cross examination

When Can the State Use Testimony from the Probable Cause Hearing at Trial?

My colleague, Phil Dixon, blogged about the Court of Appeals’ decision in State v. Joyner, 284 N.C. App. 681 (2022), here. In Joyner, the court ruled that the State did not run afoul of the Confrontation Clause when it introduced the victim’s testimony from a civil 50C hearing at the defendant’s criminal trial. Last year, the court decided State v. Smith, 287 N.C. App. 614 (2023) (unpublished), a case that provides an interesting counterpoint to Joyner. In Smith, the State recorded the victim’s testimony from the probable cause hearing in district court and moved to admit the testimony at trial in superior court after the victim became unavailable. The trial court admitted the testimony, but the Court of Appeals reversed. It ruled that the opportunity to cross-examine the victim at the probable cause hearing was not “adequate” to comport with constitutional requirements, vacated the convictions for first-degree kidnapping and human trafficking, and ordered a new trial.

Although the opinion is unpublished, the State did not seek further review, and the Smith decision has important implications for practitioners. This post examines those issues and offers advice for defenders when the State attempts to introduce recorded testimony from a probable cause hearing at trial.

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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

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.

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Who Goes Last?

In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?

In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?

The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.

That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting.

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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.

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Court Holds that Probable Cause Hearing Provides a Prior Opportunity to Cross Examine

As blog readers well know, the new Crawford confrontation clause rule provides that absent an exception or a waiver of rights, testimonial hearsay statements of a declarant who does not testify at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examination. This is a tough … Read more

Selective Assertion of the Fifth Amendment Privilege

Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman’s purse and run off. The defense cross-examines the witness about whether he’d used drugs shortly before the crime took place, hoping to show that the witness’s perception was impaired. If the witness asserts his Fifth … Read more