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
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
A new case from the Supreme Court of North Carolina gives us a chance to revisit the issue of a defendant’s confrontation rights at a probation violation hearing. Continue reading →
Defendants can lose confrontation rights a number of ways. Under the various notice and demand statutes, failure to object and demand the presence of the witness in a timely manner following receipt of the State’s notice results in waiver of the right to personally confront the witness. See, e.g., G.S. 90-95(g); G.S. 20-139.1(e1) (among others). A defendant can also forfeit his or her right to confrontation by wrongdoing—where the State can prove that the defendant’s conduct resulted in the unavailability of a witness, the defendant loses the right to confront that witness. Giles v. California, 554 U.S. 353 (2005). Stipulations to the admissibility of evidence, the subject of today’s post, are another form of waiver. When the defendant stipulates to a lab result, the right to personally confront the analyst is lost. What process is due before the judge accepts such a stipulation? Is the stipulation itself sufficient to waive confrontation rights? Or should the trial judge personally engage the defendant to ensure the waiver of confrontation rights is knowing and voluntary before accepting the stipulation? The Court of Appeals answered that question in a recent case. Continue reading →
Cross-Examination on Pending Charges
Can the defense question a State’s witness about pending charges? May the State question the defendant or defense witnesses on their pending charges? The Rules of Evidence allow impeachment by conviction of a crime under Rule 609, but nothing in the rules speaks to impeachment by evidence of pending charges specifically. The question comes up frequently enough that I wanted to write about it. Read on for the answer. Continue reading →
In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis. Continue reading →
Don’t Look a Gift Horse in the Mouth
As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to overcome Crawford with respect to a lab report because the preparer is (choose one): dead, retired and has moved away, on National Guard duty in Afghanistan, or scheduled for a C-section. Here’s how the typical conversation goes:
ME: Did you give notice under the notice and demand statute?
PROSECUTOR: What notice and demand statute?
The failure to take advantage of these statutes is so pervasive that a recent criminal case went all the way up the N.C. Supreme Court before the State realized it had neglected to argue notice and demand. In that recent case–State v. Jones–the N.C. Court of Appeals issued an opinion awarding the defendant a new trial in part because the trial court committed plain error by admitting a SBI crime lab report into evidence without testimony by the analyst. The court reasoned that the report was testimonial and its admission violated Crawford. The State then filed petitions for writ of supersedeas and discretionary review with the N.C. Supreme Court, arguing that the court of appeals erred by ordering a new trial. After the Court granted the petitions, the State filed a motion to amend the record on appeal to include a copy of the SBI report and a copy of the notice given under the applicable notice and demand statute. These documents weren’t in the record filed in the court of appeals and the State didn’t argue notice and demand in its original brief. The Court granted the motion to amend the record and remanded the case for reconsideration in light of the amended record. On the second go-around the court of appeals easily disposed of the case: the State gave proper notice; the defendant never objected; the confrontation issue was waived.
The General Assembly gave the State a gift when it enacted new and amended existing notice and demand statutes after Melendez-Diaz. Again, these statutes provide a vehicle for obtaining a constitutional waiver of confrontation rights. But prosecutors have to open the gift to realize its benefits. As a refresher, here’s a cheat sheet of North Carolina’s seven notice and demand statutes:
4th Circuit Ruling: Child’s Statements to Social Worker Are Non-testimonial
The U.S. Supreme Court’s new Crawford confrontation clause rule has had significant impact in child victim prosecutions, largely because of problems with getting children to testify. One frequent Crawford question that arises in these cases is: Are a child’s statements to a social worker testimonial? In a paper here, I explore the testimonial analysis and other Crawford issues. However, on this particular question, there is no North Carolina law on point. Recently a former N.C. judge, now serving on the 4th Circuit, provided some guidance in United States v. DeLeon, __ F.3d ___ (4th Cir. May 15, 2012).
In DeLeon, the defendant was convicted for murdering and assaulting his eight-year-old stepson Jordan. Jordan died while under the defendant’s exclusive care. An autopsy showed that Jordan died from hemorrhaging due to a lacerated liver and that he had bruising on his face, torso, and buttocks. All of the injuries resulted from blunt force. The medical examiner determined that Jordan’s death was a homicide. The government’s theory was that the defendant—who had a history of using corporal punishment—struck Jordan, lacerating his liver.
At trial the government introduced extensive evidence of the defendant’s physical punishment of Jordan. It also presented evidence that about five months before his death, Jordan and his family met with Beth Thomas, a social worker and treatment manager at the Air Force Family Advocacy Program (FAP). A teacher referred Jordan to the FAP after noticing a bruise on his forehead. The FAP is a medical program; one of its purposes is preventing and treating child abuse. Jordan told Thomas that the defendant punished him by spanking him with a hand and belt and forcing him to hold a hammer for several minutes while leaning down. When Thomas asked about the forehead bruise, Jordan said that the defendant punished him by forcing him to lie on the floor while the defendant kneeled and stood on Jordan’s back. After meeting with Jordan and his family, Thomas concluded that only “minor physical” abuse had occurred. She had several subsequent meetings with the family to provide counseling and parenting advice.
After the defendant was convicted, he appealed arguing that his confrontation clause rights were violated when the trial court admitted Jordan’s statements to Thomas. The Fourth Circuit began by noting that whether there is an ongoing emergency is a key factor in the testimonial analysis. Here, it concluded, no emergency existed. It noted that Jordan’s forehead injury occurred several days earlier and there was no basis to conclude that either Thomas or Jordan intended to develop information to respond to an ongoing emergency. The court was careful to note however that it was not suggesting “that ensuring a child’s safety and removal from an abusive home could never present an ongoing emergency.” Instead it found that the facts presented did not support such a finding.
The court next rejected the defendant’s argument that nature of the FAP made Jordan’s statements testimonial. The court noted that although part of the force’s medical command, the FAP uses both medical and security personnel and requires reporting and investigation of allegations of family abuse. In fact, Thomas testified that she occasionally worked with law enforcement. However, the court rejected the argument that the FAP’s reporting requirements and security component were determinative of whether Jordan’s statements were testimonial.
The court then proceeded to an objective analysis of the primary purpose and circumstances of the interview. It noted that Thomas did not have, nor did she tell Jordan that she had, a prosecutorial purpose. Thomas was not employed as a forensic investigator but rather as a treatment manager. Additionally, there was no evidence that Thomas recorded the interview or sought to preserve Jordan’s answers for use at trial. Rather, Thomas used the information to develop a treatment plan and she continued to provide the family with counseling afterwards. These actions are consistent with her testimony that her “primary purpose [was] to provide the treatment and assistance that the family needs.” Acknowledging that an evaluation of the primary purpose of Jordan’s statement was more difficult, the court rejected the notion that a child’s age is determinative. Instead, it held that a child’s age is just one relevant factor. It found it significant that Thomas never told Jordan that his answers would be reported to the authorities, and there was no evidence that Jordan thought that would occur. It concluded:
[W]e are satisfied . . . that the primary purpose . . . [was] not . . . the preservation of evidence for a future criminal prosecution. A review of the circumstances of the meeting reinforces our conclusion. Jordan came to the meeting with his family . . . . Although protocol required that Thomas meet with each family member independently, no effort was made to separate Jordan from [the defendant] in the waiting area. Thomas also did not meet with Jordan in an interrogation room or at a police station but instead spoke with him in her office in a building that housed the FAP, as well as other mental health service providers. In short, the interview between Thomas and Jordan simply does not bear the hallmarks of a testimonial interrogation.
Importantly, the court noted, this was not a case where the social worker was an agent of law enforcement. Thomas did not respond to a law enforcement request and no criminal investigation was ongoing. Also there was no evidence that the discussion was videotaped or otherwise preserved as evidence or that anyone else listened in on or secretly observed the meeting.
For those involved in child abuse prosecutions, DeLeon is significant. It holds that notwithstanding the lack of an ongoing emergency and the fact a social worker may have a reporting requirement, statements made to a social worker still can be non-testimonial. This is big news.
Under the new Crawford confrontation clause analysis, testimonial hearsay statements by witnesses who do not appear at trial cannot be admitted unless the prosecution shows unavailability and a prior opportunity for cross-examination. As discussed in more detail in my paper here, the U.S. Supreme Court has recognized a forfeiture by wrongdoing exception to the Crawford rule. The exception extinguishes confrontation claims on the equitable grounds that a person should not be able to benefit from his or her wrongdoing. Forfeiture by wrongdoing applies when a defendant engages in a wrongful act that prevents the witness from testifying, such as threatening, killing, or bribing the witness. When the doctrine applies, the defendant is deemed to have forfeited his or her confrontation clause rights. Put another way, if the defendant is responsible for the witness’s absence at trial, he or she cannot complain of that absence.
The recent case of State v. Weathers is the first North Carolina case to apply the forfeiture by wrongdoing exception. In that case, the defendant was charged with first-degree murder and kidnapping. At trial an eyewitness named Johnny Wilson was a key witness for the State. When Wilson began his testimony, he was visibly upset. When his testimony resumed two days later, Wilson quickly became distraught and indicated he did not wish to make any other statements. Wilson, who was shaking, laid his head down on the witness stand and began to cry. He became even more upset when a young man dressed in street clothes entered the courtroom. When asked if he had been threatened, Wilson responded, “I don’t even want to answer that question.” In light of Wilson’s condition, the trial court excused him from further testimony. At the prosecution’s request, the court called a hearing on whether the doctrine of forfeiture applied so that Wilson’s testimony would remain on the record. Meanwhile, the defense moved for a mistrial. At the hearing, Wilson disclosed that as they were being transported to the courthouse for trial, the defendant threatened to kill Wilson and his family. A detention officer testified to having heard this threat. Also, in a taped interview with detectives and prosecutors, Wilson repeatedly expressed concern for his life and the lives of his family members. Finally, the defendant made several phone calls showing an intent to intimidate Wilson. In one call to his grandmother, the defendant repeatedly referred to Wilson as “nigger” and stated he would “straighten this nigger out.” During the phone calls, the defendant joked about the “slick moves” he used to prevent Wilson from testifying. In other calls, the defendant instructed several acquaintances to come to court to intimidate Wilson while he was testifying. One of those acquaintances said he would be in court on a specified day. On that date, Wilson, who had already been hesitant and fearful on the stand, became even more emotional and broke down when he saw a young man dressed in street clothes indicative of gang attire enter the courtroom. Having heard this evidence, the trial court rejected the defendant’s motion for a mistrial and directed that Wilson’s testimony remain on the record. The trial court found that the defendant had “committed wrongful acts that were undertaken with the intention of preventing potential witnesses from testifying and has in fact caused a potential witness, Johnny Wilson, to refuse to testify.”
On appeal, the defendant argued that the trial court erred by denying the mistrial motion. Specifically, he asserted that his actions were not designed to prevent Wilson from testifying and were not egregious enough to trigger forfeiture of his confrontation rights. The court of appeals disagreed finding that the record supported a finding of forfeiture by wrongdoing. In its analysis the court specifically rejected the defendant’s argument that application of the doctrine was improper because Wilson never testified that he chose to remain silent because he was afraid of the defendant. On this point the court stated:
It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant has intimidated the witness into not testifying. Put simply, if a witness is afraid to testify against a defendant in regard to the crime charged, we believe that witness will surely be afraid to finger the defendant for having threatened the witness, itself a criminal offense.
Of course in this case Wilson did in fact testify at the hearing. In any event, the court went on to find the evidence at hand “egregious” and that the trial court properly determined that the defendant had forfeited his right to confront Wilson. Finally, it held that the trial court did not abuse its discretion in refusing to grant a mistrial.
In part because the facts of Weathers were so convincing, the case doesn’t add a lot to our understanding of what types of more subtle conduct will suffice to support a finding of forfeiture by wrongdoing. Also, because the trial court applied a clear, cogent, and convincing evidence standard of proof, the court of appeals did not have occasion to decide whether the lesser preponderance standard might apply to the forfeiture determination. Finally, because no issues were raised on appeal about the procedural aspects of the forfeiture hearing, we’re no further along with our understanding of those issues. What the case does provide, however, is a ringing endorsement of the forfeiture by wrongdoing doctrine and a set of compelling facts to which it applies.
Under G.S. 15A-1345(e), a probationer is entitled at a probation violation hearing to “confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” What does that statute mean by confrontation?
The statute’s language comes directly from a 1973 case called Gagnon v. Scarpelli, 411 U.S. 778 (1973), in which the Supreme Court of the United States set out what process is due at a probation violation hearing. The Court held that before probation is revoked, a probationer is entitled to, among other things, “the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786. As you can see, the statute practically quotes the Court.
The law’s reference to confrontation may call to mind the Sixth Amendment’s Confrontation Clause, which Jessie Smith has written so much about on this blog and elsewhere (her flagship bulletin, Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez Diaz (Apr. 2010), is available here). The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If you’ve learned anything from Jessie you know that the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), excludes a lot of evidence that might otherwise be admissible under the rules of evidence and older confrontation case law.
But that’s Sixth Amendment confrontation. Read the amendment carefully and you’ll see that it applies to “criminal prosecutions”—and North Carolina’s courts have long held that a “proceeding to revoke probation is not a criminal prosecution.” State v. Duncan, 270 N.C. 241 (1967). The supreme court put it to an even finer point in State v. Braswell, 283 N.C. 332, 337 (1973): at a probation hearing, the “Sixth Amendment rights of th[e] defendant are not involved.”
The confrontation right discussed in Gagnon is not a Sixth Amendment right, but instead a matter of due process under the Fourteenth Amendment. Due process confrontation is more flexible than its Sixth Amendment cousin. It’s not, as the Court called the Sixth Amendment in Crawford, a procedural “guarantee.” Rather, it’s rooted in notions of “fairness,” and the court may deny confrontation if it has a sufficiently “good cause”—something that would not be true if Crawford controlled. The Supreme Court even noted in Gagnon that “[w]hile in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not . . . intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”
But due process confrontation is not so flexible as to be meaningless. In State v. Coltrane, 307 N.C. 511 (1983), the Supreme Court of North Carolina reversed a probation revocation when the trial court did not allow the probationer to confront her probation officer. At the hearing the district attorney simply relayed to the court that the probation officer told the DA that the probationer had failed to get a job. The probation officer wasn’t present at the hearing, and the conversation between the probationer and the judge went like this:
Probationer: “I’m expecting a call about a job at—”
The Court: “Do you have a job now?”
Probationer: “No, sir.”
The Court: “Let the sentence be put into effect. She’s in custody.” Id. at 515.
The court of appeals upheld the revocation, but the supreme court reversed on grounds that the defendant “was allowed to confront neither the prosecuting attorney who claimed that the probation officer had told him that the defendant had not procured employment nor the probation officer herself.” Further, the high court concluded, “No findings were made that there was good cause for not allowing confrontation.” Id. at 515–16. In short, the Coltrane court concluded that G.S. 15A-1345(e) means what it says.
In a more recent case, State v. Terry, 149 N.C. App. 434 (2002), a probationer complained on appeal of her revocation that she didn’t get an opportunity to cross-examine someone (one of her professors, who did not appear at the hearing) who provided damaging information about her to her probation officer. The court of appeals affirmed the revocation, noting that the defendant never subpoenaed the professor or otherwise asked to confront him. (That line of reasoning would be improper in the Sixth Amendment context. The Supreme Court has said that “the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).) The Terry court added that any error by the trial court was harmless to the extent that the professor’s statements merely confirmed information provided through other sources.
Terry never cites to Coltrane so it’s hard to know precisely how the cases fit together when thinking about how confrontation at probation hearings plays out in practice. I won’t let that stop me from concluding with a few practical thoughts.
For probation officers: I am told you are sometimes asked to testify based on a violation report prepared by another officer. When that happens, it seems the testifying officer should be prepared to explain why the officer who prepared the report is unavailable. That’s not to say, however, that I think the State needs to make the same showing of a “good faith effort to obtain the witness” that it would be required to make for Sixth Amendment purposes. Cf. Smith, supra, at 26.
For judges: We don’t have much guidance on what amounts to a “good cause” for not allowing confrontation. It strikes me that (at a minimum) you’d need to consider both the reason for the witness’s absence and the type of information at issue. Some violations, such as a positive drug screens or a new criminal convictions, may be proved just as well through documentary evidence, whereas others, such as failing to report to the officer in a “reasonable manner,” would seem more likely to require live, first-hand testimony.
And finally for probationers, it seems the best advice on this front may be that if you want to confront an adverse witness, be sure to bring it up at the violation hearing. Don’t raise it for the first time on appeal. See, e.g., Duncan, 270 N.C. at 246 (“[N]owhere in the record does it appear that the defendant asked to cross-examine any witnesses for the State, and particularly the State Probation Officer . . . , and was refused.”).