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. Continue reading
Tag Archives: confrontation clause
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
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.
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.
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 →
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. 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 →
U.S. Supreme Court Rules that Child’s Statements to Teachers Are Non-Testimonial
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 →
US Supreme Court to Decide Whether Child’s Statements to Teacher Were Testimonial
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 →
With Cert Denials, Hope Fades for Clarification on Use of Substitute Analysts
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.