The Confrontation Clause of the Sixth Amendment to the U.S. Constitution limits the use of testimonial hearsay statements by an unavailable witness at a criminal trial, as does its state counterpart in Article I, Sec. 23 of the North Carolina Constitution. A hearsay statement is an out-of-court statement offered for its truth. A statement is testimonial if the primary purpose of the statement was to establish past facts for use at a later prosecution. Ohio v. Clark, 576 U.S. 237, 245 (2015). The Confrontation Clause does not protect against the admission of nontestimonial statements (although hearsay statements still must meet an exception or exemption). In a recent decision, the North Carolina Supreme Court analyzed a challenge to the admission of the defendant’s phone records offered by the State at trial. Overruling the Court of Appeals on the point, the North Carolina Supreme Court found that the phone records were nontestimonial as purely machine-generated data.” The case is a good reminder of the distinctions between testimonial and nontestimonial statements and may have implications for future confrontation issues. Read on for the details.
phone records
Business Records: Posts, Chats, and Texts
Several prior posts on this blog have addressed authenticating and admitting digital evidence like social media posts and text messages (see here, here, here, and here) and we’ve also previously covered the basic rules and requirements for using the business records hearsay exception (see here, here and here), but we’ve not yet explored the questions and issues that arise when those two topics collide.
For example, if the state obtains a complete copy of a suspect’s account records from Facebook, Twitter, or AT&T, including user-generated content such as messages, chats, texts, and posts, can that evidence be admitted as a business record? I recently had an opportunity to talk about digital evidence with prosecutors in several other states, and there are opposing views in different jurisdictions about the correct answer to this question. This post looks at the conflicting interpretations, the North Carolina guidance we have so far, and an interesting alternative approach.
Authentication and Hearsay Issues with Phone Records
Suppose that the state wants to introduce the defendant’s phone records, in order to show that he called the victim in violation of a DVPO. The state subpoenas the records, and the phone company provides them, along with an affidavit from an appropriate employee stating that they are business records. Armed with the records and … Read more
Can a District Court Judge Sign an Order for Phone Records?
Last year, I published a paper about law enforcement access to phone records and other information about electronic communications. In the paper, I explained that “[a]mong North Carolina judges, only superior court judges may issue court orders for phone records.” As luck would have it, a few weeks later, Congress amended some of the relevant … Read more