confrontation clause

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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.

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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.

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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:

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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.

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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

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 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?

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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.

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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.

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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 … Read more

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The NC Supreme Court’s Recent Substitute Analyst Cases

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 … Read more