North Carolina Criminal Law Blog

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 […]

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.

On June 18^th 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.

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.

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. […]

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 […]

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 […]

My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to […]

I’ve previously discussed the forfeiture by wrongdoing exception to the confrontation clause in this blog (here) and in numerous other publications (for example, here). In a nutshell, the forfeiture by […]

In a paper here I analyze Williams v. Illinois, the U.S. Supreme Court’s latest confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale […]