “testifying that the copies are true and correct copies and that the records were made and kept in the regular course of business.” The rule further provides that “[a]ny original or certified copy of records or an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall be admissible in any action or proceeding without further certification or authentication.” See also G.S. 8-44.1 (providing that hospital medical records “shall not be held inadmissible . . . on the grounds that they lack certification, identification, or authentication, and shall be received as evidence if otherwise admissible, in any court . . . if they have been tendered . . . in accordance with G.S. 1A-1, Rule 45(c)”).
Applicability to Criminal Cases. Even though Rule 45 is a rule of civil procedure, its provisions (other than the requirement that a copy of the subpoena be served on each party) govern the issuance of subpoenas for the production of documents in a criminal proceeding. See G.S. 15A-802.
North Carolina’s appellate courts have never squarely addressed whether an affidavit executed pursuant to the provisions of Rule 45 may substitute for live testimony by the custodian in a criminal case. In State v. Woods, 126 N.C. App. 581 (1997), the court noted that “[t]he State offered the challenged medical records by presenting written affidavits/certifications from the custodian of the records” and the defendant did not contend “the custodian should have been present to testify at trial.” Id. at 589. Indeed, the defendant’s attorney stated: “‘I’m not asking they produce the librarian.’” Id. Thus, the court concluded that it “need not address whether the affidavits/certifications were sufficient under N.C.R.Evid. 803(6), in lieu of the custodian’s in-court testimony.’” Id.
Notwithstanding the lack of case law on point, there’s a good argument that G.S. 15A-802 renders the Rule 45(c)(2) provisions applicable in criminal court. And anecdotal reports I’ve received indicate that it is not uncommon for the State in a criminal case to rely on an affidavit executed by custodian of hospital records to establish the business records hearsay exception.
Confrontation rights. In impaired driving cases, the State typically seeks to introduce hospital records that contain laboratory blood chemistry records and toxicology results. Even if the State is on firm ground for purposes of the hearsay exception in relying on an affidavit from the custodian, it may still encounter an argument from the defendant that the admission of such records violates the defendant’s right to confrontation.
The State’s ready response is, of course, that medical records created for purposes of treatment are nontestimonial. See Melendez-Diaz v Massachusetts, 577 U.S. 305, 312 & n.2 (2009). Yet there is some question as to whether the State can establish that medical records are created for purposes of treatment, and thus are nontestimonial, based on the records themselves without introducing testimony from a live witness.
A fairly recent unpublished case from the North Carolina Court of Appeals indicates that the State may be able to do just that. The court in State v. Wood, __ N.C. App. __, 736 S.E.2d 649 (January 15, 2013) (unpublished op.), rejected the defendant’s argument that the admission of medical records relating to his treatment in the emergency room after he allegedly drove while impaired violated his right to confront witnesses. The court determined that the records were related to treatment and, thus, were nontestimonial by looking at the records themselves. The records, as described by the court, “consist[ed] of the emergency room treatment notes made by doctors and nurses responsible for examining and treating Defendant after he was brought to the hospital following the accident” and documented “Defendant’s medical history, the observations made by various medical personnel concerning Defendant’s condition, the diagnosis of Defendant’s medical condition made by the team responsible for examining and treating him, and the nature and extent of the medical treatment that Defendant received.”
The Supreme Court of Massachusetts in Commonwealth v. Irene, 970 N.E.2d 291, 305 (Mass. 2012), cert. denied, 133 S. Ct. 487 (U.S. 2012), endorsed, in dicta, a similar approach, stating that “where statements contained in hospital medical records demonstrate, on their face, that they were included for the purpose of medical treatment, that evident purpose renders the statements . . . nontestimonial . . . .”
In other instances, however, courts have based their determinations of whether medical records were created for treatment purposes on testimony from the treating physician. See, e.g., Commonwealth v. Dyer, 934 N.E.2d 293, 299 (Mass. App. Ct. 2010) (relying on testimony from the treating physician that based upon hospital trauma protocol, information of possible alcohol involvement, and her own clinical observations of a patient, she would order blood work as the normal course of treatment for a trauma patient in the circumstance presented by the defendant’s case and concluding that the physician “utilized the blood alcohol content test results exclusively for her medical evaluation and treatment of the defendant” and that the records were admissible without testimony from the analyst responsible for processing the hospital blood sample); see also Commonwealth v. Sheldon, 667 N.E.2d 1153, 1155-56 (Mass. 1996) (determining in a case decided before Crawford v. Washington, 541 U.S. 36 (2004), that blood alcohol results contained in the defendant’s medical records were not admissible under a hearsay exception for recorded information that relates to medical diagnosis or treatment as the treating physician testified that the hospital had no set protocol regarding blood alcohol tests and that he suggested the blood test in an effort to prove that the defendant was not intoxicated); State v. Garlick, 545 A.2d 27 (Md. 1988) (concluding in a case decided before Crawford that the emergency room physician’s testimony that the toxicological screen of the defendant’s blood was germane to treatment rendered the test results admissible as a business record without producing the technician who performed the analysis).
Have your say. Until our appellate courts weigh in by published decisions on these issues, they are fair game for debate. What’s your view? May the State establish a hearsay exception for hospital business records based solely on an affidavit from a records custodian? May it establish that such records are nontestimonial by reference to the records themselves?